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On Wednesday, D.C. Council Chair Kwame Brown (D) resigned his office after becoming the second elected city leader to be charged with a felony this year. His resignation is already setting off intensive political maneuvering. We get a primer on the legal maneuvering, find out who is in charge of the Council, and consider how various corruption investigations are affecting life in the District.
- Tom Sherwood Resident Analyst; NBC 4 reporter; and Columnist for the Current Newspapers
- Randall Eliason former chief of the Public Corruption/Government Fraud section of the U.S. Attorney's office for the District of Columbia; adjunct professor at American University and George Washington University
- Patrick Madden Reporter, WAMU 88.5 News
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. For 37 years, no elected member of the D.C. Council had ever resigned in the face of criminal charges. As of yesterday afternoon, two members have stepped down this year. D.C. Council Chair Kwame Brown resigned his office Wednesday after federal prosecutors formally charged him with bank fraud.
MR. KOJO NNAMDIThis morning, a second charge was unveiled against Brown, a misdemeanor charge of unlawful cash campaign expenditures. Brown's resignation has set off a round of intensive political maneuvering. It's fueling further speculation about ongoing federal investigations of other top political leaders, but it's also forcing us to ask top questions about the political culture of D.C. and its elected leaders.
MR. KOJO NNAMDIJoining us to have that conversation is Randall Eliason, former chief of the Public Corruption/Government Fraud Section of the U.S. Attorney's Office for the District of Columbia. Today, he's a professor at American University's Washington College of Law and George Washington University Law School where he teaches a course on white-collar crime. Randall Eliason, good to see you again. Thank you for joining us.
PROF. RANDALL ELIASONGreat to see you. Thanks for having me.
NNAMDIAlso with us is Patrick Madden. He's a reporter with WAMU 88.5 News. Patrick, thank you for joining us.
MR. PATRICK MADDENGood afternoon.
NNAMDITom Sherwood is our resident analyst. He's an NBC reporter and a columnist for The Current Newspapers. Tom, this -- you were planning a staycation this week. That's all over with, huh?
MR. TOM SHERWOODYeah. The staycation is history, and so is Kwame Brown. But we're just in the middle of the movie for this scandal and what's happening in the District of Columbia, the middle of the movie.
NNAMDIDuring Kwame Brown's recent years on the D.C. Council, he was dogged by a number of embarrassing stories and scandals or mini-scandals. He faced embarrassing revelations about an expensive car lease and his demands for a black-on-black fully loaded government-funded SUV. There were stories about his excessive credit card debt.
NNAMDIThere were stories about secret bank accounts, unaccounted-for campaign cash. But, yesterday, federal prosecutors released a document indicating that he would plead guilty to something else. Today, we have a second misdemeanor campaign finance charge. Patrick Madden, I'll start with you this time. What do we know right now?
MADDENWell, the latest charge -- it was, again, filed as a criminal information, which typically means the defendant is going to plead guilty -- is a misdemeanor count of unlawful cash campaign expenditure, and this goes back to that 2008 campaign. That's what federal investigators have been looking at for months.
MADDENAnd the other charge yesterday, which is being treated as a separate count, a separate charge, is this bank fraud, which -- in which the former councilmember lied on a loan application, essentially, when he was getting a home equity loan and helped him, I guess, purchase the now infamous boat, Bulletproof.
NNAMDIWhat else can you tell us about these charges, Tom?
SHERWOODWell, to be clear, the campaign charge, which was filed yesterday, that is a -- I mean, excuse me, the financial wrongdoing. That is a felony. That is the most serious difference.
SHERWOODThe charge filed today is a misdemeanor and is far less significant, except that Kwame Brown had said when he was in that scrum of reporters at the Wilson Building that he had no plans to resign and that he had broken no laws in the 2008 campaign. Well, both of those turned out to be not true. I think it just shows the kind of panic that he was in in these last 48, 72 hours.
NNAMDIWe're inviting you to join the conversation at 800-433-8850. What are your concerns about the political culture in D.C.? 800-433-8850. You can send email to firstname.lastname@example.org. Patrick, you were about to say...
MADDENWell, I was just saying the timing of today's criminal information is interesting because, as part of this resignation letter that the chairman -- the former chairman submitted, it's sort of -- the chairman has sort of talked about how he, you know, none of this had to do with his sort of official capacity as a politician and that today, now, after that resignation letter was submitted, we get the charge that does deal with him as a politician.
NNAMDIRandall Eliason, I read both of these charges and, as a non-lawyer, had trouble understanding the significance of them. Is there anything else we need to know that you thought of?
ELIASONWell, the -- as Tom said, by far, the more serious charge is the one that's filed in federal court, the bank fraud. That's a felony with a maximum of up to 30 years, although he'll be subject to much less than that under the sentencing guidelines and the facts of this kind of case. And the filed...
NNAMDIThe campaign charge was filed in D.C. Superior Court.
ELIASONRight. And they're filed in two separate courts because they appear to be completely independent. The bank fraud doesn't seem to have anything to do with his campaign or campaign finance matters but more to do with his personal finances. And then the D.C. campaign violation would need to be filed in D.C.'s Superior Court because the federal court normally wouldn't have jurisdiction over that D.C. code offense, and so that's why we have the two separate cases going on.
SHERWOODIt -- may I ask you, being the lawyer in the room, the felony charge, some people were -- Jim Vance even asked me last night at 11, well, some people are surprised that this is a one felony charge against Kwame after all this investigation and this look into his private life. Is that really that serious?
