David Safavian exonerated: another political prosecution bites the dust

by Kurt Schulzke on June 17, 2008

What a difference two years and appellate review make! Today, the D.C. Circuit Court Appeals exonerated David Safavian, former General Services Administration Chief of Staff, overturning all of his June 2006Abramoff convictions for making false statements and obstruction of justice in connection with the Abramoff scandal.

The convictions were reversed, in part, because the trial judge inexplicably allowed prosecutors to fabricate a non-existent duty of “full disclosure” which the jury then applied to convict Safavian. In other words, prosecutors just made up the law on the spot to produce their desired outcome and the judge went along with the scam. Prosecutors have a penchant for this kind of thing, as I have pointed out in connection with Jeff Skilling’s appeal. Given the stakes involved, it’s a mystery why trial judges don’t do a better job of punishing them for it.

Almost exactly two years ago, on June 21, 2006, in goofy cloak-and-dagger reportage (including the above pic of Abramoff) prematurely headlined “Safavian Lied in Abramhoff Scandal,” Washington Post reporter Jeffrey H. Birnbaum crowed:

Safavian, a former chief of staff of the General Services Administration, was convicted in U.S. District Court here of covering up his many efforts to assist Abramoff in acquiring two properties controlled by the GSA, and also of concealing facts about a lavish weeklong golf trip he took with Abramoff to Scotland and London in the summer of 2002.

This was the first Abramoff-related legal action to go to trial and face a jury. Several legal experts said the case could embolden federal prosecutors to seek additional indictments against cronies of Abramoff, who has been cooperating with the Justice Department since pleading guilty in January to corrupting public officials.

The jury of 10 women and two men came to its decision on its fifth day of deliberations after hearing eight days of testimony. Safavian, 38, sat silently and without expression as U.S. District Judge Paul L. Friedman read the verdict aloud.

The jury found him guilty of obstructing an inquiry by the inspector general’s office of the GSA and of lying to the Senate Indian Affairs Committee, a GSA ethics officer and the GSA inspector general. He was acquitted of obstructing the Senate’s probe. He faces up to 20 years in jail and $1 million in fines; sentencing was set for Oct. 12.

Safavian’s attorney, Barbara Van Gelder, said she will seek a new trial. Prosecutors “will say how this was a great day in the war on corruption,” she said. “I find they made a mountain out of a molehill, and now they’re going to plant the flag on top of the molehill.”

Van Gelder was right. Birnbaum was . . . distorting? In contrast, today, the AP reports:

“David Safavian has been destroyed by this,” attorney Barbara Van Gelder, who defended Mr. Safavian at trial, said Tuesday. “He has been debarred. He’s been unemployable and he’s been seen as a villain. This is vindication.” . . .

The Justice Department did not immediately return a message seeking comment on the decision or say whether it planned to try Mr. Safavian again. Ms. Van Gelder called for prosecutors not to do so.

“The government was overzealous in its original prosecution,” she said. “I hope they exercise more discretion in deciding whether to retry him.”

David Safavian. Mike Nifong. Haditha. Andersen. Daniel Bayly. James Brown. Texas Judge Barbara Walther. Why can’t prosecutors be a little less “zealous” and a bit more discriminating in choosing targets for criminal prosecution? Why can’t judges demand that prosecutors follow the law instead of making it up out of whole cloth?

And why can’t journalists be a bit more circumspect in how they characterize the too-often-false conclusions reached by trial juries? We know that a high percentage of high-profile, white-collar convictions will be overturned. So why not admit it up front? On June 21, 2006, why couldn’t the WP run a more accurate headline like, “Jury finds Safavian guilty, but appeals loom”? Is this too much to ask?