When 60 Minutes airs its story tomorrow night on the Don Siegelman case, it will focus on what most of us think about when we hear the term "selective prosecution:" an instance where a person who appears to be innocent is prosecuted for political reasons.
But as you watch the 60 Minutes piece, I would encourage you to keep in mind the other, less publicized, side of political prosecution: instances where someone who appears to be guilty is not prosecuted for political reasons.
Scott Horton, of Harper's, raised this issue in a recent post about former Senate Republican leader Trent Lott and his possibly improper intervention with federal investigators on behalf of his brother-in-law Dickie Scruggs. Horton builds his post around a Wall Street Journal story late last week reporting that federal agents are investigating whether Lott knowingly played a role in an alleged conspiracy in 2006 to influence a Mississippi judge presiding over a multimillion-dollar lawsuit against Scruggs.
The Journal story focuses on Scruggs' problems in Mississippi, but Horton's sources say the probe might be more focused on Birmingham, Alabama. That's because Alice Martin, U.S. attorney for the Northern District of Alabama, has refused to prosecute Scruggs for violation of a court order in insurance litigation. In refusing to prosecute Scruggs, Martin ignored the recommendation of U.S. Judge William Acker. Could that have Martin, Lott, and Scruggs all in the crosshairs? Horton provides some insight:
Here’s one scenario, which two senior law enforcement figures in Mississippi told me was “more than simply plausible.” The FBI had secured warrants to monitor Scruggs’s phone calls early in the course of the case, during the summer or early fall. In some of those conversations Dickie Scruggs asked for his brother-in-law’s help in fighting off Judge Acker’s attempts to have him prosecuted. Trent Lott picked up the phone and spoke with a few friends in the Justice Department–or perhaps even directly with a U.S. Attorney or two in Alabama, or a senator from Alabama–and asked them to lay off his misbehaving brother-in-law.
My bet is that the investigators are looking very carefully at whether the decision by the U.S. Attorney in Birmingham not to charge Dickie Scruggs had anything to do with intervention by Senator Lott.
Horton goes on to connect Scruggs' situation to the Paul Minor case, the subject of numerous posts here at Legal Schnauzer:
Of course, the other point that the Journal failed to pick up on is that Lott had a history of intervening with prosecutors to protect his extremely wealthy brother-in-law. I documented this in connection with the prosecution brought against Paul Minor. No matter how you cut it, Dickie Scruggs comes out smack in the middle of that case, playing a substantial role. Yet he was not charged with anything, and indeed, prosecutors treated him with tremendous deference.
So what do we have? We have Paul Minor, a supporter of Democratic candidates in federal prison, and Dickie Scruggs, whose brother-in-law is a Republican senator, is not prosecuted in two different cases. That gets to the crux of Horton's post:
All of this suggests that in the Birmingham U.S. Attorney’s office, it’s not just the decisions to bring charges that may reveal political motivation, but also the decisions not to bring charges.
This also gets to the crux of a series of posts we have coming here at Legal Schnauzer about my experience in trying to report Republican wrongdoing to Alice Martin. Just as occurred in the Dickie Scruggs case, considerations of family, friends, and politics easily trumped justice. Not only does the wrongdoing I witnessed reflect poorly on the Republican Party, but it also reflects very poorly on Pelham, Alabama, attorney William E. Swatek, whose son Dax was former campaign manager both for Alice Martin and Alabama Governor Bob Riley.
Bill Swatek and his Shelby County judicial buddies are involved in federal crimes? Alice Martin doesn't want to hear it. And we will show you the steps she took to intentionally try to keep the case under wraps.