The government’s case against a former BP executive accused of trying to mask the severity of the 2010 Gulf of Mexico oil spill suffered a major blow Monday when a federal judge dropped one of the two pending charges because of questions about whether he would be able to present a full defense at trial.
David Rainey, BP’s former vice president of exploration for the Gulf, now faces a single charge of making false statements during a 2011 interview with federal investigators about the Deepwater Horizon disaster.
Beginning Tuesday, a 12-member jury is expected to begin hearing testimony dealing with what Rainey knew about the rate at which the oil was flowing and whether he tried to hide potentially dire calculations about it.
Rainey is the second former BP worker to stand trial in connection with alleged misdeeds after the deadly accident.
Prosecutors allege he deliberately withheld information in a May 2010 congressional briefing about how much oil was flowing from the ill-fated Macondo well and then made false statements to FBI agents about how he calculated the numbers.
U.S. District Judge Kurt Engelhardt dismissed an obstruction of Congress charge against Rainey less than an hour after seating the jury, which consists of seven women and five men plus three alternates.
Engelhardt’s decision to drop the obstruction charge was handed down amid a legal clash over whether Rainey would be able to subpoena three former congressmen and six staffers to testify about whether the U.S. House subcommittee that he was accused of obstructing had the proper authority to investigate the oil spill.
Rainey’s subpoena recipients included U.S. Sen. Ed Markey, a Massachusetts Democrat who chaired the subcommittee, and former U.S. Rep. Henry Waxman, then the chairman of the parent committee, who has since retired.
Rainey’s lawyers contended that the obstruction charge should be dismissed for several reasons, including that the 2010 congressional briefing and a subsequent letter Markey sent to BP were not an authorized investigation. Prosecutors said the subcommittee had the same investigative powers as the parent committee.
Engelhardt had faced a variation of the same question before, and in 2013, he dropped the obstruction charge against Rainey because of questions about the subcommittee’s authority. But the 5th U.S. Circuit Court of Appeals disagreed with Engelhardt and reinstated the charge.
In response to Rainey’s subpoenas, the subcommittee voluntarily turned over hundreds of documents, but it refused to produce other records unless Rainey stipulated that doing so wouldn’t waive the staffers’ protection under the “speech or debate” clause of the Constitution. That clause provides legal protection to congressmen and their staffers for things they say, and reports they produce, in the course of carrying out their legislative duties.
The Office of General Counsel of the U.S. House of Representatives weighed in on the case last month, arguing that Engelhardt should quash the subpoenas, citing the constitutional privilege.
Instead, Rainey’s attorneys argued in court filings that Engelhardt should drop the obstruction count once again because Rainey wouldn’t be able to present a full defense under the circumstances.
“Congressional witnesses with material, exculpatory evidence, unavailable through other sources, have refused to testify on the ground of privilege, leaving Mr. Rainey unable to present a full defense at trial in violation of his constitutional rights to compulsory process and due process,” his attorneys said.
Engelhardt on Monday agreed with the government that the subpoenas should be quashed. But he also agreed with Rainey’s attorneys that the charge should be dropped as a result, saying Rainey would not have sufficient ability to defend himself without being allowed to question the members of Congress and their staffers.
Explaining his decision from the bench, Engelhardt said that because Rainey was unable to call the congressional witnesses of his choice and only a select few were being offered by the government, it hindered his ability to present a full defense.
Because of that and because he was provided only some of the documents he requested, Rainey was faced with a “serious constitutional and fairness concern,” Engelhardt said, calling the withheld documents “highly relevant to his (Rainey’s) defense.”
Engelhardt said the congressional testimony being sought by Rainey would have been “quite conceivably favorable to the defendant.”
Prosecutors reacted to Engelhardt’s ruling with visible frustration. Government lawyer Leo Tsao declined comment as he walked out of the courtroom.
The jury is expected to begin hearing arguments and testimony on the remaining charge Tuesday.
Monday’s decision is another blow to the government’s long-running effort to hold individuals criminally liable for the 2010 spill, which killed 11 men and led to the largest oil spill in U.S. history. Although charges are still pending in four cases against individuals, only one case so far has netted a conviction, which resulted in probation for a Halliburton manager convicted of destroying evidence in the wake of the accident.
Last year, a different federal judge granted a new trial in the first criminal case tried in connection with the spill. Former BP engineer Kurt Mix, who was accused of obstructing justice by deleting text messages that dealt with the flow rate, was found guilty of one count of obstruction of justice, but that ruling was vacated by U.S. District Judge Stanwood Duval Jr., who granted Mix a new trial, citing juror misconduct.
In that case, the feds have appealed Duval’s ruling for a new trial, and arguments are set to be heard Tuesday by a three-judge panel of the 5th Circuit.
Follow Richard Thompson on Twitter, @rthompsonMSY.