No Comment — October 6, 2010, 10:36 am

A Coda to “Casino Jack”

Alex Gibney’s new documentary, “Casino Jack and the United States of Money,” surveys the rise and fall of Jack Abramoff. Few aspects of this film are better than its coverage of Abramoff’s relationship with the Justice Department under John Ashcroft. First Abramoff and his team demonstrate their ability as lobbyists to manipulate the Justice Department. Then, as the lid is blown off the Abramoff operation, Justice ratchets up its own probe and prosecution. While the Bush Administration touted the case as evidence of its willingness to prosecute its own, those who studied the situation closely saw it as an exercise in subtle and effective damage control. Junior staffers were sacrificed, but major office holders and political campaign teams always seem to have escaped examination. One would have expected just the opposite: junior players given an opportunity to cooperate to help nab the big fish.

One lingering prosecution has been complicated by the Supreme Court’s ruling in Skilling. Kevin Ring served as a close advisor to Ashcroft and authored a biography of Antonin Scalia before becoming a Washington-based lobbyist and working closely with Abramoff. He was arrested two years ago “on conspiracy, fraud and obstruction-of-justice charges in connection with his alleged role in a four-year scheme to lavish tickets and trips on lawmakers and government officials in return for help for his clients,” according to the Washington Post. At his trial, the government relied on former deputy chief of staff in the criminal division, Robert Coughlin, for evidence, evidently as part of Coughlin’s own plea bargain. It also relied on the testimony of John Albaugh, the chief of staff to the then-chair of the House Appropriations Committee, who also said (again, as part of a plea bargain) that he had accepted “things of value” from Ring to influence decisions for the benefit of Ring’s clients. The case went to trial, and a hung jury resulted. “It could certainly make some of these defendants think, maybe they should have pushed harder,” said Washington defense counsel Stan Brand.

But that was only the beginning of the prosecution’s problems. The government decided to retry the case. In the meantime the Supreme Court handed down its decision in Skilling, in which it limited honest-services theft prosecutions to cases involving bribes and kickbacks. The Ring prosecution is under the honest-services theft rubric, and the government has had a very difficult time explaining how it involves bribes and kickbacks. And now both key witnesses, Coughlin and Albaugh, say that, contrary to their earlier testimony, they no longer believe that they were influenced by Ring’s gifts in discharging their duties. On the other hand, Ashcroft’s chief of staff as attorney general, David Ayers, pleaded the fifth to avoid testifying at the original trial, and the trial judge is now apparently requiring him to testify, finding that he is no longer in jeopardy of prosecution.

One may well wonder how powerful Washington lawyers can completely reverse the sworn evidence they gave in an earlier trial. But all of this will make the prosecution highly problematic–it is clearly skating the outermost perimeters of what the Supreme Court has authorized in Skilling. It helps explain why Lanny Breuer was on Capitol Hill this week pushing to have Skilling overturned. It also leaves some interesting questions: what did prosecutors say or do to secure the cooperation of two senior witnesses who have now recanted?

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