Thursday, July 9, 2009

Feeney "Speech or Debate" Case to go "En Banc"

The Blog of Legal Times (BLT) scoops everyone tonight with an article on a development in the investigation into former Rep. Tom Feeney (R-Fla.). Back in February, the Washington Post told us that a grand jury was investigating Mr. Feeney. Furthermore, we were told that a federal appeals court ruled that the constitution's "Speech or Debate" clause prohibited the grand jury from acquiring information they sought. At the time facts were sparse. Today, we learn that the grand jury wanted materials Mr. Feeney provided to the House Ethics Committee. The DC Circuit Court of Appeals also made the opinion public today.

BLT picks the quote from Judge Brett Kavanaugh that succinctly sums up this matter:

[C]ourts must respect the constitutional balance between the Legislative and Executive Branches regardless of the perceived needs of the moment.”


Understand that Judge Kavanaugh is my kind of judge. He demonstrates that here by showing that he feels constrained by the constitution. I have written before that the "Speech or Debate" issue is a tricky one. Nearly two years ago when we learned that former Rep. John Doolittle (R-Calif.) was using a "Speech or Debate" defense, I wrote:

I certainly hope that the courts won't allow Congressmen to use the Constitution to protect themselves from a criminal investigation. But as an admirer of the Founding Fathers, I also know that the "Speech and Debate" clause was necessary to prevent abuses of Congress like the abuses perpetrated by the English crown against parliament.


Later, after some of Mr. Doolittle's staffers were subpoenaed, I wondered if the House of Representatives would assist Mr. Doolittle in a "Speech or Debate" defense:

I suspect this means that the House will exert some privileges under the "Speech and Debate" clause of the US Constitution. Now I'm all in favor of protecting legislative materials from the executive branch. But there must be some balance struck in these corruption cases. Corruption should not be protected by the US Constitution, but the executive branch shouldn't be able to claim corruption to pierce the very real protections of the "Speech and Debate" clause. Smarter people than I need to find a way to strike that balance.


It appears that three people who are smarter than I am couldn't find a way to strike that balance. Now the case goes to the full court, which appears to me to consist of thirteen judges.

I won't pretend to know with certainty how en banc hearings operate, but humor me for a moment. I think we can assume that the three judges panel that unanimously reversed the lower court (Judges Kavanaugh, Ginsburg and Williams) will hold similar positions in the en banc hearing. Therefore, to overturn the panel's opinion, a supermajority of seven of the ten remaining judges would have to find that Mr. Feeney is not protected by the "Speech or Debate" clause. This would lead to a 7-6 reversal of the original Court of Appeals decision.

Smart money says that former Rep. Feeney's statements to the Ethics Committee are protected under the "Speech or Debate" clause.

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Mr. Feeney in a 2008 campaign commercial apologizing for his Jack Abramoff-funded trip to Scotland. In it, he claims "I did everything I could to make it right." Apparently this was not entirely accurate. He did not want to let a grand jury review his statements to the House Ethics Committee.


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Check in again soon. I have more to say about this matter.

Tuesday, July 7, 2009

Robert Coughlin: SENTENCING DATE SET

Robert Coughlin is a former Justice Department official who pled guilty to violating a conflict-of-interest statute related to the Abramoff scandal. He admitted accepting gifts from Team Abramoff in return for performing official acts. A status conference is scheduled later this week in the case of USA vs. Robert Coughlin. As a status conference approaches in these kinds of cases, the prosecution and defense typically file a Joint Motion to Continue. This means that the case isn't ready for sentencing and asks the judge to revisit the matter in 90 days. The DoJ and Mr. Coughlin's attorney, Joshua Berman,1 didn't ask the Court to revisit the case in three months. Both sides asked US District Judge Ellen S. Huvelle to schedule an actual sentencing date: November 24, 2009.

From the Joint Motion to Adjourn Status Conference and Set Sentencing Date:

1. On April 22, 2008, Robert Coughlin appeared before Your Honor and pled guilty to a one-count Information in the above-captioned case. Because Mr. Coughlin was cooperating in the investigation of others, including Kevin A. Ring, Your Honor scheduled a status conference in lieu of a sentencing date, for September 18, 2008.

