The Kevin Ring Case Is a Scandal and a Disgrace: Five Things I Think You Should Know
By BRIAN DALTON
There’s no denying that Jack Abramoff was a crook. He fleeced clients of millions. He bribed Congressmen. He defrauded his business partners and committed bank fraud. He got off lightly with the 43 months he served. He now hosts a radio show on XM and gets paid handsomely to speak to state legislators and other suckers about the need for — you guessed it — lobbying reform.
Although Ring worked for and was deemed a co-conspirator of Abramoff’s, under the government’s strikingly expansive definition of “conspiracy,” Ring had nothing to do with Abramoff’s most egregious offenses: bribery of Rep. Bob Ney (only member of Congress convicted), Suncruz bank fraud, millions stolen from client-Indian tribes, and tax fraud. The charges against Kevin came down to this: dinners and tickets (to Redskins games and, erm, Disney on Ice), given to a few minor public officials, none of whom would testify against him, and concerning which the government didn’t even try to prove any quid pro quo. After two trials and a loss on appeal, Kevin is looking at 20 months imprisonment. His marriage fell apart a while back. He’ll lose his bar license. His legal bills ran over $2 million and left him more than $1 million in debt. Here’s the thing, though: he has committed no crime. Even if every thing alleged is true he has been convicted ex post facto of “being a lobbyist” in the commonly understood sense.
Joe Patrice wrote a great post last week about the Ring case in the context of a broader “prosecutors gone wild” trend (cf. Aaron Swartz). But as someone who followed the Ring case closely, with mounting bewilderment and anger, I want to make the specific, outrageous particulars of the case to be more widely known. It turns out I am fortunate to work for Above the Law/Breaking Media and have colleagues who will indulge me to do so.
Oh, no reason1. The Ring case is emblematic of prosecutorial overreach and abuse.
This cannot be repeated enough: the difference between rewarding cooperation and vindictively punishing someone for asserting his constitutional right to trial is utterly lost in this case. Joe put it well:
In Ring’s case, after securing modest sentences for cooperating lobbyists with more egregious conduct (including Abramoff himself), the government sought a 20-year prison term for the non-cooperating Ring. Take a second to ponder that… the government wanted to put Ring away for three to four times longer than the actual ringleader of the whole affair! There’s “rewarding cooperation,” and then there’s whatever the government was doing here.
But it’s actually worse than that. When the government first submitted its views of how the federal guidelines should be calculated, prosecutors said Ring’s offense level required a sentence of life in prison. LIFE. Even the judge agreed with the defense that the prosecutors were retaliating against Ring for going to trial.
2. The prosecution behaved despicably.
One Nathaniel Edmonds, Assistant Chief of the Foreign Corrupt Practices Act Unit at DOJ, was the government shot-caller in this case. I’ve heard that Edmonds told Ring’s counsel after the initial mistrial that he would “try him ten more times if that’s what it took to secure a conviction.” Which would be, of course, a totally reasonable and non-disturbing thing for someone in his position of nearly unchecked power to say. (I reached out to Edmonds and learned that he was out of the country and unable to respond.)
Examples of questionable acts by the prosecution in the Ring cases abound. Here is a sampling. Before the trial:
Kevin voluntarily reached out to the DOJ in 2004 and offered his cooperation. He cooperated for two years. In 2008, well after his cooperation ended (see #3 below) and his arrest was inevitable, he offered multiple times to turn himself in. Instead the government thought it better to send a half-dozen FBI agents to pound on his front door early one morning and take him away in handcuffs. His wife and kids were at home, of course. I know that all law enforcement enjoys a little theatrics and it happens to everyone, but still. Presumed innocent? No flight risk? Willing to surrender? What the hell was the point? I felt like the French did when theyflipped out over DSK’s perp walk.
During the second trial, two prosecutorial acts stand out to me. First, the prosecution tried to change the rulesin the middle of the game. Essentially, they requested a fundamental change to the earlier jury instructions. This move came in the wake of the government’s main witness recanting his earlier testimony (see #4 below). The judge, Ellen Segal Huvelle, scolded the prosecutors for taking a “totally different position” because their witness bailed out. “It’s a very sad day that the government should be stretching at this time to come up with new arguments.” Well, the case never was about punishing a lawbreaker. It was about retribution.
At a later point in the second trial, Edmonds implied that he was in possession of evidence that Ring had secured a no-work job for the wife of a Congressional staffer. Nothing of the sort took place and there was no evidence to suggest so. It was a cheap stunt of the Joe-McCarthy-waving-around-a-list-of-imaginary-commies variety. Judge Huvelle recognized this and admonished Edmonds: “You have crossed the line of professional responsibility.” Edmonds replied with the formulation cherished by busted fibbers everywhere: “I misspoke.”