SHERWOODAnd that's -- and I tried to say to him, well, he pled guilty to it, suggesting that had he not pled guilty to that, or agreed to plead guilty to it, that there would have been other charges, maybe against his wife or other things. Would -- is it typical that a -- the U.S. attorney would have more charges standing by if the person doesn't reach a plea agreement, that that, in fact, is an agreement?
NNAMDIAnd on that first charge of bank fraud, they're alleging that Kwame Brown inflated his income and the value of his house in order to attain a loan.
ELIASONRight. I mean, it certainly wouldn't be unusual that, as part of a plea agreement, there were other charges that were dropped or agreed not to be brought down. I don't think we know that from the outside of the grand...
ELIASONRight. From the outside of the grand jury investigation but -- so that -- it's hard to say for certain...
SHERWOODBut it is a felony -- it is a fairly serious charge. This is not just some casual -- he had just inflated a number or something here or there on his house loan application. This was a criminal felonious altering of documents.
ELIASONYeah. I mean, bank fraud is a very serious felony, like I said, maximum 30-year penalty, so...
NNAMDITrue. But most of us have an idea of what political corruption looks like, and it usually involves, well, manila envelopes with cash stuffed into them or special favors for campaign donors. For most of us, it doesn't exactly involve someone lying on a loan application. How should we interpret the U.S. attorney's actions here?
ELIASONWell, I think what most likely happened -- and it's not at all unusual -- is that during the course of investigating the alleged campaign improprieties, they had to do an exhaustive financial investigation that would involve looking at all kinds of records, both his personal and his campaign records and bank records and finance records. And in the course of investing (sic) those other allegations, they came across this bank fraud.
ELIASONI would imagine that's what happened. And once -- if you discover other criminal charges in the course of one investigation, you have an obligation to pursue those charges as well. So it's not at all uncommon to really be investigating one matter and then, in the course of that investigation, you discover something else that you weren't initially looking at. And those end up being charged.
NNAMDIIn case you're just joining us, we're talking about D.C. former Council Chairman Kwame Brown. He resigned yesterday. And we're talking with Randall Eliason, former chief of the Public Corruption/Government Fraud Section of the U.S. Attorney's Office for the District of Columbia, Tom Sherwood, our resident analyst, and Patrick Madden, reporter of WAMU 88.5 News. Tom?
SHERWOODI was just going to say the charge or the felony charge is that he inflated his income by, according to the document, tens of thousands of dollars, and although I don't have all the details yet, my understanding, having talked to some people today, is that he -- there was a 1099 of outside income. That's a form you file with the IRS for contract work or non-employee work that you might do for a company.
SHERWOODAnd that he had a legitimate one for a modest amount of money, but in order to qualify for the loan with Industrial Bank that Kwame Brown, in fact, altered the document. And I don't know what exactly what altered means, but it's suggesting that the signatures may have been fake or were fraudulently put on and that the dollar amount was changed and he submitted that to the bank as a proof of income that simply did not exist.
NNAMDIGlad you mentioned that because most people who have read this story said but, wait a minute, Kwame Brown's income is public. He is a public official. How could he possibly falsify his income?
NNAMDIYou just answered that question.
SHERWOODYes. He did. And before -- as a chairman, he cannot hold an outside job with his $190,000 a year salary. But as an at-large councilmember from 2005 forward, he could have outside income. Although I looked at his disclosure reports, and I didn't see it.
MADDENRandall, I'm curious if you can just talk about how sensitive when you're starting to -- an investigation, how sensitive you have to be to the sort of the political situation in -- either in terms of an individual politician or just the entire sort of climate. You know, as you know, you know, the current U.S. attorney is under a lot of pressure right now to complete these investigations. I mean, I think he's even acknowledged that.
MADDENAnd also, how much are you talking to the politician that you are investigating? And I know, I think, I was reading in the U.S. attorney's manual that there's sort of -- each step in the investigation, you sort of have to let them know what you're doing. I'm wondering if you can sort of, you know, go behind the curtain and tell us sort of how these investigations happen.
ELIASONSure. I mean, during any white-collar investigation, you've usually got ongoing contact with the defense attorney, and it's sort of an ongoing process. It's one thing that distinguishes these types of cases from, say, robberies or drug cases or things like that, is the ongoing role of defense counsel to kind of negotiating with the prosecution or following the investigation, talking to them about the investigation and trying to sort of intercede and advocate on their client's behalf.
ELIASONThe -- in terms of the political environment, it's really not the prosecutor's role. You can get to sort of try to put that out of your mind. You want to pursue the case expeditiously, and you're mindful of the need to do that. And you're always trying to do that. But in terms of political ramifications, that's really not your role. You sort of take the cases as you find them and pursue them as best you can and being mindful of your...
SHERWOODReporters were told last week and all the rumors swirling around that here's what's going to happen: Kwame is going to preside over the council budget vote on Tuesday, and then he's going to be charged on Wednesday and maybe resign. And that's exactly what happened.
SHERWOODAnd the prosecutor's office has said we do not, in fact, orchestrate something like that, that, when we gather the evidence, we act on the evidence we have and not some kind of timetable that we're going to do the councilmember first, the council chairman next and then Mayor Gray third and some kind of hat trick. But it seems that it's playing out that way.
ELIASONWell, you certainly don't work on any kind of political timetable, and it may play out that way. I mean, there are other circumstances that can affect the order in which people are charged. For example, you frequently in white-collar cases have charges or guilty pleas from lower-level people involved in the scheme that then plead guilty and cooperate and help you move up the chain or up the ladder to your higher-level targets.
ELIASONAnd so that can affect the timing of charges. But in terms of, you know, coordinating things on a political timetable or bringing charges, you know, to allow the chairman to preside on Tuesday before handing -- you know, that's very unlikely (unintelligible).