2. On September 5, 2008, the federal grand jury for the District of Columbia indicted Kevin Ring on ten counts, in Case No. 08-274. Mr. Ring was arraigned on September 8, 2008. Trial currently is set in that matter to begin on September 9, 2009 before Your Honor.

[...]

4. Mr. Coughlin's cooperation in the prosecution of Mr. Ring is continuing. In light of the September 9, 2009 trial date in the Ring matter and the fact that Mr. Coughlin resides out of state, the parties jointly request that the status conference in Mr. Coughlin's case be adjourned. The parties also believe that another status date is unnecessary and that this matter can be set for sentencing, to occur after the conclusion of the Ring trial.


After reading this document, it appears that Mr. Coughlin's cooperation almost solely related to the prosecution of Mr. Ring. Yes, paragraph 1 mentions that Mr. Coughlin was cooperating in the investigation of "others" (plural), and we don't doubt that Mr. Coughlin did help prosecutors understand the roles of people other than Mr. Ring. We just believe that Mr. Ring was the primary subject of Mr. Coughlin's cooperation.

It appears that Mr. Coughlin has held himself accountable for his actions and has assisted investigators to the satisfaction of the Justice Department. Kudos to Mr. Coughlin.

Let's compare and contrast Mr. Coughlin's Joint Motion to Set Sentencing Date to John Albaugh's Joint Motion to Continue Status Conference that we reviewed yesterday:

Similarities: Messrs. Coughlin and Albaugh both appear to be cooperating to the satisfaction of the Justice Department. The cooperation of both men seems to be almost wholly related to Mr. Ring's prosecution.

Differences: Lawyers are asking for a hard sentencing date for Mr. Coughlin. The parties in Mr. Albaugh's case didn't ask for a sentencing date, but strongly suggested that Mr. Albaugh's cooperation will conclude by "late-2009". Presumably, Mr. Albaugh's sentencing could be completed shortly thereafter.


Why are the two men being treated differently? The ACR Blog can't answer that question. Given that the DoJ wants to move forward with Mr. Coughlin's sentencing, though, our speculation yesterday that Mr. Albaugh's cooperation is nearing its end appears more likely to be accurate.

The ACR Blog believes that the events of the past two days augur well for former Rep. Ernest Istook (a.k.a. Representative 4) for the reasons I mentioned yesterday.

For those holding out that former Rep. Istook will be held legally accountable, remember that National Journal reporter Peter Stone interviewed two sources familiar with the investigation who told him to expect a plea or indictment of a "bigger fish" early this summer. Early summer has ended, and we haven't seen a plea or indictment. The ACR Blog believes the only way former Rep. Istook will be convicted is if he is that "bigger fish". It is more likely, though, that Rep. Istook is off the hook.

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1 As an interesting aside, Joshua Berman is the only lawyer we know of to represent two Abramoff scandal figures. In addition to representing Mr. Coughlin, Mr. Berman is also the lawyer for Kevin Koonce, a former aide to former New Hampshire Sen. Judd Gregg.

Monday, July 6, 2009

John Albaugh's Cooperation

Today in the US District Court for the District of Columbia, a Joint Motion to Continue Status Conference (.pdf) was filed in the case of USA vs. John Albaugh. Basically this document asks Judge Ellen S. Huvelle to delay the sentencing process for John Albaugh due to his continuing cooperation. Mr. Albaugh was a former aide to former Rep. Ernest Istook (R-Okla.) and figures prominently in the indictment of Kevin Ring.

If all we learn from such a document is that a status conference has been reset, the ACR Blog typically won't mention Motions to Continue. Of course, there is something different in this Motion:

The government anticipates that Mr. Albaugh's cooperation will continue for the foreseeable future, and in any event well into late-2009.


Normally the government doesn't set an anticipated conclusion date of a defendant's cooperation. The ACR Blog can't get inside the head of the lawyers who drafted this document. We don't know if there truly is something significant about "late-2009" or not.

Mr. Ring's trial is expected to begin in early September and last about a month. The ACR Blog wonders if the conclusion of Mr. Ring's trial really is the end of Mr. Albaugh's cooperation.

Court documents related to Mr. Albaugh's plea deal identify former Rep. Istook as "Representative 4". When the DoJ uses codenames like "Representative 4", the ACR Blog infers that the person identified faces legal jeopardy. Not all Congressmen are given such codenames. Recall that former Rep. Heather Wilson (R-N.M.) was identified as "the New Mexico tribe's U.S. Representative", not "Representative 6".