Edmonds’s vengefulness did not end even when he won Kevin’s conviction. Because of my friendship with Kevin, I am aware of allegations that Edmonds made in regard to Ring’s broken marriage in a pre-sentencing report that I view as vile. My desire to shine a light on this must be balanced against Kevin’s family’s right to not have their privacy violated further, and the latter has to prevail. But I will say this: Edmonds reminds me of nothing so much as a priggish, fanatical Javert-type character. As Hugo famously said of his creation: “Probity, sincerity, candor, conviction, the sense of duty, are things which may become hideous when wrongly directed […] they are virtues which have one vice, — error.”
In other, more ATL-ish terms, to describe Edmonds’s action as “douche-y” is to insult popped collars everywhere.
3. He refused to give false testimony.
The government’s real agenda was to leverage a deal with Ring to get him to testify against his former boss, ex-Congressman John Doolittle, as well as other members of Congress, staffers, and Bush administration officials. For two years before his arrest, Kevin cooperated with the FBI up until the point where they began to pressure him to sign a plea agreement that required him to admit to defrauding his clients (a charge they never brought) and bribing public officials. As Kevin wrote in a letter to the judge before sentencing, he would have had to admit that he gave Doolittle and others meals and tickets in return for official favors and believed that if he stopped giving them things, they would have stopped the favors. Kevin refused to give what he knew was a false statement against Doolittle, asserted his right to trial, and this whole sh*tstorm rained down on him and his family. Neither Doolittle nor anyone on his staff was ever charged.
4. The main witness recanted! The government had no witnesses! Aaaaaaaargghh.
For Kevin’s first trial, the government planned on producing three witnesses who would testify that Kevin had sought to corrupt them:
- John Albaugh (former chief of staff to Ernest Istook (R-OK))
- Bob Coughlin (an attorney in the DOJ’s Criminal Division)
- Ann Copland (former aide to Senator Cochran (R- MS))
Coughlin backed out before the trial, asserting Kevin had not corrupted him after all. Albaugh testfied. Copland testified as well, wept copiously on the stand, and said nearly directly that she pleaded guilty because she didn’t have the money to contest the charges at trial. The jury hung evenly and the judge declared a mistrial.
Before the second trial, Albaugh recanted, saying he never understood what “things of value” meant and that he would have taken the same actions regardless of whether Kevin gave him any meals or concert tickets. Because her testimony had been so damaging to the government’s case, Copland was not called back as a witness in the second trial. In fact, the government called no public officials as witnesses at all. As already noted, at the first trial, where the jury got to hear from actual people and make a determination about whether Kevin had corrupted them, they hung evenly. At the second trial, the government called no (zero) witnesses, had former colleagues who pleaded guilty read his sausage-making emails into the record, and basically said, this guy is a lobbyist. Of course he was giving things of value to influence people. Jury convicted on five of eight counts.
Think about it: Ring was charged with being a big bad lobbyist who corrupted Capitol Hill. Yet the government could not find a single government official to testify that they had been corrupted by him. The three public officials who received sweetheart plea deals in exchange for favorable testimony against Kevin — talk about bribes! — all bucked the government against their own interest.
5. The judge knew this was a bad case.
One thread running throughout the preceding four points is that the trial judge, Ellen Segal Huvelle, was obviously skeptical of the merits of the government’s case (e.g.,“It’s a sad day…”). This gave Kevin’s friends and supporters cause for hope that the trial was going well. And when the jury convicted on five of the eight counts, we hoped that the judge would be as lenient as the power of her position would permit. Alas, no. Our final shred of (delusional?) optimism was this idea that the judge, by her comments, was “signaling” to the appeals court as to the grounds for overturning her own decision. In her sentencing decision, she wrote that she did not agree with the “notion that this was a blatant violation of the public trust by this defendant.” Check out these remarks by the judge at the sentencing hearing (all addressing Edmonds):
“That’s the problem with your position, it’s so nebulous.” and “[W]hen you start pushing people in cases like this to say what you want them to say, especially your agents, and when push comes to shove, and they start evaluating motivation and who knows what they come up with.”
Signals, imaginary or not, were ignored: the appeal was rejected by the D.C. Circuit, in a troubling, perhaps incoherent, decision. Ellen Pognor of White Collar Crime Prof Blog articulates the glaring flaw:
The court states “[t]he distinction between legal lobbying and criminal conduct may be subtle, but, as this case demonstrates, it spells the difference between honest politics and criminal corruption.” This sentence in the opinion concerns me. Should a distinction that results in imprisonment be “subtle”? “Googling” the word “subtle” a definition provided is “[s]o delicate or precise as to be difficult to analyze or describe.” And if this distinction is “subtle,” should the rule of lenity be considered? And should a “subtle” difference be considered to “spell[ ] the difference between honest politics and criminal corruption” or as this case finds – spell the difference between freedom and prison?
Apparently, the answer to that final question is “yes.” And that should frighten all of us.
Defenders of the prosecution seem to think that anyone charged with a felony must somehow deserve punishment. That idea can only be sustained without actual exposure to the legal system. Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.