Counsel's Right to Try Cisneros Backed
By Bill Miller
The D.C. Circuit Court of Appeals left intact all 18 charges against Cisneros, who is accused of trying to conceal details of the payments from the FBI, both before and after his 1993 confirmation as housing secretary.
A three-judge panel unanimously rejected Cisneros's bid to have the charges thrown out on the grounds that the federal law prohibiting false statements to law enforcement officers does not apply to information provided during FBI background checks. The court said it was premature to decide that issue before a jury hears the case but expressed skepticism about what it described as Cisneros's "bold position" limiting the scope of the federal false statements law.
The ruling represents a victory for independent counsel David M. Barrett, who has been pushing to try Cisneros in U.S. District Court since he secured an indictment in December 1997. The trial was first set for last November.
Cisneros, who headed HUD from 1993 through 1996, now appears likely to be the second Clinton Cabinet member to stand trial. Former agriculture secretary Mike Espy was acquitted last fall of 30 corruption charges stemming from gifts from businesses and lobbyists. Cisneros's lawyers had argued that the false statements law does not apply to the background function in aiding the president, not a law enforcement role.
They also contended that the law, which punishes false statements that are "material," or significant to, an investigation, cannot be used against an official who lied during a background check because the decision about what information is important is up to the president to decide.
But the judges declared that the FBI has a clear duty to aid the nominations process and said a jury can be asked to judge whether Cisneros's statements were critical to the FBI's investigation.
Judge A. Raymond Randolph agreed with Cisneros's argument that the decision about whether to appoint a prospective Cabinet officer rests with the president. But, he said, "Try as he might, Cisneros cannot stretch that claim into an immunity for prospective nominees from being tried for lying to the FBI during their background investigations." The opinion was joined by Judges David S. Tatel and Karen LeCraft Henderson.
Barrett declined comment on the ruling. Defense lawyer Barry S. Simon did not return a telephone call seeking comment. The defense still could ask the full appellate court to review the case.
The decision came five weeks after the judges heard oral arguments, a quick turnaround for a court that typically takes months to decide cases.
The charges against Cisneros involve his affair with Linda Medlar during the late 1980s, when he was mayor of San Antonio. Even after the relationship became public, Cisneros remained a rising star in national Democratic politics and he and his wife reconciled. But when Cisneros got his chance to join the Clinton Cabinet, prosecutors said, he hid details about payments to Medlar.
Although he acknowledged giving Medlar money, Cisneros allegedly lied to the FBI and presidential transitional team about the size of the payments and how long they lasted. Over the years, Cisneros gave Medlar more than $250,000, prosecutors said.
Medlar, who now goes by the name of Linda Jones, pleaded guilty last year and is serving a 3 1/2-year prison term for lying about the purchase of a home with money Cisneros allegedly paid her to keep their affair a secret. She also faces charges in the Washington case, along with two former Cisneros aides.
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