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Monday, June 11, 2007

Defending "Dollar" Bill

One of the reasons that I merely teach and write about white collar crime, rather than actually represent any white collar defendants, is that I lack the kind of imagination and hubris that are necessary to do a really effective job at the latter.  Consider the task confronting lawyers for Louisiana Congressman William Jefferson, charged last week with sixteen counts of conspiracy, bribery, wire fraud, money laundering, obstruction of justice, racketeering, and violations of the Foreign Corrupt Practices Act.  Jefferson, alleged to be at the center of a complex scheme of using his influence as co-chair of the congressional Africa Investment and Trade Caucus to broker deals in various African nations and demand kickbacks for himself and family members, was caught on camera in a hotel garage accepting a payment of payment of $100,000 from an FBI informant, and later found to have $90,000 in marked bills in the freezer of his Washington home. 

Jefferson has now pled not guilty.  If you were Jefferson's defense lawyer, what kind of defense would you offer?  As I say, I doubt I'm clever enough to come up with a very good answer.  But, based on statements by Jefferson and his lawyers, we can discern the foundation for an interesting two-pronged strategy. 

The first prong is the classic “this was merely aggressive business behavior rather than criminal conduct” defense that is so often used in white collar cases (and which, if you’ll excuse some self-promotion, is dealt with extensively in my recent book).   In bribery cases, defendants typically argue that alleged bribes were really just campaign contributions.  Given the nature of the payments here, that defense seems all but impossible.  Instead, Jefferson apparently intends to make the only slightly more plausible argument that, in representing various American companies that were interested in doing business in Africa, he was acting as a private businessman rather than as a member of Congress. 

The second defense is what might be called a modified O.J. defense, to the effect that, even if Jefferson is guilty of something, he has been the victim of government “persecution.”  This defense might have seemed promising if  Jefferson’s case were to be tried in the Eastern District of Louisiana, where he recently won reelection to the House despite the mounting evidence of corruption against him.  In such a venue, particularly in the wake of Hurricane Katrina and its aftermath of governmental neglect, arguing that a populist African American political leader was being framed by the all-powerful Department of Justice might have had some traction.  But, given that the indictment has been filed in the much whiter, much more conservative Eastern District of Virginia, I’m skeptical that this defense will get him very far.

Posted by Stuart Green on June 11, 2007 at 11:43 AM in Criminal Law | Permalink


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While I am not certain that Bill Jefferson is a populist, as he was recently courted by the Republican Party as a possible convert, I am troubled by your easy use of the race card when discussing Jefferson's aggressive prosecution defense. Why OJ? Hasn't this been the claim of many a white colllar criminal prosecuted by, for example, then-NYAG Elliot Spitzer? Not clear why you ran so easily to the OJ Simpson example. And if you were being specific about the particular political nature of the claim, why not stop at someone with whom Jefferson might have more in common, such as Harold Ford, Sr.? Why OJ?

Posted by: Just wondering | Jun 18, 2007 8:48:41 AM

"But, given that the indictment has been filed in the much whiter, much more conservative Eastern District of Virginia, I’m skeptical that this defense will get him very far."

Should this worry us or not?

Posted by: Unsure what the meaning is | Jun 11, 2007 12:44:56 PM

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