NNAMDIWell, in both this case and in the Harry Thomas Jr. case earlier this year, negotiations about plea deals, both seemed to hinge on the willingness of elected leaders to step down. Is it appropriate for an unelected prosecutor to demand that someone step down from office?
ELIASONThat's frequently a part of the plea negotiations in public corruption cases, yes. And there is a public interest in addition to resolving the case to seeing that corrupt officials, you know, do leave office sort of expeditiously. So that's not unusual.
SHERWOODYou cannot, as a matter of law, demand it as a condition, but they have to - the defense attorney has to tell the client to move this along to -- maybe for some leniency before the judge, or to clear this up, you ought to resign. Of course, if you were convicted -- once he pleads guilty to the felony, he would have to resign, anyway.
ELIASONRight. I mean, it's frequently -- as you said, it's a part of the ongoing process and usually in the defense's best interest to step down quickly to be able to tell that -- you know, demonstrate that to the judge.
NNAMDIGentlemen, please, don your headphones. We have Peggy, who is on the phone from Olney, Md. Peggy, you're on the air. Go ahead, please.
PEGGYI'm really surprised that this is all they came up with, the grand jury and the prosecutors, lying on a home equity loan application, and that turned out to be bank fraud with 30 years possibility. Did he dispose on the loan? Did he declare bankruptcy? Is anybody out of any money? I'm not really sure how this makes him a corrupt official.
SHERWOODWell, you may not. This is Tom Sherwood. Thanks, Kojo. Can I interrupt the host?
SHERWOODYou may have not heard me when I said that this is not just so you just said, oh, I didn't make $30,000. Let me just pencil in 45 or 50. My understanding is -- details will be released tomorrow in court -- is that he altered a document, the 1099, by a substantial tens of thousands of dollars. It was out-and-out fraud to change a document and to put someone's signature on the document, maybe who didn't sign the document.
SHERWOODIt's not just the homeowner trying to get through a rough time as millions of homeowners have been doing for the last maybe five or six years. This is somebody, as I've been told by lawyers involved, who altered and fraudulently submitted a document, defrauding the bank. Now, the lawyer has something to say.
MADDENI would just, oh...
PEGGY...did anybody lose money, and is this so much worse than our friend, Marion Barry?
SHERWOODIt is worse than what Barry did.
NNAMDI...in addition to which, Randall Eliason, we got this email from Virginia, who says, "Not defending Kwame Brown, but where are the prosecutions for bank fraud and the banks that encouraged falsified incomes in the sub-prime mortgage fiasco that tanked our entire economy?" Randall Eliason, your turn.
ELIASONWell, I can't comment on that last part. The -- but the caller did make a point that, I think, is correct in that this particular charge is not what you'd normally think of as a political corruption charge. You know, it's being filed against a public official, and it arose out of what began as a public corruption-type investigation of possible campaign financing proprieties.
ELIASONBut this particular charge of bank fraud could be brought against anyone. This has really nothing to do with his political office, at least that we can tell so far. So, to that extent, it's not, you know, "a public corruption charge." But it arose out of a public corruption investigation.
MADDENAnd what is that telling -- I'm sorry.
NNAMDILet me bring in somebody who might offer a unique perspective on this because on the phone is David Simon, the creator of "The Wire," calling from Baltimore, Md. David Simon, you're on the air. Go ahead, please.
MR. DAVID SIMONHi. How are you doing? Thanks for having me.
SIMONI couldn't help. I'm driving down the road, and I'm listening to this. And it echoes of about 10 different federal investigations that I either covered or dealt with as a reporter.
SIMONAnd in Baltimore, at least in the U.S. attorney's office in Baltimore, that 30-year exposure under the bank fraud act is known very cynically as the headshot, which is to say that when you can't get any substantial charge and when you are worried that your indictment is rather weak on the things and on the merits that you are looking at, in terms of political corruption, if you bring that, you expose somebody to 30 years for what is effectively indeed a personal fraud.
SIMONBut ultimately, it's 30 years 'cause it's an FSLIC. It's a federally insured institution. And because they're looking at 30 years, you often and do so plea when, in fact, somebody might be ready and willing to take a much more meager case to trial. That happens in Baltimore in the prosecution -- the federal prosecution of the police commissioner. And, in fact, in Baltimore, sort of misbehavior of the office was exposed, and the U.S. attorney was actually sort of canned.
SIMONBut it also happened in (unintelligible) in a variety of other cases. Whenever -- I got to tell you, as a longtime police reporter, whenever I see the bank fraud charge leading the way for a federal investigation, what I know almost to a certainty is that if they're leading with that, they came up empty everywhere else because a lot of Americans commit bank frauds, and they commit it with federal.
SIMONAnd if you think that's a shocking statement, anybody who ever lied and gave a gift of cash to their child so their child could buy a first home and appear on paper as having more credit than they actually did, they're exposed to 30 years of federal prosecutor Watson.
SIMONThat -- let me say one last thing. That charge is one of the biggest and most amoral holes in the annotated federal code. It's -- it's an embarrassment that we keep pursuing it to the degree federal prosecution...
SHERWOODWhat -- David, you raise a very good point. But what if, in fact, this wasn't just for -- he just fudged the numbers but created a document, that he created a document that was fraudulent?
SIMONI find that to be semantically no more interesting than if a, say, a father...
SIMONIf a -- semantics. If a father says, you know, my son has $50,000 in assets, that the father put in the son's account a year earlier, what's the difference? It's all fraud. But what -- I mean, the question is, did he defraud anybody of any money? I mean, obviously, he committed a crime.
