Trent Lott possibly to testify on DeLaughter bribe accusation! – UPDATED

UPDATED BELOW 

The biggest news from this mornings hearing was Asst US Attorney Bob Norman’s announcement of who his witnesses would be in the other-crime evidence about the attempt to bribe Judge DeLaughter. They would ask Tim Balducci about it, and call Joey Langston and Trent Lott. Their theory was that Scruggs had his brother-in-law Senator Lott call DeLaughter and say his name was in consideration and ask for his resume. The call, Norman said, occurred on March 29, 2006, which was between the January hiring of Ed Peters in the case and the August trial.

There are reasons to think that the government does not yet have a deal with Ed Peters, by the way. In pre-hearing discussions, Keker told the government he would like to have witnesses available to testify about this, particularly Langston and Peters. The prosecution told Keker that Ed Peters’s lawyer would likely recommend he take the Fifth and decline to testify.

UPDATE: MSMSM coverage:

Clarion-Ledger (Jerry Mitchell)

Daily Journal (staff)

Sun-Herald (AP)

Oxford Eagle (Alyssa Schnugg — click on “Full Story” after I hope you have better luck getting the pic than I did)

U.S. v. Scruggs, motions hearings day one

The events of the first day of motions hearings in U.S. v. Scruggs are described in a series of posts on this blog.

The beginning of the morning hearing, focused on the motion to dismiss, is described here

The weirdest moment in today’s hearing is described, briefly here.

After the argument described in the first linked post, Tim Balducci testified. That testimony is outlined in the following posts:

• Balducci testifies on the Motion to Dismiss, part 1
• The 3/28 meeting and Lackey’s recusal: Balducci testifies on the Motion to Dismiss, part 2
• Balducci testifies on Motion to dismiss, part 3: More about the March meetings
• Balducci testifies on Motion to Dismiss, part 4: June-September
• Balducci talks about Trent Lott and Bribing Judge DeLaughter, Balducci testimony Part 5

The beginning of the afternoon hearing is described here and there is some color commentary on the first day of motions hearings here.

In the afternoon hearings, the only witness was the FBI agent handling the case. His testimony is in these posts:

• Testimony of FBI Special Agent Delaney, Part 1: the investigation begins
• Testimony of FBI Special Agent Delaney, Part 2

Testimony of FBI Special Agent Delaney, Part 2

May 21^st:  The agent discussed having Judge Lackey make this call before it was made.

The day after the recusal, Judge Lackey called Delaney to tell him about that on the 22^nd, the day after doing it.  Delaney went and talked to Judge Lackey.  He discussed recusal, the possibility of Judge Lackey’s getting back in the case, and a different option.  The agent learned that Judge Lackey was getting back in the case less than a week later.

When Judge Lackey was with Balducci at lunch in New Albany, he was with Balducci alone in a car coming and going, and nothing was said about Jones.  The agent did not put this in his affidavit. 

The idea of asking Balducci what he could do for Judge Lackey was there from the beginning.  It took Judge Lackey literally the entire summer to realize that we needed to get this resolved and that the only way to do it was broach the topic the way we did.  In early September, the judge realized that we needed to find out what exactly is involved, and we decided that asking was what we were going to do. 

The reason the judge recused himself was not the contact from the other side in the Jones case [this is what Judge Lackey had told Balducci] but that he was troubled by the situation.

The hearing then turned to the next affidavit, for a wiretap of Patterson’s phone.  The judge asks if there is any information learned between the first and second affidavits that the defendants are aggrieved by being omitted from the 2^nd affidavit on October 18^th. 

[There is a gap in my notes at this point; not a lot of news here].

One of Balducci’s package pickups was at the Scruggs firm’s financial office.

The judge asked Keker what is false in the affidavits.  Keker answered that there is no evidence of the change-of-strategy comment in the affidavit.  What Balducci had told Judge Lackey in March was that they wanted arbitration.  When Judge Biggers starts questioning Keker closely about this, he makes it clear that he is not buying the argument, and Keker flounders a bit for the first time (and seems a bit angry—his ears turn red!).

There was an exchange about giving the defense information.  Keker was to get the agent’s 302s (summaries of interviews) with Judge Lackey from May 3^rd and April 23^rd. Judge Biggers stated:  “They’ve agreed to give them to you.  That’s very generous of them.”  Keker:  “Following the law is never generous, your honor.”

