So, by this point Zach had: (1) Been involved in a meeting where an improper ex parte contact (but not a bribe) was planned; and (2) Been at the office when Balducci arrived, and directed him to pick up a packet at Dickie Scruggs’s desk (containing the check for $40,000 and documentation making it seem to be legitimate legal work) and leave the papers he brought in the packet’s place. There is no evidence Zach knew what that was about.
That brings us to the November 1st meeting. Comparing the grand jury testimony to the November 1st transcript, the motion states, “it is plain that both Mr. Balducci’s and Agent Delaney’s characterizations of this meeting — in particular regard to Zach Scruggs’s participation, or rather his failure to participate — are patently false and deliberately misleading in material respects.” This hyperbole is a mistake, because later the motion essentially takes back the accusation against Delaney, while continuing to call Balducci a liar.
What happens in the November 1st transcript is a very long conversation with Backstrom, Zach Scruggs, and Balducci about the order. It is absolutely clear from the context that they are talking about an order about which Balducci is using ex parte contacts with the judge to work out the drafting. This of course would raise giant red flags to any lawyer operating within miles of ethical behavior. Zach mixes into this some very unendearing sanctimony about Grady Tollison. They are “only” talking about improperly contacting the judge to work out the order with no mention at this point of why in the heck the judge might do that. Balducci explains that things had to change because of new filings by Grady Tollison on the other side.