Playing Loose with Prosecutorial Ethics

The case of Montgomery insurance executive John W. Goff continues to present a stunning example of a warped Bush Justice Department. And it also shows the longstanding ties between the Bush DOJ and state politics in Alabama.

Just how blatant is the behavior of loyal Bushies in the Goff case? According to a nationally prominent attorney and legal journalist, it would justify the removal from office of Leura Canary, U.S. attorney for the Middle District of Alabama.

Could that actually happen? More on that in a moment. But first, let's look at the latest on the Goff case itself.

One of Goff's attorneys has asked for a second time that the entire U.S. Attorney's Office in Montgomery be removed from an investigation of the Alabama insurance executive.

Thomas T. Gallion III, in a letter last week to Associate Deputy U.S. Attorney General David Margolis, said denial of the original request was without merit.

"It is apparent, in that you responded in only a few days, that you did little if any investigation into this most serious matter," Gallion wrote. Gallion asked Margolis to send an independent investigator to Montgomery to look into the circumstances surrounding the federal investigation of Goff.

Goff filed a lawsuit in March 2007 against Alabama Governor Bob Riley and others with strong Republican ties, alleging they engaged in a conspiracy to ruin one of his insurance businesses. Once Goff had filed the lawsuit, Leura Canary's office evidently made Goff the target of a grand-jury investigation.

Gallion contends that the investigation is in retaliation for Goff's lawsuit, and he asked that Canary and her entire staff recuse themselves from the investigation. Canary stepped aside, but chief prosecutor Louis Franklin and other members of her staff will continue to press the investigation.

A Montgomery County circuit judge has set a hearing for February 5 to review motions in Goff's lawsuit.

Scott Horton, of Harper's.org, says Margolis, the most senior career employee in the Department of Justice (DOJ), has a reputation for having high ethical standards. But Horton says the DOJ's handling of the Goff matter indicates Margolis' ethical standards might have been lowered.

Horton shared Margolis' original denial of the recusal request with several legal ethicists. All of them, including Georgetown University's David Luban, said the analysis was "dead wrong."

"Two facts or allegations stand out in this case," Luban said. "First, Goff's testimony in his lawsuit against the governor and lieutenant governor could implicate Leura Canary's husband. Second, she launched the criminal investigation of Goff after he filed the lawsuit against her husband's political cronies. . . . It looks as if the Justice Department simply blew off the allegations. And it also blew off Goff's request that not only Leura Canary, but other lawyers in the office she heads, should be disqualified from the Goff case."

Horton says federal guidelines require that a U.S. attorney from a different district be appointed and an outside staff brought in to handle the investigation. But that, of course, has not happened.
And then Horton cuts to the heart of the matter, comparing Canary's possible ethics violations to that alleged against former Alabama Governor Don Siegelman, a Democrat. "If Gallion's allegations are true, Leura Canary violated the ethics standard and the statutory standard (28 U.S. Code 528). . . . The remedy is crystal clear. The statute states 'a willful violation of any provision thereof shall result in removal from office.' Leura Canary should have tendered her resignation or should have been forcibly removed from office."

Horton says both the Siegelman and Canary matters "involve ethics infractions which rise as alleged to the level of crimes, and both play on the public perception of conduct which the official actor insists is entirely innocent." The DOJ, of course, pursued the Siegelman case with considerable gusto while seemingly brushing off the Canary case.

"What we are seeing is two flavors of justice: one for the political opposition, and one for the 'home team,' as Ms. Canary would say," Horton writes. "This reflects the justice standards of a banana republic."

Horton is describing a mindset that is at the very heart of this blog. In my Legal Schnauzer case, Republican state judges repeatedly were required by law to take certain action. But they refused to do it, making numerous unlawful rulings in order to favor someone who was a member of the "home team."

The quaint concepts of "due process" and "equal protection," found in the 14th Amendment to the U.S. Constitution, used to mean something--particularly to the avowed "patriots" on the political right. But Horton shows just how far the modern GOP has drifted from its principles.

Long before I started this blog, I can remember my wife and I discussing our bizarre experiences at the Shelby County Courthouse in Columbiana. At first, when rulings in inexplicably went against us, it just seemed peculiar. But once I started educating myself on the law and realized that I was witnessing judicial corruption in an up-close-and-personal way, the whole experience made me think I was in a third-world country. In fact, I can remember telling my wife, "Every time we go to Columbiana, I feel like we are visiting a banana republic."

And now we have a major figure in legal journalism using almost identical language to describe corruption that goes way beyond my little case in Shelby County Circuit Court. Horton, of course, is talking about our entire U.S. Justice Department.

How profound is it to have a Columbia University law professor refer to the U.S. Justice Department operating with the standards of a banana republic? And he presents considerable facts and law to back it up?

It's hard to imagine a more profound statement for the future of our country. And yet I haven't heard a presidential candidate from either party even mention the Department of Justice scandal and the fact that we currently have true political prisoners in the US of A.

We certainly can understand why Republican candidates do not mention it. But will someone on the Democratic side ever speak up?