“There's been a stonewall around this case from the White House.  There's been a stonewall around most of these allegations of Justice Department impropriety.”
-- Rep. Artur G. Davis (D-Ala.)

Justice in Alabama
June 24, 2007

"We have a Justice Department that has substantially been turned into a political arm of the White House," Bruce Fein told the McClatchy Newspapers earlier this week. He went on to say that the public could have no confidence that federal prosecutions of Democrats by the Justice Department were fair. Mr. Fein is a conservative Republican lawyer and legal scholar of some note—the former senior legal analyst at the Heritage Foundation. As the Deputy Attorney General, he was responsible for the operational management of the Justice Department under President Ronald Reagan. Bruce Fein would not make such a charge lightly. He is speaking from knowledge, not conjecture.

His accusations rest on a growing body of evidence. Two professors at the University of Minnesota looked at the Bush Justice Department’s prosecution of cases involving political figures. It showed seven prosecutions of Democrats for every one Republican. These prosecutions are coordinated and directed by the Public Integrity Unit, a group now under suspicion of being the single most politicized part of the Justice Department.

Under the direction of the White House, and particularly Karl Rove, the Justice Department undertook a series of prosecutions designed to undermine the positions of elected Democratic officeholders and help the Republican Party take their positions. In this space over the last two months, I have catalogued a series of cases which suggest White House-driven manipulation of criminal prosecutions. Sometimes the White House has intervened to shut down or obstruct prosecutions of Republicans—a process that started certainly by the spring of 2002, when Jack Abramoff, a protégé of Karl Rove and Tom DeLay, sought White House intervention to fire the U.S. Attorney in Guam. "I don’t care if they appoint bozo the clown, we need to get rid of Fred Black," Abramoff wrote in March 2002. And indeed, following White House intervention, the U.S. attorney was fired, a Republican party functionary was appointed in his place, and the investigation that threatened to expose a seedy Abramoff operation involving human trafficking was shut down. Thanks to the role played directly by the White House, the process took only a few days. Similarly, we have documented meddling to protect Republicans in San Diego, Los Angeles, Little Rock, Kansas City, and Arizona.

And then, still more troubling, there is White House intervention to persecute their political opponents: the telltale sign of tyranny. Georgia Thompson was a state contracting officer in Wisconsin prosecuted for corruption when she awarded a bid to a contractor that had made campaign contributions to the state’s Democratic governor. The fact that the contractor was the low bidder was apparently considered irrelevant to the prosecutor. Records later established that the prosecutor in question had been slated for firing by Karl Rove because he was not doing enough to help the Republican Party. However, the Thompson prosecution was hyped to the media throughout the 2006 election campaign in a transparent effort to bolster the GOP’s election chances. And in the end, the prosecutor’s name disappeared from the list of those to be canned. The case resulted in a conviction. Then it came before an all-Republican panel from the Seventh Circuit Court of Appeals, which immediately ordered Thompson’s release and dismissed the whole conviction with a word: "preposterous." But note: it was a conviction. The U.S. Attorney in Milwaukee actually hoodwinked a group of jurors and a federal district court judge into accepting a ridiculous bucket of slop as a criminal case. It’s a strong testimonial to the fact that in America today, a jury will readily accept that accusations of corruption against a political figure are true, even when there is no evidence, and no corruption.

But the Georgia Thompson case is not the worst. Far, far more troubling still is the conviction of former Alabama Governor Don Siegelman in a prosecution in Montgomery. When this case got started, I was ready to accept what those Montgomery jurors did—namely, what on earth could be surprising about allegations that a political figure sells appointments for money? Isn’t that indeed just the way our system works? And shouldn’t we throw the book at them when they’re caught doing it? Truth is, I never much cared for Mr. Siegelman anyway.

