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Well here’s the late-breaking news: Congressman William Jefferson is a scoundrel.

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Two Years To Charge Rep. William Jefferson?

Well here’s the late-breaking news: Congressman William Jefferson is a scoundrel.

Well here’s the late-breaking news: Congressman William Jefferson is a scoundrel.

The Justice Department finally took its victory lap last Monday, announcing the long-awaited — I want to say, the interminably-awaited — filing of a corruption charges against the Louisiana Democrat.  To say DOJ threw the book at Jefferson is, in this instance, almost literally true.  The indictment is a 95-page tome.  It sets forth years of scamming, outlined in 16 different counts — bribery, fraud, public corruption, money laundering and racketeering … with a proposed forfeiture of the law-maker’s ill-gotten gains thrown in for good measure.

What caught this old prosecutor’s eye, though, was a less noticed allegation:  an obstruction of justice charge, Count Fifteen, tucked away on page 58 of the grand jury’s opus.  It alleges that in August 2005, during the FBI’s execution of a court-authorized search of Jefferson’s New Orleans home (to be clear, not the controversial, still hotly litigated search of his Capitol Hill office), the congressman tried to conceal documents that were patently relevant to the ongoing — and going … and going — investigation.

We have actually been aware of this incident for over a year.  Back on May 31, 2006, the government provided the court with an affidavit from an FBI agent.  She explained that, at the start of the search, she’d observed Jefferson seated at a kitchen table, perusing several documents.  Jefferson asked the agents if he could take a look at a 19-page subpoena that had been served on him earlier in the day.  When the FBI obliged, the cagey congressman — obviously thinking no one was looking — slid the documents he’d been looking at beneath the subpoena, and then placed the whole stack under his elbow.  Subsequently, the congressman asked to move into the living room; when the agents said yes, he surreptitiously squirreled the papers away in a blue bag. 

At that point, the watchful agent confronted him.  Jefferson first falsely insisted that the only thing in the bag was the subpoena.  Then, when, after some more stalling, he finally complied with the agent’s demand that he empty the bag, he took pains to place the subpoena on top, making it look as if that’s all there was.  But sure enough, the agent found the other documents — documents that had been sent by fax to the congressman that very day by a man named B.K. Son.  As the congressman well knew, the search warrant the FBI was executing authorized the seizure of any communications between Jefferson and Son; thus, the affidavit relates, the FBI grabbed the documents Jefferson had blatantly sought to conceal.

What is most striking about this incident is not its audacity — on that score, it’s but a drop in Jefferson’s ocean of gall.  No, what infuriates is that this happened almost two years ago. 

If you’re keeping score, that would be about a year-and-a-half before the 2006 midterm elections — you remember, the ones in which Democrats surged to victory by, among other things, effectively depicting Republicans as embodying the “culture of corruption.” It was, consequently, well before Jefferson’s own re-election campaign, in which he used the fact that he had not been charged with any crimes to blunt claims that he had betrayed his constituents.  It was, moreover, before Jefferson, long suspected of the skullduggery for which he has now, at long last, been formally indicted, was placed by Speaker Nancy Pelosi on the House Homeland Security Committee — making some of this country’s most sensitive national security secrets accessible to a guy strongly suspected of being for sale.

What on earth was the hold up?

The Jefferson investigation has not been an outlier.  It has gotten personal attention from the very top officials at the Justice Department and the FBI because of both the main suspect’s high-profile and the congressional caterwauling over last year’s FBI search of Jefferson’s legislative office.  Presumably, Justice would contend the delay was simply a case of acting responsibly, of ensuring that the government put together the most bulletproof case possible before pulling the trigger.  That, however, would indicate someone’s priorities are seriously out of whack.

Putting together the most airtight case is not the Justice Department’s highest responsibility.  The public welfare is.  Deciding when to bring formal charges is always a judgment call.  Usually, though, it is not based exclusively, or even primarily, on when the evidence is most ripe.  It calls for factoring in the physical and financial security of potential victims, the potential of a bad actor to compromise the integrity of important institutions, the imperative of identifying all the bad actors in a scheme, and other case-specific considerations.  If a suspect is likely to continue, for example, defrauding investors, robbing banks, plotting mayhem, or corrupting a high public trust, a prosecutor doesn’t wait until his case is a Rembrandt; he gets the suspect off the street.

