[I know, you're thinking, "Not another one." Bear with me here. There's a lot to the Jefferson story that's not been properly disclosed which casts doubt on whether or not a bribery charge against Jefferson is entirely warranted.]
By now you're likely convinced that Rep. Jefferson (D-LA) has taken substantial money for bribes and should be driven out of office, either via public outcry or by the Democratic leadership. My first response was similar in nature. Politically speaking, the Jefferson scandal is bad, bad news for the Democrats. While backlash over corruption will still harm incumbents moreso than anyone else, I think we all wish Jefferson's name never made news in this capacity. However, we should look beyond the news reports and look at the actual facts of the case.
Sure, the story about Jefferson keeping $90k in his freezer is a sexy story. A real water-cooler scandal. But, in order to gauge the severity of Jefferson's deeds, we should look at the big picture of his actions. I suggest this not out of any partisan zeal, but out of deference to the actual facts surrounding his case rather than the innuendo in the press, etc. It's my contention that, while Jefferson is taking a pounding in the court of public opinion, his legal troubles could be worse.
Whenever we talk about corruption here (typically in reference to the Wilkes and Abramoff scandals) we usually talk about the necessity of a quid pro quo, or "something for something." Without clear-cut proof of a formal "official act" done by the lawmaker, which can be connected to a "thing of value," a federal bribery charge is virtually impossible to secure.
In Jefferson's case, here's what the FBI starts off with:
"The facts and circumstances described below outline the probable cause that United States Congressman William J. Jefferson, acting in concert with the other targets, has sought, and in some cases, has already accepted, financial backing and/or concealed payment(s) of cash and/or equity interests in business ventures located in the United States, Nigeria and Ghana (things of value) in exchange for his undertaking of official act(s) as a United States Congressman while promoting the business interests of the targets, including Jefferson himself."
But when the FBI gets more specific on what these "official acts" are, the most damning are:
- "sending an official letter to the Nigerian Vice President seeking his assistance to overcome opposition to the iGate business venture from the government-owned Nigerian telephone company" [Was it on Jefferson's Congressional letterhead?]
- "using his Congressional staff to plan the trip to Ghana and to obtain travel documents for the individuals making the trip with him"
- "In December 2004, Jefferson and CW-1 had lunch in the Congressional dining room and Jefferson discussed the iGate deal."
So we've got: sending an official letter, using his Congressional staff to plan a foreign business trip and lunching at the Congressional dining room over business. Also listed are meetings between Jefferson and foreign government officials, but since these don't seem to fall under a "formal official act," I've left them aside.
Not a single piece of legislation, not a single earmark, not a single amendment, not a single Congressional remark is listed. All of which are the real marrow of a formal "official act," the very legislative process itself.
Using the recent bribery case law as a template for prosecuting bribery, it's doubtful whether these actions rise to the crucial level of "formal official act[s]."
18 USC § 201( c )(1)(B) defines an "official act" as:
"any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official...."
"Or which may by law be brought before any public official." Do telecommunications contracts in Ghana or Nigeria fall under this scope? Very, very doubtful.
The recent Valdes decision by the Court of Appeals further narrowed the definition of "official acts." Valdes was a DC Metro Police Department Detective who took cash for simply supplying information gleaned from performing routine license plate searches.
"We rejected the government's argument that official acts "encompass any acts within the range of an official's public duties," which the government argued included Muntain's meeting with labor union officials."
In short, an "official act" is not simply any action whatsoever taken by an official. The term is much more narrowly confined.
Further in the Valdes decision:
But in Muntain we clearly rejected the idea that such a use of government resources was in itself an "official act" within the meaning of §201(a)(3).
Again, more doubt to cast on the above-mentioned "official acts." Mere use of government resources does not rise to the level of "official act" necessarily.
So what, exactly, is an "official act"? Again from the Valdes decision:
"The words are far from self-defining, but they suggest at least a rudimentary degree of formality, such as would be associated with a decision or action directly related to an adjudication, a license issuance (or withdrawal or modification), an investigation, a procurement, or a policy adoption.