In the meantime, however, I have spent over a month looking at this case. I have spoken with a number of journalists who covered the trial, pulled out and read the transcripts, talked to figures involved in the case. And I have received tips and messages from Alabamians who are trying feverishly to spin the case one way or the other. My conclusion: I have no idea whether in the end of the day, Mr. Siegelman is guilty or innocent of corruption. But that the prosecution was corruptly conceived and pursued and that the court proceedings were corrupted, almost from the outset: that is already extremely clear. This is not a prosecution of a political figure for corruption. It is a political vendetta, conceived, developed and pursued for a corrupt purpose.

How, you may ask, can a prosecution be corrupt? At Columbia University’s Harriman Institute, where I lecture, we frequently engage in the comparative study of criminal justice administration. I have my students read from the works of Andrey Januaryevich Vyshinsky, Stalin’s great legal choreographer and from Arkady Vaksberg’s authoritative biography of Vyshinsky. For Vyshinsky, of course, the criminal justice system existed to identify and punish criminals. But more essential was its political function. If those in power have political enemies, they can throw the enemies out of power or banish them. But this carries with it some risk. The enemies may gain public sympathy over their treatment, and they may regroup and then in the future present a serious threat. The solution advocated by Comrade Vyshinsky is to use the criminal justice system to vilify political adversaries—they will be branded criminals, stigmatized, driven from all office and power. And people will be afraid to associate with them in any way. The "crime" is in the end of the day irrelevant. The process is critical, and indeed, the process must be a public one and the humiliation complete.

What has happened under Karl Rove is not so daring and dramatic as Vyshinsky prescribed. It does not entail "show trials," nor the brutal extraction of confessions—the technique Vyshinsky dubbed the "queen of evidence." But it follows the same general plot line and is pursued for roughly the same purpose. Perhaps Rove read Vyshinsky and perhaps not. In any event, he clearly understands the rules of the game.

The Siegelman prosecution was commenced as the result of a plan hatched between senior figures in the Alabama Republican Party and Karl Rove. This connection is not coincidental, because Rove was once fired by the first President Bush and then had to rehabilitate himself. Rove did this in spades, and the place where he worked his political magic was in Alabama. He put together a campaign to engineer the Alabama GOP’s capture of the state’s judicial machinery. It worked brilliantly. And Rove has retained tight connections with the Alabama GOP ever since. Rove and the Alabama GOP leaders set out to destroy Siegelman’s political career and thus smooth the path by which the Republican Party could secure and retain political control of the Alabama statehouse. It was crafted in such a way as to retard the ability of Democrats to raise money from campaign donors so that they might contest office in Alabama. Each of these purposes is "corrupt." Key to this plan was the use of the machinery of the Department of Justice for its completion—involving the U.S. attorneys offices in Birmingham and Montgomery, and the Department of Justice in Washington. Rove was in a position to make this work and he did so.

The curtain was pulled back on this plan when Dana Jill Simpson, a Republican lawyer who previously worked on a campaign against Siegelman, decided to blow the whistle. Her affidavit described William Canary, a legendary figure in the Alabama GOP, bragging that "his girls" would take care of Siegelman. Canary’s wife is Leura Canary, the U.S. Attorney for the Middle District of Alabama. Alice Martin, the U.S. Attorney for the Northern District of Alabama is a close confidante of Canary’s. He referred repeatedly to "Karl," assuring that "Karl" had worked things out with the Justice Department in Washington to assure a criminal investigation and prosecution of Siegelman. Canary is a close friend of Karl Rove, and I have documented their long relationship in another post.

The response to Simpson’s affidavit has been a series of brusque dismissive statements—all of them unsworn—from others who figured in the discussion and the federal prosecutor in the Siegelman case, who has now made a series of demonstrably false statements concerning the matter. She’s been smeared as "crazy" and as a "disgruntled contract bidder." And something nastier: after her intention to speak became known, Simpson’s house was burned to the ground, and her car was driven off the road and totaled. Clearly, there are some very powerful people in Alabama who feel threatened. Her case starts to sound like a chapter out of John Grisham’s book The Pelican Brief. However, those who have dismissed Simpson are in for a very rude surprise. Her affidavit stands up on every point, and there is substantial evidence which will corroborate its details.