Perhaps we're making a mountain out of a molehill here, but does the possible conclusion of Mr. Albaugh's cooperation in "late-2009" portend well for Rep. Istook? We'll certainly be watching in three months to see what is said about Mr. Albaugh's cooperation at that time. It will be interesting to see if Mr. Albaugh's cooperation is still needed after Mr. Ring's trial.

Sunday, July 5, 2009

Washington Post Imitates CREA

Katharine Weymouth, Publisher and CEO of the Washington Post has apologized for and canceled plans that appear to sell access to top government officials in exchange for cash money:

I want to apologize for a planned new venture that went off track and for any cause we may have given you to doubt our independence and integrity. A flier distributed last week suggested that we were selling access to power brokers in Washington through dinners that were to take place at my home...

Our mistake was to suggest that we would hold and participate in an off-the-record dinner with journalists and power brokers paid for by a sponsor.


The ACR Blog believes that Ms. Weymouth's apologize is sincere. She identified the specific act for which she was apologizing and conceded that the plans were inappropriate.

But the ACR Blog sees a similarity between the now-canceled Washington Post dinners and an episode in the Jack Abramoff scandal. The Council of Republicans for Environmental Advocacy (CREA) was an "astroturf" organization ostensively created to ... well, we're not sure what it was purportedly supposed to do. But we do know that its leader, Italia Federici, liked to host parties where, in exchange for money, sponsors could gain access to government officials such as Department of Interior brass Gale Norton and Steven Griles.

From none other than the Washington Post:

The Council for Republican Environmental Advocacy, founded by Norquist and Norton, who resigned as interior secretary earlier this year, also appeared to have been used "as an extension of Mr. Abramoff's lobbying organization," the report said.

Abramoff directed his client Indian tribes to donate a total of about $500,000 to the group, telling them that the donation was a way to cultivate Norton at the Interior Department, which oversees the tribes and their casinos. E-mails show that Abramoff told the tribes that they would be CREA's "trustees" and that Norton would "host" a series of CREA dinners. Interior Department documents obtained by The Washington Post suggest that Norton was an invited guest at a CREA dinner, not a host.


The ACR Blog can't see any difference between the dinners hosted by CREA and the dinners hosted by the Washington Post. Except for the immensely significant difference that the Washington Post showed enough wisdom to back out of its plans.

Saturday, July 4, 2009

Gov. Sarah Palin's Indictment

Lefty sites have gone haywire with a rumor that Alaska Gov. Sarah Palin will soon be indicted. Of course these hopes are mere fantasy. The FBI says there is no investigation into Gov. Palin.

The ACR Blog finds it disturbing how eager the left is to fantasize about non-existent scandal in its political opponents. And it isn't the first time, either. Remember the crazy stories that Gov. Palin's daughter Bristol was the real mother of Gov. Palin's youngest child, Trigg?

While we might find comfort in the fact that this is only the latest ugly example of libelous character assassination, the left's desire for unfounded criminal indictments does have even more serious consequences. In Travis County, Tom DeLay still faces politically inspired criminal charges initiated by former District Attorney Ronnie Earle. These charges have no merit either, but lefties in Texas believe that Mr. Earle is an excellent candidate for statewide office precisely because he attempts to throw political opponents in jail on trumped up charges.

The left should be embarrassed about this. I predict they won't be. In fact, there will be another example of the left trying to criminalize its political opponents. Sad, but true.

Fraser Verrusio gets Pro Bono Attorney from Baker Botts



Readers of the ACR Blog have long known that indicted scandal figure Fraser Verrusio, also known as "Staffer D" in court documents, was being represented by a public defender. According to a document filed in US District Court (.pdf) for the District of Columbia earlier this week, this has changed. Mr. Verrusio will be represented on a pro-bono basis by Baker Botts attorney Sabita J. Soneji. Interestingly, Ms. Soneji has Houston ties in her background ... she attended UH.

Admitted felon and Abramoff scandal participant Michael Scanlon was also represented by a Baker Botts criminal defense attorney, Stephen Braga. Mr. Braga still represents Mr. Scanlon, but Mr. Braga has since moved to the firm of Ropes and Gray. (A status hearing is scheduled for July 16, 2009 for Mr. Scanlon. Expect a joint motion from Mr. Braga and the DoJ to reset that status hearing due to Mr. Scanlon's continued cooperation.)