Don’t misunderstand.  This is not an argument for rash action, for arresting people on insufficient evidence.  And it is incontestable that some of the Jefferson allegations — public corruption, money-laundering and racketeering — tend to be complex crimes.  Investigating them, gathering evidence that will hold up in court, all that takes time … although someone’s got some explaining to do about why, in this case, it took this much time.

But let’s put that aside for a moment.  There is nothing complicated about the obstruction of a search warrant, especially when the suspect does it right under an FBI agent’s nose and gets caught red-handed.  You don’t continue to investigate that for two years.  You get out the handcuffs right there and then.  You place him under arrest and you prosecute him. 

If the rest of your case isn’t ready yet, fine, keep investigating until it’s ready.  Nothing says you can’t try a suspect twice as long as the charges are different.  Arresting Jefferson for obstructing the search would have been no impediment to a later prosecution for the remaining array of offenses.  But you don’t leave a crooked congressman at liberty when he commits an easy-to-prove corruption crime right before your very eyes — a crime you were able to witness precisely because you already had so much corruption evidence that a judge gave you a warrant to search his home.  And you especially don’t leave him at liberty for nearly two years — two years during which he sullied congress, acted in the name of the American people and, for the last several months, had access to sensitive national defense information.

And why the delay?  So a four-count case could be inflated into a 20-count case?  For what?  The reports tell us that, if convicted, Jefferson could face 235 years in prison.  But Jefferson is sixty years old.  How much jail time do we really think we’re going to need here?  Did DOJ really think it needed to wait until it came up with 235 years of sentencing exposure?  Mightn’t, say, 20 or 30 have done the trick?  Yes, if Jefferson did what he’s accused of doing, he should go to jail for several years.  But more than needing him in jail we needed him out of Congress, with all due dispatch.  That meant back in 2005, and certainly no later than early 2006.

Let’s review the record, shall we?  By the mid-summer of 2005, the government was so well aware that Jefferson was corrupt it already had a confidential informant dealing with him on an influence-peddling Nigerian business transaction.  Jefferson was thus tape-recorded accepting a $100,000 cash bribe on July 30 of that year.  Two days later, on August 1, Jefferson told the informant that he had met in Washington with the necessary Nigerian officials (which, according to the indictment, he had indeed done), and accepted from the informant two stock certificates, aggregating to over two-million shares in companies involved in the scheme.  Two days after that came the searches of Jefferson’s two residences:  the one in New Orleans which he is charged with obstructing, and the one in Washington where the FBI apparently recovered $90,000 of the July 30 bribe money — separated into $10,000 bundles, wrapped in foil and stashed in the Honorable Mr. J’s freezer.

In a nutshell, by August 3, 2005, there appears to have been overwhelming evidence that Jefferson had solicited bribes, been involved in a fraudulent scheme, perhaps violated the Foreign Corrupt Practices Act, and obstructed the execution of a court-authorized search warrant.  An indictment focusing just on that behavior would have exposed the then-58-year-old congressman to the potential of several years in the slammer. 

I’ve seen a lot of defendants convicted on a whole lot less proof than a tape-recorded bribe where the bribe money is seized from a freezer in one of the defendant’s houses while he brazenly obstructs the search of another.  Juries tend not to look too kindly on that sort of thing from their public officials.  But, okay, let’s say you’re not sure that’s quite enough evidence.  Try this:  In January 2006, the congressman’s former legislative assistant, Brett Pfeffer, pled guilty to conspiring with Jefferson to solicit bribes in connection with the Nigeria deal.  Pfeffer agreed to cooperate and testify — seventeen months ago (or eleven months before Jefferson was re-elected.) 

Still not enough?  Flash forward, then, to May 2006.  That’s when Louisville businessman Vernon Jackson pled guilty to paying Jefferson $400,000 in bribes.  He also agreed to cooperate and testify — over a year ago and six months before Jefferson’s re-election. 

Why has this man been in Congress for the last two years?  Why has he been on the Homeland Security Committee for the last seven months?  We didn’t need 95 pages, 20 counts and 235 years.  We needed him gone.

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Written By

Mr. McCarthy, a former federal prosecutor, directs the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies.

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