This disclosure was treated as explosive news by Time Magazine and the New York Times. However, newspapers inside of Alabama reacted with awkward silence, as if these disclosures were very unpleasant news, best swept immediately under the living room carpet. I will single out the Birmingham News and the Mobile Register. I took some time earlier this week to review their coverage of the Siegelman story from the beginning. It left me wondering whether these publications were really newspapers.

True, they have the look and feel of a newspaper. But their coverage has something oily and sulfurous about it. I previously analyzed a single story from the Birmingham News just to show how it was misleading its readership on every significant aspect of the case. The most critical facts were consistently elided from the discussion, and fake facts were touted up front. Even the headline was such a farce that the News was subsequently obliged to run a correction admitting that it was false.

But if anything the coverage in the Mobile Register is still more outlandish and disingenuous. Moreover, the Mobile paper seems to have a rather amazing relationship with the federal prosecutors handling the case—a relationship that certainly raises questions under Rule 6(e) of the Federal Rules of Criminal Procedure, under which prosecutors are obligated to maintain the secrecy of matters coming before a grand jury. The Mobile Register seems to be the prosecutors’ mouthpiece of choice, in fact, and its extensive knowledge of the prosecutors’ case and evidence was a sure sign that something was wrong. Indeed, when prosecutors begin to conduct a case through the media, that generally means that they are not pursuing a case with the interests of justice in mind, but rather something else.

And the more we dig into this case, the more irregularities mount. Let’s start with the charges against Siegelman. The main accusation is that he appointed HealthSouth’s scandal-ridden CEO to a state oversight board, and in exchange a donation was made to a not-for-profit education foundation which was supporting Siegelman’s efforts to secure a lottery to fund the state’s education system. You might very well ask what would be corrupt about this, and you would be right to ask. This is almost exactly the sort of accusation that the federal prosecutor in Milwaukee, faced with Rove’s threat to fire him, brought against Thompson—and that the Seventh Circuit Court of Appeals labeled as "preposterous." And indeed, it’s the sort of thing that transpires in the American political environment every single day. For instance, California Governor Arnold Schwarzenegger appeared on a Donald Trump television program recently, and Trump made a payment of ten thousand dollars to help Schwarzenegger "retire his campaign debts." Was that corrupt? Added to this is the fact that HealthSouth had no interest in anything before the oversight board in question, and its CEO had been appointed to the same board by three prior governors. This is corruption?

But still more striking—astonishing by any measure—is how this same U.S. Attorney and Department of Justice dealt with Siegelman’s successor, current Governor Bob Riley. Riley and many of his senior-most associates are closely tied to Jack Abramoff, perhaps the single most scandal-ridden figure in U.S. political history. I have detailed some of these relationships earlier. Documents that surfaced in the Abramoff investigation suggested that in exchange for millions of dollars in campaign contributions from a Mississippi tribe with gaming interests to his gubernatorial election campaign, Riley would ensure that an Alabama tribe then seeking a license would be blocked. In fact the millions flowed into Riley’s coffers, and he in fact took steps to block the license sought by his own constituents. So what did the U.S. Attorney, Leura Canary, do? Instigate an investigation for corruption? Bring evidence before a grand jury? No. In fact, Mrs. William Canary seems suspiciously involved in the entire scheme. Indeed, she secured appointment to the licensing board for the matter.

And perhaps one should take a second to scrutinize Governor Riley’s appointments to the same board. Riley appointed to head the board a certain Dr. Swaid Swaid, a man who made contributions to Riley’s gubernatorial campaign during the election, and a hefty sum after the election was over, when his appointment was under consideration. Moreover, Dr. Swaid has personal interests before the board—it approved an invention of his. I am not suggesting that there was anything wrong with Dr. Swaid’s appointment. But these facts make abundantly apparent that in the mind of the federal prosecutors there is one standard to be applied for a Democrat, and an entirely different standard for a Republican. That’s corrupt.

