[FDL is pleased to welcome Scott Horton, who writes No Comment for Harper's, to discuss politicized prosecutions and the Siegelman case for today's installment of First Monday -- our monthly legal discussion in conjunction with Alliance For Justice.  As always, please stay on topic and take any off-topic comments to the prior thread. Thanks! -- CHS]

Last Sunday, CBS aired its long-awaited feature on the prosecution and imprisonment of former Alabama Governor Don E. Siegelman.

The CBS piece, for which I was repeatedly interviewed, came through on its promise to deliver several additional bombshells. The most significant of these was the disclosure that prosecutors pushed the case forward and secured a conviction relying on evidence that they knew or should have known was false, and that they failed to turnover potentially exculpatory evidence to defense counsel. The accusation was dramatically reinforced by the Justice Department’s failure to offer a denial. It delivered a fairly elaborate version of a “no comment,” and even that came a full twenty-four hours after it had conferred with the prosecutors in question. The gravity of the accusations made and the prosecutors’ failure to deny them further escalates concerns about the treatment of the former Alabama governor.

Republicans Lead the Attack

But the show was dominated by one of 52 former attorneys general from 40 of the 50 states who have called for a Congressional probe of the conduct of the Siegelman case, former Arizona Attorney General Grant Woods. He leveled a series of blistering accusations at the Bush Administration’s Justice Department. With the Alabama G.O.P. this evening issuing a near-hysterical statement in which it characterizes the CBS broadcast—before its transmission—as an anti-Republican attack piece, it was notable that Woods, like the piece’s other star witness, is a Republican. Not just any Republican, either. Grant Woods is co-chair of the McCain for President leadership committee, and a lifelong friend and advisor to the presumptive 2008 G.O.P. presidential candidate. Woods is also godfather to one of the McCain children.

Attorney General Woods has this to say about the Bush Justice Department’s prosecution of Siegelman: "I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of."

In other words, not being able to beat Siegelman at the polls, Woods believes that his own party corruptly used the criminal justice process to take out an adversary. This is an extraordinary, heavy accusation. Not something that a senior Republican would raise easily about his own party. And the facts back the accusation up, beginning to end.

Crimes for Democrats, Fundraising as Usual for the G.O.P.

Start with the notion that the conduct that figures in the accusations is actually a crime. The basic charge is that businessman Richard Scrushy gave $500,000 to the Alabama Education Foundation, a vehicle Siegelman created to run a campaign for a state education lottery, and Siegelman in exchange appointed him to the state’s hospital oversight board.

WOODS: You do a bribery when someone has a real personal benefit. It’s that you’re exchanging an official public act for a personal benefit. Not, “Hey, I would like for you to help out on this project which I think is good for my state.” If you’re gonna start indicting people and putting them in prison for that, then you might as well just– build nine or ten new federal prisons because that happens everyday in every statehouse, in every city council, and in the Congress of the United States.

PELLEY: What you seem to be saying here is that this is analogous to giving a great deal of money to a presidential campaign. And as a result, you become Ambassador to Paris.

WOODS: Exactly. That’s exactly right.

Indeed, Karl Rove pursued financing for the Bush-Cheney campaign in 2000 and again in 2004 by organizing a special elite status—called “Pioneers” and “Rangers”—for persons who donated or raised $100,000 or more for the campaign. These donors understood that if they wanted to be appointed to a government office, like an ambassadorship, they only had to ask for it.

So how many Bush-Cheney donors in amounts of one hundred thousand and more were appointed to government offices or to positions in the Bush-Cheney transition team? The answer is one hundred and forty-six (146). And in how many of those cases did the Justice Department initiate investigations of corruption? The answer is zero (0). The Justice Department’s rationale is that this crime is one that can be committed by Democrats alone. When a Republican does it, it’s normal campaign fundraising.

False Evidence

But even if we accept that it’s possible for the Bush Department to create a new category of “Democrats Only” Crimes, we still have the basic fact that the evidence on which the Siegelman conviction was secured was false, and was known by the prosecutors to be false from the beginning. Indeed, the evidence of this is now so overpowering that the Justice Department refused to answer charges on camera, just as it has resisted Congressional demands to turn over documents and wrongfully failed to comply with FOIA requests. The key testimony at trial came from a man named Nick Bailey, who, unbeknownst to Siegelman, was a crook. He never contested that fact. And he’s now in prison, where CBS interviewed him—notwithstanding the Justice Department refusal to authorize an interview. The prosecutors nabbed him and then told him he could get a light sentence if he worked with them to nail Siegelman, their real target. This very process is a perversion of the justice system, which as former U.S. Attorney Jones very properly says, requires that prosecutors investigate crimes and not people. But it gets still worse. Bailey testifies that he saw a check change hands at a meeting at which Scrushy’s appointment to the oversight board was decided. This is the evidence that landed Siegelman in prison. And it was false. And the prosecutors knew that it was false.

JONES: They got a copy of the check. And the check was cut days after that meeting. There was no– there was no way possible for Siegelman to have walked out of that meeting with a check in his hand.

PELLEY: So, Siegelman could not have had that check–

JONES: No.

