Will Governor Don Siegelman Get Justice?

The fall-out from the Supreme Court’s recent action in the case of Enron CEO Jeff Skilling has brought a famous political prosecution back into the headlines.

The conviction of former Alabama Governor Donald E. Siegelman for bribery in 2006 had become a cause célèbre in the United States and internationally, with 104 current and past states attorneys general going on record that Siegelman should have a new trial. One of these former AGs was Grant Woods, national co-chairman of the McCain presidential campaign.

Siegelman’s case was the most famous of the Bush Justice Department’s political prosecutions, but the unsuccessful effort to jail Cyril Wecht was probably the most malignant of them. It illustrates the kind of political prosecution that has become common in the Republican South. These prosecutions hinge on a very vague and short piece of legislation — the “honest services” and mail fraud statute — that imposes stiff penalties upon officials and others accused of not providing citizens with “honest services” due to corruption.

The Siegelman case in brief

Siegelman wanted a state lottery to fund education and accepted two bundled donations of $250,000 each to the Alabama Educational Foundation, a non-profit entity, from Richard M. Scrushy, CEO of Health South. The foundation sought voter approval of a lottery. Siegelman then appointed Scrushy to a state hospital board. Three former governors had appointed this CEO to state boards. The prosecutors were unable to prove corrupt intent when they attempted to prove bribery.

There was no paper trail or direct evidence to prove there was quid pro quo, and Scrushy also had been appointed by two former governors. Federal bribery law permits jurors to infer that a deal was made, even in the absence of evidence. The judge instructed the jurors to convict on “the mere conviction that Governor Siegelman ‘intended ‘ to ‘act as a result of the campaign contributions.’”

The case hinged upon testimony of former chief aide, Nick Bailey, who said he negotiated bribes on behalf of the governor in other matters. Bailey admitted he was not present when Siegelman appointed Scrushy. The prosecutors had Bailey rehearse his testimony in 70 practice sessions and did not give the defense their interview notes. Bailey received a light sentence in return for his testimony. His employer, Luther “Stan” Pate said the federal officials got him to testify by threatening to use information he used drugs and by referring to damaging rumors about Bailey’s sex life.

Siegelman was sentenced to seven years in prison. One of the charges against him was depriving the citizens of Alabama of honest services through fraud, and that was linked to mail fraud. The honest services fraud doctrine is used when kickbacks and outright bribery cannot be proven. In this case, it is claimed that Siegelman asked Scrushy to contribute to the Alabama Educational foundation, thus constituting a conspiracy to deprive Alabama citizens of honest services.

Judge Mark E. Fuller, a former political opponent, must have considered Siegelman a flight risk because he deprived the former governor of the customary 45 days to put his affairs in order and sent him off to prison in chains. Fuller had been a district attorney, and his successor, appointed by Governor Siegelman, claimed there had been accounting irregularities under Fuller.

The federal marshal only permitted Siegelman to read the King James version of the Bible while he was being shunted around from prison to prison before settling in Oakdale, Louisiana. When prisoner Siegelman took his case to the press, the prosecutors threatened to charge him with obstruction and conspiring to bring the court into public contempt. Fuller threatened to add five to years years to the sentence.

The former governor served nine months before being released on bond pending his appeals and efforts to get a new trial. These efforts to get the case set aside by the conservative Eleventh Circuit court failed. However, it dropped two counts and sent the case back to Fuller. The Supreme Court refused to take an appeal. However, on June 29, 2010, the high court in the case of Jeff Skilling narrowed the definition of failure to provide honest services.

The problem is that “honest services” are intangible, hard to define, and seem to be described differently in each case where this cover-all charge is deployed. Then the court vacated the convictions of Scrushy and Siegelman and instructed the Eleventh Circuit in Atlanta to take another look at the cases in the light of “Skilling v. the United States.” However, this does not open the door was opened to revisiting the many irregularities in the case. To date Siegelman has spent two and a half million dollars on legal fees.

The Drive to Convict Siegelman: A Story of Selective Prosecution

Siegelman was the most popular Democrat in a very Republican state, and as early as 1999 he became the target of Republican efforts to put him behind bars. He had been Secretary of State, Attorney General, and Lieutenant Governor, and was elected governor in 1998 and served 4 years.

