Although the defense has yet to begin its case, we have seen enough hints over the past few months so that we can sum up Fumo’s defense in two words: “it’s complicated.”
The Pennsylvania State Senate rules regarding the payment of staffers and the time they may spend on a senator’s personal or political goals are complicated. The Internal Revenue Service guidelines for transactions between non-profits and their fundraisers are complicated. Fumo’s relationship with Citizens Alliance and the Independence Seaport Museum was very complicated.
It’s a common strategy for defense lawyers, particularly in white collar criminal cases. The defense doesn’t have to prove anything at all. Their ‘burden’ is to poke enough holes in the prosecution’s case to create “reasonable doubt.”
Such, however, has made for an extraordinarily boring trial, livened up only by descriptions of Fumo’s lifestyle and evidence of the extortion and/or corruption charges never actually brought against him.
That is to say, the most interesting parts of the case have also been the least important.
That has changed. The first three sets of charges – fraud on the Senate, Citizens Alliance, and ISM – were presented by the prosecutors through a laundry list of improperly invoice expenditures, as boring as crime gets. The final set of charges, obstruction of justice, began with a $50 million secret deal with Verizon and will conclude with a desperate attempt to thwart an FBI investigation.
And we’ll finally learn how Fumo, himself a lawyer, ended up indicted for obstruction of justice while represented by legendary former prosecutor Richard Sprague.
As referenced in my last post, on September 5, 2008, the Friday before trial began, Fumo’s current lawyers sent the prosecutors a letter describing their intention to present a so-called “advice of counsel” defense to the obstruction of justice charges. As they wrote,
Specifically, at all relevant times up to February 18, 2005, when the search warrant was served, Mr. Fumo relied upon advice given to him by his long-time attorney and confidant, Richard A. Sprague, that it was permissible under federal law not to retain any document that was not under subpoena.
That was, shall we say, a surprise to the prosecutors, who had previously fought long and hard to disqualify Sprague and his firm from representing Fumo because, among other issues, they had represented the victims in the case and because their role in the facts leading up to the indictment made them potential witnesses and blurred the line between being a witness and being an advocate.
Sprague and his firm beat back the prosecutors’ attempt, in part by assuring the court that they were unaware of the “wiping” of Fumo’s computers, the destruction of evidence at the heart of the obstruction of justice charges.
So how do Fumo’s current lawyers intend to reconcile their advice of counsel defense with Mr. Sprague’s prior representations that his firm was not involved in any of the wiping? We get a hint from the September 2008 letter sent by his attorneys. The letter doesn’t reference Sprague having specific knowledge of any particular deletion or wiping, but rather implies Sprague gave Fumo generalized advice, perhaps before the investigation, that he could destroy any documents not under subpoena.
The prosecutors have filed a motion, mid-trial, to preclude Fumo from raising the advice of counsel defense. In the motion, which you can read here, the prosecutors argue that advice of counsel is only applicable to “specific intent” crimes and not “general intent” crimes like obstruction of justice.
It’s not worth going into the details; if you are interested, you can see the response from Fumo’s lawyers here. I presume the judge will deny the government’s motion and permit Fumo to raise the defense – both Judges Yohn and Buckwalter have been very permissive in allowing evidence in this trial. Both have rejected essentially every attempt to limit the scope of this trial, such as by denying the prosecutors’ motion to disqualify Sprague and denying the defendant’s motion to bifurcate the charges into separate trials.
A laissez-faire approach to evidence is generally the best way for a trial judge to avoid reversal by an appellate court; when in doubt, let the jury sort it out.
I have heard numerous theories on how this situation came to pass, with Sprague being offered up to testify regarding something he apparently previously knew nothing about.
Some have hypothesized that Sprague’s vigorous resistance to disqualification was a “sham” from the beginning, as is his “feud” with Fumo (reportedly over fees), and that Sprague and Fumo have been planning the whole time for Sprague or one of his firm’s attorneys to take the stand in Fumo’s defense.