There is a second significant charge brought against Siegelman, namely that he accepted gifts from lobbyists. The record on this is still undeveloped, but what I have seen is very strange. For one thing, it shows that the prosecutors were from the outset obsessed with obtaining a conviction of Siegelman to the extent that they exhibited an attitude of total indifference towards other, far more serious crimes, particularly potential crimes involving Republican officeholders. A lobbyist named Lanny Young secured a plea bargain deal by agreeing to give evidence against Siegelman. Young testified that he gave Siegelman specialty advertising items of some value, but he noted that he did exactly the same thing for Republican U.S. Senator Jefferson Sessions and Karl Rove’s protégé Bill Pryor. The federal attorney insisted that this information be suppressed, and the judge trying the case concurred. This is one of a number of bizarre rulings by the judge which were consistently highly prejudicial to Siegelman. And, once more, it reflects a double standard: one rule applies to Siegelman, but another rule altogether applies to Sessions and Pryor.

Prosecutors initially brought the case before a judge in the Northern District of Alabama. He dismissed it with prejudice. The prosecutors then decided to go shopping for a new judge. And they liked the one they found. Not surprisingly, the federal judge handling the case—Mark E. Fuller—has a long record of deep engagement in Alabama Republican politics. He has consistently and quickly overruled defense objections, and also quickly overruled a motion that he recuse himself. The recusal motion asserted that Judge Fuller is the owner of a military contractor that received a $178 million dollar contract from the U.S. Government while the case was pending. The motion also ties one of the prosecutors handling the case to the contract awards. If these claims are correct, then Judge Fuller’s decision to preside over the case offers further evidence of irregularity. However, a judge is usually concerned not about improprieties as much as the appearance of improprieties.

This week, former Governor Siegelman faces sentencing before Judge Fuller. The federal prosecutors handling the case have demanded a sentence of thirty years in prison—in a case which should have been dismissed in the first instance and in any event involves no personal gain of any sort by Siegelman. The prosecutors’ sentencing request was further strong evidence that the case is a vendetta. No doubt a very harsh sentence will be issued.

And no doubt the case will not end there. The Siegelman prosecution is now receiving attention across the United States. No less than six attorneys general have written to Congressional oversight committees noting the gross irregularities and suspicious circumstances of the prosecution, and have requested that Congress conduct direct inquiries into what transpired in this case. The Siegelman prosecution will in all likelihood soon be exposed for what it is: one of the blackest moments in Alabama justice since the trial of the Scottsboro Boys. But it provides a moment to remember that even in that case, a clear voice was raised, fearlessly pointing to the injustice that was done—at great personal danger. It was the voice of James Horton, the presiding judge in the first Scottsboro Boys trials in Decatur:

Social order is based on law, and its perpetuity on its fair and impartial administration. Deliberate injustice is more fatal to the one who imposes it than to the one on whom it is imposed. The victim may die quickly and his suffering cease, but the teachings of Christianity and the uniform lesson of all history illustrate without exception that its perpetrators not only pay the penalty themselves, but their children through endless generations . . .

Alabamians have a legacy of those who strive for justice—Harper Lee, Truman Capote, Frank M. Johnson, and James Horton. And they have a legacy which hesitates to show its face in the sunshine and does them no credit. The time has come for them to decide which they will follow.

House Judiciary Committee Member, Congresman Artur G. Davis, D-Ala, and New York Lawyer and Columbia Law School lecturer Scott Horton discuss involvement of the Department of Justice for political purposes.

Copyright 2007, The Harper's Magazine Foundation

Excerpted from: Harper's Magazine, June 24, 2007, http://www.harpers.org/archive/2007/06/hbc-90000351, accessed 08/01/08.  Scott Horton is a New York attorney, an adjunct professor at Columbia Law School, and a frequent contributor to Harper's Magazine.  Video from: rkymtnrdr, "Bush League Justice - Using DOJ to Imprison the Competition," [YouTube Video], December 14, 2007, http://www.youtube.com/watch?v=ERI5_177N5s, accessed 08/03/08.  Reproduced in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.