SIMONObviously, that he mislead the bank. But exposing somebody to 30 years and inducing a plea on that basis, I find that to be extraordinary, and I find it to be an embarrassment for the U.S. attorney's office in D.C. Obviously, they didn't have anything better.
NNAMDIDavid Simon, thank you very much.
SIMONSure, no problem.
NNAMDISounds a lot like what you said happened to Clay Davis in "The Wire," doesn't it?
SIMONWe absolutely use it, and we called it the headshot in the show because we'd seen it done to Ed Norris and done -- Ed Norris was ready to go trial on what they were claiming he had done wrong, saying, I don't think I did anything wrong. And they looked at what they had and they said, you know what, we're going to lose this. So then they charged him with the bank fraud thing.
SIMONIt's a really dishonest move.
NNAMDIDavid Simon, thank you very much for your call. Before we go to break, however, Randall Eliason, we got this tweet from Sylvia Brown, who is an ANC here in District of Columbia, "Why only a misdemeanor for the campaign finance violations?"
ELIASONI don't know the answer to that without having been involved in the investigation. I couldn't speculate as to whether there were other charges that were more serious that were not brought as part of, you know, part of an overall pre-agreement or if that's indeed only the nature of all the campaign finance violations they found. I just don't know.
SHERWOODThere was no bank fraud in creating that account. The violation was the elections law violation, misdemeanor of not accounting for the money.
NNAMDIAnd, Patrick, I kept interrupting you, so I got to let you in before we go to break.
MADDENWell, actually, I was going to ask sort of why do you -- Randall, why he thinks prosecutors have to go the bank fraud, why they...
SHERWOODA respond to David.
MADDENRight, right. But it was actually David sort of brought up the whole thing. So I think we've covered it.
SHERWOODBut we didn't hear David -- we didn't hear his response to that.
ELIASONWell, yeah, that's -- yeah.
NNAMDIWhat are your thoughts about that, Randall Eliason?
ELIASONI only have a different perspective. I mean, I don't consider this to be a minor charge or a sort of technicality. Bank fraud is a very serious felony. And if you come across allegations like that in the course of this other investigation as a prosecutor, you've got an obligation to pursue them. As far as the notion of a 30-year charge, sort of coercing someone to plead guilty to something they didn't do, I mean, the way sentencing guidelines operate these days, that's really not a factor.
ELIASONHe's going to be facing substantially less time on that in any event, and so I think that's unlikely to play any kind of a role. But I think when prosecutors come across -- and we're going to know a lot more tomorrow, too, when we see more of the documents -- if there's the plea agreement being filed tomorrow -- and have more information about it. So I don't think it's fair or reasonable to speculate about prosecutorial motives or that this is somehow...
SHERWOODA wimp out.
ELIASON...a wimp out or anything else, right. This is a legitimate, serious charge that they've brought.
NNAMDIDavid Simon, thank you very much for your call. We do have to take a short break now, but you can still call us at 800-433-8850. Do you think the city of Washington is functioning well despite its well-publicized controversies, or should the two really be separated? 800-433-8850. You can send us a tweet, @kojoshow, or email to email@example.com. If you've already called, stay on the line, we will get to your call. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation about the future of politics in D.C. in the wake of the resignation yesterday of D.C. Council Chair Kwame Brown. We're talking with Randall Eliason. He is former chief of the Public Corruption/Government Fraud Section of the U.S. Attorney's Office for the District of Columbia. He's currently a professor at American University's Washington College of Law and George Washington University Law School. And Tom Sherwood is our resident analyst, NBC 4 reporter and columnist for The Current Newspapers.
NNAMDIAlso joining us is Patrick Madden of WAMU 88.5 News. You can call us at 800-433-8850. What do you think it'll take for the city to turn the corner and get past these controversies? Patrick, Tom, yesterday afternoon sounds like it was very eventful at the Wilson Building with a scrum of reporters trying to get the story and at least one reporter having a door slammed on his foot. I saw a picture of Patrick Madden on his knees holding out a tape -- a recorder, pointing it at the bottom of a door. What was going on there?
MADDENWell, at that exact moment, that was right before the chairman came out with his staff. And at that time, they were -- there was, like, shouts of Kwame, and they seemed to be holding each others' hands in...
MADDEN...a pep rally. And so we were hearing these sort of shouts. So that's why we started trying to get the sound. And then, of course, right after that is when the chairman -- the former chairman came out with his staff, all sort of -- as a group, and it just really turned into a media frenzy. I have not seen anything like that, at least inside. And part of the problem was just there was narrow hallways. There were security guards pushing.
MADDENThere were reporters asking questions 'cause, as you remember, Kwame was -- had been inside for about four hours with the doors locked and was refusing to talk to the press. And if you remember, just 24 hours earlier, he had said he wasn't going anywhere, he wasn't resigning, so there was just this intense pressure to -- for the -- to talk to the chairman.
NNAMDIWas your foot the one the door was slammed on, Tom?
SHERWOODYou know, they opened the door -- a fairly large staff member opened the door to get -- let another staff member in. I thought, well, I'll just go in with him. But, of course, he slammed the door, and my foot just happened to get caught. Fortunately, I was wearing sneakers, and so it was somewhat flexible.
NNAMDIAs you were on your staycation.
SHERWOODThese are my staycation shoes.
MADDENThey need better doors there, I think. And that thing split….
SHERWOODAnd -- but -- now, what's really terrible -- I mean, my foot is fine. But, you know, this is an old oak door that, you know, I think dates back to the original building from 1902. And it actually cracked. And it cracked like there's a three-foot crack in there. And I couldn't get my foot out, and he wouldn't open the door to let me in. I probably persuaded him to open the door, and I promised that I would not come forward. I would step back, assuming my foot would step. And so that's what happened. It was a minor thing. It was a chaotic scene on that fifth floor.
