Leaderboard 728 X 90

Monday, January 31, 2011

Former Bush-Administration Official Was Beaten to Death

John P. Wheeler

John P. Wheeler, the former Bush-administration official whose body recently was discovered in a Delaware landfill, was beaten to death.

The Delaware Medical Examiner's Office has announced that Wheeler died from blunt-force trauma, according to a report at delawareonline.com. Does that mean Wheeler was the victim of a mugging gone wrong? That's what one of Wheeler's friends thinks, according to delawareonline, but we find that to be an unlikely explanation.

Wheeler, who had served as a Pentagon official and presidential aide, had extensive experience in the areas of aerospace, technology, logistics, intelligence, and cyber warfare. His body was discovered on New Year's Eve, and officials took almost four weeks to announce a cause of death. Many mysteries, however, remain about the case. Reports delawareonline:

The official cause of Wheeler's death was "blunt-force trauma," agency spokesman Karl Kanefsky said about a case that has drawn worldwide media coverage. Kanefsky would not say which part of Wheeler's body sustained the lethal blows.

Police reiterated Friday that the case remains under investigation but acknowledge they cannot fill in critical gaps in the mystery and don't have any suspects.

Within hours of the grisly mid-morning discovery, state pathologists had ruled that the 66-year-old New Castle resident was a homicide victim, but until Friday authorities had been mum on the cause of his death--an unusual posture in Delaware, where such information is usually released promptly.

There has been no shortage of speculation about what happened to Wheeler, fueled partly by the release of videotapes that appeared to show him in a disoriented state just hours before his death:

The four-week delay has helped fuel rampant speculation that Wheeler, a defense consultant and expert on chemical and biological weapons, was poisoned by enemies--a theory that persisted in part because he was seen stumbling around Wilmington in the days before he died and officials said they were awaiting the results of toxicology tests.

Hal G. Brown, deputy director of the Medical Examiner's Office, said he did not know what medications or chemicals, if any, were in Wheeler's system, but said the death certificate makes it clear that toxicology "didn't play a role" in Wheeler's death.

We now know that Wheeler was beaten to death. But what does that tell us about who killed him and why?

Brown said blunt-force trauma describes the result of being struck with an object or a body part such as a fist. Brown added that Deputy Chief Medical Examiner Adrienne Sekula-Perlman, who handled Wheeler's autopsy, met with police and prosecutors Friday about her conclusions.

Newark police are the lead agency on a multi-force investigation because the garbage truck that dumped Wheeler's body at Wilmington's Cherry Island Landfill was emptying debris it had collected at trash bins in Newark. The FBI is also assisting with the probe.

Why would someone assault John Wheeler, and how many people might have been involved? Police don't seem to have the answers to those questions at the moment:

Lt. Mark Farrall, a Newark police spokesman, was mum Friday on the official word that Wheeler was killed in an assault. "I can't comment on his injuries," Farrall said.

Farrall said detectives still do not know how Wheeler got to Newark or ended up in the trash bin.

"We're still attempting to determine how he made his way to Newark and who is responsible for his murder," Farrall said. "How he got the injuries, I just don't know."

Wheeler's family has offered a $25,000 reward for information about his death. The general public seems baffled about the Wheeler case, and so are those who were closest to the victim.

The announcement of the reward came Sunday through lawyer Colm F. Connolly, a former U.S. attorney for Delaware, whom the family hired to represent them and act as a go-between with law enforcement.

Connolly said Wheeler's death is as much a mystery to the family as it is to the public. He said Wheeler's family is despondent over his death and "desperate" for information.

One of Wheeler's closest friends has a theory about what happened:

Retired Army Col. Doug Thormblom, a former roommate of Wheeler's at West Point, said the autopsy results indicate his old friend was a victim of a mugging gone awry but that many unanswered questions remain--such as why he was so disoriented in the days before he was killed, whether any drugs or chemical agents were in his system and how he got from Wilmington to Newark, about 13 miles away.

"I'm glad there was no direct poisoning that caused his death, but his disorientation still hasn't been explained," said Thormblom, who thinks Wheeler suffered a stroke or some other kind of physical or mental breakdown.

We think Thormblom probably is off base. For one, authorities have already ruled Wheeler's death a homicide, which means someone set out to kill him. That does not sound like a mugging gone awry. And why would muggers go to the trouble of putting Wheeler's body in a trash bin so that it would be carried away to a land fill? That sounds like the work of someone who did not want Wheeler's body to be discovered. And if that was the case, it probably means the killers knew who Wheeler was. Why would random muggers know Wheeler's identity and target him specifically? That sounds unlikely to us.

The evidence suggests that someone knew exactly who Wheeler was, planned to kill him, and planned to dispose of his body in a way that it probably would never be found.

Given Wheeler's background, a motive likely is connected to his many professional pursuits involving intelligence, the military, and technology.

John Wheeler's killers failed in their efforts to make sure his body never would be found. That should make this a solvable crime. But as we have shown in numerous posts here at Legal Schnauzer, America's law-enforcement mechanism is badly broken. The FBI, the U.S. Justice Department, local law-enforcement agencies . . . in many instances, they simply cannot be trusted.

We feel certain honorable individuals exist within those corrupt organizations, and we can only hope ethical folks are handling the John P. Wheeler investigation. Sadly, that hardly is a certainly in post-Bush America.

A Conservative Newspaper Thinks a Marketing Campaign Will Save It

The Birmingham News building

Alabama's largest newspaper, The Birmingham News, has launched a marketing campaign in an apparent effort to turn around its declining financial situation.

The campaign, called "This Is Our Story," only shines a light on the cluelessness that seems pervasive in the News' hierarchy. We had to chuckle at the notion that marketing gurus could save a bumbling newspaper from the ash heap of history.

Unlike many of my fellow Americans, especially the younger ones, I am a devoted newspaper reader. In fact, I read The Birmingham News, even though I hate it. It's our only local daily, and reading a newspaper every day is part of my routine that, so far, I haven't been able to break.

Maybe this is wishful thinking, emanating from my background as a journalist, but I don't think daily newspapers are destined to become dinosaurs.  The decline of newspapers, however, will not be turned around with marketing gimmicks. It will take this thing called journalism. Perhaps the gurus at The Birmingham News have heard of it.

To be sure, the problems of newspapers have multiple causes. For one, the industry's fundamental business model is springing holes left and right. But it does not help that many newspapers have forsaken the very thing that makes them unique--solid, hard-hitting, independent, objective reporting.

The News long has been a right-wing outfit on the editorial pages. But over the past eight to 10 years, its news pages have come to read like a house organ for the Republican Party. We've learned that conservatives tend to think non-conservatives are stupid, that we don't notice even the obvious. But here is a clue for the higher ups at the News: Your would-be readers who don't share your ideology are well aware that you've become a partisan tool.

It would be interesting to know how many blacks in Alabama subscribe to The Birmingham News. I bet the percentage is minuscule. It would be interesting to know how many moderate to progressive whites subscribe to The Birmingham News. I bet that percentage is only slightly higher than minuscule.

