And Now The Key Question: Can Feds Convict Yee?


wilecoyoteFor a decade or more, some FBI Not-So-Wile-E-Coyotes chased Roadrunner Willie Brown around the Capitol, determined to nail him for corruption, but whiffed every time.

So when His Willieness talks about the scandal in which the Feds have netted state Sen. Leland Yee, we tend to listen: While often wrong in his ghost-written Sunday column, Brown this time honed in on perhaps the most crucial question of the matter, as he opined on the senate’s action in “suspending” Yee and two other ethically-challenged lawmakers with pay, instead of giving them the boot:

“(E)xpelling the three would risk the prospect of potentially embarrassing hearings,” Brown’s column said. “Hearings for Yee and Calderon would have opened up a Pandora’s box of questions about what constitutes a bribe versus a political contribution – not a subject politicians want to discuss openly or in detail.”

williebrownThe Ayatollah, always good for a cogent quote. Of course. to the hoi polloi, the insider’s insight by Speaker Brown may seem a difference without distinction. As the late, great Lincoln Steffens reported, it was Israel W. Durham, the boss of Philadelphia, who schooled him about politics and money: “Contributions to campaign funds are more regular and, therefore, worse than bribes.”

Honest services: Huh?  The FBI’s now-famous, endlessly dissected court filing in support of arrests in the case (at press time: 24,200 Google results for the phrase “137-page affidavit”) makes for good reading, particularly the can’t-make-this stuff-up sections on Shrimp Boy and Uncle Leland, master arms dealer.

But the much-ballyhooed gun-running charge, which carries a maximum sentence of five-years, is the least of Yee’s problems, compared to the six counts of allegedly depriving citizens of “honest services” in performance of his official duties – a potential 20 years in prison and a $250K fine for each, as Maura Dolan reports in a must-read examination of the charges.

The Cal Ripken of California legal affairs reporting, Dolan highlights the fact that public corruption cases involving campaign contributions, rather than slam-dunk bribery, can be difficult to prove because prosecutors have to convince a jury “what the public official was thinking” when he accepted money:

threecardmonte“Campaign contribution cases are the trickiest,” said Dennis Riordan, one of San Francisco’s top appellate criminal defense lawyers.

 The Supreme Court has ruled that “people are entitled to donate to candidates to influence their actions and candidates are entitled to take into account the desires of their campaign donors when they vote,”  Riordan said…

 “We do allow politicians to solicit money, so just asking for money and taking money is not a crime,” (former federal prosecutor Rory Little said. ) “You have to connect it as a quid pro quo, and that is often hard because politicians are smart enough not to say it aloud.”

The case against Yee includes wiretaps and tape-recorded conversations, according to the affidavit, but the strength of that evidence ultimately may depend on word inflections and a jury’s collective interpretations of conversations. Also, the FBI stipulates that Yee at several points sharply protested when offered money in direct exchange for specific actions: “That’s pay to play and you can’t do that,” he told his consultant, who suggested Yee should trade a contribution directly for help in passing legislation purportedly sought by an undercover agent. On another occasion, he told a fed blatantly offering cash for favors: “You can’t do that, man, you go to jail for that.”

who-mePress Clips: Dolan’s is one of several salient pieces about legal issues, which largely have been overshadowed by all the excitement over the government’s allegations, but which spin the story ahead to show readers where things are going next.

Chronicle legal reporter Bob Egelko (back in the day he was a rifle-armed outfielder for the Muckrakers, the Capitol press corps softball team; but we digress) churned out an excellent thumbsucker that looks at the history of the 1988 federal law under which Yee is charged. The piece shows, among other things, that an attempt by the senator from the Sunset to claim the feds entrapped him would go nowhere:

In each case, an FBI affidavit said, the transactions involved interstate phone calls or electronic messages relayed across state lines, a prerequisite for charging Yee under the federal honest-services law rather than California’s bribery law.

If charged under state law, Yee might claim he had been entrapped — which, in California, means that the officers’ conduct would have induced a normally law-abiding person to commit a crime.

Under federal law, a defendant must also show that, regardless of the officers’ actions, he or she wasn’t predisposed to break the law before being approached, a virtually insurmountable burden in most cases.

“You have no chance on entrapment,” said Robert Weisberg, a Stanford University criminal law professor. The only viable defenses, he said, are “I didn’t do it” or “I was misunderstood.”

hustle“American Hustle” is just a hustle: KQED’s Scott Detrow interviewed former FBI agent James Weddick, who ran the famous “Shrimpgate” undercover operation in the Capitol a quarter century ago (what is it with the FBI and shrimp?). The ex-G-man defended his ex-employers against criticism that the bureau launches sting operations with a presumption of guilt and a determination to set up politicians, rather than simply investigating actions they suspect to be corrupt.

“Without those operations you’re not going to find out that you’ve got corrupt individuals doing bad things — stealing money from the public,” he said…

False fronts and FBI-initiated bribes are necessary, Wedick argues, because there’s typically little or no evidence when actual bribes take place. “The conversations, if there are conversations about payments of monies, are usually one-on-one. And so without the kind of evidence where a conversation is heard, it’s one person’s word against another’s,” he said.

The piece also features a nifty, at-a-glance info-graphic that shows exactly how much money, and for what purposes, the FBI spent on pretend bribes in the cases of both Yee and fellow senator Ron Calderon, who has been indicted in a separate case. Calderon got $90K, $20K more than Yee, for more low-rent actions. Count on the L.A. guys not to leave money on the table.

Bottom line: Stephen Larson, another former federal prosecutor, who now works the other side of the street as a defense attorney, neatly summed up the legal dynamic of the Yee case in an interview with the Sacbee’s Jim Miller:

“For prosecutors the singular challenge is establishing criminal intent – proving that contributions are bribes and not protected speech, something far harder to do in a court of law than the court of public opinion,” said Larson, a former federal prosecutor. “For the defense, the biggest hurdle is overcoming the common intuition that there is something wrong about people financially interested in political outcomes contributing money to politicians.”

steinberg Senate president Darrell Steinberg, who seems shell-shocked by the string of recent revelations that he’s unwittingly been overseeing a rat’s nest of alleged Capitol corruption, points his finger at the constant need for politicians to pursue money for campaign to win and stay in office; lamentably, the best solution he can offer, however, is the hoary, going-nowhere notion of changing the game with taxpayer money:

“It is legal, it is accepted, and it in fact is necessary for people running for office and for incumbents to raise money from interests and to later vote on measures that those interests have before the Legislature,” (Steinberg) Friday. “Might this be a moment and a moment to once again discuss public financing of campaigns or other measures that remove the reality of the present system? I hope so.”

Fat chance.

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There are 2 comments for this post

  1. avatar tonyseton says:

    George Skelton ended his unusually furious column on this subject today talking about the public financing of campaigns with “Fat chance.” Great minds, et cetera. But imagine what a different country we’d have if we took the private money out of our Congressional and prexy campaigns. The city on the hill could regain its luster.

  2. avatar Noozeyeguy says:

    I’ve often mused about how a publicly-financed campaign system might work. First off, the FCC would need to reinstate the Fairness Doctrine and require licensees to devote a certain percentage of their airtime (during a defined “campaign season”) to running campaign commercials, candidate debates, issues-oriented forums, etc. Perhaps print media could be offered tax breaks for devoting ad space to partisan political material.

    But there are so many potential oxen being gored, so many geese being cooked, so many wolves guarding henhouses… bottom line: Fat chance.

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