NNAMDIWell, I was wondering what was happening that was newsworthy behind that door. Randall Eliason, obviously a common actor in both of these information -- oh, no, the question is about information charges themselves. We noticed that in these filings, we use the terms information action. What does that imply?
ELIASONRight. Well, with a misdemeanor in superior court, that's standard. They're just filed -- an information is a charging document that is simply filed by the prosecutor. The difference is...
NNAMDIBut every -- we've been inferring in the media that when an information document is filed that a plea deal is imminent.
ELIASONThat's correct in the felony. In the District court charge that was filed yesterday, because it's filed an information, the alternative is an indictment. You know, the Constitution says a federal felony has to be returned by a grand jury, in a grand jury indictment and signed and voted on by the grand jury. And that's the only way you can charge a federal felony, typically.
ELIASONSo if you're filing an information, the only way to charge a felony that way is if the defendant has agreed to waive the right to be indicted, which is typically as part of a guilty plea, and that allows the prosecutor just to file the charges, you know, what's called an information as opposed to an indictment. The language is usually pretty much the same, although the information is frequently a little less detailed. But it simply means that we're filing the charges because as part of an agreement with the defense that they are willing to waive the right to be indicted by a grand jury. And then...
SHERWOODAnd I know of no case where a prosecutor has filed in federal court a criminal in information and there has not been subsequent plea.
ELIASONNo. That's what happens.
NNAMDIOn to the telephones again. Headphones, please. Here is Kate Reed in Washington. Kate, you're on the air. Go ahead, please.
KATE REEDHi, Kwame. (sic) Well, first of all, Tom, quit bellyaching about your booty-kicking foot. That's the foot that you use to kick the booties around town. So, you know, sometimes it gets stuck in the door, and sometimes it doesn't. You know how that goes. But, listen, let me give you my take on this. A long time ago, Kwame, I thought when I saw three -- when I saw the locals of power in this town with Vince Gray, Kwame and Yvette Alexander, I might add, coming into power, I said, oh. I said, some folks are getting ready to get targeted.
KATE REEDNow, we all know that in these liar loans, there were brokers that need -- that said, hey, man don't worry about it. We'll figure out the paper work. Let me churn the numbers and get everything organized, blah, blah, blah. We don't even know if he did the paperwork or created the document because a lot of the brokers would do that. I would tell you this, though. I believe that it should be like a prostitute.
KATE REEDIf the woman goes to jail for prostitution, the John needs to go, too. So I need to see the prisons open up so that we can get all these folks that did these liar loans into prison with these white-collar -- I go along with Simon that, you know, this is the chalk charge. But when you got nothing else in your hand, you bring out...
NNAMDIOK. Kate, allow me to share with you a couple -- and our guests -- a couple of emails. We got one from Mike in Fairfax, Va. He says, "Too much show -- focus has been put on how little the prosecutors were able to charge Mr. Brown with. Prosecutors must deal with what they can prove, not what they know. Even if they know that a public official is corrupt to the core, they might not have enough hard evidence to bring that case against him, and a trial on such charges would be risky at best.
NNAMDI"As such, they stick with less sexy things like bank fraud, RICO violations and income tax evasion, frequently forcing plea agreements by threatening to bring bigger charges. Law is a strategic endeavor. And prosecutors must use strategy to bring corrupt officials to justice. Using the bank fraud charge is a tactic, and you can like or not. But would Mr. Simon have the prosecutors charge the official with nothing at all?" Then we got this. "David Simon raised the question of whether prosecutors are strong arming Kwame Brown.
NNAMDI"Obviously, we don't know the full scope of the prosecution right now, but it is worth noting prosecutors have had trouble with some high profile prosecutions of political leaders in the recent past, whether it's Ted Stevens or John Edwards. That is a different office than the U.S. attorney of D.C., but there are open questions now about how prosecutors conduct their work and how hard it is to prosecute elected leaders." Is it particularly difficult to prosecute elected leaders, Randall Eliason?
ELIASONWell, in general, public corruption cases are very difficult, and a lot of times, the reason is they're what you call consensual crimes. If you've got, say, bribery going on, you've got two parties to this transaction that's an illegal bribe. Well, neither one of them wants you to find out about that transaction as opposed to a more difficult fraud case or something like that when you have victims out there who have been harmed and who want to come forward and help the prosecution and tell you what happened.
ELIASONA lot of these crimes take place in secret, and a lot of them involve very gray areas about the lines between what's legitimate campaign fundraising or legitimate advocacy or legitimate lobbying and crossing the lines into corruption. So as a general matter, that's true. As to this particular case, I think it's -- you can't extrapolate from other difficulties that people have had in other cases or -- and try to draw conclusions about this case.
ELIASONAnd you can't know, without having been involved in the grand jury investigation, you know, the details of what's going on. So I think all you can say is this a serious charge. This is a legitimate serious fraud charge that needed to be brought if it was discovered. And in general, this U.S. attorney's office has had a very solid and aggressive record in the last few years of pursuing public corruption cases both local and federal. And so this is just a part of that pattern.
NNAMDITom Sherwood, you broke the story last year about Kwame Brown's credit card debt. At the time, there was a question as to whether this was a private matter and how relevant it was to his public life. Now we know that you were pulling on a string that was related to these ultimate charges, correct?
SHERWOODYes. Well, in 2010, when he was running for chairman, we discovered the $50,000 in court lawsuits against him by five credit card companies, and he said -- well, he blamed it, in part, I have to say, for sending his children to ballet lessons and those types of things. Of course, the Bulletproof boat figures in the current charge against him. He's had a chaotic personal life when it comes to finances.