The News clearly is written for the white, affluent, Over-the-Mountain crowd in Birmingham--and a similar crowd in Montgomery. But that represents only a fraction of Alabama's population. Many conservatives, we suspect, aren't interested in daily news and analysis anyway. Their minds already are set in concrete, and facts mean nothing to them, so they are a limited audience for a news organization.

Meanwhile, The Birmingham News largely ignores potential readers who are interested in what only a  newspaper can provide--real, bold, in-depth journalism. Consider some of the numerous stories the News has largely ignored, probably because they would upset their conservative base. We outlined them in a previous post:

* The abusive practices of federal prosecutors in Birmingham (Alice Martin) and Montgomery (Leura Canary);

* The apparent railroad job and wrongful conviction of former Governor Don Siegelman;

* The connections between the Siegelman case and a similar case in neighboring Mississippi involving attorney Paul Minor;

* The dirty-money trail that helped funnel $13 million from Jack Abramoff to Governor Bob Riley's campaign;

* The stain Mississippi gambling interests have placed on the Republican party in Alabama and throughout the Deep South;

* Efforts by GOP presidential nominee John McCain to hide the Abramoff-Riley connection;

* The deleterious effect Karl Rove has had on Alabama government, particularly in our state courts, which he helped shape in the 1990s.

* The grotesque corruption in Shelby County, which is just south of Birmingham and represents our state's area of most rapid growth. Shelby County should be an area of enlightenment, but it is run like a banana republic--or worse.

How does the News miss obvious stories? Consider a recent capital-murder case in Shelby County. A man named Ryan Gerald Russell was convicted for the murder of Katherine Helen Gillespie, an 11-year-old cousin for whom he was serving as legal guardian. Russell has been sentenced to death, and based on comments on local Web sites, that decision seems to have been met with widespread approval--from people who apparently have read little about the trial.

If you study news coverage of the trial, however, you find this nugget from the Shelby County Reporter, citing the testimony of a forensics expert named Ed Moran:

Moran said the bullet jacket recovered from the body could not be marked back to any of the guns he examined. He said there was not enough microscopic markings on the jacket for him to make a conclusion.

I don't pretend to be an expert on bullets and jackets and such. But that sounds like the forensics guy could not conclusively determine what gun was used in the shooting, much less who fired the gun. And yet, a man is heading to death row in this case.

Has The Birmingham News questioned the handling of the Russell case? Nope. And that's probably because almost all of the public officials in Shelby County are Republicans, and our local newspaper simply must not question the actions of GOPers.

As long as The Birmingham News continues to feature the work of incurious reporters and spineless editors, no marketing campaign is likely to pull it out of the ditch.

Thursday, January 27, 2011

What Do Clarence Thomas and Martha Stewart Have in Common?

Martha Stewart

Should U.S. Supreme Court Justice Clarence Thomas be allowed to amend his financial-disclosure forms and get away with an apparent violation of 18 U.S.C. 1001?

Domestic diva Martha Stewart undoubtedly would answer with a resounding, "Hell, no!" So, too, would sports stars Roger Clemens, Barry Bonds (baseball), and Marion Jones (track and field). Stewart and the sports stars all ran afoul of 18 U.S.C. 1001, commonly known as "making false statements," and they either have paid a price, or almost certainly will.

So why does it look like Clarence Thomas is likely to get off with amending false statements? We will examine that question, but it should be noted that at least one major editorial voice is saying Thomas should not get off lightly. A watchdog group is calling for Thomas to step down, followed by a criminal investigation. And a lawyer source tells Legal Schnauzer that Thomas could face serious consequences in the legal profession, such as loss of his law license.

Thomas is not off the hook yet, and The St. Petersburg Times says that's the way it should be. In an editorial titled "Lack of Disclosure Should Be Pursued," the Times states:

U.S. Supreme Court Justice Clarence Thomas must think it's nobody's business how his wife earns her money. But he is wrong. And his omission of his wife's substantial salary from federal financial disclosures between 2003 and 2009 can be read no other way than a purposeful flouting of the law.

Is the Times buying Thomas' explanation that he "misunderstood" directions on disclosure forms over a 20-year period? Not exactly. In fact, the Times echoes the words of Common Cause, the watchdog group that helped break the Thomas story:

As Common Cause noted, Thomas is "called upon daily to understand and interpret the most complicated legal issues of our day." It is implausible that he "misunderstood simple directions of a federal disclosure form."

The matter, the Times states, should wind up before the nation's top law-enforcement officer, U.S. Attorney General Eric Holder:

Thomas has expressed opposition to public disclosure in the past. He is the single justice who has argued that disclosure requirements for large political donations violate the Constitution. The disclosure omissions may be a statement of personal principles.

Regardless of Thomas' reasons, there is an important public purpose for financial disclosure laws. They allow litigants before the court to assess whether a justice has a conflict of interest that should disqualify him or her from judgment of a particular case.

The 1978 Ethics in Government Act requires federal officials to disclose income from spouses. When federal judges ignore the law, the act directs the Judicial Conference to refer those matters to the attorney general. This seems like a clear case. Despite Thomas' efforts to correct the record, the matter should be pursued.

Martha Stewart surely would agree with that statement. Stewart ended a five-month prison stay in March 2005, and many Americans probably think that was because of insider-trading charges. In fact, Stewart was convicted under 18 U.S.C. 1001 for lying to federal agents.

Track star Marion Jones spent six months in federal prison in 2008 for the same offense. Baseball greats Barry Bonds and Roger Clemens are facing federal prosecution, but it's not for allegedly using steroids--it's for violating 18 U.S.C. 1001.

Stewart, Jones, Bonds, and Clemens, writes one defense lawyer, essentially got in trouble for proclaiming their innocence. If the feds decide a person is lying about his innocence, that person can wind up in prison.

As for Clarence Thomas, he did not proclaim his innocence. He simply, over and over, stated that his wife had no non-investment income--even though she was receiving hundreds of thousands of dollars from conservative advocacy groups.

One of the best articles I've seen on 18 U.S.C. 1001 makes it clear that Thomas almost certainly violated the law. Prosecutors unquestionably have probable cause to bring charges. The crime boils down to "an untrue statement knowingly made with the intent to mislead." And it includes written statements, such as those Thomas made on his financial-disclosure form, marking "none" for his wife's non-investment income.

What would prosecutors need in order to prove the case against Thomas? From the article:

Case Law Interpreting Section 1001

The elements that the Government needs to prove in prosecuting a case under section 1001 are
1) a statement is made
2) the statement is false
3) materiality
4) specific intent, and
5) agency jurisdiction. United States v. Gilbertson, 588 F.2d 584, 589 (8th Cir. 1978).

From where we sit, all of those elements appear to be in place.

What about Thomas' law license? Our source says he could lose it if someone with a spine files a complaint with the proper bar association. After all, our source reminds us, President Bill Clinton was impeached and had his law license suspended for five years for making false statements in the Monica Lewinsky scandal.

