Ex-prosecutor calls possible defense strategy 'unseemly'
By Jeff Smith, Rocky Mountain News
Thursday, December 1, 2005
A former federal prosecutor views ex-Qwest CEO Joe Nacchio's
possible national security defense as a sound though perhaps
"unseemly" strategy to stave off an indictment or to present
evidence problems should a criminal case go to trial. "In
all likelihood, Nacchio is rattling sabers about his intent
to delve into confidential national security issues in an
attempt to coax prosecutors to back off," Christopher Bebel,
a Houston attorney and former prosecutor, wrote by e-mail
this week. "In a nutshell, he wants to make it clear that
it will be very painful for the government to go forward
with the case; light will be shed upon secret, and
potentially embarrassing, governmental affairs if there is a
The Wall Street Journal
reported last week that Nacchio's lawyers were aggressively
pursuing the "unusual" defense - arguing in part that
Nacchio believed Qwest was doing well in 2001 because it was
getting "lucrative" national security-related
telecommunications contracts and would likely get more.
Nacchio served on advisory panels to President Bush
regarding telecommunications and national security, so he
presumably had access to sensitive and confidential
Before the possible defense strategy emerged, several
sources familiar with the case said they believed federal
prosecutors would be seeking an indictment almost any day
against Nacchio on charges of insider trading.
Former Qwest Chief Financial Officer Robin Szeliga has
pleaded guilty to insider trading and said in her plea
agreement that fellow senior executives knew by at least
April 24, 2001, that Qwest was using questionable,
undisclosed one-time deals to boost its numbers. Nacchio
sold nearly $50 million of Qwest stock in a three-week
flurry after that date.
While some have discounted a possible national security
defense strategy by Nacchio, Bebel said it constitutes "good
During phase one, Bebel said, the defense attorneys are
hoping their assertions will persuade prosecutors to refrain
from seeking an indictment.
During phase two, if Nacchio is indicted, Bebel said lawyers
are likely to argue the jury must be told of key national
security considerations Nacchio was aware of and how they
affected his thinking about Qwest's financial condition.
"If the judge declares certain national security information
off limits, Nacchio will be able to make a strong argument
in this area on appeal (should he be convicted) - he will
claim that his inability to put this evidence before the
jurors effectively denied him of his right to a fair trial,"
Jeff Dorschner, spokesman for the U.S. attorney's office in
Denver, previously has declined to comment about the
Dorschner was out of the office Wednesday and couldn't be
reached for comment.
Herbert Stern, who reportedly is now Nacchio's lead
attorney, didn't return a phone call on the matter.
Government secrets were used in part as defense strategies
by Oliver North in the Iran-Contra case during President
Reagan's administration and by Wen Ho Lee, the former Los
Alamos National Laboratory scientist accused of improperly
handling nuclear secrets.
Lewis "Scooter" Libby, the indicted former chief of staff
for Vice President Dick Cheney, also has hinted by the
selection of his attorneys that he will use a national
security strategy to show how his thinking was colored by
sensitive, classified issues.
In the Libby case, experts such as Harvard University law
professor Alan Dershowitz, a member of the O.J. Simpson
defense team, raised the question of whether the independent
prosecutor, the White House or the intelligence agencies
would have the ultimate say in deciding to disclose
potentially classified material.