At this point, the government  asked the agent about the final affidavit, to search the Scruggs law office.  He turned to an area where the agent apparently misunderstood Balducci in an initial interview on November 2^nd (Balducci had testified about this).  In the first meeting, the agent thought Balducci had said that at the March meeting in the Scruggs office, Scruggs had said, “Do not ask to do something illegal.”  When the agent showed a draft of that to Balducci, Balducci said that is not accurate, that is not what he had told the agent.  What he said is that at that point, Scruggs did not ask him to do anything illegal, not that he’d actually said do not do anything illegal.

Keker asked for recross again, about which Judge Biggers was barely tolerant—he was being pushed, I think he was feeling.

Balducci said he’d never seen the interview forms.  “Did you let him read it?”  The agent said he let him read it.  The agent went and discussed this with another agent and reviewed his notes.

Keker asks for an order to preserve any notes.  The judge takes this under advisement.

At this point, the judge talks about wanting more briefing; this is described in another post.

Testimony of FBI Special Agent Delaney, Part 1: the investigation begins

In the first day of motions hearings, Agent Delaney testified.  While I’ve seen little reporting about his testimony, it was interesting in covering a lot of background to the events last year– why the judge recused himself, Judge Lackey’s thinking process and the impact this had on him, and the behind-the-scenes decisions as the investigation proceeded.  The assistant U.S. Attorney began the examination.

Agent Delaney investigated the Scruggs firm and signed the affidavits.  He did the affidavits for the two wiretaps and the search. 

He described his first meeting with Judge Lackey.  The US Attorney called Delaney’s supervisor and said that Judge Lackey had called them and asked the FBI to investigate a possible inappropriate contact.  He talked to the US Attorneys, interviewed Judge Lackey, and heard about the inappropriate overture.  He understands now that there was a two week interval between the contact to Judge Lackey and his call to the US Attorney. 

The May 4 call with Judge Lackey and Balducci:  Earlier that day, Balducci had faxed the order to Lackey and wanted it entered.

During all this, Judge Lackey was troubled.  He knew that what Balducci had done was wrong.  He was conflicted.  Balducci was his friend.  Judge Lackey was troubled and Balducci picked up on that in some of the conversations.  This is what was going on in the May 21^st conversation where Balducci is telling Judge Lackey to do what he thinks best– Balducci has picked up on the fact that the judge was bothered.

Judge Lackey recused himself because he was so troubled by all of this.  He made a decision to remove himself from the problem.  He later realized that this did not resolve the problem, or answer the questions about Balducci. Agent Delaney met with Judge Lackey the next day and could tell he was very troubled.  Judge Lackey said that the door was not closed to him getting back in the case.  When Delaney left that meeting, Judge Lackey had not made a final decision.  He said he’d think about it.  Agent Delaney did not insist that the judge get back in.

Contacts through the summer:  There were 2-3 contacts in June, 2-3 in August, and none in July.  In July, Delaney was out of the state.  He was the only agent working on it at the time, and  was also working on the beef plant case.

Keker cross:

Delaney is the case agent, and was assigned early to mid April.  He first interviewed Judge Lackey on April 24^th.  He thought when he did his first affidavit that Judge Lackey had called the US Attorney at the conclusion of his meeting with Balducci—Delaney did not know the actual facts about that at the time.  Later, Judge Lackey explained the two week interval.  Judge Lackey had talked  to a couple of people and decided the best thing to do was go to the US Attorneys office.  He made it clear that he believed something improper had happened.  He was not sure that something criminal had happened.

Judge Lackey presented it that he had been offered a quid pro quo.  He knew something improper had happened and did not know if anything illegal had happened.

Delaney set up recording equipment.  On May 3^rd was the first time they attempted to record.  They tried to set up for a recording and Delaney gave Judge Lackey a telephone recorder on May 3^rd.  They tried to record a call that day, but only successfully recorded the preamble to the call—Judge Lackey saying who he was.  Judge Lackey elected to use his own recording device and it didn’t work.  Delaney was in the office with him. 

At this point, Judge Biggers asked that Keker’s examination focus on the issues. 

There had been mention of an of-counsel position in the May 3^rd phone call.  The quote from the affidavit about it is from Judge Lackey’s statement he gave after this call.  There is no recording.  In that conversation, Judge Lackey told Balducci he thought the case was going to the Supreme Court.  [I am not absolutely positive Delaney said it was in this conversation]

Keker asked about his view that, as of May 9^th, the contact between Balducci and Lackey was over.

More in the next part.

A shout-out to WO

On behalf of NMC (let’s hope he’s still zee-in’ away at this hour), I thank Walter Olson of Overlawyered.com for the kind but true things he says about folo’s Scruggsiana coverage here.

WO, come on by for that Co’Cola or something stronger whenever you like!

