Should Ireland's corrupt ever face trial, they could look to a new line ofdefence, pioneered by Salt Lake City Winter Olympics organisers. Jonathan Turley writes about the "Welch-Johnson" defence.
In the Olympics, it is traditional to name a new move after the first athlete to perform it - like the "Salchow" jump for skaters, named after 1908 Olympic skater Ulrich Salchow of Sweden.
This month, another Olympic trial was held and two Americans emerged victorious with a move that should be recorded in future trials as "a Welch and Johnson".
For those who missed it, that's Tom Welch and Dave Johnson, the former president and senior vice president of the Salt Lake Olympic bid and organising committee. The two had been charged with 15 counts of bribery and fraud for allegedly buying off Olympic officials to make Salt Lake City the site of the 2002 Winter Olympics.
However, in a never-before-seen manoeuvre, they managed to persuade a federal judge to dismiss their case, not by denying making huge payments of cash or gifts, but by arguing that such conduct was entirely appropriate in the thoroughly corrupt world of the International Olympic Committee.
In perhaps the ultimate sign of our times, the same sort of claim is being attempted by defendants in the New York trial involving Tyco Corporation. In the face of allegations of greed and self-dealing, former corporate officials have sought to be judged according to the standards of their morally delinquent peers. In other words, in a community of the corrupt, there can be no such thing as a dishonest man.
For the Salt Lake organisers, this taste for vice did not appear naturally but was acquired after years of dealing with the IOC. After Salt Lake lost the 1998 Olympics to Nagano, Japan, the organisers concluded that the Japanese had effectively bought the honour through gifts to IOC members.
Johnson reportedly wrote a report saying that although they knew there were corrupt IOC members, they had wrongly assumed that there were enough "pure" members to guarantee a fair result.
They vowed to change their approach before the 2002 Games and Johnson allegedly promised to pay "special attention . . . to certain people" to secure the Games for Salt Lake. His defence told the jury that the defendants had realised that it would take more than "saltwater taffy and jars of honey" to convince the good people of the IOC.
How much more would be required became apparent in the trial. The jury heard testimony of envelopes stuffed with cash, expensive hotels, car repairs, college tuition, family vacations and even cancer treatment for a member. As much as $1 million may have been forked over to hungry members of the IOC.
Indeed, Johnson and Welch allegedly assembled a 25-page "geld file," listing IOC members and the personal pleasures that they wanted satiated by Salt Lake. For his vote, the Congolese IOC delegate reportedly received $320,000 in cash, first-class travel and a Rolex watch.
But here's the problem in the case: the victim, according to prosecutors, was the overall Salt Lake Olympic Committee, for which Welch and Johnson worked - but it could hardly feign a lack of knowledge when most of the payments were documented by the defendants and one-fourth of the alleged bribes were made by the committee after Welch was replaced. This included tuition payment and living expenses for the son of a Libyan IOC member.
Viewed in isolation, the evidence appears to offer little room for a defence, yet when it comes to Olympic ambitions, context is everything.
The defence essentially asked whether it was possible to commit a conspiracy when everyone knew about it or, in Zen-like phraseology, if a conspiracy occurs in Salt Lake and everyone can see it, does a conspiracy exist? According to the judge, it does not.
This same metaphysical question is being presented in the Tyco case, where its former chief executive L. Dennis Kozlowski is charged, with others, of bilking the firm to pay for luxury lifestyles. The jury watched a video of a $2-million birthday party for Kozlowski's wife (half of which was paid for by Tyco) at an Italian resort. Guests were flown to other cities for cooking lessons and like distractions. All told, the $600 million in alleged looting would appear to seal the fate of Kozlowski and his corporate cabal. However, in a corrupt world, he has argued, context is everything.
As in the Olympic trial, Kozlowski's lawyers insisted that you cannot commit larceny in the open. In other words, his corruption was so huge and flagrant that it was . . . well . . . honest.
As for Welch and Johnson, they were saved by the corruption of strangers. Welch's attorney insisted that because it was so open and accepted, this was not "a process of bribery" but merely "a process of excess" .
Of course, when Oscar Wilde stated that "nothing succeeds like excess", he never imagined that it would be converted into a legal defence. Yet, in Salt Lake City and New York City, defendants have embraced open excess as the very proof of honesty. In these cases, the government seemed to struggle to find a single innocent person to cast the first stone. Its witnesses imploded on the stand when pressed on their own practices.
The Oscar Wilde defence would be more difficult if the government were proceeding against entire corrupt organisations, not just a few executives. By portraying the Olympic committee and Tyco as victims, they appeared to be prosecuting Ali Baba on the testimony of the 40 thieves.
Ultimately, the true culprit in Salt Lake City was the IOC itself. If the IOC were a union, it would be treated as controlled by organised crime and put under federal supervision. Yet no one wants to take it on.
The IOC has, not surprisingly, declared itself "pure" after shedding prior members and adopting new ethics rules. It is now seeking bids for a future Olympic site, so it can again invite all well-heeled suitors to "let the games begin".
Jonathan Turley is a professor of law at George Washington Law School.
- (Los Angeles Times service)