His legal problems began in 1999 when state Attorney General William Prior went after a Siegelman backer, Tuscaloosa physician Philip Bobo, who was charged with Medicaid fraud in 2001. Matthew Hart, the Alabama Assistant Attorney General who handled the case, told a U.S. attorney that he hoped the prosecution would lead to Siegelman. The case against Bobo fell apart, but Hart continued investigating Siegelman and he soon became an assistant U.S.Attorney.

Hart was to have the help of Leura G. Canary, whom President George W. Bush made US. Attorney for the Middle District of Alabama. She made Hart her assistant. Her husband Bill had been a Republican operative and had worked with Karl Rove. Bush appointed Alice Martin U.S. Attorney for the Northern District, and she would assist in the effort to jail Siegelman.

In 2002, Bill Canary ran Representative Bob Riley’s gubernatorial campaign against Governor Siegelman. Canary was president of the Business Council of Alabama and a close friend of Karl Rove. On election night, the Democratic governor appeared to be ahead, but the victory was reversed in a midnight retabulation in Baldwin County that resulted in shifting 6,000 votes to Riley. No Democrat was present when the votes were recounted. Attorney General Prior ruled that there could be no recount and sealed the returns. Siegelman unsuccessfully litigated for two years to unseal the ballots and get a recount. Prior was subsequently appointed to the Eleventh Circuit Court.

Dog tracks and casinos have long played a major role in Alabama politics. Siegelman had angered Republicans by his efforts to fight casinos and to unsuccessfully get the voters to approve a state lottery that would fund public education. Bob Riley said he opposed all gambling but received millions from Jack Abramoff. That matter and corruption at the Dothan casino are currently questions of contention in intra-Republican politics in the state. Using Ralph Reed as a front man, Abramoff inserted himself in the election to protect a casino in Mississippi, which did not need the competition of a lottery. Most of the documents about this were sealed in an investigation conducted by Senator John McCain.

When Siegelman challenged the election results, efforts to convict him were renewed in earnest. In 2004, Hart indicted Bobo, Siegelman, and Paul Hamrick for rigging Medicare bills, but the judge cited Hart for contempt for filing materials that would inflame the jury, and much of his evidence was thrown out. That prosecution fell apart. But Siegelman was indicted again in October, 2005, and his opponents would succeed in jailing him Siegelman in 2006.

Judge Fuller
President Judge Mark Everett Fuller is a very wealthy man and had been a Republican political operative. He controlling 43.7% of Doss Aviation, which did $300 million worth of business with the Defense Department in the George W. Bush years. That fact alone gave the appearance of bias and should have resulted in Fuller removing himself from the case. There is some evidence that he would “hang Don Siegelman.” In one business arrangement, he listed his chambers as his address. When his court reporter died, he used the death to long delay issuing a transcript of the trial, thus delaying an appeal.

Fuller had campaigned against Siegelman and was an election strategist for the Republicans. He could have recused himself by using the well accepted justification that to remain in the trial raised questions about conflict of interest and impartiality.

Two jurors worked together to find evidence on the internet that they could use to persuade other jurors to vote against Siegelman. Some of the arguments they gave their colleagues came from a TV station blog that was critical of Siegelman. In effect, they were introducing information that had not been used in court. When their e-mails were discovered, the judge did nothing about the situation.

Retired Federal District Judge U.C. Clemon complained that the prosecutors poisoned the jury pool, engaged in judge shopping, and were guilty of other forms of misconduct. Seventy –five former Attorneys General from forty states denounced the handling of the Siegelman Case and demanded a retrial. They wrote, in part:

At best, the facts outlined by the Government show that: (1) Governor Siegelman felt that Mr. Scrushy ought to donate more to his favored issue campaign [the state lottery] than Mr. Scrushy donated to the campaign of his competitor; (2) Mr. Scrushy was aware that Governor Siegelman expected at least a $500,000 contribution to the lottery fund; (3) Governor Siegelman was aware that Mr. Scrushy wanted to be reappointed to the CON Board: (4) Governor Siegelman did not think that such an appointment would cause any problems; and (5) Governor Siegelman did, in fact, reappoint Mr. Scrushy to the CON Board. Completely absent from the Trial Record is any evidence that Governor Siegelman and Mr. Scrushy entered into an explicit agreement whereby Mr. Scrushy’s appointment to the CON Board was conditioned upon Mr. Scrushy’s making the political contributions in question. Two previous Governors had appointed Scrushy to the same position without incident. [Emphasis added.]
Siegelman and Scrushy filed papers asking Judge Fuller to remove himself from the case due to his conflicts of interest. Fuller has not ruled on the motion. In May, 2010, Fuller asked the Eleventh Circuit if he should recuse himself because he met federal marshals about the case without defense attorneys present.

