SC judge to decide whether ex-Westinghouse official can keep lawyer in SCANA nuclear case

A federal judge says she will decide quickly whether to let a former top Westinghouse official keep his lawyer in the fourth and final criminal case involving the now-defunct SCANA’s ill-fated failure at the Jenkinsville nuclear facility.

“I know this is an important decision for both sides,” U.S. Judge Mary Geiger Lewis said Wednesday at the end of a 40-minute hearing at the federal courthouse in Columbia.

At issue is whether William Sullivan and his law firm should remain as lawyers for Jeffrey Benjamin, a former top Westinghouse official who was in charge of the company’s nuclear projects all over the world. Benjamin’s projects included the one north of Columbia overseen by SCANA, a former major South Carolina producer and distributor of electricity and natural gas.

If Lewis kicks Sullivan off the case, Benjamin’s trial could be delayed for more than a year as a new legal team brings itself up to snuff in the complicated white-collar criminal case. If Sullivan stays on, the case could go to trial as early as this fall.

Government prosecutors want Sullivan off the case and say his main conflict is that he for two years represented another Westinghouse official, former Chief Executive Officer Danny Roderick. Roderick is now cooperating with the government and could testify against Benjamin at any trial, government prosecutors said.

It would be a conflict if Sullivan were to cross-examine his former client, Roderick, prosecutors say.

“Mr. Sullivan cannot uphold his duty of loyalty and confidentiality to former client Roderick while simultaneously meeting his constitutional and ethical obligations to vigorously defend Benjamin,” government prosecutors wrote in a pre-hearing memo.

Sullivan, a Washington, D.C., attorney who has been Benjamin’s lawyer for more than four years, maintains any conflicts that could have existed have been taken care of and he should stay on the case.

Roderick has waived any confidentiality owed to him by Sullivan’s law firm and granted its lawyers, including Sullivan, the right to cross-examine him “without limitation,” should he be called as a witness, according to a pre-hearing motion by Sullivan.

Moreover, Roderick has said he has no knowledge of any wrongdoing by him or Benjamin, the motion said.

It has taken the government prosecutors, the FBI and the Securities and Exchange Commission nearly five years to investigate and prosecute the three criminal cases of top officials resulting from the 2017 failure of the V.C. Summer nuclear project overseen by SCANA, a publicly-traded enterprise that was once one of South Carolina’s most respected companies.

In those cases, former Westinghouse vice president Carl Churchman, former SCANA CEO Kevin Marsh and former SCANA executive vice president Steven Byrne have pleaded guilty to various fraud charges relating to hiding from the public and regulators the massive problems at the nuclear site, problems causing cost overruns and severe delays.

As long as the problems were kept from the public, SCANA’s stock price stayed up.

Benjamin, who was indicted last August, is the final defendant. Should he go to trial, Churchman, Marsh and Byrne could all testify against him.

An indictment in the case charges Benjamin with 16 felony counts, including conspiracy, wire fraud, securities fraud and causing a publicly-traded company to keep a false record. After his indictment last year, former acting U.S. Attorney Rhett DeHart said charges were “for his role in failing to truthfully report information regarding construction of new nuclear units at the V.C. Summer nuclear plant.”

At that time, Sullivan said Benjamin is innocent and the charges are without foundation.

Following Wednesday’s hearing, Sullivan said in an email sent to The State, “When the absence of any credible risk of conflict is properly weighed against Mr. Benjamin’s fundamental right to counsel of choice, it is indisputable that the greatest threat to the integrity of these proceedings is only the Government’s irresponsible and improper effort to deprive Mr. Benjamin of his trusted and experienced counsel to gain a tactical advantage at trial.”

Assistant U.S. Attorney Emily Limehouse said whichever way Lewis rules, “It was really important to the government that we have a thorough record of this issue and that the court hear all the issues.”

Other prosecutors on the case are Winston Holliday and Brook Andrews.

This story was originally published April 27, 2022 at 1:59 PM.