-Caveat Lector-
Lawyers Cited Lack of Immunity for Potential Espionage Charges
Huang Took Fifth on Chinese Money
By Terence P. Jeffrey
Human Events
Reports of the death of the Justice Department’s campaign finance
investigation have been greatly exaggerated.
In fact, with Bill Clinton gone from the White House, and Janet
Reno’s tenure as attorney general terminated, the most important
phase of that investigation may be only just beginning.
If so, it is beginning, ironically, in the very same place as the
first phase: with John Huang refusing to answer questions.
But this time Huang’s refusals may portend something far
different from what they did last time–because this time Huang is
a witness cooperating with the government. And now his onetime
boss, Lippo Group President James Riady, may also become a
government witness.
And Janet Reno is no longer attorney general of the United
States.
What would be the purpose of making a deal for Riady’s
cooperation unless there were parties in this case more important
than Riady whom government prosecutors would like to pursue with
the evidence and testimony Riady can provide?
Who could such parties be?
Court documents and a November 6 deposition in which Huang was
questioned by Judicial Watch President Larry Klayman offer some
clues.
Hooking a Bigger Fish?
In the deposition, Huang repeatedly invoked his 5th Amendment
right against self-incrimination. In most, but not all,
instances, the magistrate judge monitoring the deposition cited
Huang for contempt.
Huang had two rationales for taking the 5th, according to his
lawyers. First, a federal appeals court opinion, called the
Perkins case, holds that a witness does not have to answer the
same question twice in the same legal proceeding. (Klayman has
deposed Huang on five occasions, both before and after Huang’s
plea agreement.) But secondly, Huang’s plea agreement did not
immunize him against prosecution if he is found to have violated
national security or anti-espionage laws.
"Anything he says here is not immunized against him for any
federal prosecutions for espionage or related crimes," Huang’s
attorney Ty Cobb told the judge at the deposition.
John C. Keeney, another attorney for Huang, said in an interview
with Human Events that, as a simple matter of legal prudence, he
and Cobb could not allow Huang to answer some deposition
questions that related to foreign persons, entities or issues.
"If we did not assert the 5th Amendment, it would be legal
malpractice," said Keeney–who teaches legal ethics at American
University.
Keeney further noted that the plea agreement in which the
government reserves the right to prosecute Huang for any possible
espionage or national security violations also includes language
stating that prosecutors are not "currently" aware of evidence
that would support such charges.
"The United States will not prosecute you for any other
violations of federal law based on conduct related to events
disclosed by the defendant or otherwise known to the government
other than those laws relating to national security or espionage
(economic or otherwise), occurring before the date this agreement
is signed by you," says the plea agreement. "The United States
represents that it is not currently aware of evidence which would
support any charges of violations of the relevant national
security or espionage statutes. You understand and agree that
the United States is free to prosecute you for any unlawful past
conduct relating to national security or espionage or for any
illegal conduct that occurs after the date this Agreement is
signed."
The government also indicated that it understood Huang was likely
to invoke the 5th Amendment if later asked certain questions in
venues where he had not been granted immunity. "[S]ince
defendant Huang’s plea agreement leaves open the possibility of
subsequent prosecutions for violations of espionage and national
security statutes, he will obviously retain a 5th Amendment right
with respect to questions in this area, even after his guilty
plea and sentencing," Assistant U.S. Attorney Daniel J.
O’Brien, a member of the Justice Department’s Campaign Financing
Task Force, told Huang’s sentencing judge.
As of now, Federal District Judge Royce Lamberth, who has
authority over the magistrate who monitored the deposition, has
not certified the contempt citations against Huang lodged by that
magistrate. If he does, Huang will appeal to the Circuit Court
of Appeals for the District of Columbia. In one venue or the
other, Huang’s attorneys are confident that a proper reading of
his 5th Amendment rights will prevail over the contempt
citations.
Nonetheless, the government’s reservation of the right to
prosecute Huang for espionage or national security violations,
and Huang’s invocation of the 5th Amendment in the first place,
demonstrate that the campaign finance investigation still must
answer the biggest questions it has faced since the outset: What
was the involvement of the Chinese government in funneling money
to congressional candidates, the Democratic Party, and the
Clinton-Gore campaign? Who knew of that involvement? When did
they know it? Did the Chinese get anything in return?
