The Obama Department of Justice, on multiple occasions, opposed U.S. Supreme Court review of the Don Siegelman case. The DOJ got its wish yesterday when the nation's highest court announced that it would not review what has come to be seen as the most notorious political prosecution in American history.
One can only wonder why a Democratic administration would be unconcerned about the prosecution of a former Democratic governor in a heavily Republican state. The wonder turns to amazement when you consider that evidence in the Siegelman case, even if taken as true, did not amount to a crime, as described by the U.S. Code and relevant case law.
But here is the most distressing part of the DOJ's actions in opposing certiorari review of the Siegelman case: A review of documents filed by government lawyers proves that even they do not believe the testimony of the key prosecution witness. Either that, or DOJ officials do not even bother to review documents they file in cases of national importance--and if that's the case, someone is committing professional negligence, misconduct or both.
What are we talking about? Let's consider the government's opposition brief in Siegelman's bid for certiorari review. It apparently was written by DOJ lawyer John-Alex Romano and approved by Solicitor General Donald B. Verrilli Jr. and Assistant Attorney General Lanny A. Breuer. (The full opposition brief can be read at the end of this post.)
The following items are taken directly from the government's brief. First, we have what we will call Exhibit A, which can be found on page 4 of the brief. It involves interaction between Nick Bailey, a former Siegelman assistant who became the chief government witness, and Eric Hanson, a former HealthSouth executive under former CEO and Siegelman codefendant Richard Scrushy:
Bailey also testified that Hanson subsequently told Bailey that Scrushy wanted control of the CON Board and “made it clear to him that if Mr. Scrushy gave the $500,000 to the lottery campaign that [they] could not let him down” with respect to the CON Board seat.
With Exhibit A, we've established that Bailey knew exactly what Scrushy wanted in exchange for a $500,000 contribution. With Exhibit B, we have Bailey reminding Siegelman about what Scrushy wanted. Again, from page 4 of the government's brief:
Bailey periodically reminded Siegelman of their conversations “with Eric Hanson about what Mr. Scrushy wanted for his contributions, and that was the CON Board.”
Exhibits A and B established, beyond any doubt, that Bailey knew what Scrushy wanted in exchange for his contribution. But look what happens with Exhibit C. From page 5 of the government's brief:
Siegelman and Scrushy subsequently met in Siegelman’s office. Bailey testified that, at some point after the meeting, Siegelman showed Bailey the IHS check and said that Scrushy was “halfway there. . . . ” Bailey asked, “what in the world is he [Scrushy] going to want for that?” Siegelman replied, “[T]he CON Board.” Bailey responded, “I wouldn’t think that would be a problem, would it?” Siegelman replied, “I wouldn’t think so.”
Here is the sequence of events, all from Bailey's testimony: (A) Bailey knows what Scrushy wants in his exchange for his contribution; (B) Bailey reminds his boss multiple times about what Scrushy wants in exchange for his contribution; (C) After a meeting between Siegelman and Scrushy, Bailey suddenly has no idea what Scrushy wants for his contribution.
It's easy to see that something does not add up here. And that sound you hear is Bailey's credibility being flushed down the toilet--with the government pushing the lever. Siegelman's lawyers recount the same evidence in their petition. (You can read the full petition for certiorari at the end of this post.) On page 7, Siegelman lawyers note the inconsistencies in Bailey's testimony with the following footnote:
The conflict within Bailey’s testimony, as recounted above, demonstrates how unsteady the proof of a quid pro quo can be, while still passing muster under the view of the law taken by the court below. Bailey first has himself telling Governor Siegelman repeatedly what Scrushy wanted; but then, quite oddly, he has himself asking Governor Siegelman what Scrushy wanted. In neither version is there evidence that Governor Siegelman actually promised Scrushy the appointment in return for the contribution. If shaky proof such as this will suffice instead of proof of an actual quid pro quo communication by the official to the donor, then proof of the crime is markedly easy and the range of potential prosecutorial targets is troublingly wide.
That range could someday include former President Obama. After all, it's well established that the president has rewarded some of his loyal contributors with plum ambassadorships. Could a future federal jury "infer" that those appointments involved illegal quid pro quo agreements? Under the loose standards set in the Siegelman case, the answer undoubtedly is yes.
Team Obama appears unconcerned about Don Siegelman's plight at the moment. But here is some free Schnauzer advice for the president and his staff: You had better figure out a way to beat Mitt Romney in November; if you don't, a Republican attorney general is going to have the facts and the law necessary to send a bunch of you to federal prison. Siegelman--DOJ Reply Brief on Certiorari Siegelman v. USA Cert Pet