Setting the stage for an appeal to the Supreme Court, the Fourth Circuit Court on Monday refused to delay the corruption trial of Rep. William J. Jefferson, a nine-term Democratic member of the House who lost his seat this year.  His lawyers sought a 90-day delay so they could pursue a petition to the Supreme Court that will seek to test a grand jury’s power to examine evidence about a member of Congress’ slegislative activity as the jurors weigh possible criminal charges.

Jefferson has 90 days from Dec. 12 — when an en banc rehearing request was denied by the Circuit Court — to ask the Supreme Court to hear his case.  Federal prosecutors have indicated they are eager to get the trial started, since the indictment against Jefferson came down more than 18 months ago.  Prosecutors argued to the Circuit Court that the congressman “has had a full and fair opportunity” to test in court his claim that his constitutional right not to be questioned elsewhere about legislative activity was violated — a “Speech or Debate Clause” challenge.

If the congressman’s lawyers do not seek and obtain a delay from the Supreme Court, his trial in a federal court in Virginia might start before the Supreme Court could act on his case.

Jefferson faces a 16-count indictment contending he took part in muitiple schemes, including bribery, to promote business sales and services to government officials in Africa.  His attorneys, in a pre-trial challenge, sought to have 14 of the 16 counts dismissed, arguing that they were linked to evidence heard by the grand jury about his legislative activities on trade bills affecting African nations.

A federal judge examined the grand jury materials, found that, at most, the references to Jefferson’s actions as a member of Congress were incidental, and refused to dismiss any of the charges.  The Fourth Circuit, in a Nov. 12 opinion that can be found here, upheld the refusal to dismiss the indictment.  It said that, while the trial judge had examined grand jury evidence at greater length than he was obliged to do, the review was appropriate. It also concluded that judges generally are not allowed to go behind the face of a valid indictment to examine the evidence upon which a grand jury had relied.

“A grand jury will not be deemed biased,” the Circuit Court said, citing one of its own precedents, “solely because it heard some evidence relating to congressional speech.”

In unsuccessfully seeking a stay of that decision while pursuing an appeal to the Supreme Court, Jefferson’s lawyers had said they would ask the Justices to rule on whether “a court is barred from examining the evidence presented to a grand jury investigating a United States Congressman to determine whether a facially-valid indictment should be dismissed because it was obtained though the use of privileged legislation material in violation of the [Speech or Debate] Clause.” The Supreme Court, his lawyers had said, ” has not yet resolved this question.”

The coming appeal to the Supreme Court would be the second the Court would consider about Jefferson’s case.  On March 31, the Justices refused to hear an appeal by the Justice Department seeking to contest a D.C. Circuit Court ruling that set up a system of review by a federal judge to sort out legislative materials that may have been found by FBI agents in a search of Jefferson’s Capitol Hill office in May 2007.  (That case was U.S. v. Rayburn House Office Building Room 2113, docket 07-816.)

(In this year’s congressional election, held in Louisiana on Dec. 6 because of a delay due to Hurricane Gustav, Jefferson was narrowly defeated.  He received 46.83 percent of the votes in a low turnout, while a Republican attorney, Anh Cao, received 49.54 percent.  Jefferson will hold his seat until Jan. 3, opening day of the new Congress; the House, however, is not now in session.)

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