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Jefferson Court Case Focuses on US Separation of Powers

A Nigerian connection to the bribery probe of US Congressman William Jefferson has been all but overshadowed by a separation of powers court fight here in the United States between the American legislative and executive branches of government. Jefferson’s lawyer went to court last week, seeking to recover thousands of documents and electronic files seized by Federal agents from the Louisiana congressman’s office. Jefferson earlier had contacted Nigerian Vice President Atiku Abubakar, reportedly seeking help for an American company represented by former aides and colleagues to compete for a lucrative internet and telecommunications contract in Nigeria. Neither Jefferson nor Abubakar has been charged in the case, and Abubakar’s attorney denies he received any money from the congressman. Stanford University law professor Mariano-Fiorentino Cuellar explains why he thinks the US case has evolved beyond a corruption probe of Jefferson and Abubakar and turned into a hotly debated challenge of constitutional powers.

“Mr. Jefferson is not just a potential criminal. He’s also a member of Congress, and anytime we have the executive branch investigating members of the legislative branch, separation of powers issues are potentially implicated,” he said.

The case, which has involved raids on Abubakar’s suburban Washington mansion, Jefferson’s Capitol Hill apartment, and the first foray into a congressional office in US history, has opened up into a much wider test of legislative branch immunity from investigation by an executive agency. Professor Cuellar notes that in deciding cases of this nature, the courts historically have tended to apply principles that focus on the specific circumstances of the offense.

“Some of the issues being raised in this appeal might be quite different if this wasn’t an isolated incident, but was part of a systematic executive power grab involving harassing members of Congress and breaking down doors and invading their office space across the board, and that doesn’t seem to be at all what is in the offing,” he said.

Two years ago, Jefferson was said to have received money from an American company trying to win the Nigeria bid. Agents subsequently raided the Washington area homes of both the congressman and the Nigerian vice president, reportedly looking for evidence of a cash payoff that may have passed between the two men. The raid on Jefferson’s Capitol Hill apartment yielded 90-thousand dollars in 100-dollar bills concealed in his freezer. Cuellar says he thinks if the prosecution and court tests had focused more on the deal itself rather than on the constitution questions, Nigerian voters may have been able to gain a clearer understanding of the issues involved.

“One of the considerations that prosecutors increasingly have to take into account is the political context, not just in the United States, but in other countries. That doesn’t mean they should stop doing a prosecution if they believe it’s the right one. It just means that they should understand that their actions have effects and those effects can involve the judgments of the voters in other countries, can involve regime change, can involve domestic politics -- and it’s not really possible to separate politics and criminal justice across borders,” he said.

Given the current post-election political climate in Nigeria, in which President-Elect Umaru Yar’Adua’s landslide political victory is being challenged by the opposition, Professor Cuellar says it is understandable that the corruption issue against Abubakar could be raised by his detractors.

“If there’s a competitive political environment, where people feel that there’s a huge amount at stake, with respect to who takes control of the country, and there’s strife and conflict and controversy, that if there is political advantage to emphasizing the procedures in a US case, emphasizing that those procedures seem to indicate that some politician involved is corrupt, that people are going to try to make that argument very aggressively,” he noted.