Signs of a Political Prosecution
After Siegelman was sentenced, mounting evidence appeared that this was indeed a political prosecution. However, there seemed to be no way to use any of it.
Attorney Dana Jill Simpson, a former Republican operative, came forward with information. Miss Simpson had known Governor Riley since law school. She became disenchanted with politics when she was asked to do research that would essentially frame several Democrats. Since coming forward, she has had some troubling experiences. Her house was accidentally burned to the ground, and she was forced off the road by an Alabama state law enforcement official . Her car was totaled.
She said that she heard William Canary, Riley’s chief advisor, say that he would get “his girls”—meaning Mrs. Canary and Alice Martin- – to work on nailing Shegelman, and he would enlist the help of his friend Karl Rove. The “girls” soon got busy and when their efforts seemed to flag, the Public Responsibilities Division of the DOJ prodded them on to greater exertions. The Justice Department rejected a FOIA request for documents relevant to whether she had a conflict of interest in the case. In a filing against recusal, she questioned the intentions of the opposing attorneys and the Professional Integrity Section of the DOJ took the extraordinary step of signing on to her statement.

When “the girls’” efforts seemed to flag, the DOJ prodded them on to greater exertions. The Justice Department rejected a FOIA request for documents relevant to whether Canary had a conflict of interest in the case. Eventually, Mrs. Canary had to recuse herself, but only after having shaped the case.

Mr. Canary later said under oath that he played a role in getting the federal attorneys to go after Siegelman Canary later testified that he had talked about getting the girls to work against Siegelman. The most recent DOJ filing says he swore under oath that he had not contacted Karl Rove, but none of this appears in his Congressional testimony. After the successful prosecution, Rove threw a party for Steve Feaga, one of the prosecutors, at his Rosemary Beach, Florida home. Feaga is a Reserve Colonel, who served in the legal office at Langley AFB. Perhaps he could have had a role in reviewing the fueling contract held by Judge Fuller’s firm. When the House Judiciary Committee looked into Rove’s possible involvement, it found that his e-mails about the dinner party were among the millions that had been lost.

Acting U.S. Attorney Louis V. Franklin who became the lead prosecutor and sought a 30 year sentence, claimed that he alone made the decision to indict Siegelman and that the Justice Department did not supervise what he was doing He repeatedly insisted that Karl Rove had nothing to do with the case. G. Douglas Jones, a defense attorney and former federal prosecutor, learned that the Professional Integrity Section of the Justice Department carefully supervised the case and insisted that the local prosecutors press on and take another look when the case seemed to be running out of steam. There is evidence that Noel Hillman, chief of the Professional Integrity Section of the Criminal Division, kept a close eye on the case and saw that it moved forward. He is now a federal judge.

Jill Simpson also said that she heard in early 2005 that a federal judge was about to be appointed who “hated” Siegelman and was determined to “hang him.” There was a danger then that Siegelman might try to run again for governor. The new federal judge turned out to be Mark Fuller, a former Republican official and believed Siegelman was responsible for having him audited. Fuller had been very active in the 2002 campaign.

Before she testified before Congress, a helpful Democrat recommended she hire a lawyer who had worked for the GOP for decades. She declined. Her testimony led Representative Randy Forbes ( R., VA.) to demand a Congressional investigation of her.

In 2007 Time magazine came into possession of a transcript of prosecution interview with landfill operator, developer, and lobbyist Clayton Lamar (Lanny) Young who said he passed bribe money to Siegelman and to a number of Alabama Republicans. CNN also covered the story. He explained how money went through people who served as conduits, and he named several Republicans as recipients of bribes. The interview took place in the office of Mrs. Canary and present were representatives of the Alabama Attorney General and the Professional Integrity Section in Washington. Siegelman’s attorneys found some of this evidence in thousands of pages of discovery documents, but Judge Fuller forbade them to use it.