Our research indicates that Thomas became a member of the Missouri bar in the 1970s. Recall that his primary political backer for the Supreme Court seat was former U.S. Sen. John Danforth (R-MO). We are not sure if Thomas holds membership in any other bar groups. A complaint to the Missouri Bar, with possible referral to the Missouri Supreme Court, could make life interesting for Clarence Thomas--assuming the legal profession wouldn't go into hyper-protection mode, and that's a big if.

Could Clarence Thomas serve on the Supreme Court without a law license? Could a disbarred lawyer be allowed to remain on the U.S. Supreme Court? The constitution establishes no requirements to serve on the nation's highest court, but all justices so far have been lawyers--although states did not mandate licensing until the 20th century, and those commissioned before the late 19th century, often were self-taught or went through apprenticeships.

Could Clarence Thomas be removed from the bench if he were to lose his law license? The answer seems to be unclear, but we suspect that could happen--assuming anyone in authority has the political will to hold a Supreme Court justice accountable to the very law that he imposes on others.

The St. Petersburg Times is not alone in trying to keep the matter alive. The watchdog group protectourelections.org is calling for Thomas to step down as a Supreme Court justice. It also is calling for career Justice-Department prosecutors to conduct a criminal and ethics investigation. And it calls for an audit of cases that Thomas has heard for possible conflicts of interest. Here is a video released this week by protectourelections.org:



Bobby Bright Likely is the New U.S. Attorney for Montgomery

Bobby Bright

Former U.S. Rep. Bobby Bright (D-AL) appears set to become the new U.S. attorney for the Northern District of Alabama, sources tell Legal Schnauzer.


George Beck, of the Montgomery law firm Capell and Howard, was the apparent front runner. But Beck has pulled out of the race, our sources say, and that leaves Bright as the last man standing in a process that has been horribly botched by the Obama administration.

Bright, if his nomination and confirmation go through, will replace Leura Canary, the abominable George W. Bush appointee who ramrodded the Don Siegelman prosecution and, for reasons that defy explanation, has served for more than two years under Obama.

Will Bright be a good choice? Well, that's hard to say. A Blue Dog Democrat who frequently voted against Obama on key issues, Bright served only two years in the U.S. House before losing last November to Republican Martha Roby. Bright served two terms as mayor of Montgomery and is credited with helping to revitalize the city's downtown, including the construction of the splendid Riverwalk Stadium, home to the Montgomery Biscuits minor-league baseball team.

According to his bio, Bright practiced law for 15 years before going into politics. To our knowledge, he has no experience as a prosecutor. But if he has a pulse and some semblance of ethics, he should be a major improvement over the wretched, horrific, and despicable Canary. (Give me a few minutes, and I will come up with a few more adjectives to describe "Ms. Leura," some of which might even be printable.)

A lawyer whose opinion I greatly respect says Bright will be a far cry better than Beck would have been. Beck, our source says, essentially would have been Leura Canary with testicles.

If Bright actually takes office, it will be a sad ending to one of the most pathetic chapters in American political history. And if Barack Obama goes down as a failed, one-term president, the handling of the Montgomery U.S. attorney choice will be a case study of what went wrong with a presidency that once seemed to offer so much hope.

It's hard to imagine how the Obama crowd could have screwed this up any worse. By every account I've heard, Mobile attorney Michel Nicrosi clearly was the most qualified candidate. Her name was the first one floated--and she should have been on the job for about two years now, actually trying to clean up the cesspool in Montgomery. But U.S. Sen. Jeff Sessions (R-AL) huffed and puffed a little about a Nicrosi nomination--probably because he was fearful Nicrosi would uncover sleaze on him and fellow U.S. Sen. Richard Shelby--and Team Obama tucked its tail and refused to fight for her. To make matters worse, the White House allowed Canary to stay in office, cooking up bingo-related prosecutions where no crime likely exists, while letting Bob Riley and his gang of GOP henchmen run roughshod over the law.

Ponder every negative political trait you can think of--cluelessness, weakness, lack of ethics, lack of spine--and the Obama administration has displayed them in the Montgomery situation. We can only hope that Bobby Bright will salvage something from the wreck he is likely to inherit.

Wednesday, January 26, 2011

Will Federal and State Judges Be Exposed in Swiss Banking Scandal?

Julian Assange and Rudolf Elmer

U.S. Supreme Court Justice Clarence Thomas might not be the only judge feeling a tad uncomfortable in the coming days. Thomas is under scrutiny for his failure to disclose his wife's income for at least five years--and possibly going back more than 20 years. But we are seeing signs that other stories soon will be breaking about judicial chicanery.

Federal and state judges are among those likely to hold Swiss bank accounts that have become the subject of a WikiLeaks investigation, reports a California-based human-rights organization.

Closer to home, we've had considerable interaction in recent weeks with two federal judges--William M. Acker Jr. and Abdul Kallon, both of the Northern District of Alabama. We soon will be presenting detailed information showing that Acker and Kallon are violating their oaths to uphold the law. We have seen evidence that at least one of these judges has engaged in a possible criminal conspiracy.

The WikiLeaks banking story began when former Swiss banker Rudolf Elmer handed over two computer disks containing information about thousands of offshore accounts. Elmer claims the disks provide evidence of massive potential tax evasion and other illegal activities involving international bankers. Swiss officials have arrested Elmer for possible breach of banking-secrecy laws, an action that WikiLeaks founder Julian Assange condemned.

U.S. judges, at both the federal and state level, probably are in the middle of the Swiss banking activity, says Joseph Zernik, Ph.D., of Human Rights Alert (NGO), a Los Angeles organization devoted to exposing human-rights violations by the American justice system.

In a blog post dated January 17, 2011, Zernik writes:

In view of the pending WikiLeaks release of Swiss banking data, Human Rights Alert (NGO) and Joseph Zernik, PhD, suggest that significant numbers of U.S. and state judges are likely to be among U.S. citizens holding numbered bank accounts in Switzerland.

Review of numerous cases in the U.S. and state courts shows a tight alliance between judges and large financial institutions, in disregard of the judges’ oaths of office, through the conduct of alleged fraud on the courts in litigation involving financial institutions. Such conduct undermines the stated U.S. government efforts to establish honest and effectual banking regulation.

How would judges benefit from offshore accounts? It would allow them to hide their financial ties to financial institutions and then rule unlawfully in favor of those institutions in court. The whole process, if proven, would amount to a massive fraud on American courts. Writes Zernik:

A growing body of evidence suggests that both U.S. and state judges have accepted financial benefits from large financial institutions. In 2008 Dr Zernik filed requests with California Judge Terry Friedman (Los Angeles Superior Court), U.S. Judge Virginia Phillips, and U.S. Magistrate Carla Woehrle (U.S. District Court, Central District of California) for statements on the record regarding financial benefits to them or family members residing with them from such institutions (pursuant to the California Code of Judicial Ethics). All three refused to provide such statements.

