Jack Abramoff--the imprisoned Washington ex-lobbyist--must be kicking himself.
On Thursday, October 15, a judge in Washington, D.C. reluctantly declared a mistrial for defendant Kevin Ring, one of Abramoff's most trusted lieutenants.[1] The jury had found itself hopelessly deadlocked on all eight counts, most of them "private honest-services fraud."[2] And Ring accomplished this amazing derring-do without calling a single witness in his own defense.
It may be a sign that the reign of honest-services-fraud terror by federal prosecutors is finally coming to an end.
Honest-services fraud--"a scheme or artifice to deprive another of the intangible right of honest services"--is punishable by up to five years in federal prison, a $250,000 fine, or both. The problem is no one has a clue what this statute means.
Prosecutors have repeatedly suborned perjury and obstructed justice--both felonies--by terrorizing white-collar defendants into pleading guilty in return for a reduced sentence in a cushy prison camp. These plea bargains--all under the guise of judicial economy--guarantee prosecutors a conviction. What prosecutors fear most is going to trial, because they know that these ill-defined charges won't fly with any reasonable jury.
The Kevin Ring case is a stunning example.
What's more, even though they have taken a solemn oath to "seek justice," federal prosecutors have subverted the integrity of the legal system by deliberately exploiting the vague and inscrutable honest-services fraud statute in order to achieve high convictions rates at any cost.
"How can the public be expected to know what [honest-services fraud] means when the judges and prosecutors themselves do not know, or must make it up as they go along?" wondered U.S. Court of Appeals Judge Dennis Jacobs in 2003.
Even U.S. Supreme Court Justice Antonin Scalia, who is no friend of liberals, has declared that:
Without some coherent limiting principle to define what 'the intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.'s who engage in any manner of unappealing or ethically questionable conduct.
If carried to its logical extreme, Scalia added, "It would seemingly cover a salaried employee's phoning in sick to go to a ballgame."
Indeed, the U.S. Supreme Court--which rejects nearly 99% of the 10,000 annual requests to review a lower-court ruling--has recently agreed to accept three cases involving the constitutionality of honest-services fraud.
No doubt, federal prosecutors are holding their collective breath.
Thus far, 17 people have "confessed" their crimes in the Abramoff influence-peddling scandal without going to trial. Ring is only the second person who has refused to be intimidated by federal prosecutors, forcing them to take the case to a jury--which resulted in a deadlock.[3]
This is why Abramoff--languishing in a federal prison camp in Cumberland, Maryland for the past three years--is kicking himself.[4] If only he had gone to trial, instead of being pressured into pleading guilty to charges he knew he was not guilty of. And if only he had been able to hire defense attorney Brendan Sullivan, who managed to keep Col. Oliver North and Sen. Ted Stevens out of prison.[5]
By the way, what were the heinous charges brought against Kevin Ring? He "lavished" elected officials and their staff with free sports tickets and meals--essentially, the very same charges lobbed against Abramoff.[6]
During closing arguments, the jury was told by the defense:
It sounds sinister to talk about meals and tickets, near in time to when folks are being asked to take official actions. It is the way lobbying works; it is the way politics works...This is not a sign of a bribe. This is not the sign of a corrupt relationship.
Indeed, during deliberations, the jury asked the judge if there was a legal limit on the dollar value of meals and sports tickets that a lobbyist could give to public officials. The judge told them that there was not.
If the U.S. Supreme Court rules that the honest-services fraud statute is unconstitutionally vague, all convictions based on this alleged crime should be overturned and all those convicted and imprisoned should be immediately released and justly compensated.
Gary S. Chafetz is the author of The Perfect Villain: John McCain and the Demonization of Lobbyist Jack Abramoff.
NOTES:
[1] On February 3, 2004, when a Washington Post reporter met with and questioned Abramoff at his office--19 days before the first story appeared in print--the three lobbyists closest to Abramoff also participated in the interview: Todd Boulanger, Jon van Horne, and Kevin Ring.
[2] Public honest-services fraud involves actions taken by a public official. Private honest-services fraud involves actions taken by a private citizen.
[3] The other was David Safavian, the former top procurement official in the George W. Bush administration, whose conviction for perjury was overturned following his trial in 2006. Safavian was retried and convicted again. On October 16, 2009, he was sentenced to a year in prison.
[4] Abramoff will have 12 months knocked off his prison sentence, because he will have completed a drug-rehab program to prevent recidivism. Prior to his incarceration, he had become dependent on Ambien, a sleeping pill. Abramoff is slated to be released from prison in June 2010, after which he will spend six months in a half-way house.
[5] At Col. North's urging, Abramoff initially hired Sullivan, but hours later Sullivan was forced to withdraw due to a conflict of interest--another attorney in Sullivan's law firm was representing Abramoff's employer in an unrelated matter.
[6] In a separate case, Abramoff was charged with wire fraud, involving a fraudulent $23 million wire transfer in Florida. I interviewed Adam Kidan, Abramoff's business partner. Kidan told me that Abramoff knew nothing about this bogus wire transfer. In my opinion, Abramoff would have never been found guilty of this charge.
Another charge that received widespread attention was the claim that Abramoff defrauded his tribal clients by failing to disclose his "kickback scheme" involving public-relations expert Michael Scanlon. Abramoff, whom I secretly interviewed for over 100 hours before and after he went to prison, told me that he had simply received a perfectly legal referral fee from Scanlon and that he was not required to disclose this. Indeed, federal prosecutors later had to concede that Abramoff was correct about this.
Prior to Abramoff's sentencing in Washington D.C. in September 2008, prosecutors issued a sentencing memorandum in which they stated in a footnote:
Where Abramoff's interest in the profits of [Scanlon's company] was not disclosed to potential clients, there was no clear legal duty to disclose what Abramoff and Scanlon intended to do with their profits. There are other payments made to Abramoff by Scanlon pursuant to their secret arrangement, but these payments arise only from interactions before Abramoff was hired as the clients' lobbyist. Consequently, those payments were not charged as criminal law violations.
Absent any other criminal violation, what did the prosecutors ultimately do? They charged Abramoff with private honest-services fraud.