WSJ: the Feds are onto Trent Lott

Today’s Wall Street Journal confirms what folo noted Scott Horton reporting ten weeks ago (see also here, here, and here):

Federal agents are investigating whether former Senate Majority Leader Trent Lott knowingly played a role in an alleged conspiracy in 2006 to influence a Mississippi judge presiding over a multimillion-dollar lawsuit against famed plaintiff attorney Richard “Dickie” Scruggs, according to people familiar with the situation. …

Mr. Lott, who is a brother-in-law to Mr. Scruggs, unexpectedly announced his resignation from the Senate two days before Mr. Scruggs was indicted last November. Since then, Mr. Lott has been interviewed by federal agents at least once, according to a person familiar with the case.

The U.S. attorney’s office in Oxford, Miss., which is leading the investigation, is also examining whether several associates of Mr. Scruggs induced a different Mississippi jurist, Hinds County Judge Robert Delaughter [sic], to rule in favor of Mr. Scruggs in a separate lawsuit by promising that Mr. Lott would recommend Judge Delaughter for a seat on the federal bench.

Curiouser and curioser (Mike Moore visits Oxford)

I’m going to point out a history of Dickie Scruggs’s litigation strategy of running strange side-games completely unbeknownst to the lawyers who are supposedly running his case– e.g., bribing Judge Lackey behind the scenes, unknown to the lawyers representing Scruggs.  I also want to point out (again, Judge Lackey would be Exhibit A) that Scruggs’s instincts may not be the best when the fix isn’t really in.

I’m wondering if there wasn’t a little control-issue visible in court today.  Remember my post about the strangest thing that happened today– that Judge Biggers said someone from the Scruggs side had called out to say that Mike Moore was going to sit at counsel table?  And John Keker said:  “It wasn’t us, your honor.”

I thought that real strange and wondered what was behind it.

Tonight, Zach Scruggs and Mike Moore were seen out at dinner in Oxford.   Coincidence?

The rest of the events in the US v. Scruggs motions hearing

This post has everything not already up about what happened today except an account of the FBI agent’s testimony, which was fascinating and will be posted later in separate posts.

Here’s what the Judge said in denying the motion to dismiss:  The motion is whether Judge Lackey asking for money created the crime.  To obtain dismissal for outrageous government conduct, the defendant must not have participated in any active way.  They did.  The defendants are unable to show they are merely passive participants.  It is clear they were active participants. 

Keker asks for more witnesses, which the judge denies, and then he denies the motion to dismiss.  This was the point for the lunch break.

In the afternoon hearing, the court called up the motion to suppress the evidence from the wiretaps and the search.  Keker began, arguing that to get an evidentiary hearing, he must show an omission and falsehood in the affidavits, and that the full picture equals no probable cause.  To resolve that, we have to hear the testimony of Agent Delaney.  If an honest affidavit had been done, there was no probable cause from the first affidavit.

Sanders responded for the government.  He said there must be a substantial showing and nothing in the motion suggesting dishonesty.

The judge responded that you don’t have to show dishonesty, just an intentional disregard for the facts. 

Sanders;:  If you take everything in our motion, if you put everything in from every transcript of every call, there would be probable cause.  For instance, Keker had argued that it wasn’t in one of the affidavits that P.L. Blake didn’t know about the Lackey order in a first call, because it was clear from a later call that P.L. Blake had learned about the order.  By the time the affidavit was done, they knew that P.L. Blake had learned about it, and thus the affidavit didn’t require that information. 

Judge:  Did you put in the affidavit that P.L. Blake knew what the money was about? Yes.

Sanders argued that when Balducci says on the transcripts, “Only you and I know what is going on,” the agent did not have to put that in the affidavit for it to be honest because they knew this was not true—from the Patterson conversations, they knew others knew about what was going on.

Judge:  Would the government stipulate that statements the defense says were made were left out in a hypothetical affidavit on which the judge could rule whether probable cause was present?

Sanders:  Yes.

Keker:  This doesn’t meet the standard in Franks.  The government is now saying some was intentionally left out and not negligently or recklessly.  We have to have Agent Delaney up there to deal with this. 

Judge:  Will allow a short exam of Agent Delaney because this issue goes to the heart of the case. 

The Government called Delaney and gave Keker the Jenks material relating to Delaney’s testimony.  I am going to detail that testimony in a separate post or posts.

