By James V. Grimaldi and Del Quentin Wilber
Washington Post Staff Writers
Wednesday, June 18, 2008
A federal appeals court yesterday ordered a new trial for a former White House aide convicted of obstructing justice and lying, a setback for prosecutors in their four-year-old investigation into the activities of disgraced lobbyist Jack Abramoff.
A three-judge panel tossed out charges that David H. Safavian, the former top contracting official in the White House, lied to investigators about Abramoff's inquiries into surplus federal property, including the historic Old Post Office in downtown Washington, and concealed facts about a charter jet flight and lavish golf junket to St. Andrews, Scotland, and London in the summer of 2002.
Also on that golf trip was then-Rep. Robert W. Ney (R-Ohio), who pleaded guilty to corruption charges and is serving a 30-month prison sentence.
Safavian was the first public official taken to trial in the investigation of Abramoff, the once-powerful Republican lobbyist who was imprisoned for fraud and is set to be sentenced on corruption charges this fall. Safavian's indictment, conviction and 18-month sentence sent a chilling message to congressional and government officials linked to Abramoff and became leverage for prosecutors seeking guilty pleas.
Safavian, 40, has been free pending appeal. He was convicted in June 2006 of lying to an ethics officer at the General Services Administration (GSA), where he had been chief of staff, and deceiving an investigator for the agency's inspector general. At his sentencing, Safavian tearfully maintained that he hadn't seen "anything wrong in helping Jack."
Writing for the unanimous panel of the U.S. District Court of Appeals for the D.C. Circuit, Judge A. Raymond Randolph ruled that Safavian was under no legal obligation to disclose details of his dealings with Abramoff when he asked for an opinion from the GSA's ethics officer about accepting a ride on a chartered jet for the golf vacation. He told the ethics official that he was paying for his hotels, meals and greens fees, though a jury found -- and the appeals court agreed -- that he knew the amount he reimbursed Abramoff, $3,100, was less than the actual costs.
The government argued that once Safavian asked for the ethics opinion, he was required to mention that Abramoff was not just a friend but somebody who had also expressed interest in two GSA properties. But the appeals court said ethics officers provide only advice, not binding decisions, and thus there can be no requirement that officials must disclose all facts to them.
"Are we to suppose that once the client starts answering a government agent's questions, in a deposition or during an investigation, the client must disregard his attorney's advice or risk prosecution?" Randolph wrote. "The government essentially asks us to hold that once an individual starts talking, he cannot stop. We do not think [the law] demands that individuals choose between saying everything and saying nothing. No case stands for that proposition."
Safavian's attorney, Barbara Van Gelder, had urged the Justice Department to drop the charges.
"I'm reading the opinion through teary eyes," Van Gelder said. "This has been so difficult. We've argued these issues from the time he was indicted. It is heartening that the Court of Appeals has agreed with our position, but justice delayed is justice denied. This has been three horrendous years in exile for David."
The reversal is unlikely to have a direct impact on pending public-corruption prosecutions, but it could embolden targets of the investigation to reject plea-bargain offers. Most of the dozen Abramoff corruption cases have relied primarily on the use of conspiracy charges and on the legal argument that officials have deprived the public of their "honest services" while receiving gifts and favors.
One subject of the investigation, former Abramoff lobbyist Kevin Ring, has maintained his innocence though being named in court documents, according to people familiar with the matter who spoke on the condition of anonymity. Ring has been referred to as "Lobbyist C" in recent plea agreements and by name in a recent congressional report as a member of Abramoff's team who offered meals, tickets to sporting events and luxury box seats while seeking business from government officials. He also has been seen as a potentially helpful witness in future prosecutions of officials and members of Congress.
If Safavian faces a new trial, the appeals court said, he cannot be retried on two charges of concealing material facts. But it said he can again face charges on three other counts of his original conviction -- obstructing justice, making false statements to an ethics officer and misleading a Senate committee. A Justice Department spokeswoman said prosecutors are reviewing the decision and did not say whether they will seek retrial.
The court also ruled that U.S. District Judge Paul L. Friedman erred in not allowing Safavian to call an expert witness to support his contention that he was being truthful when he said Abramoff had no pending business before the GSA. Safavian contended that because Abramoff never secured any GSA contract, he was not being deceptive. "The expert's testimony would have supplied crucial context and support for Safavian's proposed meaning," the court ruled.
Former prosecutors said the ruling is a caution to avoid criminalizing vague ethical standards.
"The government in the ethics arena is going to have to do more to show a criminal state of mind," said former Justice Department official George J. Terwilliger III.