Friday, November 21, 2008
The Fourth Circuit upheld the lower court's denial of Congressman William J. Jefferson's motion to dismiss a pending indictment for multiple schemes in which he allegedly received bribes in exchange for his promotion of products and services to officials in Africa. The NYT Topics Page is here.
After the E.D. Va. grand jury returned the indictment, charging Jefferson with two counts of conspiracy and fourteen substantive offenses, Jefferson moved to dismiss, claiming that prosecutors presented testimony of his former and current staffers in violation of the Speech or Debate Clause. U.S. Const. art. I, sec. 6, cl. 1. The district court denied the motion, and a Fourth Circuit panel (Judges Niemeyer, King, Duncan) upheld.
The Fourth Circuit case is here. Check out page 8 for the staffers' testimony, and pages 16 to 26 for the analysis of the Speech or Debate Clause. And here's U.S. v. Brewster, the Court's leading case.
The court rejected Jefferson's argument that any mention of Speech or Debate material in a grand jury proceeding requires dismissal of all charges. The court distinguished U.S. v. Swindall, the 1992 Eleventh Circuit case, because "[t]he government . . . used legislative activities to prove an element of [Swindall's] perjury offenses." Not so here: "Jefferson has not contended that the Indictment references his legislative acts, or that a successful prosecution will require the government to prove such acts."
The court went on to quote Judge Butzner in the Fourth Circuit U.S. v. Johnson: "Bias of a grand jury may be manifested in several ways, but it has not been held to arise from the receipt of incompetent or constitutionally impermissible evidence." Thus in Jefferson, "[b]ounded by such precedent, we are likewise not entitled to review the grand jury record in Jefferson's case--the Indictment simply does not question any legislative acts."