Teltschik v. Williams & Jensen: Expert Witness

This post is the latest in a series commenting on the Teltschik v. Williams & Jensen et. al. civil lawsuit. This case is of interest to me because plaintiff Corwin Teltschik has indicated an interest in obtaining testimony under oath from former Rep. Tom DeLay (R-Ft. Bend County) regarding his involvement in ARMPAC. For background on this case, click the Teltschik tag below.

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Williams & Jensen, P.L.L.C., Robert Martinez, Barbara Wixon Bonfiglio and Meredith Kelley (the W&J defendants) have indicated that they intend to call former FEC Chairman Bradley Smith as an expert witness:

On or about January 3, 2005, then FEC Chairman Bradley Smith issued a "Statement of Policy Regarding Treasurers Subject to Enforcement Proceedings ..." In that policy statement, Chairman Smith explains at length the reasons for and the effect of the Official/Personal Capacity Distinction.

Apparently, there is some law that prevents former employees of the federal government from appearing as expert witnesses without a court order. The W&J defendants are asking the court to issue a court such an order so that Chairman Smith may testify as an expert witness on their behalf. While not explicitly spelled out, it appears to me that Chairman Smith would testify that no harm occurred to plaintiff Teltschik as long as he was found guilty of violating campaign finance laws only in his official capacity as treasurer to ARMPAC. Defense counsel writes: "Since this is a fundamental issue in this case, Smith should be an expert witness." Based on what I know this is indeed a fundamental issue in the case.

However, in paragraph 1, we learn that lawyers for Mr. Teltschik are opposed to the court issuing an order for Chairman Smith's testimony:

Counsel for Defendants has conferred with Counsel for Plaintiff regarding the relief sought in this motion. Plaintiff is opposed to the relief requested.

Without a court order, Chairman Smith can't testify. I'm sure that Chairman Smith's testimony would be mighty inconvenient for Mr. Teltschik. At the same time, I'm sure that Mr. Teltschik has expert witnesses lined up to enumerate any number of harms done to Mr. Teltschik due to the acts of the W&J defendants. My understanding of the scales of justice says that a jury should weigh all evidence including the testimony of expert witnesses to determine whether or not Mr. Teltschik was harmed. Until I see Plaintiff's reasoning to effectively exclude Chairman Smith's testimony, I must assume that this is a tactical effort to limit the defendants' case. Consequently, opposition to Defendants' motion doesn't appear to be an effort to uncover the truth.

Bad Advice

I like Human Events. Typically, Human Events is a smart magazine. Usually, I'm in alignment with their editorial positions as well.

Today, Human Events publishes a piece entitled "Top 10 Things President Bush Should Do Before Leaving Office". Coming in at #5 is this recommendation:

5. Under the Constitution, President Bush can pardon Tom Delay and others prosecuted in the Texas redistricting case. Former Rep. DeLay and associates were indicted for their involvement in a political action committee dedicated to redistricting the Texas congressional lines. They were indicted in 2005, but the case has not been pursued for years.

Emphasis in original

This is a good time to repeat what I've said many times before. I'm not a lawyer. I don't know how the law works. So believe me when I say that I don't understand how President Bush can pardon Mr. DeLay in the Texas redistricting case. Those are state charges. It seems to me that Gov. Perry has the authority to pardon Mr. DeLay in this case, but not President Bush. And I sure hope Human Events isn't suggesting that Mr. DeLay receive a preemptive pardon for the very real federal crimes that the Justice Department is currently investigating.

One of my very first posts at the old place in early 2006 distinguished Ronnie Earle's politically charged state redistricting case from the very real federal investigation into the Abramoff corruption. I can't believe Human Events has conflated the two.

Chronicle Rankings: Pearland Oilers #1

The Houston Chronicle has released its latest high school football rankings. After beating Clear Lake last Friday (coupled with North Shore's loss), the Pearland Oilers are now ranked #1 in the Houston area.

If the Oilers beat unranked Katy Taylor as expected on Saturday, the Region III (Houston area) championship will match up #1 Pearland against the #2 team. We just don't know who the #2 team will be next week since current #2 Hightower plays current #3 Cinco Ranch in the other regional semi-final.

Good Luck Oilers!

USA v. James Hirni -- Court Document

James Hirni

Just a quick update on James Hirni ...

According to The Hill newspaper, Wal-Mart fired Mr. Hirni today. Mr. Hirni had been one of the retailer's lobbyists. There is no evidence to suggest that Mr. Hirni did anything unlawful on Wal-Mart's behalf.