And, later in Valdes:
"All the officials' acts (the WALES queries, ceremony, visit, or speech) have in common that none is a "decision or action" that directly affects any formal government decision made in fulfillment of government's public responsibilities. Thus distortions of government execution of policy are (depending on one's scheme of classification) either non-existent or entirely in the realm of casual and informal use of government resources. While one or more of Valdes's disclosures may have been unethical, sanctionable, or even criminal independently of §201, and while disclosure of an outstanding arrest warrant might have an indirect effect on its execution, none of these disclosures constituted a "decision or action on any question, matter [etc.]" in the usual sense of the words."
As Randall D. Eliason, a former chief of public corruption at the US attorney's office in Washington, recently told the LA Times, "[The cash in the freezer] could be some kind of business deal that is improper or unethical but not a crime. It may be sleazy--but not necessarily illegal."
Does it look corrupt? Does it look unethical? Does it look shadowy? Does Jefferson look guilty of something? Absolutely, but the illegality surrounding the case is far from certain.
A recent New Orleans Times-Picayune article suggests that Jefferson's legal team should pursue this angle if they're smart. (And, I suspect, this partially explains Jefferson's very public defiance up to this point.)
"U.S. Rep. William Jefferson's public response to the federal government's investigation of his business dealings suggests his legal defense could be that his actions were distinct and separate from his congressional responsibilities and therefore not subject to federal bribery statutes, legal experts say.
The New Orleans Democrat last week said he had never requested or accepted anything to "perform a service for which I have been elected." He said he is disappointed and perplexed by a former aide's guilty plea last week and the former aide's accusations that Jefferson had demanded jobs for family members and a business stake in exchange for his assistance with lucrative telecommunications contracts in Nigeria and Ghana.
As Justice Scalia said in SCOTUS' 1999 Sun-Diamond Growers decision:
"We hold that, in order to establish a violation, the Government must prove a link between a thing of value conferred upon a public official and a special `official act' for or because of which it was given."
Bribery is a very difficult case to bring these days, and doesn't stop at the fact that an official received a large amount of money. Prosecutors must show both the receipt of money/gifts and the "formal official act" which it is linked to. In comparison, a lesser charge (like tax fraud) would be far easier to prove.
Jefferson's troubles mirror closely that of former Sen. Torricelli (D-NJ), who was reprimanded by the House Ethics Cmte., but ultimately never charged criminally. The Ethics Cmte. decision came after Torricelli took funds and gifts from a Chinese businessman in exchange for contacting government officials, international officials and holding business meetings with the contributor and foreign officials. The Ethics Cmte. has a far lower standard for admonishing a member in comparison to prosecution. But, with the Ethics Cmte. just now starting to look into Jefferson, don't expect a decision until after the November elections.
Here's what can be expected if a "Letter of Reproval" is written by the Committee:
"Recommendations may include censure, removal from committee membership, or expulsion from the House, in the case of a Member, or removal from office or employment or punishment for contempt, in the case of an officer or employee."
For more on House rules concerning this matter, check out the Congressional Research Service's report, "Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives."
According to the report:
"Thus, each House of Congress has disciplined its own Members for conduct which has not necessarily violated any specific rule or law, but which was found to breach its privileges, demonstrate contempt for the institution, or which was found to discredit the House or Senate. When the most severe sanction of expulsion has been emploed in the House, however, the conduct has historically involved either disloyalty to the United States Government, or the violation of a criminal law involving the abuse of one's official position, such as bribery."
Expulsion from the House, by two-thirds vote, is very unlikely at this point in the case. (Republicans wouldn't support because it would create a dangerous precedent for future expulsions, potentially affecting numerous members on their side of the aisle.) And Jefferson certainly doesn't look at all close to resigning, despite his statement to the FBI informant that he wouldn't be sticking around much longer after getting her deal done.
Short of an unlikely speedy finding by the Ethics Cmte., the November LA-2 primary looks like the most likely means of unseating Jefferson. At this point, it doesn't seem very likely, with many candidates deferring until Jefferson resigns or decides not to run for re-election. Here's hoping Jefferson keeps to his word to the FBI informant and foregoes re-election.
