|Trial date still unclear for U.S. Rep. William Jefferson|
by Bruce Alpert, The
Thursday November 27, 2008, 9:28 PM
WASHINGTON More than 39 months after FBI agents raided his home and found $90,000 stuffed in his freezer, Rep. William Jefferson, D-New Orleans, still is without a firm date for a corruption trial that could derail his political career even if voters give him a 10th term in Congress Dec. 6.
His trial, which had been slated to begin last February and then was rescheduled for Dec. 2, four days before his general election, is now likely to be put off until early 2009, at the earliest. The delays were brought about by the slow pace of the legal system and the thorny legal issues generated by a case with so many judicial firsts and legal precedents that it likely will be studied by legal scholars for decades.
Jefferson, who easily beat former TV anchor Helena Moreno to win the Democratic primary on Nov. 4, rates as a heavy favorite over his four challengers, including Republican political neophyte Anh "Joseph" Cao, in the Dec. 6 general election.
What happens after election day remains far less sure.
Jefferson was stripped of his spot on the Ways and Means Committee on Dec. 11, 2006, after the Justice Department confirmed the cash haul agents took from the freezer in his Washington, D.C., home. He hasn't had a committee assignment since, even after winning re-election in 2006. Since the 2006 election, he's been indicted on 16 corruption charges by a Virginia grand jury.
Although committee assignments for the new Congress that takes office in January haven't been worked out, several aides to members of the Democratic leadership say it's unlikely that Jefferson will get one.
House Speaker Nancy Pelosi, D-Calif., was stung two years ago by negative reaction to her attempt to put him on the House Homeland Security Committee, an appointment she justified because the panel dealt directly with the federal response to Hurricane Katrina.
She was forced to back down when House Republicans argued that putting an indicted congressman on the panel was a security risk.
But the major question for Jefferson, if he wins Dec. 6, is whether he can beat back the 16-count federal corruption indictment and whether he can stay in Congress.
Most experts agree that if he is convicted on all or most of the charges, he'd be a goner from Congress -- even if the trial judge, T.S. Ellis III, allows him to remain free pending an appeals process that could drag on for years.
If he's acquitted, he would be subject to House Ethics Committee jurisdiction. Jefferson's defense attorneys maintain that the payments, stocks and promised payments the indictment says he sought from business executives for family-owned businesses weren't bribes, as the Justice Department contends, because he never performed an official act such as casting a vote, or introducing legislation.
Helping businesses get contracts in West Africa, his attorneys argue, has nothing to do with the official acts of a member of Congress.
But getting outside income could be perceived as a violation of House rules. Congressional scholars say that if he is acquitted, Jefferson could face a reprimand from the House Ethics Committee, but not removal from Congress.
"Censure or reprimand if acquitted, " said Norm Ornstein, a senior fellow at the American Enterprise Institute and congressional expert. But if Jefferson is found guilty, "I think they have to expel him, appeals notwithstanding, " Ornstein said. "You can't let a convicted felon serve in Congress."
Only five members of the House of Representatives have been expelled, including only two since the 19th century, under a process that requires a two-thirds vote by the 435 House members.
The number is low, according to Allan Lichtman, a congressional historian at American University, because most members who have been convicted of a felony resign rather than face almost certain removal by their colleagues.
"But Jefferson strikes me as someone who might be stubborn enough and refuse to resign, " Lichtman said. But Lichtman expects that if convicted, Jefferson's efforts to retain his seat won't be any more successful than those by Rep. James Traficant. The Ohio Democrat, the most recent House member to be expelled following a felony conviction, argued to no avail that his 2002 conviction for taking bribes and filing false tax returns was a result of prosecutorial misconduct.
Stanley Brand, a former counsel to the House of Representatives, isn't so sure. If Jefferson is convicted, and then allowed by Judge Ellis to remain free pending appeal, some members may argue that he should continue to serve given the weighty constitutional issues he's likely to raise in the higher courts.
"Jefferson would have a more compelling case than some -- that he has been re-elected twice -- that his constituents understood what the allegations are and voted for him anyway, " Brand said.
But that argument didn't prevail in the Senate, where GOP colleagues of Republican Sen. Ted Stevens, convicted less than two weeks before the Nov. 4 election for not reporting gifts from an Alaskan contractor, were preparing to recommend his ouster even if he won re-election.
They dropped the matter when Stevens lost.
Jefferson is accused of bribery, racketeering and other charges based on what the government says was a series of schemes in which he demanded, and sometimes received, payments to companies controlled by family members and supporters, in return for his help getting contracts, mostly in West Africa.
But the case is complicated, and has drawn a series of pretrial appeals, including one in which Jefferson's attorneys persuaded the Washington, D.C., Court of Appeals to limit use of materials collected during the first-ever raid of a congressional office.
Jefferson has been less successful with efforts to throw out 14 of the 16 most serious charges pending against him on grounds that the grand jury heard testimony about his congressional activities in violation of a constitutional clause that protects the legislative branch from interference from the executive.
Some of the constitutional issues could end up being decided by the U.S. Supreme Court -- most likely after his trial.
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Bruce Alpert can be reached at firstname.lastname@example.org or at 202.383.7861.