The Silver Lining of a Miscarriage of Justice

Tom DeLay

From the very first post at the old place, we have steadfastly maintained that charges related to money laundering against former Rep. Tom DeLay (R-Abramoff) were without merit. Mr. DeLay's recent conviction does not change that view. This verdict is a miscarriage of justice. Every single transaction was legal -- TRMPAC money to the RNC and RNC money to seven Texas House candidates (including widely respected former Pearland representative Glenda Dawson) were all legitimate. It seems to us that there can't be money laundering in a series of legal transactions.

But there just might be a silver lining related to this miscarriage of justice. Details related to Mr. DeLay's very real Washingon-based corruption may be revealed during the sentencing phase. From Juan Lozano of the Associated Press:

The sentencing hearing, which is set to begin Dec. 20, will feature "numerous witnesses who will talk about the other acts of corruption that Tom DeLay has committed," lead prosecutor Gary Cobb said. The defense, which called only five witnesses during the trial compared to 30 for the prosecution, also could present testimony in the penalty phase.

Emphasis added

We didn't paid a lot of attention to the state trial since there didn't seem to be any underlying crime. We're convinced that an appeals court will rightly determine that the Texas money laundering statute was wrongly applied in this case and that DeLay's conviction will be overturned. (We're also convinced that those who'd like to criminalize their political opponents will howl about the future appeals court decision.)

There typically isn't anything good about a travesty of justice, and there's no doubt that the cost of former Travis County Ronnie Earle's corruption of the judicial process has been exceedingly high to Mr. DeLay and his family. It would have been preferable to learn more about Mr. DeLay's real crimes from the Department of Justice. But if we learn more about the corrupt acts from witnesses such as Ed Buckham, Chris Perkins and Tim Berry at DeLay's Austin-based sentencing, we're all ears.

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*** Update ***
November 30, 2010
1:46 a.m. CST

The editorial board of the Washington Post makes a similar point regarding the verdict. But the WaPo doesn't seem as eager as I am to learn new facts during the sentencing phase.

Dressing Badly and Looking Cheap

This isn't a comeback; we just had to share an article in today's Houston Chronicle. We laughed out loud while reading R.G. Ratcliffe's description of jury selection in Tom DeLay's trial:

Another potential juror on his questionnaire said he thought DeLay "dressed badly and looked cheap." Under questioning, the man said he had mistaken DeLay for Houston criminal defense lawyer Rusty Hardin.

Three women said they only recognized DeLay from his recent appearance on the television show Dancing With the Stars. One said he should not have appeared on the program because "he is a bad dancer."

We eagerly await the observations of the jury pool in the Fraser Verrusio case. How do Mr. Verrusio and his defense team dress? We don't know if Mr. Verrusio is a good dancer, but evidence in the trial will likely show that he visited Privileges, a Manhattan dance studio of sorts.

Tom DeLay Investigation Dropped

As everyone is undoubtedly aware, the Justice Department has told attorneys for Tom DeLay that its investigation into him has quietly ended. This is obviously very disappointing development to the ACR Blog, but it should not be interpreted as an exoneration of our former Congressman. There is some sort of partisan Rosarch test related to scandals involving elected officials. Typically, people only see scandal on the other side. Democrats will invariably deny that Bill Clinton's made false statements under oath since he was never held criminally accountable for that. Apologists on the other side will declare that Mr. DeLay's relationship with Jack Abramoff was above-board because he will not be held accountable for them.

One consultant to the ACR Blog has repeated told us that he appreciated the blog because the acts of many of the Congressional staffers in this scandal are documented most thouroughly on these pages. It was never the intent of the ACR Blog to be a court of law, but we did intend to collect facts about the players in this scandal. We're fully aware that for many of the staffers, a post on the ACR Blog could immediately top a Google search for that staffer. That fact instilled a great amount of responsibility for the author of this blog, and we believe we risen to the challenge.

Given the announcement about Mr. DeLay, the primary purpose of this blog has ended. Arguably, the purpose of this blog ended when Mr. DeLay announced his resignation back in April 2006. This blog has required an inordinate amount of time to maintain. Like a nicotine addiction, we've tried to end it more than once before without success. We plan a post on Mr. DeLay's comments this week that are inconsistent with things he's said in the past, and we've got a few unpublished posts that will likely come out in the next few days, but for the most part, like the Justice Department investigation, the blog is over.

As for the remaining criminal cases, we have mixed feelings about those, too. Fraser Verrusio is the only World Series defendant who refuses to hold himself accountable. (And we still wonder why he paid a female co-worker $300 for "shoe cleaning".) Since Mr. Verrusio refuses to hold himself accountable, we hope the Justice Department does.