SHERWOODAnd that has -- we'll just learn more of this tomorrow in the court procedures. But he's -- while he was a rising political star in the city, winning first in 2004, no opposition in 2008 when all of these alleged crimes occurred, and then winning the chairman's race and really possibly being mayor next time around after the current one, he just -- his public life was terrific, and his private life was hell.
NNAMDIHere is Ryan in Bethesda, Md. Ryan, you're on the air. Go ahead, please.
RYANHi, Kojo. My question today is basically about Kwame Brown and the purchasing of the two Navigators. I wondered why he was never charged with misappropriation of funds for the misspending of the two vehicles for the -- that were, like, $60,000 like a year or two ago.
MADDENWell, those actually...
MADDENThose went through the proper channels. They were procured by the, I believe, it was the...
ELIASONYeah, transportation and public works.
SHERWOODPublic works, public works it is.
ELIASONAnd, you know, it looked...
SHERWOODIt wasn't illegal. It was just bad.
ELIASONYeah. And the emails were terrible, politically, you know, were asking for a fully loaded black-on-black Lincoln Navigator that was costing, I believe it was something like $3,000 a month, perhaps even more. But there was nothing illegal there. Now, the question of whether he has actually -- 'cause he agreed to repay some of the money that was lost. I'm not aware...
SHERWOODAs far as I know, he's never repaid it. I'm sure if he had had it, he would have said so.
SHERWOODBut that was not a legal matter. That was just a fumbling, bumbling, stupid political matter.
ELIASONBad taste, yeah.
NNAMDIWell, we got a tweet from Bruce in D.C., who says, "What's not appropriate is elected officials who can't seem to avoid the appearance of impropriety." And I'd like to raise a question about values. When David Clarke was chair of the D.C. Council, he rode a bicycle to work on most days, sometimes in his suit and all. When Kwame Brown took over as chair, he demanded a fully loaded SUV.
NNAMDIBoth Kwame Brown and Harry Thomas Jr. got into trouble, in part, because of hugely expensive hobbies or status symbols: driving expensive cars, buying motorcycles, playing golf at Pebble Beach. Tom Sherwood, you've been covering the city for a long time. What's going on? Are we seeing...
SHERWOODWell, this is not something unique to the District and to the water -- water is actually pretty good here. This is a misplaced sense of entitlement. Kwame -- now, excuse me -- Harry Thomas said it, I think, somewhat heartfelt in his sentencing, you know, that he just felt like he was entitled to this and he was entitled to spend money.
SHERWOODAnd, you know, I even told him, if you'd played golf at Pebble Beach and took 10 young citizens from your ward with you and showed them the magnificent course and all of that, you would've been treated as a hero. But you went on your own selfish motive to play golf there and left the kids behind. So it's a sense of entitlement and...
NNAMDIAnd is it unique to the District of Columbia?
SHERWOODNo, it is not unique to the District.
NNAMDIIs this happening around the country? And if you'd like to think that it's happening around the country, what do you think is fueling it? You can call us at 800-433-8850. Patrick Madden.
MADDENWell, just to jump on what Tom said, I mean, Harry Thomas, that's what he -- he sort of explained everything by saying it was the sense of entitlement he gained when he took office. And it's just amazing to me whether -- the stories continue every day, whether it's the free tickets to the Verizon Center, the Nationals games that council members feel they, you know, that should be given to them. It just seems like these stories about entitlement keep coming up.
SHERWOODI don't -- can we -- the tickets thing -- here's a simple thing. People get all bent out of (unintelligible) council members shouldn't get tickets. I don't care if the mayor or the council get tickets and if they are portioned equally so everyone gets a certain number. But we ought to know publicly who they give the tickets to.
SHERWOODThere are to be not just "some mysterious constituent, who happens to be your mother-in-law." But we -- I want to know who they give it to. And if they give it to the Jelleff Boys & Girls Club, that's one thing. If they give it to their son or daughter who then takes their college buddies, that's another.
MADDENWell, why not just give it to them as opposed to giving it to the council members, who then get to pick and choose who they give it to?
SHERWOODWell, it's 'cause it's part of the life of being a political leader (unintelligible).
MADDENBut that's what we're talking about, the sort of expensive, you know...
NNAMDIGot to take a short break. When we come back, we'll continue this conversation about the fallout in the wake of D.C. Council Chair Kwame Brown's resignation and his expected court appearance tomorrow. 800-433-8850. I'm Kojo Nnamdi.
NNAMDIThat's our resident analyst Tom Sherwood. He's an NBC 4 reporter and a columnist for The Current Newspapers, here to talk about what's going on in Washington in the wake of the resignation yesterday of former Council Chairman Kwame Brown and his expected appearance in court tomorrow. Joining him in studio is Patrick Madden, who's a reporter for WAMU 88.5 News, and Randall Eliason, former chief of the Public Corruption/Government Fraud section of the U.S. Attorney's Office of the District of Columbia.
NNAMDIRandall, you have prosecuted a variety of different crimes, from drug arrests to white-collar crime. In the case of well-connected political leaders, the prosecutor is almost always going up against highly competent, well-paid lawyers. How does that affect the pace of an investigation and the information that we get in public about these cases? Because, in the past, oh, six months or so, this information has been coming out in little driplets. And we never know when the other shoe is going to drop, to mix metaphors here.
ELIASONAll right. Well, during a grand jury investigation, of course, that's all conducted in secret. And so the prosecutor's office is not supposed to be sort of issuing press releases or updating people on what's going on in the investigation until there is something public, like these documents that are filed today. So, typically, that's not unusual.