The Hill also gives us a little background into the case:

While working for an equipment rental client, Hirni and “Lobbyist D” [Todd Boulanger] allegedly sought an amendment encouraging state public works agencies to rent rather than purchase construction equipment contracts only with companies that had “large dollar amounts of liability insurance coverage.” Hirni and “Lobbyist D” sought to have these amendments inserted into the federal highway funding bill, according to papers filed by government prosecutors.

The identity of “Staffer D” is still unknown. According to Hirni’s charging document, “Staffer D” worked on the Transportation and Infrastructure Committee in 2003 and 2004, when Rep. Don Young (R-Alaska) chaired the panel.

An attorney for Mark Zachares, who served as an aide on the committee from 2002 to 2005, said he does not believe his client is “Staffer D” or was involved in the charges filed against Hirni.

Zachares pleaded guilty last year to conspiring with Abramoff and accepting $40,000 worth of money and tickets to sporting events and concerts in return for assisting Abramoff.

I have written about Mr. Zachares (link above) before. I believe it when his attorney says that Mr. Zachares is not "Staffer D". People who have already been convicted are actually named in these types of court documents. Mr. Zachares doesn't fit the profile.

An "Information" detailing the Conspiracy to Commit Wire Fraud charges against Mr. Hirni was filed with the DC District Court on November 21. The "Information" reiterates how Mr. Hirni, Mr. Boulanger and a United Rentals employee paid for Trevor Blackann and another Congressional staffer to go to the 2003 World Series in return for placing language favorable to United Rentals in a highway bill working its way through Congress. Basically, United Rentals wanted a provision inserted in the bill that encouraged local governments to rent rather than buy the kind of equipment that United Rentals provided. Furthermore, United Rentals wanted the federal government to mandate that rental companies engaged by local governments maintain a significant amount of liability insurance. Again, this was to limit the number of choices local governments had when seeking to acquire this equipment -- United Rentals being one of the firms (the only firm?) to meet the qualifications.

I spotted two interesting things in the "Information":

1. It appears that Lobbyist F from the "Factual Basis" in the Blackann case has been renamed "Person #1". This indicates to me that Lobbyist F / Person #1 is becoming less interesting to federal prosecutors.

2. Our antagonists had to cash in a second favor from Mr. Blackann in 2004. From the "Information":

17. In January 2004, defendant HIRNI, Lobbyist D [Mr. Boulanger], and Person #1 supported efforts by Blackann to protect [United Rentals] which was being challenged by small business owners and companies which sold and distributed - rather than rented - construction equipment.

It certainly isn't surprising that United Rentals wanted to legislate their competition away. But this certainly isn't a method conservatives would advocate. Conservatives would never force a one-size-fits-all policy on state and local governments. Each political subdivision should be free to choose the best equipment sourcing method according to its needs. Each governmental entity would be a "petri dish" of innovation in its equipment sourcing.

Let no one claim that Mr. Hirni, Mr. Boulanger, Mr. Blackann or anyone else in this scandal exhibited conservative ideals. The players in this scandal, all the way up to Jack Abramoff and Tom DeLay, were big government proponents.

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One last thing. Don't think that prosecutors are going after United Rentals in this matter. We've already seen "Lobbyist F" downgraded to "Person #1" in court documents. In my opinion, this corner of the scandal is intended to flip Mr. Boulanger. Furthermore, it is my opinion that prosecutors hope Mr. Boulanger will provide evidence against Kevin Ring. Continuing along on this speculation, Mr. Ring delivers Rep. John Doolittle to the Department of Justice ... and Ed Buckham.

Trevor Blackann Agreed to Plead Guilty in August

The US District Court for the District of Columbia has an interesting filing. On August 29, 2008, Trevor Blackann signed a Factual Basis (.pdf) for his guilty plea. Apparently, this document was not formally filed with the court until last week when the Associated Press reported Mr. Blackann's guilty plea.

After reading the Factual Basis, there is yet another cutesy name given to an unindicted player in this scandal. Lobbyist F was an in-house lobbyist for the equipment rental company at the center of Mr. Blackann's plea. According to an ABC News report from Friday, the rental company is United Rentals, but ABC does not identify who Lobbyist F is. I can't imagine that Lobbyist F can provide evidence against anyone other than Lobbyist D, Todd Boulanger. Recall that Mr. Boulanger, James Hirni (Lobbyist E), and Lobbyist F are the people who provided Mr. Blackann with his World Series trip in 2003.