After the agent testified, Judge Biggers said:  In these motions concerning the adequacy of probable cause for these wiretaps and a search, the defendants attack the adequacy of probable cause by bringing out the alleged omissions and alleged false statements.  The law is “look at probable cause with the statements included.”  “What I would like to see from counsel on both sides.  I have taken notes, but would like a memorandum listing omitted and false statements from the affidavits.”  He wants them listed, and wants one from the defense and from the government.  The judge went on to say there is also still a question in his mind about probable cause.  Both parties have agreed that an aggrieved party has standing to complain.  But what can they complain about?  There is no question the three defendants have standing to complain about the legality of the Patterson wiretap, for instance.  Can they complain only about whether there was probable cause about Patterson, or can they insist there be probable cause about all three defendants?  Must there be probable cause about all three defendants, or only Patterson?  He wants a memorandum about that and the list for the affidavit by the end of the day Monday.

He then says he will start Thursday at 9:30 with the motion to dismiss counts 2, 3, and 4, the motion to exclude 404b (other crime) evidence, the motions to sever, and the motion to change venue, in that order.

As noted, I’ll detail the FBI agent’s story in another report.

Huckabee’s nomination chances just skyrocketed – UPDATED

UPDATED BELOW 

Trent Lott, man, don’t feel alone. John McCain has, um, a new problem too. From the New York Times (and I hear that MSNBC just broke into programming to pass it along too):

For McCain, a Risky Confidence on Ethics

John McCain’s relationship with a female lobbyist underscores a paradox: Even as he embraces high ethical standards, his confidence in his own integrity sometimes seems to blind him to potential conflicts of interest.

UPDATE: At The National Review, Gabriel Sherman has just posted The Long Run-Up: Behind the Bombshell in ‘The New York Times.’

From the intro:

… Beyond its revelations, however, what’s most remarkable about the article is that it appeared in the paper at all: The new information it reveals focuses on the private matters of the candidate, and relies entirely on the anecdotal evidence of McCain’s former staffers to justify the piece–both personal and anecdotal elements unusual in the Gray Lady. The story is filled with awkward journalistic moves–the piece contains a collection of decade-old stories about McCain and Iseman appearing at functions together and concerns voiced by McCain’s aides that the Senator shouldn’t be seen in public with Iseman–and departs from the Times’ usual authoritative voice. At one point, the piece suggestively states: “In 1999 she began showing up so frequently in his offices and at campaign events that staff members took notice. One recalled asking, ‘Why is she always around?’” In the absence of concrete, printable proof that McCain and Iseman were an item, the piece delicately steps around purported romance and instead reports on the debate within the McCain campaign about the alleged affair.

What happened? The publication of the article capped three months of intense internal deliberations at the Times over whether to publish the negative piece and its most explosive charge about the affair. It pitted the reporters investigating the story, who believed they had nailed it, against executive editor Bill Keller, who believed they hadn’t. It likely cost the paper one investigative reporter, who decided to leave in frustration. And the Times ended up publishing a piece in which the institutional tensions about just what the story should be are palpable. …

US v. Scruggs motions hearings: Some color commentary

Before getting on to the rest of the testimony, I’m going to talk about some of the atmospherics in the courtroom.

Both the lawyers and judge were very well prepared and effective.  Judge Biggers had specific issues about the legal standards he wanted addressed, and the lawyers responded.   I think the defense goal here had to be a chance to do some discovery, and they achieved it in a big way.  Being very careful not to antagonize the judge, Keker created an opportunity to put on and cross-examine two major witnesses for the prosecution– Balducci and the FBI agent.  And while Balducci bloodied Keker a couple of times (particularly on the Wilson bribe), there was no jury presence– not just better now than later, but now is a good time.  Keker was exploring Balducc’s testimony more like a deposition– asking “why” questions about what Balducci had done that a skilled lawyer avoids in a trial cross-examination.  He got a free shot to explore Balducci’s story, and used it as much as the judge would let him.

Balducci was a very effective witness.  He was calm.  When he parried with Keker, it didn’t really come off as trying to best another lawyer– he had a very convincing “I’m just answering the questions” demeanor.  The arrogance that can come across from him in the transcripts is either gone or he kept it under wraps.  And none of the colorful language (“sweet potatoes” “corn on the ground”) of the transcripts, either.

Scruggs spent Balducci’s testimony looking at his lawyer or anywhere but at Balducci.  If he looked at Balducci, I didn’t notice it.

Zach’s lawyer and Frank Trapp for Backstrom each asked to say something at different points, and the judge said he was only going to hear from one lawyer to a side on each thing.  In some ways, Keker invited that by the way he introduced himself at the beginning.

The crowd in the afternoon was slightly thinner.  Tony Farese was there for a bit, with Shane Langston.  What was Shane Langston doing there?  I could speculate.  It is an interesting question.

I’ve got another post to do about the motion arguments and probably several about the testimony about the FBI agent.