By Jeffrey H. Birnbaum
Monday, March 20, 2006
A former D.C. cop could alter national politics this year.
Here's why: An appeals court decision that involves the police officer could well make it harder for prosecutors to make a case against lawmakers implicated in the Jack Abramoff lobbying scandal.
Pundits have long predicted that testimony by Abramoff would produce a string of indictments of federal officials this year and that those, in turn, would so tarnish the reputation of his fellow Republicans that the party could lose control of the House, the Senate or both in the November elections.
But that was before the surprising court decision that helped a former Metropolitan Police Department detective named Nelson Valdes.
According to the court's record, Valdes ran license plates through a law enforcement database and provided the vehicle-owner information he collected to a person who paid him cash. He was convicted in 2002 of taking illegal gratuities.
But a three-judge appeals court panel recently reversed that decision. It said, in an opinion dated Feb. 24, that his actions weren't a formal part of his duties and therefore weren't covered by the statute.
Scholars say that as a result of the Valdes case, the process of charging lawmakers and their aides with wrongdoing in the Abramoff scandal (and others like it) will be more difficult.
"Now, virtually every time the government tries to bring an official-acts prosecution, the defense will cite the Valdes case," said George D. Brown, professor at Boston College Law School. "The decision raises a substantial element of doubt,"
Kathleen Clark, a law professor at Washington University in St. Louis, agreed. "I'd be very troubled if I were in the Justice Department pursuing these things," she said.
The federal appeals court here in the District decided that officials such as Valdes should not be convicted for taking payoffs unless their behavior involved a "decision or action" that affected a "formal government decision made in fulfillment of government's public responsibilities."
"Casual and informal use of government resources," which in this case included Valdes's database queries, the decision added, would not qualify as the kind of official act that could be prosecuted under the law.
His conviction on three counts of receiving an illegal gratuity was overturned, and other bribery-like cases could be turned upside down, as well.
In short, Clark said, the Valdes case "narrows the scope of what is an official act."
"It certainly hamstrings the use of the gratuities statute as the basis for a public corruption indictment," Brown agreed.
Not every expert agrees, of course. And lawyers are still poring over the details of the ruling. But many of those who have studied the decision closely believe that it leaves the definition of "official act" vague enough to cast doubt on all sorts of corruption cases.
Put simply: How can prosecutors know for sure what are formal and what are informal duties involved in an official act?
Some instances are clear-cut. If a lawmaker accepts money to vote in favor of a briber's interest, that is obviously a crime.
But if the lawmaker uses his powerful position to pressure a business executive to help a friend who gives him money, is that a formal official act? Maybe not.
Or what about the instance in which a lawmaker calls an executive branch official to praise a business that wants a government contract? Even though the bureaucrat understands the conversation to be a pointed request on the business's behalf, would the communication be a formal official act or an informal one?
Who knows? But that distinction could make all the difference.
All we know is that the Valdes case has raised the bar on proof for the prosecution.
"It opens the door for good defense lawyers to make arguments," Clark said. "This could open the way to a lot of tough motions to dismiss" bribery and gratuity cases.
Here are the facts of the case:
On Feb. 17, 2001, Valdes met William Blake, an FBI informant posing as a judge. They exchanged pleasantries at a popular nightclub called MCCXXIII near DuPont Circle and went on to see each other on several other occasions.
Blake said he might need Valdes to do him a favor. That favor turned out to be obtaining data such as automobile registration information about various people through a police computer system. In implicit exchange for the assistance, Blake gave Valdes money.
Valdes was indicted on three counts of bribery and was convicted on three counts of receipt of an illegal gratuity, a lesser charge. But he appealed and won reversal last month.
The majority ruled that the government "failed to show that the acts for which Valdes received compensation were official acts" within the meaning of the bribery statute. What the government needed, the decision stated, was to show "at least a rudimentary degree of formality" in what that official act was.
In dissent, Judge Karen LeCraft Henderson accused the majority of, in effect, making payoffs legal.
"In Mexico, they call it 'la mordida' (literally, 'the bite'); in Iran, 'bakhshish'; and in France, 'pot-de-vin.' Here in America, we call it a 'payoff' and, today, the majority calls it lawful," Henderson wrote.
She also said that Valdes was clearly acting officially when he used the police's special databases.
But at least for cases that come before the federal court in Washington, the majority will rule. Any future bribery charges against lawmakers or their aides will probably be harder to prove thanks to this obscure onetime detective.
Jeffrey Birnbaum writes about the intersection of government and business every other Monday. His e-mail address firstname.lastname@example.org.