Kevin Ring is a more complicated case. We believe that Mr. Ring's decision to go to trial stymied the Justice Department's investigation into Rep. John Doolittle (R-Calif.). On the other hand, Mr. Ring's behavior was objectively a lot less corrupt than some of his Greenberg Traurig co-workers who took a far more transactional approach to their lobbying work. Based on what we've read of Mr. Ring's book proposal, we actually do believe that he recognizes that his behavior crossed some sort of ethical line. Even though the ACR Blog believes the evidence is strong enough to convict Mr. Ring, we also acknowledge that reasonable people could come to the opposite conclusion. The ACR Blog was a place were the opposing sides could discuss these conflicting views without the typical ad hominem internet riff-raff. For that, we thank our readers and commenters. Our readers and commenters are what truly made the ACR Blog an informative site covering the Abramoff scandal.

The author of the ACR Blog still intends to monitor the remaining Abramoff-related cases (Kevin Ring exhibit list due tomorrow), but not with the same intensity and without writing about it.

Again, the author of the ACR Blog is humbled by the attention given to this blog by a wide variety of individuals. We wish to thank everyone who has given us documents, tips and encouragement. We may be biased, but we think that this blog uniquely covered the Abramoff scandal, and credit is due to the readers as much (if not more) than the author.

Thank you for a great 4-year run!

Greg
gregintx22-at-yahoo-dot-com

Status Report

From time to time, the ACR Blog likes to give a quick update on all Abramoff-related cases that have yet to reach sentencing ....

Ring, Kevin (1:08-cr-274-ESH)
Status: Mistrial; Retrial pending
Last action date: August 5, 2010
Next action date: August 20, 2010
Next action item: Government Exhibit List due

Verrusio, Fraser (1:09-cr-64-RWR)
Status: Pled not guilty
Last action date: August 12, 2010
Next action date: September 1, 2010
Next action item: Motions Hearing

Albaugh, John (1:08-cr-157-ESH)
Status: Guilty
Last action date: July 14, 2010
Next action date: October 21, 2010
Next action item: Status Conference

Blackann, Trevor (1:08-cr-325-RWR)
Status: Guilty
Last action date: May 24, 2010
Next action date: August 18, 2010
Next action item: Status Report

Boulanger, Todd (1:09-cr-25-RWR)
Status: Guilty
Last action date: July 27, 2010
Next action date: November 3, 2010
Next action item: Status Report

Copland, Ann (1:09-cr-43-RWR)
Status: Guilty
Last action date: June 8, 2010
Next action date: September 8, 2010
Next action item: Status Report

Hirni, James (1:08-cr-348-RWR)
Status: Guilty
Last action date: June 15, 2010
Next action date: September 13, 2010
Next action item: Status Report

Rudy, Tony (1:06-cr-82-ESH)
Status: Guilty
Last action date: July 29, 2010
Next action date: November 2, 2010
Next action item: Status Conference

Scanlon, Michael (1:05-cr-411-ESH)
Status: Guilty
Last action date: July 9, 2010
Next action date: October 14, 2010
Next action item: Sentencing

Zachares, Mark (1:07-cr-106-ESH)
Status: Guilty
Last action date: July 22, 2010
Next action date: November 22, 2010
Next action item: Sentencing

Bingo, Bango, Bongo!

1994 Region II Playoffs
John Tyler v. Plano East

Our favorite season of the year is football season. With the 2010 football season upon us, we'd like to share the best game of all time, OF ALL TIME, with you.

We pick up the action with 2:42 left in the game and John Tyler (white) leading Plano East (black) 41-17. Since we're sharing the game with you, which team do you think won? You're probably wrong.

Mark Zachares and the New HSF

Mark Zachares
Over the past few posts, we've discussed the post-Skilling world of Honest Services Fraud (HSF). Today, we use our knowledge to examine how this affects Mark Zachares, a former aide to Rep. Don Young (R-Ak.) who has pleaded guilty to HSF related to the Abramoff scandal.

A couple of weeks ago, Roll Call's Jennifer Yachnin wrote an article highlighting how the Kevin Ring case will shape HSF. Ms. Yachnin reported that Zachares' attorney says his client may want to challenge the "validity" of his plea deal:

Zachares’ defense attorney, Ed MacMahon, raised questions last week over the validity of his client’s plea agreement and sought permission to submit a brief to the court on the issue.

“We couldn’t sentence Mr. Zachares for something that after Skilling wouldn’t be a crime,” MacMahon said.

To our knowledge, Mr. MacMahon has not yet briefed the court on this matter; it isn't even clear that U.S. District Judge Ellen Huvelle has authorized such a brief. The ACR Blog is very curious about the legal arguments that Mr. MacMahon intends to raise. Mr. MacMahon's statements were made before Judge Huvelle determined that a jury may infer a corrupt agreement based on the evidence. Mr. MacMahon would likely try a different course of action due to that decision.