The ACR Blog has long wondered how many of these scandal participants have been able to retain high-powered legal defense. According to public filings, unindicted figures such as Mr. Verrusio's former boss1 Rep. Don Young (R-Alaska) have spent hundreds of thousands of dollars in legal fees (Rep. Young has spent in excess of $1 million). Even if indicted defendants like Kevin Ring are spending half that amount in attorney fees the ACR Blog has to wonder where that money coming from.

Now we have a new question: Why would a high-powered law firm like Baker Botts represent a low-level scandal participant like Mr. Verrusio for free? The ACR Blog believes the answers to those questions would be quite revealing.

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1 In addition to being Mr. Verrusio's former boss, Rep. Young was also the boss of Justin Sprinzen when he was a staffer on the House Transportation Committee. In fact, Mr. Sprinzen still works for the House Transportation Committe, but Rep. Young is no longer the senior Republican on that panel.

Wednesday, July 1, 2009

Judge Huvelle to Kevin Ring: DENIED (For the most part)

On June 1, we reviewed a number of motions filed in USA vs. Kevin Ring. Now, on July 1, US District Judge Ellen S. Huvelle has issued an order related to these motions. Judge Huvelle sees two distinct types of crimes in the indictment. The first set (Counts I-VIII and a specific part of Counts IX and X) involve allegedly unlawful lobbying of federal officials (essentially bribery). The second set of crimes involve the alleged false statements Mr. Ring told to investigators (Counts IX and X). This distinction guided Judge Huvelle's decisions. Let’s go through each motion and see what Judge Huvelle said about each one:

1. Motion to Suppress Tangible Evidence (Office Emails)

Argument: Kevin Ring had an expectation of privacy related to emails he sent/received on his company email accounts at Greenberg Traurig and Preston Gates and therefore are inadmissible under the 4th Amendment protection from unreasonable searches.

Result: DENIED
Commentary: The ACR Blog has always believed this was a weak argument.

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2. Motion to Disqualify Counsel

Argument: A conflict of interest exists surrounding the head of the Justice Department’s Public Integrity Section, William Welch II. Henry Schuelke, an investigator hired by a former employer of Mr. Ring, Greenberg Traurig, was expected to be a witness against Mr. Ring at the same time that he is investigating Mr. Welch. To resolve this perceived conflict, the prosecution team should be disqualified.

Result: DENIED
Commentary: Judge Huvelle was willing to let Counts IX and X remain unsevered where they related to Mr. Ring's efforts to obtain a job for Julie Doolittle. Mr. Schuelke was likely going to testify against Mr. Ring with respect to Counts IX and X. Therefore, Judge Huvelle must have denied this motion on the merits. The ACR Blog never understood those who saw a conflict of interest surrounding Mr. Welch.

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3. Motion to Sever Counts

Argument: Counts I-VIII involved alleged acts of unlawful lobbying. Counts IX and X involve alleged lies Mr. Ring told Mr. Schuelke. The two sets of charges are so different that they should be tried separately. Also, if a jury hears evidence about the alleged lies in Counts IX and X, it will prejudice their deliberations on Counts I-VIII.

Result: GRANTED IN PART AND DENIED IN PART. Most of the alleged lies told by Mr. Ring involve fraudulent billing and kickbacks from Michael Scanlon's firm, Capitol Campaign Strategies (CCS). These matters are sufficiently different from the alleged unlawful lobbying activities that they warrant a separate trial. However, alleged lies that Mr. Ring told Mr. Schuelke regarding Mr. Ring's efforts to obtain a job for Julie Doolittle, wife of former Rep. John Doolittle (R-Calif.) (Representative 5) are similar to other efforts to unlawfully lobby federal officials. Therefore, this narrow section of Counts IX and X may be tried with the other counts related to alleged unlawful lobbying.

Because Judge Huvelle severed Counts IX and X to the extent that they related to fraudulent billing and kickbacks, she also struck paragraphs 27-29 from the indictment:

27. Defendant RING and his coconspirators used the growing success of their lobbying practice, which had been built in part by corrupt means, to retain existing clients and attract future clients. As part of their marketing efforts, defendant RING and his coconspirators persuaded the New Mexico tribe that the hiring of Scanlon to perform certain grassroots and public-relations services was critical to achieve the New Mexico tribe's lobbying goals and objectives.

