Back in May, I made an entry entitled
Will Heaton has been 'Yapping'". I observed a joint motion filed by prosecutors and Heaton's defense team that indicated that
Will Heaton cooperated with prosecutors even before he pleaded guilty. I couldn't reconcile all those facts:
I've never claimed to know precisely how the criminal justice system works, but for some reason, I thought that plea bargains came before the cooperation. This motion clearly indicates that Mr. Heaton was cooperating prior to his February plea bargain. I don't think I'm going out on a limb when I say that it is most likely that Mr. Heaton provided information on his former boss, Bob Ney, who pleaded guilty in September 2006.
Mystery solved. While I was on vacation, Mr. Heaton was sentenced for his role in the Abramoff scandal. Many news reports (
example) indicated that Mr. Heaton was recording telephone calls and conversations with his boss, Rep. Ney. Do you think that Rep. Ney would have been loose-lipped if Mr. Heaton had already pleaded guilty in relation to the Abramoff scandal? Of course not. That is why Mr. Heaton had to substantially complete his cooperation *before* he could plea.
Anyway, to many of my readers, this is old news. It happened last week. I won't spend much time on what the press reported. I'll focus on what the press didn't report.
As those who have followed me from the old site know, I love primary sources. Today, I give a hat tip to the Washington Post for providing us the
United States' Substantial Assistance Memorandum (pdf). (I'll refer to this document simply as "the memo" in the rest of this post.) Prosecutors in the Public Integrity Section prepared the memo to encourage the sentencing judge to go easy on Mr. Heaton due to his cooperation.
Here are things I found interesting:
While Heaton was the last to begin cooperating in the investigation of Congressman Ney, his assistance was timely and quickly proved substantial.1 Prior to his direct cooperation in June 2006, Heaton had cooperated through his counsel by providing documents that the government has been unable to obtain from other sources, namely the unfiled travel disclosure reports for Heaton and another staff member from the August 2002 Scotland trip.
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1Prior to the start of Heaton's direct cooperation, [Neal] Volz, Tony Rudy, [Jack] Abramoff, Michael Scanlon and other staff members in Ney's office were cooperating in the investigation of Ney.
Page 3
So Mr. Heaton provided travel disclosure reports for himself *and* another staff member? Just who might that staff member be? Let's look at what
I wrote in February:
Of the four government employees who went on the 2002 Scotland golfing junket with Abramoff, three have pleaded guilty to felonies:
1. Rep. Bob Ney - GUILTY
2. Will Heaton - GUILTY
3. David Safavian - GUILTY
4. Paul Vinovich - Not charged
Umm ... David Safavian wasn't a staff member for Rep. Ney, Paul Vinovich was. Smart money says that it was the travel disclosure form for Paul Vinovich that Mr. Heaton provided to prosecutors. OK, that part was easy. What do federal prosecutors want out of Mr. Vinovich since Rep. Ney has already pleaded guilty? I dunno. For that matter, I'm not even sure prosecutors care about Mr. Vinovich anymore.
Given my uncertainty of prosecutors' interest in Mr. Vinovich, I have trouble explaining this passage from the memo:
As part of [Mr. Heaton's] direct cooperation, Heaton acted proactively in the government's investigation of Ney and another at the direction of the FBI and the Public Integrity Section.
Page 4, Emphasis mine
Maybe I'm making a mountain out of a molehill here. We know Mr. Heaton provided prosecutors with Mr. Vinovich's travel disclosure forms. That must be what prosecutors are referring to here, right? I'm not so sure. If prosecutors wanted to nail Mr. Vinovich, what are they waiting for? All the other travelers on the 2002 Scotland trip have already been convicted. And what is to gain by going after little fish Vinovich? Consequently, judgment is suspended with respect to who else Mr. Heaton provided evidence against.
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Back in January, I wrote about how
both Rep. Ney and Rep. Tom DeLay inserted statements helpful to Jack Abramoff into the
Congressional Record. Unfortunately, this Substantial Assistance Memorandum indicates to me that nailing Rep. DeLay for his
Congressional Record statements may be a tall order:
As the Court is well aware, the separation of powers principles enshrined in the U.S. Constitution raise certain complications in a prosecution of a Member of Congress by the executive branch.2 Given these evidentiary challenges and potential delays, Ney's agreement to plead guilty and Heaton's role in bringing about that agreement proved exceptionally important to the just and efficient resolution of the charges brought against Ney.
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2One set of commonly mentioned complications is raised by the Speech or Debate clause in Article I, Section 6, Clause 1 of the U.S. Constitution, which precludes the introduction of direct evidence of legislative action by a Member of Congres and renders some of the legal issues arising under the clause subject to pre-trial appeal. For example, Ney admitted in his guilty plea that, as part of his corrupt relationship with Abramoff, he twice inserted statements into the Congressional Record that benefitted Abramoff and his gambling business. Had Ney proceeded to trial, the prosecution could have established Ney's agreement to insert Congressional Record statements, but the prosecution could not have shown that Ney actually inserted those statements. See, e.g. United States v. McDade (1994) (noting that the prosecution could not show that a legislative act had been performed, but it could show a promise to perform a legislative act in the future); United States v. Brewster (1972) (acknowledging that evidence a Congressman had actually followed through with his illegal agreement would strengthen the case, but such evidence would be precluded under law). Thus, testimony and documents corraborating a legislator's corrupt agreement to take official action are crucial to a successful prosecution of a member of Congress.
Some lawyerly citations omitted
I'll be honest here. I don't really know what all that means. But it is obvious to me that Members of Congress have used the Speech and Debate clause of the Constitution to protect themselves from criminal liability. Mr. Heaton's cooperation severely limited Rep. Ney's ability to use the Speech and Debate clause as a shield. I won't pretend to know what exactly Mr. Heaton did to limit Rep. Ney's Speech and Debate clause defense, but I hope that it doesn't require someone to record telephone calls and other conversations. I have to believe that we won't see that kind of evidence against any other Congressman. On the other hand, we do know that
prosecutors have been offering immunity to aides to Tom DeLay.
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I'm sure this isn't the easiest post to read, but there is a lot in the memo. Read it for yourself.