One last thing I want to point out: The secondary headline to the ABC News article is "More Criminal Charges Against Republicans Expected". The article appears to be written before news broke of Mr. Hirni's indictment. But that's only one indictment, and ABC News hints of indictments, plural. In my opinion, Mr. Boulanger is the most likely the person to be indicted next.

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Update
December 14, 2008

From documents filed with the court on December 12, 2008, I understand that there is some sort of distinction to be made between an "Information" and an "Indictment". On December 12, Mr. Hirni waived indictment, meaning he was never indicted. Nevertheless, the point I was making above is intact. We need charges against someone else for the second headline from ABC News to be accurate.

Unbelievable Pearland Playoff Win

In football, the offense sometimes has to rely on the defense to win the game. Sometimes the defense relies on the offense. In Pearland's playoff game against Clear Lake, the offense and the defense both relied on special teams.

Don't misunderstand. The offense did its job, posting 28 points on the board during regulation. The defense did its part, too, allowing only a single touchdown in the second half. But both squads watched from the sideline hoping the kick defense special teams unit could block a 25 yard field goal to send the game to a second overtime. There was no second overtime.

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Here's a recap:

28-28 in overtime.

Pearland misses 39 yard field goal on its possession.

Clear Lake drives inside the 10 and attempts a 25 yard field goal to win the game. Clear Lake's kicker can easily split the uprights from 40+ yards.

Good snap, but holder can't handle the ball. Pearland scoops up the ball and scores a touchdown. One second I expect a walk-off loss, the next second it is a walk-off win for Pearland. Pearland wins 34-28.

On top of it all, North Shore lost. Pearland has to be the favorite to make the state semi-final game.

Pearland plays the winner of the Katy Taylor - Lamar game next week.

James Hirni: INDICTED

From ABC News:

James Hirni, a Republican lobbyist who once worked for Jack Abramoff, is expected to plead guilty in connection with the Justice Department's wide-ranging influence-peddling investigation, according to documents filed Friday afternoon in federal court in Washington D.C...

Also Friday, Todd Boulanger, another former Abramoff associate under federal scrutiny, departed abruptly from his lobbying shop, Cassidy & Associates, the firm announced...

Things are moving quickly over at the Justice Department. I learned of Mr. Hirni just yesterday. And judging from Mr. Boulanger's actions, he may very well face trouble in the near future, too. Remember that Kevin Ring "abruptly" left his high powered lobbying job in early 2007. Mr. Ring was eventually indicted in September.

A spokesman speaks on behalf of Mr. Hirni:

A spokesperson for Hirni told ABCNews.com that "he regrets one single instance as a first time lobbyist over five years ago when a mistake in judgment by agreeing to a client's request led to an unfortunate chain of events one evening. Jim has acknowledged his involvement and the involvement of those responsible for that incident. Jim however was not employed by Jack Abramoff at the time of the incident in question. Jim is now cooperating with the Department of Justice during their investigation. Additionally his future plans include developing a program to educated government staffers or others involved in lobbying about ethics potential mistakes. He very much wants to help others in the future."

Emphasis Added

I strongly suspect that Mr. Hirni is answering prosecutors' questions about Mr. Boulanger. I still have yet to fulfill my promise to write about Mr. Boulanger in greater detail. It will come this weekend.

An "information" document (.pdf) filed with the court introduces a new cutesy name: Staffer D. According to the document filed with the court, Mr. Hirni treated Staffer D and another Congressional staffer, admitted criminal Trevor Blackann, to a World Series game and a night at a so-called gentleman's club. The focal point of this activity is not Staffer D, although Staffer D should be nervous. This activity is meant to pressure Mr. Boulanger.

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Update
December 14, 2008

According to documents filed with the court on December 12, 2008, I understand that the "Information" is not an "Indictment". I'm not a lawyer and really don't know the difference. Perhaps the "Information" was drafted by the Justice Department and not voted on by a grand jury. At any rate, Mr. Hirni waived indictment and accepted the allegations made in the Information.

Trevor Blackann Pleads Guilty

From the Associated Press:

WASHINGTON (AP) — A former legislative aide to two Missouri Republicans, Sen. Kit Bond and Rep. Roy Blunt, pleaded guilty Thursday to hiding thousands of dollars of gifts from lobbyists, the latest political figure to go down in the Jack Abramoff corruption scandal.

