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to explain that the Government's deliberate release of prejudicial information was designed to influence the grand jury:

While the government was releasing extensive details of their activities to the press, much of which was inaccurate, and while high ranking officials of the Department of Justice continued to make public statements of opinion concerning the strength of cases against the Congressmen involved, nothing by way of exculpatory information has even been given to the press. The grand jury was exposed to the government's case, and to commentary on the government's case even before being summoned to consider the charges. The government presentation of their case to the press went far beyond the permissible limits of presentation of the case to the grand jury. The government thus has done by indirection, through the use of the press, that which they were prohibited from doing directly in the grand jury room. Through its actions the government assured that the grand jury would be assembled as a mere tool of the government rather than as an independent investigation body. [Id. at 21]

The Senator further asserted that he had a right "to have the charges against him presented to a grand jury which was not only free from undue government control... but also one . . . insulated from outside community pressures" of the type which necessarily result when the community is continuously presented with only such information as the Government chooses to disclose. [Id.] After arguing that the Government's conduct violated not only the due process clause but also Rule 6(e) of the Federal Rules of Criminal Procedure (dealing with grand jury secrecy), Senator Williams asserted that the Government's case against him was not a strong one and that the weakness of its case coupled with the outrageousness of its employees' conduct required a dismissal.

On January 14, 1981, the Government filed its response to Senator Williams' motion regarding pre-indictment publicity. The Government stated that "the press treatment of ABSCAM as a whole, was sober, factual and non-accusatory." [Government's Memorandum, January 14, 1981, at 1] In addition, asserted the Government, Senator Williams had failed to show any actual prejudice stemming from the informational leaks. In support of its allegation that a showing of actual prejudice was necessary, the Government pointed to the August 7, 1980 opinion of Judge Mishler in United States v. Myers. (See page 17 of this report for a discussion of that case.)

On February 9, 1981, Senator Williams' motion to dismiss on the basis of prejudicial pre-indictment publicity was denied. In a memorandum accompanying the order Judge Pratt stated that arguments similar to Senator Williams' had already been rejected by Judge Mishler in United States v. Myers, United States v. Lederer, and United States v. Thompson. The court found that Judge Mishler's opinions in those cases were equally applicable to the instant case.

Also on December 23, 1980 (the date of his original motion to dismiss on the basis of prejudicial pre-indictment publicity), Senator Williams filed a motion to dismiss on the grounds of selective prose

cution. In his supporting memorandum the Senator stated that it was "odd" that six out of the seven Members of Congress indicted in ABSCAM were supporters of Senator Edward Kennedy, who was then engaged in a primary battle with President Carter for the Democratic presidential nomination. Further, said Senator Williams, the Kennedy name was used by the Government to draw Kennedy supporters into the Government's web. The Senator stated that FBI Special Agent John McCarthy was represented to be "John McCloud," financial advisor to Senator Kennedy, and FBI Special Agent Margo Demeny was represented to be "Margo Kennedy", a cousin of the Massachusetts Senator. Next, Senator Williams claimed that Democratic National Chairman John White, a close associate of President Carter, was, according to FBI informant James Brewer, also a subject of the ABSCAM investigation. According to Mr. Brewer, said the Senator, a meeting between FBI agents and Mr. White was scheduled and all signs indicated that money would pass. Yet when the meeting took place Mr. White did not take any money. According to Mr. Brewer (who testified about these events before a Senate Judiciary Committee subcommittee on December 2, 1980), said Senator Williams, the failure of Mr. White to accept money indicated to Mr. Brewer that "White was tipped off" by a high Justice Department official. [Brief on Motion of Harrison A. Williams, Jr., for Dismissal of Indictment upon Grounds of Selective Prosecution, December 23, 1980, at 4]. The Senator further alleged that the Government went to extraordinary lengths to make it seem, on videotape, that he had committed a crime. Whenever he attempted to explain that he would take no money, said Senator Williams, DeVito would interrupt him or otherwise cut him off. Senator Williams concluded that on the basis of these facts, it was clear that the Government violated his rights to equal protection and freedom of association by targeting him for prosecution based upon his support of Senator Kennedy. Senator Williams called. upon the court to allow him to subpoena Government documents relating to selective prosecution. He also requested a hearing on the matter at which the Government would have the burden of proving that selective prosecution did not occur.