A paralegal named Tamarah Grimes was fired for writing to the Attorney General in 2007 about the continued involvement in the case of a Mrs. Canary, who earlier recused herself. Grimes produced e-mails to prove her point. Ms. Grimes also had evidence that a witness was coached and showed that prosecutors were communicating with jurors during the trial. Some of here evidence was on audiotape, and the DOJ wanted to prosecute her for making the recordings.

The case became intertwined with the politically-motivated firings of federal prosecutors because it was claimed that Karl Rove was involves in these ugly incidents. Rove’s attorneys and Justice Department officials tried to separate the firings from the Siegelman case so as to intimidate witnesses who had testified about both matters. That tactic would have produced sensitive information that Rove could have used.

Recently, Nora Dannehy, a Bush hold-over, has reported that there was nothing wrong with the nine firings. She had prosecuted Republican Governor John Rowland of Connecticut for mail and tax fraud. He faced one count and he served ten months. That governor had nominated her brother for a judicial position. Four days after President Bush appointed her special prosecutor to look into the firings, it was found in Connecticut that her team of attorneys had unlawfully suppressed evidence in another corruption case.

Nick Bailey, Siegelman’s former aide, has now complained that he felt intimidated because so many of his interrogations were conducted at an Air Force Base where prosecutor Stephen Feaga was a JAG. On March 4,2009, he told Investigative Group International that he did not believe Siegelman thought he was being bribed, and he added that, during questioning, he “felt unsafe for his physical person.” Bailey said he was threatened with ten years in prison and legal actions against his brother, Shane.

Legal scholar Bruce Fine, a conservative, complained during the G.W. Bush years, “We have a Justice Department that has substantially been turned into a political arm of the White House.”

Questions About the Holder Justice Department

It is a matter of public record that President Barack Obama inherited a Justice Department in which many civil service attorneys were hired for political reasons. There was also the unresolved matter of whether nine U.S. Attorneys had been removed for political reasons. The House Judiciary Committee had already looked into the some political prosecutions, including the Siegelman Case.

Scott Horton, a law professor who has written about the case in Harpers said he found someone within the prosecution’s ranks who was afraid to provide information about the effort to jail Siegelman. The source said, “ you don’t understand, these people would kill me if they have to to keep the lid on this.” With respect to the DOJ in Washington, , “They’d be happy to learn that I was dead.” Horton thinks that David Margolas, Holter’s Deputy Attorney General is the problem.

There were so many questions about the Siegelman Case that one would expect Eric Holder to take a second look at the Siegelman Case. Instead, he ordered Elana Kegan, the new Solicitor General, to oppose Siegelman effort to obtain a new trial. She did so, claiming on November 13, 2009, that Siegelman’s “corrupt intent” had been proven. There had been no proof unless one takes the assumption of the judge and jury that it existed as proof. Perhaps Kegan cannot be blamed for taking this position. She was following orders and are still many Bush hires in the department, some of whom could have helped write her brief. Maybe she and her aides were thinking about a position they later took in Pottawattamie County v. McGhee and Harrington that people do not have a constitutional protection against being framed.

Holder was appointed D.C. Superior Court Judge by President Ronald Reagan and was an active member of the conservative Federalist Society. He has continued the policies of the Bush Justice Department with respect to the state secret privilege, enforcement of the Patriot Act, military commissions, and the rights of detainees.

The Obama administration and Holder have kept the 93 Bush U.S. Attorneys in their jobs until successors have been confirmed. That has been a very diccicult process because Republicans have worked hard to delay the confirmations. To date, only 57 replacements have been confirmed, and Obama has had to drop a nominee in Utah and replace him with a Republican. Senators Jeff Sessions and Richard Shelby have blocked the the candidate nominated to replace Mrs. Canary. Matthew Hard remains an assistant U.S. Attorney in Birmingham.

It is very possible that the Eleventh Circuit Court will find a way to support the remaining counts of denial of honest services against Siegelman. A count of bribery remains and is not subject to review. Progressives should be demanding that the Obama Justice Department reexamine its position on this case and not vigorously press charges against the wronged governor. Siegelman still could ask certiorari from the Supreme Court on the next Eleventh Circuit decision.

Biographical Line: Donald C. Swift is Professor Emeritus of History at Edinboro University of Pennsylvania

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