In 2009 whistleblower Bradley Birkenfeld led to the discovery that an estimated 40,000 U.S. wealthy citizens were holding Swiss numbered accounts with UBS-AG. Birkenfeld was swiftly sentenced by a U.S. court to years in federal prison. He was never able to collect rewards provided by the False Claims Act and stated U.S. policies, which could have amounted to billions of U.S. dollars. The criminal prosecution of the culprits--banking executives--never materialized, and the U.S. government negotiated an agreement with the Swiss government, according to which the names of the vast majority of the offenders were never released by UBS-AG.

Banking executives feel free to violate the law, Zernik writes, because they know it is unlikely they will face prosecution in American courts:

Regardless of mounting credible evidence of racketeering by Bank of America and its senior executives, including Brian Moynihan, U.S. banking regulation agencies refuse to take action. It is claimed that conduct of such agencies is caused, at least in part, from the realization that under conditions that prevail today in the U.S. courts, there is no way to prosecute banking executives.

Human Rights Alert suggests that U.S. officials in general, and state and U.S. judges, in particular, are likely to be among the Swiss accounts holders. Moreover, a Swiss law, which would prohibit deposits by U.S. government officers while in office in Swiss bank accounts, is likely to materially affect restoration of U.S. government and U.S. financial markets integrity and stability.

Through the pending release of both U.S. and Swiss banking records WikiLeaks is therefore likely to support effective banking regulation in the United States, where U.S. agencies and the U.S. courts are acting in disregard of the law.

All of this hits close to home for your humble blogger. I haven't written much lately about my personal legal situation, but that's about to change. Mrs. Schnauzer and I have seen disturbing signs that U.S. judges William M. Acker II and Abdul Kallon are either grossly incompetent, corrupt--or both.

Acker is overseeing my employment lawsuit against the University of Alabama at Birmingham (UAB). Kallon is handling lawsuits Mrs. Schnauzer and I have filed against unethical debt collectors (NCO and Ingram and Associates) and against Shelby County officials and individuals regarding an unlawful sheriff's deed that was placed on our house. All three cases have grown out of interactions with our criminally inclined neighbor, Mike McGarity, and his ethically challenged attorney, William E. Swatek.

We don't know if Acker or Kallon are involved with Swiss bank accounts, but we have seen signs that they favor corporate interests. There is little doubt that my termination at UAB was driven by individuals with ties to former Republican Governor Bob Riley, his son Rob Riley, and the Business Council of Alabama. I know of at least one case, a whistleblower complaint involving Medicare fraud, where Acker made a number of curious rulings that favored Rob Riley.

At the heart of the NCO/Ingram case is an alleged debt on an American Express card. Before being appointed to the federal bench, Kallon worked at the Birmingham firm of Bradley Arant Boult and Cummings. That is one of the most conservative, pro-business law firms in the state--and for good measure, it has strong ties to the Riley family; Rob Campbell, Bob Riley's son-in-law, works there.

American Express certainly qualifies as a major player on the U.S. financial scene, and if handled correctly under the law, our lawsuit probably would reveal any number of unlawful actions by AMEX and companies associated with it.

Are Acker and Kallon trying to protect corporate interests in Alabama? Are my wife and I dealing firsthand with the corrupting influence that financial institutions have on our court system--the very issue on which Joseph Zernik has reported?

Whether or not Swiss bank accounts are involved in our personal court cases, the answer to both of those questions appears to be yes. And we will be providing details about the actions of Acker and Kallon in upcoming posts.

Mississippi FBI Agent Is Cleared on Federal Charges Amid More DOJ Ugliness

Hal Neilson

We need to make a correction today, and it's the kind we like to make. That's partly because it helps shine light on the rampant corruption that plagued the U.S. Justice Department under George W. Bush--and still is going on under Barack Obama.

In a post yesterday about U.S. Supreme Court Justice Clarence Thomas and his failure to report income on a financial-disclosure form, we noted that Mississippi FBI agent Hal Neilson was facing federal charges under 18 U.S. Code 1001--the same statute that Thomas appears to have violated.

A reader sent us a note this morning stating that Neilson no longer faces those charges. He was acquitted on two counts, and the jury hung on three others, in a trial that ended on November 20, 2010. Federal prosecutors announced in mid-December that they were dropping the remaining charges against Neilson. The FBI has fully reinstated Neilson to his position at the Oxford, MS, office.

Here is part of what we wrote in yesterday's post:

Neilson was indicted on January 14 for failing to disclose his financial interests and making false statements to a federal agency. According to a Mississippi-based law blog, Neilson was indicted under 18 U.S. Code 1001. That's the same law that Thomas clearly violated when he failed to disclose almost $700,000 of his wife's income over at least a five-year period.

Our mistake came from getting mixed up on the years. We reported that Neilson had been indicted a little more than 10 days ago. But the indictment actually came on January 14, 2010, and the case went to a two-week trial in November 2010. Our mistake helped remind us that it is, indeed, 2011.

We are happy to correct the record, especially since it appears that Neilson might have been the target of a vendetta from the Bush Justice Department. Reports Patsy R. Brumfield, of the Northeast Mississippi Daily Journal:

Neilson continues to insist that his legal problems came from a feud with then-U.S. Attorney Jim Greenlee of Oxford, whom Neilson reported to the Department of Justice after 9/11 for alleged abuse of power with a regional investigation into scores of residents with Middle Eastern surnames.

Greenlee consistently declines to say anything publicly about the allegations.

The Bush administration appointed Greenlee in 2001, and it appears he was cut from the same cloth as Alice Martin and Leura Canary in Alabama. In a post from last January about Greenlee's planned departure from the DOJ, mainjustice.com provides more details about charges that Greenlee brought the case against Neilson out of retaliation and spite:

Greenlee's departure has been rumored for months, amid various reports that made his Oxford-based office seem something of a soap opera.
The latest: Mississippi journalist Patsy Brumfield reports that an FBI agent who was indicted last week for failing to disclose a personal financial interest in the FBI building in Oxford had sought whistleblower status a couple of years ago after reporting concerns that Greenlee's office had improperly targeted area Muslims for investigation after the 9/11 attacks.
The so-called Convenience Store Initiative didn't find any terrorist links, but prosecutors did end up charging some 60 people with selling excessive amounts of pseudoephedrine, used to make methamphetamine, an illegal drug. 
The agent, Hal Neilson, also reportedly raised ethics concerns about a book that a former Assistant U.S. Attorney in the district, Tom Dawson, wrote about his prosecution of billionaire Mississippi trial lawyer Richard "Dickie" Scruggs in a judicial bribery scandal, Brumfield wrote.  

So Neilson reported the unlawful targeting of Muslims and wound up being indicted by the Bush DOJ--and the Obama administration moved ahead with a tainted, and probably bogus, prosecution. To those of us who live in Alabama, that story sure sounds familiar.

Tuesday, January 25, 2011

Will Clarence Thomas Get Away With a Federal Crime?

Clarence Thomas

U.S. Supreme Court Justice Clarence Thomas is amending financial-disclosure forms dating back more than 20 years, in an apparent effort to avoid prosecution for making false statements to the United States government.