Also on December 23, 1980, Senator Williams filed a motion to dismiss certain portions of the indictment. He requested: (1) dismissal of Count I for failure to allege an overt act; (2) dismissal of the conspiracy to defraud portion of Count I for failure to state an offense; (3) dismissal of Counts II, III, and IV as duplicitous (i.e. containing two or more distinct offenses); and (4) dismissal of Counts VI, VII. and VIII as multiplicitous (i.e. charging a single offense in several counts).

At the arraignment of Senator Williams on November 6, 1980, defense counsel requested that the court schedule a "due process" hearing for December 15, 1980. The purpose of this hearing would be to determine whether Government officials in planning and implementing the investigation of Senator Williams became so involved in the criminal activity they were investigating that any prosecution of the Senator on the basis of evidence procured during the investigation would be barred under the due process clause of the Fifth Amendment. On November 25, 1980, the court decided that the due process hearing should be postponed until after trial.

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On December 12, 1980, Senator Williams filed a motion to reconsider the court's November 25, 1980 ruling. The Senator argued that it was improper to compel him to undergo a trial without first considering the due process issues. In support of this contention, Senator Williams referred to the comments of Circuit Judge Newman in United States v. Myers, 635 F.2d 932 (2d Cir. 1980). (See page 17 of this report for a discussion of that case.) In Myers, Judge Newman had stated that "it would not be too extravagant to suggest that a Member of Congress should be entitled to pretrial review of the denial of any legal claim that could be readily resolved before trial and would, if upheld, prevent trial or conviction on a pending indictment." [635 F.2d at 936]

On January 19, 1981, the Senator's motion to reconsider was denied. In a memorandum issued on February 9, 1981, the court explained its January 19th decision by noting that Judge Newman's suggestion fell considerably short of a requirement that district courts grant all Members of Congress pretrial hearings. Judge Pratt further stated that even if the procedure suggested by Judge Newman were to apply, it still would be limited to a "legal claim" that could "readily" be resolved. "Experience with the Abscam cases," said Judge Pratt, "has shown that the due process claims are substantially grounded upon and intertwined with the evidence presented at trial." [Memorandum, January 19, 1981, at 4] Accordingly, the decision of the court to schedule the due process hearing after trial was not amended.

On January 19, 1981, Senator Williams filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit.

On February 9, 1981, the district court issued a memorandum addressing Senator Williams' December 23, 1980 motion to dismiss on the ground of selective prosecution. The court found that the claim of selective prosecution was one of the issues encompassed in the due process hearing which would be held following trial if necessary. Accordingly. a decision on the motion was reserved.

Status.-The case is pending in the U.S. District Court for the Eastern District of New York and in the U.S. Court of Appeals for the Second Circuit.

The complete text of the February 9, 1981 memorandum and order of the district court is printed in the "Decisions" section of this report at p. 694.

Jenrette v. Abdul Enterprises, Ltd.

Civil Action No. 80-1451 (D.D.C.)

On June 11, 1980, U.S. Representative John W. Jenrette of South Carolina filed a five count complaint for declaratory judgment, injunctive relief, and damages in the U.S. District Court for the District of Columbia.1 Named as defendants were Abdul Enterprises, Ltd.; the U.S. Department of Justice; the Federal Bureau of Investigation (FBI): FBI Director William Webster; U.S. Attorney General Benjamin Civiletti; Assistant U.S. Attorney General Philip Heyman; U.S. Attorney for the District of Columbia, Charles Ruff; two FBI agents known by the aliases, "Tony DeVito" and "McCloud"; Melvin

1 Two days after this complaint was filed, the United States indicted Rep. Jenrette for conspiring to seek and receive money to influence performance of his Congressional duties and to defraud the United States and the Congress in the performance of lawful governmental functions.

Weinberg; the Olympic Construction Company (Arlington, Virginia), and its President, Richard Muffoletto.2

In the "factual allegations" portion of his complaint, Rep. Jenrette charged that beginning in 1976 "the defendants and others conspired to target the plaintiff in one investigation after another, beyond the standard for investigation spelled out in the FBI Charter, S-1612, which requires 'facts or circumstances that reasonably indicate that a person has engaged, is engaged, or will engage in an activity in violation of a criminal law of the United States." [Complaint, June 11, 1980, at 6]

Additionally, Rep. Jenrette claimed that the defendants violated his constitutional due process rights by conspiring "to create crimes or entrap certain political targets with no predisposition to commit crimes in order to injure political reputations and political careers." [Id. at 7]