Trevor L. Blackann, 34, pleaded guilty in federal court to not reporting more than $4,100 in illegal gifts from lobbyists on his 2003 tax forms, including tickets to the World Series, concerts and sporting events, free airfare and transportation, free meals and gifts and entertainment at a "gentleman's club..."

Blackann said in court documents he knew "the lobbyists gave these things of value for or because of official actions they were seeking from him or had obtained from him."

A lawyer close to the case, who spoke on condition of anonymity because of the ongoing investigation, said that Lobbyist D in the court documents is Todd Boulanger and Lobbyist E is Jim Hirni. Both are Abramoff's former lobbying associates.

Blackann also said that the things he is pleading to do "not include all of the facts known to me concerning criminal activity in which I and/or others engaged."

Boulanger and Hirni. Guess we should learn more about those two. After all, being named "Lobbyist D" and "Lobbyist E" doesn't bode well for them. I'll have a lot of dots to connect with respect to Mr. Boulanger this weekend.

Mr. Blackann's wife is Laura Blackann nee Laura Brookshire. Mrs. Blackann seems to me to be an interesting character herself:

[Trevor Blackann] is married to Laura Brookshire, who has worked for Tom Delay and is now press secretary for Rep. John Doolittle , also a Republican, in California.

Mrs. Blackann worked for both former Rep. Tom DeLay (R-Fort Bend County) and Rep. Doolittle (R-Calif.)? Did I ever mention that ever mention that this scandal is incestuous?

New Filings: Teltschik v. Williams & Jensen

Back in September, plaintiff filed his original plaintiff's disclosures. Last week, the second amended plaintiff's disclosures (.pdf) were filed with the DC District Court. (Either I missed the first amended disclosures or they were entirely unremarkable.) I'm going to approach this shotgun style because there are a number of little points I want to make about the second amended disclosures.

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1. The motion to reconsider the dismissal of Federal Election Commission Chairman Don McGahn is still outstanding:

Mr. McGahn was formerly a defendant herein and presumably has knowledge regarding the filings with the FEC and his meeting with Jim Ellis and Tom DeLay. A Motion to revisit his dismissal from the suit has been filed and is currently pending.

I can't detect any movement whatsoever on Mr. Teltschik's motion to reconsider. It has been pending for over five months now. I infer that the motion will ultimately be unsuccessful. After all, if Mr. McGahn is added back as a defendant, Judge Kennedy's schedule for proceeding with this trial will be set back months. I'm sure that Mr. McGahn's attorney at Covington & Burling, Scott Gast, has a lot on his plate. Mr. Gast has responded to the motion to reconsider, and at this point, his client isn't a defendant. Mr. Gast has better things to do than spend a lot of time preparing for a defense for someone not involved in a lawsuit.

The reference to a meeting including Mr. McGahn, Jim Ellis and Tom DeLay deserves mention, too. I've said before that Mr. Ellis and/or Mr. DeLay hired Mr. McGahn to represent ARMPAC in MUR 5675. It seems to me that the probative value of learning more about this meeting would be far greater if Mr. McGahn were a defendant again. After all, what does the substance of this meeting have to do with the Williams & Jensen defendants? Maybe Mr. Teltschik is trying to establish that Mr. McGahn, as ARMPAC's lawyer, engineered the controversial Conciliatory Agreement signed by Williams & Jensen defendant Meredith Kelley.

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2. I just caught a new name while reading on Mr. Teltschik's list of potential witnesses: Sam Dawson. Mr. Dawson's name was on the original disclosure list (.pdf), but I missed it somehow. Mr. Dawson's employer is listed as Dawson McCarthy Nelson Media. Here is what the disclosure says about Mr. Dawson:

Former Consultant to Tom DeLay and may have knowledge regarding ARMPAC

Applying my own version of the Mosaic Theory, I concluded that Mr. Teltschik had reason to believe that Mr. DeLay's "War Room" reacted to CREW's complaint about ARMPAC. According to The Hill newspaper, Mr. Dawson was routinely involved in "War Room" activities. I'm convinced of a connection now.

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3. Christine DeLay is listed as a possible witness again. This is what the disclosure says about her:

Mrs. DeLay has knowledge her dealings with ARMPAC, Tom DeLay, Christine DeLay, various members of Williams & Jensen, and Mr. Teltschik.

Let's get past the confusing grammar in there. Trust me, it is in the original. I think "Mrs. DeLay has knowledge *of* her dealings ..."