Hal Neilson, an FBI special agent in Oxford, Mississippi, undoubtedly wishes he had been given such an opportunity. He also probably wishes the mainstream press would try to make the kind of excuses for him that are being made for Clarence Thomas.

Neilson was indicted on January 14 for failing to disclose his financial interests and making false statements to a federal agency. According to a Mississippi-based law blog, Neilson was indicted under 18 U.S. Code 1001. That's the same law that Thomas clearly violated when he failed to disclose almost $700,000 of his wife's income over at least a five-year period.

Thomas, with the help of the Supreme Court's public-information office, has released information that indicates he is trying to amend his forms going back to 1989. That means the amount of undisclosed income probably is way more than the $686,589 that was originally reported by the watchdog group Common Cause.

While the machinery of America's highest court appears to be trying to help Clarence Thomas get away with a felony, no one seems to be offering Hal Neilson a chance to amend his statements. Neilson is charged with five counts of making false statements and faces up to 25 years in prison and a $1.5 million fine.

Hal Neilson


Do we have a two-tiered justice system, one for elites such as Clarence Thomas and one for everybody else? It sure looks that way. And we probably should not hold our breaths expecting the Obama administration to do anything about it. The U.S. Department of Justice does not have to let Thomas off lightly just because he is trying to cover up his crimes. But does anyone seriously think Attorney General Eric Holder, he of the "look forward, not backwards" doctrine on GOP crimes, is going to prosecute a Supreme Court justice who was appointed by President George H.W. Bush?

While Clarence Thomas is likely to get away with a wrist slap, if that, the feds are hardly going easy on Hal Neilson. Here is how Mississippi lawyer Clarence Guthrie, on his blog, describes the issues Neilson faces:

Under Title 18, United States Code, Section 1001, it is a crime to:

1. knowingly and willfully;
2. make any materially false, fictitious or fraudulent statement or representation;
3. in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

This was the charge that Martha Stewart served time for. It is a crime to tell a lie to the federal government. Even if your lie is oral and not under oath, and even if you have received no Miranda warnings of any kind. You must know that your statement is false at the time you make it, but you do not have to know that lying to the government is a crime. Any person convicted under this statute faces statutory penalties of a possible fine, and up to 5-8 years in prison.

How did Hal Neilson wind up stuck in this brier patch? What did he do that makes the feds want to send him to prison for up to a quarter century? Here is how Clarence Guthrie describes it in a post dated January 15, 2011:

An FBI Agent in Oxford, Mississippi was indicted this week for making false official statements to a federal official, among other things. The agent was the Supervisory Agent in Charge of the FBI’s Oxford Resident Agency, and the indictment charges that he failed to disclose that he had a financial interest in the Oxford FBI Building since 2004, and that he was not truthful on his Confidential Financial Disclosure Report that FBI Agents are required to fill out. Finally, it is alleged that he knowingly and willfully made, and caused to be made, a materially false and fraudulent statement and representation to an agent of the Department of Justice, Office of the Inspector General, during an interview. This is a big case, and if you happen to be reading this while doing research for your term paper on irony, it’s the best example I’ve ever seen.

Guthrie wrote those words about irony before the Clarence Thomas story broke over this past weekend. Wonder how much irony Guthrie sees in all of this now.

Let's break down the material in bold above to determine exactly what Neilson is alleged to have done:

* He failed to disclose that he had a financial interest in something. (Clarence Thomas did that.)

* He was not truthful on his financial disclosure form. (Neither was Clarence Thomas.)

* He made a materially false and fraudulent statement and representation to the federal government. (Clarence Thomas did that, too.)

Now, let's do some math. It appears that the feds are seeking a 25-year prison term for Neilson, based on five years for each of five counts under 18 U.S.C. 1001. Based on information currently available to us, it appears Clarence Thomas made false statements over at least a 20-year period, from 1989 to 2009. Using the same sentencing guidelines that are being applied to Hal Neilson, that means Thomas should be looking at about 100 years in federal prison.

As for the $1.5 million fine the government is seeking against Neilson, Thomas apparently should face about four times more counts than the Mississippi FBI agent. That should come to a $6 million fine for Mr. Justice, Your Honor.

As for the mainstream press, it seems to be playing a role in helping to excuse Thomas' actions. The Washington Post reported that the applicable law, 5 U.S.C. App. 101-111, does not require Thomas to report the amount of his wife's income. That, of course, is irrelevant, because Clarence Thomas checked "None" under "Spouse's Non-Investment Income." Regardless of the amount, that is a false statement, under the law. Also, the Post neglects to mention that Section 104 of the law references possible criminal penalties under Title 18 of the U.S. Code. That would be Section 1001, which we have discussed above--and the Post, curiously, does not care to mention it.

Also, The Los Angeles Times reported the following:

In most cases, judges simply amend their forms when an error is discovered.

Interestingly, the Times cited no law, or legal authority, to support this contention. That's because there isn't any. And we are supposed to believe that Clarence Thomas made the same "error" for roughly 20 years, over and over again?

Let's return to Clarence Guthrie's blog for some final thoughts about irony, as it applies to 18 U.S.C. 1001:

In summary, it is a sad fact that the government applies a far higher moral standard to you than to itself. Law enforcement officers can lie to you to get you to make a statement, but you cannot lie to them. And know this: the federal government can send you to prison for telling a lie, even though they could never charge you with any other crime.

Regular Americans also should know this: The same legal establishment that will circle the wagons to protect Clarence Thomas, has no problem heaping all sorts of abuse on you or me.

Our courts are supposed to belong to "We, the People." Taxpayers fund our justice system. Who pays for the fancy courthouses, the filing systems, the clerk's offices, the security? We do. But lawyers and judges have turned it into a dysfunctional mess that benefits them and almost no one else.

Judges are so arrogant that they often refer to their quarters as "my courtroom." Next time you hear a judge say that, you have my permission to stand up and say, "Hey Bub, this is my courtroom. My fellow taxpayers and I pay for it. You're only here because you swore under oath to uphold the actual law. So why aren't you doing it?"

Next time a lawyer tells you he will take your case for the low-low price of $450 an hour, feel free to tell him or her this: "Hey, you are an officer of the court, and my tax dollars pay for that court-the whole shebang. So explain to me why I have to pay you that kind of dough when I already pay for the court system that supports your sorry butt."

In essence, lawyers and judges have taken our publicly funded courts and turned them into a private money-making machine--one that makes them rich, while dispensing very little "justice" for the rest of us.

The Clarence Thomas and Hal Neilson stories provide a classic example of how our justice system has been co-opted by elites. How much longer will regular Americans stand for it?

Bush White House Violated Federal Law That Governs Partisan Politics

George W. Bush and Karl Rove

The George W. Bush administration violated federal law by using the White House for partisan political activities, according to The Dallas Morning News. This news brings several obvious questions to mind about the prosecution of former Alabama Governor Don Siegelman.


A new report from the U.S. Office of Special Counsel (OSC) says the White House Office of Political Affairs (OPA) engaged in widespread violations of the Hatch Act, writes Morning News reporter Wayne Slater. The Hatch Act prohibits federal employees from engaging in partisan political activities. But the OPA, under former White House strategist Karl Rove, apparently violated the law at will.