PELLEY: –in his hand that Bailey–

JONES: It was–

PELLEY: –testified to seeing?

JONES: Absolutely impossible and they knew that, absolutely impossible.

PELLEY: That would seem like a problem with the prosecution’s case…

JONES: It was a huge problem especially when you’ve got a guy whose credibility was going to be the linchpin of that case. It was a huge problem.

So the Justice Department’s silence in response to the charges was masked with a platitudinous statement. They stated that Siegelman’s case was pursued and developed by career prosecutors, that it was based on the law, and justified by fair evidence.

Each of the statements is about as honest as Attorney General Gonzales’s statement, under oath, before Congress, that he just couldn’t remember any details concerning any decisions to fire eight U.S. Attorneys on December 7, 2006. Which is to say, they are false.

First, we know that the first two career prosecutors assigned to the case, including the most experienced prosecutors who worked on it, came to the same conclusion that Grant Woods did: no reasonable prosecutor would ever have charged this case. The Justice Department has consistently made false statements about the roles of the two earlier prosecutors, and their role only emerged in the last few months. It’s extremely noteworthy that throughout the history of this case, whenever a career prosecutor concluded that charges should not be brought, that career prosecutor ran into a bump in his career and was off the case. The message to the remaining career prosecutors was plenty clear. In fact it is clear that the career prosecutors’ views were overridden by political appointees driven by a strong partisan political agenda.

Second, they claim that the case was brought on a fair reading of the law. It was not, and indeed reasonable career prosecutors never would have acted on the basis of the reading they advanced, and a fair detached judge never would have allowed the case to go forward. This case offered neither.

Third, they claim that evidence was produced to sustain the charges. But the key evidence that the prosecutors brought forward was false, and they knew it was false. In this case proceeding on the basis of that false evidence was a corrupt wielding of prosecutorial power, pursued for a corrupt partisan political end—the elimination of a political adversary. They withheld the Bailey notes which would have demonstrated that his memory on this was conflicted or wrong and would therefore have devastated his testimony. There is mounting evidence that one or more witnesses were unethically pressured to give false evidence or face retaliation. This suspicion surrounds not only Nick Bailey, but also Jefferson County Republican Commissioner Gary White. Note the affidavit of his wife, which a federal judge in Birmingham stated only two weeks ago he found “established a prima facie case of impermissible conduct” by the prosecutors. The claim put forward there goes precisely to these facts. White was pressured to give false evidence supporting Bailey on his false claims about the meeting. It is suggested that he would be prosecuted if he failed to do so. He refused, saying the testimony would be false. And he was prosecuted. This seems to summarize the crooked criminal justice system that Karl Rove and his friends have promoted in Alabama.

This is Only an Introduction

CBS conducted dozens of interviews and has much more that it hasn’t shown. The additional footage concerns the Canary team—husband Billy who advised the campaign of Republican gubernatorial candidates against Siegelman, and wife Leura Canary, whose prosecution of Siegelman was essential to the G.O.P.’s efforts to secure the Montgomery statehouse. And they have much more on the inexplicable conduct of federal Judge Mark Fuller, appointed by George W. Bush, a former member of the Alabama G.O.P.’s Executive Committee, and a man who publicly stated that Siegelman had a grudge against him—but who refused to recuse himself from the case.

The Significance of the Siegelman Case

On December 7, 2006, Alberto Gonzales fired eight U.S. attorneys for refusing to implement a program of political prosecutions. Many observers at that time notes that the case of the eight terminated U.S. attorneys might ultimately prove far less interesting that the 85 U.S. attorneys who were retained. The Siegelman case suggests this approach has merit. The two U.S. attorneys involved here—Alice Martin and Leura Canary—are Rovian models of politically engaged prosecutors. As the case continues to be investigated, I believe there will be a strong focus on them and their ties to the Bush White House. They both have a tight connection to Karl Rove, through the same figure, Billy Canary, a man who worked with Rove for 17 years.

But as I have argued in “Vote Machine,” this is but one manifestation of an overall phenomenon of modification of the Justice Department for partisan political purposes. The shift in policies and personnel in the Civil Rights Division, and particularly in the arena of voting rights, is another clear example. The accelerated hiring of partisan hacks to fill career positions. The prosecution of “voting fraud” cases consciously measured to dampen minority turnout at the polls. The prosecution of political figures and donors associated with Democrats, with prosecutions timed to overlap with election cycles.

Michael B. Mukasey has promised that this political process will end on this watch. But there is no evidence so far that he has recognized the problem or that he has taken any steps to end it.

* * *

Scott Horton is a legal affairs and national security contributor to Harper’s Magazine who teaches at Columbia Law School. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee, and has been involved in some of the most significant foreign investment projects in the Central Eurasian region. Scott recently led a number of studies of issues associated with the conduct of the war on terror for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also a member of the board of the National Institute of Military Justice, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He was a partner at Patterson, Belknap, Webb & Tyler until January 2007, when he left to write a book on private military contractors and to manage a project on that subject for Human Rights First.

(Above is the first part of 60 Minutes’ report on the Siegelman case. Part II can be viewed here.)