Everyone knows that “money talks.” The biggest problem for former Congressman William J Jefferson, however, may be that witnesses talk, even if money doesn’t. The case against Congressman Jefferson is infamous because of $90,000 in cash found in his freezer in 2005. When that money was found, the story was all over the news, and many people believed Jefferson guilty, without hearing anything more. Most people don’t have $90,000 in their freezers, and it is an easy issue for the general public to grasp. Recognizing that position, in opening statements this week, Jefferson’s defense attorney began by providing his explanation for the “cold hard cash:” the money was provided to Jefferson for a bribe, but Jefferson never intended to bribe the foreign official in question, and simply hid the money from his household employees.
The plausibility of that explanation can be debated (and has been debated vociferously at the Levin & Gallagher water cooler). If the jury believes the defense’s explanation, or, more importantly, believes that the government has failed to prove that the frozen money was intended for a bribe, then acquittal is certainly possible on that count. The government’s decision not to call the cooperating witness (CW) who provided the $90,000 in marked bills to Jefferson may help the defense’s position (although Jefferson’s recorded phone calls with that CW may still provide compelling evidence).
Ultimately, however, the “cold hard cash” is only a very small part of the government’s case against Jefferson. That cash was discovered in 2005, and the indictment against Jefferson came almost two years later. To its credit, the government apparently did not fall for the “frozen money = automatic guilt” scenario. Its investigation was lengthy and broad.
The problem for Jefferson is that there is now a 94 page indictment against him, with 16 criminal counts for various offenses. A few of those offenses relate to the $90,000, and to the CW who is not now going to testify. If the defense’s explanation prevails, or if the jury is suspicious of the absentee witness, those counts may fall. Other counts rely to some extent on “honest services fraud,” which is a much-debated provision of criminal law that is always subject to various legal challenges. But still other counts are much more basic, involving traditional notions of money laundering and bribe solicitation, in addition to a racketeering charge. From the indictment alone, there appear to be at least eight potential witnesses (cooperating witnesses Vernon L. Jackson and Brett M. Pfeffer, in addition to Nigerian Businessperson B, Businessperson DEF, Businessperson G, Lobbyist A, Businessperson A, and Businessperson BC) who seem likely to provide direct eyewitness testimony about unlawful activities by Jefferson. Those eight exclude the CW who gave Jefferson the $90,000.
Cases involving a significant number of cooperating witnesses are notoriously difficult to overcome. A good defense attorney can undermine the credibility of almost any cooperating witness. Jefferson certainly has excellent defense attorneys. But even the best defense attorneys can only do so much about the fact that seven or eight cooperating witnesses are telling almost identical stories about their client. Suddenly, “the cooperator is lying” has to be said seven or eight different times, and it becomes less believable with each telling.
The average follower of this case is waiting to see whether Jefferson is convicted for stashing money in his freezer. But it is a lot easier to explain away a TV dinner box full of cash than the myriad seemingly unrelated individuals insisting that Jefferson asked them to engage in unlawful activities . We should know in about 8 to 10 weeks if Jefferson is successfully able to counter the government’s evidence.