28. Abramoff and Scanlon had a preexisting profit-sharing relationship. Defendant RING, Abramoff, and Scanlon agreed and understood that defendant RING would receive approximately five percent of the total revenues generated by Scanlon from the New Mexico tribe. Defendant RING, Abramoff, and Scanlon did not disclose to the New Mexico tribe any of the payments by Scanlon to defendant RING or Abramoff.

29. Abramoff used funds derived from his lobbying practice and the Scanlon payments in part to finance the scheme to defraud. This included, but was not limited to, the things of values provided to public officials as well as bonuses, payments, and other financial benefits provided to defendant RING and other coconspirators.


Commentary: Judge Huvelle has drawn a bright line between acts related to unlawful lobbying and other allegedly unlawful acts. She is committed to making this trial focused solely on Mr. Ring's alleged unlawful lobbying. Even though Judge Huvelle would have allowed the government to try part of Counts IX and X with Counts I-VIII, the government today filed an Unopposed Motion to Sever Counts IX and X. It remains to be seen whether the government issues a second indictment to reinstate Counts IX and X. Update: A commenter at Wendy's place says a new indictment is not necessary. Judge Huvelle's decision means that there will be two trials ... one for Counts I-VIII and the other for Counts IX and X. It isn't clear to me, but I suspect that the sticken paragraphs will be reinstated for the Count IX and X trial.

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4. Motion to Exclude Evidence of Uncharged Conduct

Argument: There are three types of evidence that the government wants to use against Mr. Ring that are not mentioned in the indictment. The government should not be able to use this evidence at trial. These three types of evidence include evidence of alleged (1) Fraudulent billing; (2) Kickbacks from CCS; and instances of (3) Unlawful lobbying activities not mentioned in the indictment.

Result: GRANTED IN PART AND DENIED IN PART. Evidence of alleged (1) fraudulent billing and (2) kickbacks from CCS will not be allowed. Evidence of uncharged instances of alleged (3) unlawful lobbying will be allowed. Some evidence of alleged (1) fraudulent billing may be used if the alleged fraud was meant to conceal recipients of meals/tickets in an effort to further the alleged conspiracy of (3) unlawful lobbying.

Commentary: The unsevered Counts I-VIII related to instances of alleged (3) Unlawful lobbying. While evidence of Mr. Ring's alleged (1) fraudulent billing and receipt of (2) kickbacks from CCS might be relevant to the severed portion of Counts IX and X, they are not relevant to Counts I-VIII. Judge Huvelle will allow evidence of uncharged acts of (3) unlawful lobbying because Counts I-VIII are involved alleged acts of unlawful lobbying. Judge Huvelle will also allow evidence of uncharged (1) fraudulent billing when the fraudulent billing contains elements of (3) unlawful lobbying.

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5. Motion to Suppress Tangible Evidence (Search of Mr. Ring's residence)

Argument: All evidence seized from Mr. Ring's residence must be suppressed because the search warrant was so broad that it was in effect a general search prohibited by the 4th Amendment.

Result: GRANTED IN PART AND DENIED IN PART. Judge Huvelle refused to deny any evidence responsive to the search warrant. Source materials used by Mr. Ring in his book draft are allowed, but not items that "could be" source material.

Commentary: Read the Motion to see what items were specified in the search warrant. The search warrant specified one class of items that the defense found particularly objectionable -- a draft and the source material for a book where Mr. Ring allegedly indicates “that he had taken certain actions as a lobbyist with a corrupt intent". Judge Huvelle seems to say that the draft and source materials are admissible, but that items that speculatively "could be" source material are not admissible. It isn't clear who gets to determine which items are indeed source material and which items merely "could be" source material. At any rate, we don't view this order to be too damaging to the Justice Department. After all, the only evidence Judge Huvelle ruled inadmissible is evidence the jury would have given the least weigh to. The DoJ probably wouldn't have used such evidence anyway.

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Overall, Judge Huvelle's order must be considered a victory for the government. With respect to the counts related to unlawful lobbying activities, the only thing the government lost was their weakest evidence from the search of Mr. Ring's home.

Mr. Ring won't be sleeping any easier in July than he did in June.

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Wendy at Unheard No More! examines the same documents.