I have also heard it hypothesized that the opposition to the disqualification and the “feud” are both real, and that the “sham” will come when Fumo claims that Sprague actually did advise him on the deletions and wiping, despite Sprague’s prior representations to the court.
It’s probably a little more complicated than that. By pure coincidence, Senator Fumo became the target of a federal investigation a year after a major change in the law relating to obstruction of justice.
Prior to 2002, obstruction of justice was criminalized by three separate federal statutes, none of which clearly prohibited the destruction of documents in anticipation of a government investigation or subpoena.
18 U.S.C. § 1503 created criminal penalties for anyone who “corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” Court opinions had supplemented the statute with four essential elements that the government must prove:
(1) a judicial proceeding which was pending when the documents were destroyed (the “pending proceeding” requirement),
(2) the individual had knowledge of that proceeding,
(3) a sufficient “nexus” existed between the document destruction and the proceeding, and
(4) the defendant acted corruptly and with an intent to obstruct or interfere with a judicial proceeding or administration of justice.
See “Anticipatory Obstruction of Justice: Pre-Emptive Document Destruction Under the Sarbanes-Oxley Anti-Shredding Statute,” 89 Cornell L. Rev. 1519, 1529-1530 (September, 2004).
These requirements are strictly applied. One of the more important Supreme Court cases interpreting § 1503 overturned a conviction of a Federal Judge for deliberating lying to FBI investigators about leaking information about a wiretap because the investigation did not have a sufficient “nexus” with an actual grand jury proceeding. United States v. Aguilar, 515 U.S. 593; 115 S. Ct. 2357; 132 L. Ed. 2d 520 (1995).
18 U.S.C. § 1505 is essentially the same as § 1503, except it applies to agency and congressional investigations. 18 U.S.C. § 1512, the third and final statute under the pre-2002 system, has a broad reach and references government investigations, but only actually criminalizes witness tampering.
That is to say, the pre-2002 obstruction of justice law was limited to situations “closely tied to a pending judicial proceeding” while the witness tampering law ironically only “made it a crime to persuade another person to destroy documents, but not a crime to actually destroy the same documents yourself.”
Don’t take my word for it – those quotes come from United States Senator Patrick Leahy, Chairman of the Committee on the Judiciary, who proposed the new and current obstruction of justice statute, the one under which Fumo has been indicted, in response to revelations of the accounting firm Arthur Andersen shredding hundreds of thousands of documents in anticipation of receiving a subpoena relating to its work for Enron. 148 Cong. Rec. S7, 419 (daily ed. July 26, 2002) (statement of Sen. Leahy). Fumo has been charged with witness tampering as well, by way of instructing other persons to destroy relevant evidence.
Sound complicated? It gets worse.
At trial, Fumo’s lawyers seem likely to argue that Sprague gave Fumo inaccurate advice, an argument hinted at in their response to the prosecution’s motion to prelude Fumo from presenting an advise of counsel defense. (Fumo’s lawyers note, correctly, that advice of counsel usually arises in cases where the advise was inaccurate, as common sense suggests that, if the lawyer’s advice had been accurate, then the defendant would not have been indicted.)
Making matters worse, it’s possible that Fumo will testify he received this general advice relating to document destruction and subpoenas at some point before July 30, 2002, the day the new obstruction of justice statute -- which has a much broader reach, covering any destruction or other tampering done with intent to obstruct a federal investigation, no matter how far removed -- became law.
As everyone knows, ignorance of the law is no defense, but it does raise reasonable doubts about a defendant’s intent.
Fumo may then end up arguing that he had the old law in mind, the one that did not criminalize anticipatory destruction, when he ordered his staff to ramp up their document destruction once he generally learned of the investigation. And who is to say his belief was unreasonable – Congress, after all, apparently thought the same thing, which is why they changed it.
The trick for Fumo’s lawyers is to present this all to the jury in a manner that makes it complicated, but not too complicated. Complicated sounds like reasonable doubt; too complicated sounds like baloney.