The complaint then proceeded to describe the history of the FBI undercover operation which subsequently became popularly known as "ABSCAM." According to Rep. Jenrette, in December 1979 defendants Weinberg, DeVito, and McCloud induced John Stowe to bring Rep. Jenrette to a Washington, D.C. townhouse where, despite Rep. Jenrette's obvious intoxication, defendants Weinberg, McCloud, and DeVito offered Rep. Jenrette a $50,000 bribe. Allegedly, these defendants, by acting in a manner designed to give Rep. Jenrette the impression that they were members of organized crime, made Rep. Jenrette "afraid to report the defendants for fear of personal safety and fear that plaintiff's appearance at this location where defendants had discussed a bribe would work to plaintiff's detriment politically in an election year." [Id. at 11]

а

Finally, it was alleged that on February 2, 1980, FBI agents arrived at Rep. Jenrette's Washington, D.C. home and interrogated him despite his obvious intoxication. Because information regarding ABSCAM had allegedly been leaked by the defendants, the national news networks were at Rep. Jenrette's home when the FBI agents arrived. The media were thus "ready to publicize this interrogation and so ruin the career of the plaintiff." [Id. at 12] According to the plaintiff, "[i]t was the malicious intent of the defendants to fraudulently gain admission from an intoxicated man, and the calculated presence of national networks on the plaintiff's front lawn was similarly intended to harass and confuse the plaintiff." [Id. at 13]

The factual allegations portion of the complaint concluded by stating that because of the "targeting scheme" and leaks, Rep. Jenrette suffered severe damage to his political career and reputation and "has incurred substantial legal fees of over $50,000 in order to defend his innocence . . . and has had to face tremendous humiliation before fellow Members of Congress and the public." [Id.]

Count I of the complaint stated that the defendants entrapped Rep. Jenrette, in violation of his Firth Amendment substantive due process rights.

2 In the complaint, Ren. Jenrette alleged that in September 1978 Mr. Muffoletto, through the Olympic Construction Company, rented the townhouse in Washingon, D.C. where in December 1979, undercover FBI agents offered Mr. Jenrette a $50.000 bribe. Allegedly, Mr. Muffoletto and the Olympic Construction Company knew or should have known "that the house was being used to defraud the plaintiff." [Complaint at 10]

In Count II the plaintiff charged that the defendants, by maliciously leaking information of his impending interrogation to the press and by entrapping him, violated his. Fifth Amendment procedural due process rights.

Count III charged that the targeting of Rep. Jenrette in one investigation after another violated the FBI Charter, 5 U.S.C. § 706,3 and the U.S. Constitution.

Under Count IV the plaintiff claimed that the defendants conspired to prevent the plaintiff, by intimidation and threat, from holding his Congressional office, in violation of 42 U.S.C. § 1985 (1).*

Finally, Count V alleged that the investigations against Rep. Jenrette had been, and continued to be, conducted in bad faith and solely for the purpose of trying to destroy his political career. The plaintiff stated that any prosecution of him would therefore be barred by the Fifth Amendment. Count V then concluded:

Because there is no possibility that the defendant can obtain constitutionally valid convictions of the plaintiff, and because the defendants' attempt to do so demonstrates bad faith and selective prosecution, the upcoming indictment and prosecution of plaintiff must be enjoined, or in the alternative, counsel for plaintiff should be permitted to prevent whatever witness he deems appropriate to the Grand Jury investigating the plaintiff. [Id. at 15–16]

By way of relief, Rep. Jenrette's complaint asked the court to permanently enjoin the defendants from indicting or prosecuting him through the use of the above-described illegally obtained information. The plaintiff also asked the court to issue a declaratory judgment that the defendants conspired to violate his rights. Lastly, Rep. Jenrette asked the court to grant him $1 million in compensatory damages and $10 million in punitive damages against all defendants individually. On August 11, 1980, the Federal official defendants filed a motion to stay further proceedings in this case pending final disposition of the criminal case, United States v. Jenrette, Criminal Case No. 80-00289 then pending in the U.S. District Court for the District of Columbia. (See page 35 of this report for a discussion of that case.) In support of the motion, the defendants argued first that the instant case and the criminal case raised similar issues among similar parties. This being so, a stay of the civil proceedings would be appropriate, said the defendants, because resolution of the criminal case would moot, clarify, or otherwise affect various contentions in the civil case. Second, the defendants argued that a stay would prevent Rep. Jenrette from improperly using the broad rules of civil discovery to prepare his defense in the criminal case.

35 U.S.C. 706 requires reviewing courts to hold unlawful and set aside any agency action found to be in violation of procedures required by law.

442 U.S.C. § 1985 states: (1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties.

(3) the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

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