Facing a sentence of 20 additional years in prison
recommended by Bush Justice Department holdovers, former Alabama Gov. Don
Siegelman finally took off the gloves Sept. 21 against his prosecutors and the
judge -- and, for once, skipped any mention of Karl Rove.
Citing new evidence since his 2006 conviction on bribery-related
charges, Siegelman�s nine-page filing called for a hearing with
cross-examination, plus a new trial and new judge.
The arguments responded to a government filing
on Aug. 28 that no new evidence has been produced since Siegelman�s
2006convictions to justify a hearing or other relief.
More generally, Siegelman�s prosecution remains the dramatic
centerpiece of still-unsolved allegations that the Bush administration mounted
effort to change the country�s political leadership by hundreds
of disputed prosecutions of Democratic office-holders, candidates and
Nowhere else have so many whistleblowers stepped forward and
so many investigative reporters unearthed scandal, with so little result. If
you�d like to see a step-by-step of what DoJ does to a whistleblower -- and its
justifications for doing so -- read my new 5,000-word OpEd News interview
with Grimes, who played figured prominently in Siegelman�s arguments as an
For the first time, Siegelman unloaded directly on the
government�s top prosecutors against him in Washington and Alabama by
suggesting that they oppose a hearing because they fear evidence of their own
crimes for obstructing justice.
Siegelman noted that �active players� in his case have
included DoJ Public Integrity Chief William Welch, IIand Criminal Division
Appellate Chief Patty Stemler, who are already under criminal investigation for
misconduct in last fall�s conviction of former U.S. Sen. Ted Stevens, the
Furthermore, Siegelman pointed out that Justice Department
whistleblower Tamarah Grimes has repeatedly stepped forward to allege
misconduct by her colleagues on the Siegelman prosecution team. Grimes, a
Republican paralegal with a quarter century experience in legal support, began
alleging years ago that the Republican U.S. Attorney Leura Canary remained
active in overseeing Siegelman�s prosecution despite Canary�s public claims
that she was recused from the case since 2002 because of her husband�s longtime
opposition to Siegelman, Alabama�s top Democrat.
The paralegal was fired in June and cut off from health
benefits a week after writing a 10-page letter to Attorney Gen. Eric Holder
documenting the problems, as I reported for Huffington
Post July and at greater length this month for the national paralegal
Meanwhile, Siegelman�s co-defendant Richard Scrushy also
filed 62-pages of legal arguments today. Scrushy, former HealthSouth CEO,
underscored among other arguments the reprisal risks for the case�s
whistleblowers such as Grimes, who has twice been threatened by DoJ with
criminal prosecution and who was sent a letter by DoJ this month with the
inscription: �Legal Mail -- Open Only In Presence of Inmate.�
Also, Siegelman made his clearest call yet for recusal of Alabama
Middle District Chief U.S. District Judge Mark Fuller. Siegelman cited conflict
of interest grounds stemming from Fuller�s secret review of potential jury
tampering without alerting the defense. The prosecution initiated an
investigation of improper jury emails, and presented findings to the judge, who
secretly ruled that no problem existed.
�If there was ever anything that smacked of the appearance
of judicial impropriety, this was it,� says Siegelman�s filing. �It was also a
screaming violation of due process to have secret investigations arranged by
the Government and to conceal the results from the defense.�
Fearing reprisal, Siegelman has largely refrained until now
from directly challenging the judge, who was a target of a dozen columns in 2007 alone by Harper�s
contributor and law professor Scott Horton. Most of the columns alleged
that the judge committed massive ethical breaches in Siegelman�s case and in
other activities, with many of the allegations related to the judge�s receipt
of federal dollars via his closely held military contracting company Doss
In May, I took the research further in a HuffPo column:
�Siegelman Deserves New Trial Because of Judge�s �Grudge,� Evidence Shows.�$300
Million in Bush Military Contracts Awarded to Judge�s Private Company.�
Also, Republican whistleblower Dana Jill Simpson provided
Congress in 2007 with sworn testimony that she had heard from fellow
Republicans that Siegelman would be eliminated from politics by a criminal
indictment and that Fuller �hated� Siegelman and therefore would �hang� him in
the criminal case. Those she named have denied the allegations, but none of
them have done so under oath, subject to cross-examination.