Using taxpayer dollars to support Republican Party candidates was a common activity in the Bush White House. Reports Slater:

A 118-page report issued today by the Office of Special Counsel cites widespread violations of the Hatch Act by staffers of the White House Office of Political Affairs (OPA) during the 2006 midterm elections. The act limits partisan political activity by government employees. The report outlines how the White House held briefings for political appointees at various agencies--often on public time and at the agencies themselves--to organize campaign activities, tracked money raised at fundraisers and misused taxpayer dollars to send cabinet members to congressional districts where the White House wanted to win elections. The office was headed variously during the Bush years by Ken Mehlman and others--but Rove was the kingpin over all things political in the Bush White House.

The full OSC report can be reviewed through the press release at the link below:

OFFICE OF SPECIAL COUNSEL ISSUES HATCH ACT REPORT
CONCERNING POLITICAL ACTIVITY IN THE WHITE HOUSE
OFFICE OF POLITICAL AFFAIRS AND FEDERAL AGENCIES IN 2006



How gross was the politicking in the Bush administration? Slater cites an example from the report:

While at some agencies political appointees were encouraged to attend political briefings given by OPA staff, at other agencies, attendance at briefings was mandatory. For example, the White House liaison at the U.S. Department of Health and Human Services (HHS) extended an invitation to the political appointees and stated: "This meeting is mandatory. It will essentially be the same large meeting that we had last year about this time. So, please clear your schedule, put your pom-poms on, and let's go!!!"

Here's another example that will test your gag reflex:

In 2006, the partisan political activity of OPA staff was not incidental to the functions of the office. Instead, the OPA Director and Deputy Director focused the time and energy of OPA staff to help advance the Republican Party's electoral prospects, thereby transforming the office into a setting akin to a political boiler room. Because bolstering candidates' campaign efforts and helping advance a political party's electoral prospects is not something that the government would have paid for otherwise, U.S. Treasury funds should not have been used to pay for this political activity. Using U.S. Treasury funds to finance such activity, including employees' salaries, violated the Hatch Act.

What does this mean for the Siegelman case? The answer is not clear, but we do know this: Rove often has maintained that, while in the White House, he was too busy on national and international issues, to worry about activities in the states. Rove's argument essentially was, "Hey, the Siegelman matter was beneath me." This new report, however, indicates that such matters definitely were not beneath Rove and his associates. In fact, it shows that electoral matters in the states were front and center in the Bush White House.

The OSC report focuses primarily on efforts in the White House to boost Republican candidates. And that raises these questions: Did the White House also engage in efforts to trash Democratic opponents, such as Siegelman? Did these efforts include launching bogus, politically driven prosecutions?

What will become of this story? It broke yesterday and appears to be in the developmental stage. It's unclear if it will gain much national traction. At this point, the report seems to raise more questions than it answers. After all, few people will be surprised to learn that Rove helped turn the White House into a political machine.

Are there any penalties that former Bush officials might face? That seems unlikely. The No. 1 penalty for an official violating the Hatch Act is removal from office. But almost all of the guilty parties already are out of office. Here is a statement from a 2006 OSC press release about a public official in New Jersey who had violated the Hatch Act but already was out of office. He was required to not seek public office or government employment with the State of New Jersey for 18 months:

The Hatch Act restricts the political activity of individuals principally employed by state, county, or municipal executive agencies who have duties in connection with programs financed in whole or part by federal loans or grants. A covered employee may not use his official authority or influence to interfere with or affect the result of an election, or coerce or attempt to coerce covered employees to contribute anything of value to a person for political purposes. The penalty for a proven violation of the Act by a state or local employee is removal of the employee from his/her position by the state/local agency and debarment from state/local employment for the following 18 months or if removal is not effectuated, forfeiture of federal grant funds by the state/local agency in an amount equal to two years of the salary of the employee in addition to the 18-month debarment.

It's hard to imagine Karl Rove being terrified by such possible penalties--if they would even apply to him at this point. Rove was being investigated for possible Hatch Act violations as far back as April 2007. But the OSC is just now getting around to reporting that Rove did, indeed, violate the law.

Moral of the story? Feel free to violate the Hatch Act with impunity, and as long as it's covered up while you are in office, you can skate home free.

Monday, January 24, 2011

Did Clarence Thomas Commit a Federal Crime by Hiding Wife's Income?

Clarence and Virginia Thomas

U.S. Supreme Court Justice Clarence Thomas did not report almost $700,000 of his wife's income on financial disclosure forms, according to a report from Common Cause and The Los Angeles Times.


Virginia Thomas earned $686,589 over a five-year period (2003-07) from the Heritage Foundation, a conservative think tank, according to a review of IRS records by the watchdog group Common Cause. Federal judges are required by law to disclose "spousal non-investment income," but Clarence Thomas checked "none" for the years in question.

Does this mean a justice on the nation's highest court has committed a crime? The answer probably is yes. Will the legal system kick into high gear in an effort to protect one of its most exalted members? The answer to that definitely is yes--in fact, it already seems to be happening.

Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said Thomas committed a minor oversight that is unlikely to result in any penalty. Reports the LA Times:

Although unfamiliar with the complaint about Thomas' forms, Lubet said failure to disclose spousal income "is not a crime of any sort, but there is a potential civil penalty" for failing to follow the rules. He added: "I am not aware of a single case of a judge being penalized simply for this."

Lubet might want to try telling that to Rachelle Thomas-Zuill, a former FBI employee in San Francisco, who pleaded guilty earlier this month to making false statements to a government agency, which is a felony.

Lubet also might want to familiarize himself with 18 U.S. Code 1001, the statute under which Thomas-Zuill was prosecuted. The law makes it a crime to knowingly and willfully make "any materially false, fictitious, or fraudulent statement or representation" in any matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."

How did Thomas-Zuill step in serious doo-doo? She stated on a financial disclosure form that she owned three properties with an outstanding mortgage debt of $866,000, when in fact she owned six properties and had a debt of more than $2.2 million.

That sounds an awful lot like what Clarence Thomas did in failing to disclose his wife's income.

At least one legal expert seems to consider the Thomas revelation a serious matter. Reports the LA Times:

Federal judges are bound by law to disclose the source of spousal income, according to Stephen Gillers, a professor at NYU School of Law. Thomas' omission — which could be interpreted as a violation of that law — could lead to some form of penalty, Gillers said.

"It wasn't a miscalculation; he simply omitted his wife's source of income for six years, which is a rather dramatic omission," Gillers said. "It could not have been an oversight."

Common Cause presents a chart that outlines incomes for Virginia Thomas that her husband did not disclose over a five-year period. The organization cites Title 5-Appendix of the Ethics in Government Act of 1978 and notes that Thomas appears to have violated the "financial disclosure requirements of federal personnel." What are the possible penalties? The law notes one avenue:

§ 104. Failure to file or filing false reports
(a) (1) The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report pursuant to section 102. The court in which such action is brought may assess against such individual a civil penalty in any amount, not to exceed $50,000.