ELIASONAnd you are dealing, in a lot of white-collar cases, both corruption and other cases, with sort of very skilled defense counsel who, as I said, are involved in the case from very early stages, both working actively on the investigation themselves, their own investigation, and working with the prosecutors on behalf of their client sort of all throughout the process.
MADDENYou know, if I can just follow up on this, talking about the defense, one of the unique sort of aspects of all these investigations is that it appears that it's the same defense attorney who's been representing a lot of the clients here. I think...
MADDEN...Fred Cooke has represented Harry Thomas, Kwame Brown. I think he's representing a couple of the people in the Jeffrey Thompson investigation.
NNAMDIOf course, Jeffrey Thompson himself has been represented by Brendan Sullivan.
MADDENRight, right, but they're peripheral figures. How does that -- when you have -- when you're dealing with the same defense attorney, is that -- do you have -- do you worry about sort of what information you can share when you're doing these cases or if there's any sort of conflict of interest? How does that play?
ELIASONWell, unless there is an actual conflict of interest, it's not really that unusual if these cases are -- appear to be unrelated, you know, the Harry Thomas matter and...
ELIASON...Kwame Brown matter and things like that. It's not really that unusual. The white-collar defense bar is fairly small. And then even within that bar, you have people who sort of specialize in certain types of cases and are well known for that and not uncommon for a defendant to want to retain someone who maybe has experience in local D.C. corruption cases or cases involving the city government because they know that person is very familiar with all the ins and outs of those organizations and how the cases operate.
ELIASONAnd so sometimes if it's within the same case, you come up with issues, defense attorneys trying to represent, you know, more than one target in the same investigation. And then you have conflict of interest...
ELIASONBut that's -- doesn't seem to be the case here.
SHERWOODFred Cooke was asked outside the courthouse, I think, when Thomas was there or...
MADDENI asked him. Yeah.
SHERWOODAnd he said -- and he had a fairly straight answer. He says, I'm a lawyer. If I have a conflict of interest, I'll disclose it, and I won't do it.
MADDENRight. Or the prosecutors could say something if there was...
NNAMDIHere is Lewis (sp?) in Great Falls, Va. Lewis, you're on the air. Go ahead, please.
LEWISHi. I have a question for the panel regarding cooperation. You guys sort of hit it or sort of addressed it earlier, but you really didn't follow up on it. Is it possible that the reason why Kwame Brown got this or is going to plead guilty to this charge that's a relatively minor personal charge, that the reason he's pleading guilty to that possibly because he is cooperating in a bigger case that the prosecutor is building against possibly the mayor and other people on the council? Thanks. I'll take my answer...
NNAMDIYes. We are reminded that there's an ongoing investigation of the mayor's campaign, an ongoing investigation by the U.S. attorney of the lottery contracts in the District of Columbia that could possibly implicate another councilmember, Jim Graham. But, Randall...
SHERWOODSays he's done nothing wrong, and he welcomes any opportunity.
ELIASONWell, the short answer to the question is, yes, it's possible, but we just don't know. And it's possible we'll learn more tomorrow during the plea hearing if he is, in fact, cooperating in some larger investigation that may become known as part of a plea agreement. But, you know, we don't know either way.
NNAMDIIn the Gray campaign, we discovered that Howard Brooks was cooperating...
NNAMDI…with the U.S. attorney's office.
SHERWOODBut I want to go back to what this caller said. Again, I heard this relatively minor charge.
SHERWOODI mean, I am just astonished that people who think a bank fraud case, whatever the history, are using it as a wedge against other -- think that this is a "relatively minor charge." I assure you, bank fraud -- I mean, it's not a relatively minor charge. And if you've altered documents, if you've inflated income by tens of thousands of dollars, as this document says, this is not relatively minor.
NNAMDILewis, thank you very much for your call. Patrick Madden, Tom Sherwood, what happens next on the council?
MADDENWell, there is a process for this. Mary Cheh right now is the acting chairperson. Pretty soon the council members are going to meet, and they're going to pick an interim...
SHERWOODWednesday at 10:00.
MADDENThey're going to meet -- they're going to pick an interim chairperson. Right now, it's looking like it'll be either Phil Mendelson or Vincent Orange, Michael Orange. (sic) It has to be one of the at-large...
SHERWOODHas to be one of the four at-large members, so they can't have outside income. So that pretty much eliminates Catania and Michael Brown. So that leaves Mendelson and Orange. And it has -- just have to be an at-large member. And it's only to serve until there's a special election, which, because it's so close to the general election, will probably be on Nov. 6, the presidential election.
MADDENBut you would be well positioned if you wanted to run for chair, if you were the active -- if you were the interim chair.
NNAMDIHere's an email we got from Josh, who said, "Maybe I missed it, but I haven't seen anyone fully think this thing through in print. Let's say Mendelson gets the temporary chair for 114 days and Gray resigns within that window, does the succession plan work the same way for temporary chairs? If so, like Gerald Ford, Mendelson could be elevated to the number one job from a number two job that he was not elected to, or am I missing something?"
SHERWOODYes. No, he -- if Mendelson is the acting chairman, a temporary chairman, and some other -- Mayor Gray leaves office, then Mendelson would, in fact, become the acting mayor until a special election. And then the council would have to reconvene and appoint someone else, another at-large member, as the chairman.
MADDENAnd there would be a total domino effect of all these new elections...
SHERWOODAnd this is assuming that Congress didn't step in. And at that point, if the mayor goes down and say, I think I'll just put a receiver in charge, a lot of people don't think that's going to happen. And I hope it wouldn't, but I wouldn't rule it out.
NNAMDIHere's Al in Baltimore, Md. Al, you're on the air. Go ahead, please.
