|Timing in case against Jefferson tricky|
Election may affect when feds tip hand
Sunday, September 24, 2006
By Bruce Alpert - NOLA.com
WASHINGTON -- With the selection last week of a technology expert to copy documents from computer hard drives taken from Rep. William Jefferson's office, the Justice Department might soon have the material it says it needs to wrap up its 18-month investigation of the New Orleans Democrat.
That could leave the agency with a dilemma: Should the department decide whether to seek an indictment of Jefferson before the Nov. 7 primary or wait until after the race is decided?
Jefferson, facing the first tough re-election challenge since his election to the House of Representatives in 1990, has attracted 12 opponents.
While the timing of elections is one of many factors that the Justice Department examines in deciding whether to indict an elected official, matters of law are the paramount concern, former and current federal prosecutors said.
"The policy is that you should bring an indictment when you have the evidence and when you are ready to proceed without consideration for an election," said Eric Holder, who headed the department's public integrity section during the Clinton administration.
A current Justice Department official, who asked not to be identified because he feared his "general remarks about process" might seem aimed at the Jefferson probe, said an election could be one of many factors considered. But he said it is a relatively minor one and is even less important in a case where the public is already aware that the elected official is the target of a probe.
Jefferson has all but said he expects to be indicted, proclaiming that he looks forward to vigorously proclaiming his innocence in the "appropriate time and forum."
No good choice
The investigation, in which a cooperating witness secretly recorded conversations with Jefferson, has netted two guilty pleas from former associates who say the congressman demanded and accepted bribes through businesses operated by his family in return for pushing technology projects in Africa.
In the past, the Justice Department has indicted elected officials right before and right after elections. Either way, the timing has generated criticism. Indictments just after an election have been criticized for not giving voters information they needed to evaluate the candidate up for re-election. Indictments just prior to an election have been attacked as attempts to snuff out the official's re-election chances.
"Either way you decide to do things -- whether to bring charges before an election or after an election -- can be considered political," said Binny Miller, a law professor at American University's Washington College of Law. "If you indict before an election, let's face it, some people consider being charged with the crime the same as being found guilty by a jury, ignoring the long-held belief by many that a prosecutor could get a grand jury to indict a ham sandwich."
Stanley Brand, a former counsel to the House of Representatives, said it's not as if investigations of House members can occur at convenient intervals.
"House members run every two years," Brand said, "so there really isn't any good time to indict if you don't want to influence elections."
In Jefferson's case, it's unclear how an indictment before the November election would affect his chances. Significant information about the case has already come out, including the discovery of $90,000 in $100 bills packed inside the freezer of his Washington, D.C., home. So it's possible that voters already think they know the worst and have already decided whether they believe Jefferson's declarations of innocence.
An indictment might even boost Jefferson's claim that the Justice Department, which subjected him to the first-ever raid of a congressional office, was unfairly targeting him.
Often seen as guilty verdict
On the other hand, as Miller, the American University law professor, says, some voters see an indictment as almost tantamount to being found guilty, regardless of the presumption of innocence guaranteed defendants.
Among the examples of government indictments that generated controversy was the 1988 decision to prosecute Rep. Robert Garcia, D-N.Y., on bribery-extortion charges, announced two weeks after he was elected to a sixth term. Asked why the indictment wasn't brought before the election so voters could weigh the charges, the federal prosecutor, Rudolph Giuliani, later mayor of New York, responded that the timing was based entirely on legal, not political, considerations.
In 1978, Rep. Joshua Eilberg, D-Pa., was indicted two weeks before the general election on charges of receiving illegal compensation to help a hospital get a federal grant. Eilberg, who died in 2004, lost the election.
Asked why the indictment was brought so close to the election, then-U.S. Attorney Peter Vaira said: "We have one rule: Whenever an investigation is finished, we bring an indictment. To do otherwise would be unfair."
Last week, U.S. Magistrate John Facciola ordered the computer forensics firm of Stroz Friedberg LLC to begin searching computer images seized from Jefferson's office, instructing the firm to deliver computer documents to him on a "rolling basis" of no fewer than 1,500 pages, and not more than 1,700 pages. Some involved in the case expect that process to continue for two or three weeks.
Under a process established by a three-judge appellate court, Jefferson's attorneys would have 48 hours after getting all the material seized from his office to argue what documents they think should be denied to federal prosecutors.
If Chief District Court Judge Thomas Hogan rejects Jefferson's request, his ruling would likely set up another appellate hearing, although it's not certain it would hold up distribution of the documents federal prosecutors say they need to wrap up their investigation.
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Bruce Alpert can be reached at email@example.com or (202) 383-7861.