The law references possible criminal penalties under Title 18 of the U.S. Code, which can include up to one year of imprisonment. Thomas, however, might be subject to prosecution under 18 U.S. Code 1001, which calls for a fine, imprisonment of up to five years, or both, for making false statements or entries.

Financial-disclosure forms for federal judges are available at judicialwatch.org. Clarence Thomas' forms for 2003-2009 can be viewed at the link below. He clearly has made it a habit to mark "none" under "Spouse's Non-Investment Income."

Clarence Thomas' financial disclosure forms

Thomas also apparently has made it a habit to ignore the warning at the bottom of the disclosure form, which reads:

Note: Any individual who knowingly and willfully falsifies or fails to file this report may be subject to civil and criminal sanctions. (5 U.S.C. app., sec. 104).

As the Rachelle Thomas-Zuill case shows, making false statements on a federal financial-disclosure form can be a serious criminal matter. Will it be treated seriously when the apparent violator is a U.S. Supreme Court justice?

Thanks to Clarence and Virginia Thomas, and the investigative skills of the folks at Common Cause, we might be about to find out.

Update at 11:36 a.m. CST, Jan. 24, 2011

The watchdog group protectourelections.org is asking the U.S. Department of Justice to bring criminal charges against Supreme Court Justice Clarence Thomas for failing to disclose almost $700,000 of his wife's income over a five-year period.

From a press release issued today:

Washington, DC--Today, www.ProtectOurElections.org asked the Justice Department to bring criminal charges against Supreme Court Justice Clarence Thomas for making false statements on his AO 10 Financial Disclosure forms every year since 2003 by falsely swearing under criminal penalty that his wife Virginia had no non-investment income.

Justice Thomas signed these forms under oath after certifying that the information in them was true and accurate. The forms include a specific warning that false statements will subject the signer to “civil and criminal sanctions.”

A letter from Protect Our Elections to U.S. Attorney General Eric Holder can be viewed at the link below:

Letter to Eric Holder re: Clarence Thomas

An attorney and spokesman for Protect Our Elections puts Thomas' actions in perspective:

“We are asking that the Department of Justice bring criminal charges against Justice Thomas for his knowing and willful false statements under oath, not just once, but at least seven times,” said attorney and campaign spokesman Kevin Zeese. “Supreme Court Justices are supposed to be role models for legal conduct, behavior and ethics yet Justice Thomas appears to believe that he is above the law. But just as Bill Clinton was charged for making a false statement while serving as President, no one is above the law, especially not one who knows the law and sits in judgment of others who have committed similar violations. If Justice Thomas is allowed to merely amend his forms and pay a civil fine, it will make a mockery of financial disclosure law, undermine respect for the law, and create the appearance that those in powerful positions can violate the law with impunity.”

Thursday, January 20, 2011

Will Siegelman Convictions Collapse Under A Shifting Legal Landscape?

Don Siegelman

Two recent U.S. Supreme Court decisions possibly have altered the foundation upon which convictions in the Don Siegelman case were built, according to statements from appellate judges at a hearing yesterday in Jacksonville, Florida.

Three judges from the U.S. Eleventh Circuit Court of Appeals appeared ready to see the convictions of Siegelman and codefendant Richard Scrushy in a new light, according to a report from John Schwartz at The New York Times. One of the judges called the convictions "problematic" in light of new developments at the nation's highest court.

Attorneys for Siegelman, the former Democratic governor of Alabama, and Scrushy, the former CEO of HealthSouth, argued for a reversal of the convictions or, at the least, a new trial. One of the judges appeared to agree with them. Reports Schwartz:

Judge J. L. Edmondson asked if the jurors in the original trial had been given alternate ways to convict Mr. Siegelman and Mr. Scrushy, and suggested that if some of those grounds for conviction had been invalidated, “that’s problematic.” Judge Edmondson asked if “there should at least be a new trial.” It is not clear when the panel will issue an opinion in the case.

Joining Edmondson on the panel were Judge James C. Hill and Judge Gerald Bard Tjoflat. All three are Republican appointees.

Much of yesterday's hearing focused on two recent Supreme Court cases--Skilling v. United States and Citizens United v. FEC. The Skilling ruling, which involved a narrowing of the federal statute on honest-services fraud, might be most critical to the Siegelman appeal.

In fact, Judge Edmondson probably made his "problematic" statement because jurors in the Siegelman case received instructions on an honest-services law that now has been altered. That raises constitutional issues, as explained in an important 1957 Supreme Court case styled Yates v. United States, 354 U.S. 298.

If Siegelman and Scrushy receive justice for what appears to be a political prosecution from the George W. Bush era, the Yates case probably will be key. Here is how we explained Yates' connections to the Siegelman case in an earlier post:

The issues remaining against Siegelman involve bribery and obstruction of justice. So how could last week's Supreme-Court ruling on honest-services fraud--involving former Enron executive Jeffrey Skilling and former media magnate Conrad Black--help Siegelman?

Well, that's where the Yates case enters the picture. Justice Ruth Bader Ginsburg cited the case in her majority opinion last week. And here is the key general finding in Yates:

Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.

What does that mean in everyday language? The Siegelman jury essentially was tainted by jury instructions that now are invalid. That means the defendants, at the very least, should receive a new trial. From our earlier post:

It's undisputed that the Siegelman jury was instructed on theories involving honest-services fraud. But the U.S. Supreme Court has found that theory now is legally invalid. Yates states that such an instruction, in essence, "muddies the water" of a case and raises issues of constitutional error.

Here is the reference to Yates in Ginsburg's opinion in the Conrad Black case, which is styled Black v. the United States:

On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U. S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions.

Does the Yates case, in conjunction with Skilling, mean Siegelman and Scrushy are in the clear? Not exactly:

While this all sounds like good news for Siegelman and Scrushy, here is one major word of caution: Yates is subject to a "harmless error" analysis. In other words, on remand, the 11th Circuit could find that the invalid instruction on honest services did not have a major impact on the verdict. Given that the 11th Circuit already has proven unfriendly to the defendants in the case, that certainly could happen.

All hope for Siegelman and Scrushy, however, does not rest on the honest-services fraud issue. Also in play is the First Amendment, as recently examined in Citizens United. Schwartz reports that two of the judges seemed persuaded by arguments from the Siegelman/Scrushy team on the First Amendment:

Judge Edmondson said that political contributions were an essential part of participating in the political system, and that some benefit for the contributor was often implied, at the very least. “American politics does run, to a large degree, on money,” he said. “People have to ask for money, and people have to give money. America doesn’t want to chill that.”

Judge Hill agreed. The case, he said, “runs smack into the First Amendment.”

Wednesday, January 19, 2011

Siegelman Appeal Shines Spotlight on Obama's Dismal DOJ

Don Siegelman

Attorneys for Don Siegelman and codefendant Richard Scrushy will present oral argument this afternoon before the U.S. Eleventh Circuit Court of Appeals, arguing their clients' convictions on corruption charges should be reversed.