ALThanks for letting me talk to you. I want to make a comment, and you guys kind of highlighted it a little bit earlier. And Maryland and Baltimore, we're no strangers to this kind of thing either. We had a mayor that had problems. We have a county executive now who has problems. But what I wanted to say is, to me, this is much more scary because of how it relates to the national scene. We've seen, you know, federal officials like Ensign.
ALWe've seen Gingrich using -- getting reimbursed for, you know, campaign funds for his company. And, to me, it seems like the politicians are using their positions, you know, for their personal piggy banks. And it seems to me that the businesses and their contributors, lobbyists, whatever, are the depositors in sort of this instance. But the difference is when the businesses make a withdrawal, which is access for their own gains, the citizens have no power.
ALThey get no access, and their money is just used and played with by these politicians for their own good. And that -- to me, that's a very scary potential to really damage our democracy on a national level. And that's all I wanted to say. Thanks very much for letting me talk.
SHERWOODWell, you haven't described the District of Columbia. You've just described the American political system. There's nothing unique about the District of Columbia that makes it any different from other places. And I always like to mention Illinois where four governors have gone to prison. There is a power push and pull. That's why some citizens are trying to get the Initiative 70 on the ballot this fall to ban corporate -- direct corporate donations. This is a time for citizens to step up. If you feel powerless, then it's your time to act.
NNAMDIWell, we got an email from Eric, who said, "Certainly, the actions of Kwame Brown, Harry Thomas Jr. and other elected leaders within the District will be used to fuel the old flawed argument that D.C. residents can't be trusted to govern themselves. We've heard this argument used in conjunction with Marion Barry for years.
NNAMDI"Shame on the next generation of D.C. leaders for taking us backward in the struggle for voting rights." Well, of course, Tom and others can tell you what's been going on in other cities around the country like Chicago and New Orleans and other places, but I suspect that Adam is right, that there are those who would use this kind of (word?).
SHERWOODWell, Kojo, let me just ask you. This is -- I'm going to turn the camera on you for a moment. Just -- you've been in the city for a day or two. You've been -- you talk all around town. You talk to all types of groups. What do you -- when you hear that kind of comment where those people, you know, those people can't govern themselves, you know, silly, stupid people in the District and they shouldn't have (word?), what is your own professional response to all the people who see this trouble now?
NNAMDIMy response is that, on the one hand, the emailer is absolutely correct. And as I said, you and others can point out that there are cities like Chicago and New Orleans and other cities around the country who have much worse reputations for corruption than the District of Columbia, yet nobody ever questions whether the residents of those cities have the right to representation in the U.S. Congress.
NNAMDIOn the other hand, leaders of the District of Columbia are just as conscious as you and I that they are being scrutinized in this manner, often by people who are not very supportive of them, and therefore, they have an added obligation to be extremely careful in how they conduct the business of the city and how they conduct their own businesses because they come to office knowing that if they fail, this will be the charge that is made.
NNAMDISo I blame them when they fall for helping to pull the District of Columbia further down in the eyes of people who would like to be critical of the District of Columbia anyway. So the leaders themselves, those who commit these acts, are clearly at fault here. On to Ellen in Washington, D.C. Ellen, you're on the air. Go ahead, please.
ELLENYes, hello. Thank you very much for taking my call. I just have a question about what kind of background checks are going on with this...
NNAMDIEllen, we lost you. I suspect -- Ellen was saying she was a small businessperson who has to fill out a whole lot of forms anytime she wants to get anything done, so I guess she's raising the question about what kinds of background checks are undertaken by banks and other institutions when people make these kinds of claims as to their income.
MADDENWell, I was just going to add, it's interesting because I believe -- I'm not sure if it came out of the chairman's office, but there was a proposal to have background checks for the Council and Council staff. And that was taken out of the -- I believe it was either the ethics bill or some other bill where that was no longer required or that proposal was shut down.
SHERWOODWell, part of the problem, though, is the background check is only marginally good because the people who get into office who abuse the power -- I mean, to my knowledge, Harry Thomas Jr. didn't have any background problems.
SHERWOODHe had a sterling reputation as a youth person, and he -- only until he got into office did he act like a fool.
NNAMDIWe got this email from Jonathan. "Patrick Madden made the point earlier that although many officials are under investigation, the District is generally sound. However, what is he basing that on? I ask because I'm not sure what to believe anymore. For example, I've heard that Police Chief Cathy Lanier's reports on crime are suspect. It just appears that corruption is rampant and a part of D.C. business as usual."
MADDENWell, I mean, basically, if you look at any sort of metric, the city is thriving, whether it's its finances, how much money is back in the city's reserves, people are now moving back into the city, the school population is growing, the homicide rate. Yes, there are questions about how the police department has sort of counted and done its statistics, but the homicide rate has gone down over the past few years. So, by pretty much every measure, the city is doing well.
NNAMDIPatrick Madden, he's a reporter for WAMU 88.5 News. Patrick, thank you for joining us.
NNAMDITom Sherwood, he's our resident analyst, NBC 4 reporter and columnist for The Current Newspapers. Tom Sherwood, no more vacation for you.
SHERWOODNo. I'll call you from the courthouse tomorrow.
NNAMDIExactly. Yes. He won't be joining us in studio.
MADDENGot some new shoes.
NNAMDIHe'll be joining us from the courthouse. Randall Eliason, thank you for joining us.
NNAMDIRandall is former chief of the Public Corruption/Government Fraud Section of the U.S. Attorney's Office for the District of Columbia. He's currently a professor at American University's Washington College of Law and George Washington University Law School. Thank you all for listening. I'm Kojo Nnamdi.
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