A Republican aged 56, Scrushy is serving a seven-year
sentence from Fuller after being convicted of bribery-related charges for
donating to an education non-profit at Siegelman�s request in 1999 and then
being reappointed by Siegelman to a state board on which Scrushy had served
under three previous governors. Siegelman, 63, is free on bond after receiving
a slightly longer sentence, largely for the same conduct.
In 2007, Fuller ordered the defendants to begin serving time
immediately, without the customary appeal bond for white-collar defendants.
News cameras recorded the defendants� shame in being taken from the court in
shackles without the traditional opportunity to say farewell to family members,
including Scrushy�s crying children.
Siegelman was then placed in solitary confinement, and
shuttled through the federal prison system to prevent contact with family,
supporters and the media as if the government regarded him as a Third World
terrorist detainee who needed to be held incommunicado by rendition.
A Democratic panel of the federal appeals court ordered him
freed on bond in 2008. But the Republican-dominated majority of the appeals
court affirmed most of the defendants� convictions, setting up a resentencing
for Siegelman before Fuller.
The trial and its aftermath prompted many allegations of
government misconduct and pro-prosecution rulings by Fuller, summarized in my
this month: �DoJ�s Attack On Siegelman�s Rights Threatens Election Rights For
All.� A key allegation raised by the defendants this summer is that prosecutors
improperly coerced if not blackmailed their central witness Nick Bailey to
suggest that Scrushy�s donation was a bribe -- and also failed to provide the
defense with required information about Bailey�s pretrial coaching sessions.
Also, 91 former state attorneys general this month argued
to the Supreme Court that Siegelman�s donation request doesn�t constitute a
crime even if a jury believed all of the Bailey�s comments and all other
government evidence. Politicians commonly request funds from donors and then
appoint them to positions, argued the bipartisan group of former chief law
enforcers from more than 40 states.
My take on today�s developments is Siegelman felt he needed
to use his remaining firepower primarily on new targets, omitting any mention
of Rove as the moment of decision draws nigh.
For years, Siegelman has blamed Rove for orchestrating his
prosecution and that of scores of other Democrats across the country via �loyal
Bushies� like Canary recruited to run the Bush Justice Department. Siegelman
clearly felt he needed to come out swinging hard against the Justice Department
itself after Rove claimed memory loss at so many key junctures of his interview
with ill-prepared House Judiciary Committee representatives this summer.
Compare that with the Justice Department�s mind-boggling
spending to lay a groundwork for investigating Siegelman. DoJ�s reports show
that it spent some $532,000 simply for one outside paralegal under contract
from the private sector to organize a million documents at a special
prosecution center that DoJ created at the Air Force base to house its team
arrayed against Siegelman. That team included seven FBI agents, three IRS
agents, three state investigators, three state prosecutors and four federal
prosecutors led by an Air Force colonel.
For that matter, consider DoJ�s monumental efforts just to
pursue charges against the paralegal Grimes for her �crime� of denying she�d
done anything wrong after she reported misconduct during what are supposed to
be safe-haven federal whistleblower channels.
More generally, any in-depth reexamination of the
Siegelman/Scrushy prosecution risks opening a Pandora�s Box of the disputed
prosecutions of hundreds of other Democrats affecting local offices and
policies in dramatic fasion. Additionally, Republicans and libertarians are
likely to be interested in the strong evidence that Republicans (including Sen.
Stevens) were targeted also for what can only be described as political
purposes, which I�ll detail in one of my next articles.
That�s why, in my view, the Justice Department has
consistently denied a need for a hearing for Siegelman and Scrushy, much less
the requests for a new judge and new trial that are clearly merited. DoJ�s
treatment of its paralegal Grimes contrasts so sharply with its retention of
Canary and others as to illustrate also the powerful self-protection mechanisms
of a bureaucracy, even when it involves protecting members of �the other�
This bureaucratic self-protection is illustrated also, of
course, by DoJ�s Public Integrity Section-led recent arguments that no evidence
exists for a hearing in the Siegelman case -- and that Siegelman deserves an
additional 20 years in prison.
For context, 20 years is in the range of the term that a Mafia killer might
receive from federal charges involving premeditated murder.