Next, it seems awkward that Mrs. DeLay has knowledge of "Christine DeLay". Maybe Mrs. DeLay has knowledge of how *Dani DeLay Ferro* is connected to this case. But more likely, I think what we are seeing is the result of a botched cut-and-paste job from the description of Mr. Teltschik. Mr. Teltschik is described as having "knowledge of his dealings with ARMPAC, Tom DeLay, Christine DeLay, various members of Williams & Jensen ..."

I'm still hopeful that Dani DeLay Ferro will be dragged into this -- Ms. Ferro is listed as a witness, too.

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4. I have a final point to make about this filing, but I'd like to upload a motion filed earlier this week by the attorneys for Williams & Jensen to help me make that point. Check this space tomorrow. It's my bedtime.

Paul Vinovich and the DeLay Foundation for Kids

Paul Vinovich was staff counsel to convicted felon and former Congressman Bob Ney (R-Ohio). I've speculated that Mr. Vinovich may have a role in the upcoming retrial of former administration official David Safavian. My understanding is that Mr. Safavian's retrial will commence next month.

Anyway, I was searching around to see if there was anything new about Mr. Vinovich. What I found isn't new, but it sure is coincidental. A charity connected to Tom DeLay, the DeLay Foundation for Kids, sponsored four trips for Congressional staffers. Three of the staffers worked for Mr. DeLay; the fourth was Paul Vinovich.

Nearly two years ago, I mentioned the DeLay Foundation for Kids. The charity received donations from Jack Abramoff's Indian tribe clients. I've never seen anything that convinces me the DeLay Foundation was involved in unlawful activity, but at the same time, I've always found the DeLay Foundation to be stinky.

With extremely tenuous evidence, I have speculated that Mr. Vinovich may be helpful to prosecutors wanting to build a case against Tom DeLay. I'd like to connect my speculation to Mr. Vinovich's link to Mr. DeLay through this single DeLay Foundation funded trip. But that reed is too thin even for me.

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Interestingly, the wife of Corwin Teltschik is or was president of the Board of Directors for the DeLay Foundation for Kids. This stuff is incestuous.

"Speech or Debate" and Tom DeLay

The Washington Post has a front page article detailing how US Congressmen are using the "Speech or Debate" clause of the US Constitution to thwart corruption investigations. I first wrote of this trend in the summer of 2007.

Here is a quick explanation of what tainted Congressmen are doing:

A constitutional clause designed to protect members of Congress from abusive or harassing lawsuits is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate scandal.

Under a constitutional provision known as the "speech or debate clause," lawmakers have wide protections that cover their work on Capitol Hill. That means legislation, floor speeches, and wiretaps that capture information related to votes and strategy are often out of bounds in developing a criminal case.

Like me, government watchdog groups are dismayed about the abuse of the "Speech or Debate" clause:

"It's the biggest issue in federal corruption prosecutions," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington and a former federal prosecutor. "If courts continue to expand the breadth of the clause, we are likely to see more bribery and other illegal conduct by legislators go unpunished."

To me, the most disappointing part of WaPo reporter Carrie Johnson's article is this snippet:

Long-running investigations of Rep. John T. Doolittle (R-Calif.) and former House majority leader Tom DeLay (R-Tex.) and their connection to disgraced lobbyist Jack Abramoff have slowed to a crawl because of debates about the scope of the speech or debate clause.

It shouldn't surprise me that Mr. DeLay is using the Speech or Debate clause to stymie the criminal investigation into his activities. After all, we've known that Mr. DeLay was using this defense no later than January 2008. I have faith in Justice Department prosecutors, though. DoJ lawyers will make their case regardless of whether this evidence is admissible or not.

The part of the article I liked the most was this quote:

"Speech or debate is not an absolute privilege, but the courts have been pretty clear that when it applies, it applies absolutely," said Elliot S. Berke, a former top lawyer for DeLay and onetime House speaker J. Dennis Hastert (R-Ill.).

Elliot Berke. We know him! Mr. Berke's name appeared on a list of people who may have discoverable information in Teltschik vs. Williams & Jensen PLLC et. al.

It is quite possible that Mr. Berke will try to use the Speech or Debate clause himself in the Teltschik civil case. After all, the Speech or Debate clause is one of separation of powers provisions of the US Constitution. Originally designed to protect the legislative branch from the executive branch, it also protects the legislative branch from the judicial branch. Mr. Berke may very well make the argument that the court can not compel testimony about work he did in the legislative branch.

All I can do is repeat what I wrote a little over a year ago:

I suspect this means that the House will exert some privileges under the "Speech or 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 or Debate" clause. Smarter people than I need to find a way to strike that balance.