Debate over admissibility of Safavian-Abramoff e-mails begins

A U.S. district court judge heard pretrial arguments Friday in the criminal case against former General Services Administration chief of staff and David Safavian, deciding that further pretrial proceedings will be required to determine whether e-mails between Safavian and disgraced lobbyist Jack Abramoff are admissible as evidence.

Government lawyers presented several arguments for the admissibility of about 250 e-mails unveiled last month, the majority of which were between Safavian and Abramoff.

D.C. District Judge Paul Friedman discussed with both sides the strategies presented for use of the e-mails. Peter Zeidenberg, arguing for the Justice Department, said one option would be to admit the e-mails as evidence of a conspiracy between Safavian and Abramoff to commit "honest services fraud," a broad corruption charge referring to defrauding a group (in this case the U.S. public) of the defendant's honest services.

But that charge has not been filed against Safavian, leading defense lawyer Barbara "Biz" Van Gelder to protest, "The government wants to prove the indictment they wish they had, not the one they have."

Zeidenberg and Friedman agreed that the co-conspirators argument would require the government to establish a succession of facts: Safavian's alleged dishonest services, that the two men were involved in a conspiracy to that end, the relevance of the statements made in the e-mails to honest services fraud, that the statements were directly related to the conspiracy, and that the conspiracy charge is intertwined with the charges of lying to and obstructing the work of investigators that Safavian currently faces.

If the government failed to establish any portion of that complex argument during trial, the judge could require that jurors disregard e-mails introduced during the course of argument or, in a worst case scenario, declare a mistrial.

At Friday's hearing, prosecution lawyers attempted to link the conspiracy argument with the charges Safavian actually faces, saying that "to understand the criminal motive for not coming clean with the [GSA's Office of the Inspector General], and for not coming clean with the U.S. Senate," it is necessary to understand "this unclean, unsavory relationship with Mr. Abramoff."

If the government fails to establish the co-conspiracy argument, then some e-mails could still be admissible under other legal arguments, such as evidence of the defendant's state of mind, or evidence of business dealings, Zeidenberg said.

In an afternoon follow-on to the morning's hearing, the parties agreed to a May 16 hearing to settle whether the e-mails will be used during the jury trial scheduled to begin on May 22. The government was asked to prepare a chart listing every e-mail along with the potential legal theory that would admit it, allowing the parties to go through them individually, Van Gelder said.

Also, due to scheduling concerns, Friedman said the parties will not be able to administer lengthy questionnaires to potential jurors in a special, enlarged juror pool. The judge had previously asked them to submit questions for use in such a process, in response to the defense's argument that the public release of the two men's e-mail traffic had resulted in potentially prejudicial pretrial publicity.

In response to time constraints, it was determined that lawyers from both sides will instead have two to three minutes to question potential jurors during the selection process, Van Gelder said.