Nearly two decades ago, I served as law clerk to the U.S.
District Judge Mark Wolf of Boston early in his eminent career presiding over
such cases. One was the now-famous federal prosecution of New England�s Mafia
leadership, including Vinnie �The Animal� Ferrara, a hit man convicted of 23
Wolf, now chief federal judge in Massachusetts and formerly
a noted crime-fighter in the state before his appointment to the bench by
President Reagan, wrote the attorney general this April following Holder�s
invitation for chief judges to keep him informed if federal attorneys fail to
perform their duties honorably and ably.
Wolf noted that he reluctantly freed La Cosa Nostra Capo
Ferrara early from prison because of repeated government misconduct, including
DoJ�s failure to disclosure exculpatory material to the defense and to
discipline its attorneys. Wolf further noted that the government misconduct in
Boston mob-related cases apparently resulted in murder of witnesses and �raises
serious questions about whether judges should continue to rely upon the
Department to investigate and sanction misconduct by federal prosecutors.�
other chief judges this spring wrote similar letters to Holder. One was retired
Chief U.S. District Judge U.W. Clemon of Alabama�s Birmingham-based district,
who wrote Holder
that Siegelman�s first prosecution in 2004 was �the most unfounded� he�d
witnessed in nearly 30 years on the federal bench. Clemon, a Democrat and
federal judge of historic stature, urged Holder carefully to review the second
prosecution, especially because prosecutors altered normal procedures by
removing the case from the northern district to bring it into Fuller�s
|Retired Chief U.S. District Judge U.W. Clemon|
Up to now in my reporting on the justice system, I�ve
refrained under the law clerk�s version of omerta from mentioning my
former judge�s important contribution to this debate even though obviously I�ve
had nothing to do with his recent letter.
But it�s clearly relevant now since Siegelman�s filing today
cited the letter independently. In citing the Mafia case as an example of �gross
and malicious misconduct,� Siegelman noted that legal scholars agree that
cross-examination in a hearing �is beyond any doubt the greatest legal engine
ever invented for the discovery of truth.�
What we now face is as dramatic a moment as I�ve ever seen
in 35 years as a professional in this field, first as a news reporter covering
federal courts and more recently an attorney and commentator.
Why fear testimony?
At this point, the Justice Department is either going to
help enforce silence about Judge Fuller and the others who are accused of
official misconduct, or else DoJ will stop making preposterous arguments to
prevent a public hearing on the evidence, and potential new trial before a new
judge. Then the evidence will take its course, whatever that might be.
Almost every federal prosecutor knows the famous guidance
provided in 1940 by Attorney Gen. Robert Jackson, the future Supreme Court
Justice and chief U.S. Nuremberg war crimes prosecutor. Jackson urged all U.S.
attorneys to remember that the government never loses a case when justice
prevails, regardless of which side �wins� in the short term. Isn�t it time to
start acting on that?
And if doing the right thing isn�t enough: Won�t people
start noticing at some point soon that the name of the current attorney general
is Eric Holder, and not Karl Rove?
Andrew Kreig is a Washington, DC-based
journalist, drawing on his careers in law, business and journalism. His
research interests are on government decision-making (including official
corruption in both major parties), harms from such misconduct to the U.S.
economy and constitutional rights, and opportunities for economic growth via
the new media that he helped enable through broadband technology. As President
and CEO of the Wireless Communications Association International from 1996
until last summer, Kreig led its evolution into the premier worldwide advocate
for high-capacity wireless services. Previously, he authored some two thousand
bylined news and magazine articles, plus the pioneering 1987 book �Spiked: How
Chain Management Corrupted America�s Oldest Newspaper.� The book documented
unethical practices within the news media, including misleading applications by
prominent news industry executives to win coveted Pulitzer Prizes. Listed in
numerous Who�s Who volumes for more than a dozen years, he has lectured on five
continents about communications issues and has been active in civic affairs in
Washington. He holds degrees from Yale Law School and University of Chicago
School of Law. His previous employers include the Hartford Courant, Connecticut
General Assembly Speaker Irving Stolberg, Chief U.S. District Judge Mark Wolf
in Boston and the global law firm Latham & Watkins.