SEVEN MEMBERS of Congress and assorted co-defendants have been convicted by juries in the Abscam scandal. Federal courts of appeals in two circuits have affirmed these convictions after giving careful consideration to the conduct of the government. Last Friday, however, U.S. District Judge William Bryant, who presided at the trial of former congressman Richard Kelly 16 months ago, threw out the jury verdict and dismissed the indictment. His decision will be appealed by the Justice Department.
Because Judge Bryant's view of the government's conduct in this case differs so markedly from that of juries and other federal judges, it is worth careful consideration. If his decision is affirmed by the Court of Appeals for the District of Columbia, there will then be conflicting opinions in the circuits that will have to be resolved by the Supreme Court. In any event, his views are bound to be closely scanned by critics of the FBI--and not only them.
While Judge Bryant writes that he is "chagrined and disappointed . . . at the sight of Kelly stuffing $100 bills into his pockets," he finds that the conduct of government agents "rises above the level of mere offensiveness to that of being outrageous." It is so outrageous, in fact, as to invalidate the congressman's conviction. What did the agents do? First, the government "spread the word that $25,000 would be paid to congressmen" who agreed to cooperate in a scheme that was clearly illegal. In the Kelly case, this offer was made through middlemen, from government agents to one William Rosenberg, who told Stanley Weitz who told Gino Ciuzio who suggested that Mr. Kelly might cooperate and brought him to see the "shieks." Once the congressman and the FBI agent were alone--in a single meeting lasting only about an hour--the bribe was proffered. At first, Mr. Kelly refused to take the money. But after a few more offers, within the hour, $25,000 was spread out in packets of $100 bills, and he accepted it as the initial payment of a $100,000 bribe. Judge Bryant holds that the government's persistence after Mr. Kelly's initial refusal violated all concepts of fundamental fairness. But is not the message to the next greedy official merely to avoid taking the bribe at the first offer?
Other courts may, in the end, agree with Judge Bryant. The congressional committee hearings will produce more opinions. But as these cases proceed through the courts and are evaluated by Congress, decision-makers cannot fail to concern themselves with public perceptions of our system of justice. Tens of millions of Americans have seen videotapes of officeholders taking bribes. The sight of Rep. Kelly stuffing $100 bills into his pockets may have "chagrined" Judge Bryant. Other Americans were disgusted. Juries of ordinary citizens have, in every single case, convicted members of Congress indicted in this scandal. If those convictions are to be overturned, a compelling case must be made that the government's conduct was truly "outrageous." It is important that any such decision be understood, and accepted, by the millions who, watching their own television sets, saw the crimes being committed.