Former procurement chief 'numb' after court grants new trial

Castigating a district court judge for "abusing" his authority and federal lawyers for presenting "tenuous" legal arguments, an appeals court has granted former Bush administration procurement chief David Safavian a new trial in connection with his dealings with disgraced lobbyist Jack Abramoff.

The U.S. Court of Appeals for the District of Columbia agreed in a unanimous opinion on Tuesday to vacate Safavian's conviction on charges that he lied to investigators about his relationship with Abramoff.

"Right now everybody is just numb," Safavian's attorney, Barbara Van Gelder told Government Executive. "Everybody is just trying to make sense of what's going to happen."

A jury convicted Safavian in June 2006 on charges of making false statements to Senate investigators, a GSA ethics official and the agency's inspector general, and of obstructing an investigation. He was cleared on a fifth charge of obstructing an investigation by the Senate Indian Affairs Committee.

Safavian, the former chief of staff for the General Services Administration and former administrator of federal procurement policy at the Office of Management and Budget, was sentenced to 18 months in prison. But he has been free on bond pending his appeal.

The appeals court Tuesday dismissed the charges related to statements made to the ethics official and the IG and ordered a new trial on three other charges.

In a statement, the Justice Department said it "is reviewing the court's decision" but would not speculate about the prospects of trying its case again.

The case centered on a 2002 golfing trip Safavian took to Scotland with Abramoff and others while serving as GSA's chief of staff.

Before leaving for the trip, Safavian checked with a GSA ethics officer about the propriety of accepting free airfare from the lobbyist. He told the officer that Abramoff -- who is now in prison -- had "no business" with GSA and worked exclusively on Capitol Hill issues. The ethics officer then issued an opinion that Safavian could accept the free travel.

GSA's Office of Inspector General later learned that Safavian had shared information with Abramoff about two GSA properties -- a former Navy facility in Silver Spring, Md., and the Old Post Office in Washington -- that Abramoff had expressed interest in purchasing.

Federal investigators argued that Safavian was legally obliged to tell the ethics officer about his correspondence with Abramoff. But the appeals court found the government's logic faulty.

"Attorneys commonly advise their clients to answer questions truthfully but not to volunteer information," the appeals court wrote. "Are we to suppose that once the client starts answering a government agent's questions, in a deposition or during an investigation, the client must disregard his attorney's advice or risk prosecution? The government essentially asks us to hold that once an individual starts talking, he cannot stop … No case stands for that proposition."

The appeals court also rejected the government's "tenuous" premise that the "ethics opinion . . . permitted [Safavian] to engage in behavior that would be prohibited if he had disclosed all relevant information." The court ruled that the ethics officer did not have the power to permit or forbid Safavian from taking the trip; the office's function is simply to offer advice.

"The Justice Department tortured the government's ethics rules," Van Gelder said. "It's ironic that in the name of ethics, they twisted ethics rules to bring this case. Ethics rules are supposed to be a shield and not a sword."

The court also found that the district court "abused its authority" by ruling that Safavian could not call an expert witness on how government contracting officials view the issue of "having business" with GSA.

Since Abramoff did not have any contracts with the agency, Safavian argued that his comments were truthful. District Court Judge Paul Friedman ruled that the common definition of "business" was readily understood and that an expert witness could create confusion.

The appeals court, however, found that the witness could have supplied crucial context and support for Safavian's case.

"This ruling usurped the jury's role by deciding that the lay meaning of 'business' is what Safavian meant to convey," the court wrote. "The court at one point recognized that 'what was in the defendant's mind is at issue in this case.' But excluding the expert testimony effectively preempted the jury's conclusion on this issue."

A final charge, that Safavian obstructed the GSA's investigation through his statements about Abramoff's business dealings and by falsely stating that the $3,100 he had paid the lobbyist covered the full cost of the Scotland trip, also was reversed.

Although the appeals court agreed that Safavian understood the true cost of the trip was more than $3,100, the judges ruled that the excluded testimony "had a substantial and injurious effect or influence in determining the jury's verdict" on this charge.