In the meantime, let's see if we can infer a corrupt agreement based on Mr. Zachares' Factual Basis for Plea (Paragraph 11).

ZACHARES joined a conspiracy involving Abramoff and others, using mail and interstate wire communications, to deprive the public of the honest services of ZACHARES. That is, ZACHARES solicited and accepted a stream of things of value from Abramoff and others with the intent to be influenced in his official actions and to agree to take official actions at Abramoff s request. Abramoff and others provided the stream of things of value knowing that it was received by ZACHARES with the intent to be influenced in his official action and to deprive the House of Representatives and the public of his honest services.

Given that Mr. Zachares admits that he "accepted a stream of things of value from Abramoff and others with the intent to be influenced in his official actions and to agree to take official actions at Abramoff s request", a reasonable jury could infer that an agreement existed. In fact, it seems to us that Mr. Zachares' Factual Basis actually says that an agreement existed.

The Justice Department undoubtedly plans to support Zachares' HSF conviction. Even Judge Huvelle suggests that Mr. Zachares should consider alternatives to vacating his plea:

Huvelle noted that Zachares could select from a range of options, including vacating his plea or amending the agreement.

“There are ways to redo something like this simply,” Huvelle said.

The judge raised the possibility that Zachares could even enter a plea related to his financial disclosure forms if he failed to accurately report gifts or other items.

“There are a lot of ways you can address this,” she later added.

We'll continue to monitor this case for any developments. Mr. Zachares is currently scheduled to be sentenced on November 22, 2010.

A Corrupt Agreement

[B]ribery requires a specific intent to give or receive something of value in exchange for an official act. We note that evidence of a quid pro quo can be implicit, that is, a conviction can occur if the Government shows that [the defendant] accepted payments or other consideration with the implied understanding that he would perform or not perform an act in his official capacity. As we have recognized, the official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.

--U.S. v. Kemp (p. 41); Case law cited with approval in Skilling v. United States. Internal citations and quotes omitted.

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For the past few days, we've examined the post-Skilling environment for Honest Services Fraud (HSF) with an emphasis on how Skilling affects U.S. v. Kevin Ring. We've learned that although the Supreme Court's decision in Skilling found HSF cases built on a Failure-to-Disclose a conflict of interest to be unconstitutional, the top court's opinion hasn't created any visible changes to HSF involving bribery and kickback schemes. U.S. District Judge Ellen S. Huvelle has ruled that a jury may infer that Mr. Ring entered into a corrupt agreement with public officials based upon the evidence -- the government need not show an explicit corrupt agreement.

Today we look at the plea documents of two public officials, Ann Copland and John Albaugh, to see if we can infer that the public officials themselves understood that things of value (TOVs) were being exchanged for official acts.

Ann Copland

From Ms. Copland's Factual Basis for Plea (Paragraph 5):

[F]rom March 2002 through May 2004, defendant COPLAND took and agreed to take a variety of official actions at the request of Abramoff, Boulanger, Ring and others working with them. Defendant COPLAND took these official actions based in part on the fact that she was receiving and wanted to continue receiving things of value from Abramoff, Boulanger, and Ring. Defendant COPLAND understood that by taking official action which was beneficial to the lobbyists and their clients, she would continue to receive and enjoy these things of value. Defendant COPLAND also understood that the lobbyists were providing her things of value in order to influence her in the performance of her official actions.

Uhh. Not a whole lot of inferring need be done here. Ms. Copland admits that she "understood" that the TOVs were dependent on her performance of official acts.

John Albaugh

OK. So Ms. Copland's Factual Basis lined up nicely to prove our point. What about Mr. Albaugh's Factual Basis (Paragraph 8)?

ALBAUGH solicited and accepted a stream of things of value from Lobbyist C [Kevin Ring] and others with the intent to be influenced in his official actions and to agree to take official actions at Lobbyist C's request. ALBAUGH understood Lobbyist C and others provided the stream of things of value with the intent to influence or reward ALBAUGH for his official actions and to deprive the House of Representatives and the public of his honest services.

Did that say Mr. Albaugh accepted TOVs with the intent to agree to take official actions? Ouch. And again, we don't have to infer that Mr. Albaugh "understood" that TOVs were meant to influence or reward his official acts -- he admits it.

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Judge Huvelle's interpretation of the law was consistent with precedent when she determined that a jury could infer that Mr. Ring entered an agreement to exchange TOVs for official acts. This should be pretty easy for the jury to do. After all, Mr. Ring's co-conspirators admit that they understood that the TOVs were linked to official acts.