In the Judicial Watch deposition, for example, Huang took the 5th
when asked if Chinese banks had been the ultimate source for
contributions he and his wife made to Al Gore’s Senate campaign
that had been reimbursed, in the first instance, by James Riady’s
Lippo Group. Moreover, the plea agreement now proposed for Riady
is targeted, on its face, at forcing Riady to reveal the ultimate
source of the political funds he funneled into the United States.
It assumes, in other words, that Riady may not have been the
ultimate source of the funds, and that he will cooperate with
prosecutors in proving who was.
When Klayman broached the question of Chinese funding in the
Huang deposition, it was as if he were trying to scale the Great
Wall itself. First, Assistant U.S. Attorney Marina Brasswell–who
represents the federal government in the case–lodged an
objection. The judge overruled. Then Huang invoked his
privilege. After discussion of the legal issues involved, the
judge instructed him to answer. Then Huang’s attorney Cobb
instructed him not to answer. And, finally, the judge cited
Huang for contempt.
Klayman: "Do you know whether or not money from Chinese banks was
used to reimburse you, you and Mrs. Huang, on behalf of the
Lippo Group?"
Brasswell: "Continuing objection as to scope."
Judge Facciola: "Overruled."
Huang: "I invoke the privilege."
Klayman: "Ask for a ruling on whether he can invoke the
privilege."
Judge Facciola: "I am. I’m just thinking for a second. Does
this have to do, Mr. Keeney, with the exclusion of national
security matters?"
Keeney: "In large part, Your Honor."
Judge Facciola: "Well, and what else?"
Keeney: "As well as the Perkins case."
Judge Facciola: "What statute would make it–what statute
pertaining to national security would have to do with the topic
of reimbursing people from offshore entities for contributions
they make to the United States?"
Keeney: "Hypothetically, anything involving Chinese financial
institutions could arguably implicate the economic espionage
statute specifically exempted by the government from the plea
agreement."
Judge Facciola: "Ms. Brasswell, are you familiar with the
economic espionage statute?"
Ms. Braswell: "No, I’m not, Your Honor."
Judge Facciola: "Mr. Klayman, are you?"
Klayman: "No, but I don’t understand how that fact, even if I
was, Your Honor, could implicate espionage. Certainly even legal
transactions can occur through monies being transferred by
Chinese banks."
Judge Facciola: "Yes. I am going to overrule the assertion of
the privilege and direct the witness to answer."
Cobb: "And I respectfully instruct him not to do so, Your Honor."
Judge Facciola: "The witness is held in contempt."
In the proposed Riady plea agreement, the government requires
Riady "to produce voluntarily any and all documents, records, or
other tangible evidence relating to the matters about which the
United States inquires, including documents indicating the source
and nature of funds used to reimburse campaign contributions."
The agreement also requires Riady to appear in the United States
to testify and cooperate with the government whenever the
government wishes him to do so.
In return for Riady’s providing evidence and testimony, including
as to the source of illegal contributions, the government will
agree not to "file additional charges against you or your wife
relating to any campaign finance matters examined during the
course of the United States investigation."
This narrowly targeted language immunizes Riady only from
additional prosecution for violations of the Federal Election
Campaign Act or a conspiracy to violate that act. It does not
immunize him from prosecution for potential espionage or national
security violations. "There is nothing that is going to prohibit
the government from investigating and charging Riady with
violations of espionage statutes if sufficient evidence is
developed to charge him," Assistant U.S. Attorney O’Brien said in
an interview.
O’Brien, who formulated the plea agreements with both Huang and
Riady, is a career federal prosecutor of ten years service, who
also happens to be a Republican. He answers to Campaign Financing
Task Force Chief Robert Conrad, who earned publicity last summer
when it was revealed he had requested that Janet Reno name an
outside counsel to investigate Vice President Gore for possibly
committing perjury in a deposition in which Conrad had probed
Gore’s association with, among others, Huang and Riady.
A noncynical interpretation of what has happened in the campaign
finance investigation is that it has followed the standard
pattern of conspiracy investigations: A little fish is caught in
hopes that he will provide the bait to catch a bigger fish.
Even when they labored under the burden of having Janet Reno as
their boss, the professional investigators on the campaign task
force hooked Huang, who provided them with the evidence to hook
Riady, who now may provide the evidence to hook someone else.
And there aren’t too many fish bigger than Riady.
A sentencing hearing is now set for Riady in mid-March.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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