Siegelman, the former Democratic governor of Alabama, was at the heart of the most notorious political prosecution of the George W. Bush era. A three-judge panel will hear oral argument at 1 p.m., CST, today at the federal courthouse in Jacksonville, Florida.

It's fitting that the Siegelman hearing comes as a former U.S. Department of Justice (DOJ) official launched a blistering attack on the Obama administration's "look forward, not backwards" approach to the apparent crimes of the Bush administration. J. Gerald Hebert said former Bush officials had received "get out of jail free cards," meaning those responsible for the Siegelman prosecution and other legal atrocities have not been held accountable.

Hebert, who served in multiple supervisory roles in a 20-year career with the Justice Department, says the Obama administration has a "disturbing pattern" of failing to pursue corruption cases. In a wide-ranging interview with Raw Story, Hebert said the current DOJ has disregarded its fundamental mission:

The 20-year DOJ veteran also criticized the administration's refusal to investigate or prosecute any serious criminal activities from the Bush-era, such as sanctioning the waterboarding of military detainees and directing the political firings of US Attorneys. These “at a minimum deserve complete investigation,” he said.

The Obama administration’s excuse “to look forward and not backward” fails to fulfill the agency’s “duty” to investigate, he said--a charge that includes “any federal office holder who violates the Constitution or federal law."

Hebert now serves as executive director of the Campaign Legal Center and is an adjunct professor at the Georgetown University Law School. He points to the conviction of former U.S. Rep. Tom DeLay in Texas state court as an example of the Obama DOJ's weakness:

On the heels of the successful prosecution of DeLay for money laundering and conspiracy in Texas, Hebert said he hoped it was clear that the Department of Justice had nothing to do with that conviction.

Rather, the Obama administration's Justice Department in August closed down a six-year investigation into DeLay--without filing a single charge.

He said that the success of the Travis County District Attorney’s office, which had DeLay sentenced to three years in jail, not only highlighted the Justice Department’s “unfathomable” failure in one prosecution, but also a “disturbing pattern” of less vigorous pursuit in congressional corruption cases since Obama took office.

Federal prosecutors are "gun shy," Hebert says, in the wake of a botched prosecution involving the late U.S. Sen. Ted Stevens in Alaska:

“It is unfathomable for me to believe that after all was said and done, and knowing as much information that was out there about what DeLay and his high-level cronies had done, that there wasn’t a single prosecution,” Hebert continued.

“So my hats are off to the Travis County prosecutors who were able to at least bring some amount of justice to this,” he said.

The Obama DOJ, inexplicably, failed to use information from convicted GOP felon Jack Abramoff in a case against DeLay:

Hebert noted that his disbelief also rests in the fact that the Justice Department had given convicted former Republican lobbyist Jack Abramoff a deal to delay his sentencing for months in exchange for providing information.

“They delayed his sentencing so they could take advantage of that,” he explained, expressing shock that Abramoff's information did not result in a DOJ indictment of DeLay.

“In the arrogant world that Tom DeLay lived in, he was kingpin,” Hebert said. “He did a lot of damage to people, and to the democracy ultimately, when he tried to undermine and circumvent important rules about corporate funding and clean money.”

“DeLay basically put Congress up for sale,” he continued. “He went down and stood on the corner of K Street and tried to sell it.”

As for Siegelman, he is confident about the outcome of today's hearing. The judges are not expected to release an opinion for about three months. But Siegelman sees hopeful signs, reports Glynn Wilson of The Locust Fork News:

The U.S. Supreme Court vacated the convictions of Siegelman and former HealthSouth CEO Richard Scrushy back in June of last year and ordered the appeals court to review them again, in light of a recent high court ruling questioning the application of a vague honest services fraud law in the case of former Enron CEO Jeffrey Skilling.

“I believe that the U S Supreme Court vacated the earlier ruling of the Eleventh Circuit and sent my case back because the court wants a different result,” Siegelman said. “That’s good news for me.”

What could be at stake for the country in general, considering that the Siegelman/Scrushy case involved a standard political transaction that generally has not been seen as a crime?

“If I do not win,” Siegelman said, “every governor, every member of Congress and Presidents Bush and Obama should be subject to prosecution.”

A subplot to the Siegelman story involves the Obama administration's utter lack of spine on matters of justice. Hebert said Obama and Attorney General Eric Holder have violated their oaths of office:

“When [Obama and Holder] took over they made it clear that they weren’t going to get caught up in the past,” Hebert said. “They were going to look to the future and make it a brighter day and full of hope.”

But this view is inconsistent "with the Constitution, federal law and what the Department of Justice is sworn to uphold," he insisted.

Hebert said he believed that in wanting to appear nonpartisan, they instead weakened the Justice Department, sending a consequential message to the American people.

“It’s one thing to want to appear like you’re above the political fray and your cases aren’t motivated by politics,” Hebert pointed out. “But it’s another to not hold people accountable and to not bring justice.”

By allowing George W. Bush, Dick Cheney, and others to escape scrutiny, Obama and Holder are sending a dangerous message:

“Bush and Cheney are not above the law," Hebert concluded. "Whether it’s the president, the vice president or any federal office holder who violates the Constitution or federal law, or there are serious allegations suggesting that such violations may have existed, then the Department of Justice has a duty and an obligation to fully investigate that.

"And if there are no consequences to any of the actions that violated the federal law in the last administration, then why would anybody think that they would ever be prosecuted for doing it in the future?"

Tuesday, January 18, 2011

What Might Be Lurking in WikiLeaks' "Thermonuclear Device"?


It appears increasingly likely that WikiLeaks founder Julian Assange will be extradited to Sweden and turned over to the United States for criminal charges of a dubious nature.

That brings heightened urgency to this question: What is contained in the "thermonuclear device" of government files that WikiLeaks has vowed to release if harm comes to the organization or its leader?

Little is known about the files that WikiLeaks possesses but has not released, so we can only make an educated guess. But a source tells Legal Schnauzer that the files could include information about Bush-era crimes, including political prosecutions, stolen elections, U.S. attorney firings, and more.

One hint came when Assange said in a recent interview that he has "insurance files" on Rupert Murdoch and his global media company, News Corporation. But we've seen signs that WikiLeaks' "big bomb" goes way beyond anything involving Rupert Murdoch.

The strongest insight we've seen came in a recent Time magazine profile of Assange in its Person of the Year issue. WikiLeaks, it turns out, obtained sensitive information by piggybacking on the work of Chinese hackers. Time explains:

The worst--or best, in the view of advocates for radical transparency--could be yet to come. John Young, a New York City architect who left the WikiLeaks steering committee after clashing with Assange, says the group members are storing "a lot more information underground than they are publishing on the surface." Some of it comes from a hacker-on-hacker sting in 2006, when data jockeys at WikiLeaks detected what they believed to be a large-scale intelligence operation to steal data from computers around the world. The intruders were using TOR, an anonymous browsing technology invented by the U.S. Navy, to tunnel into their targets and extract information. The WikiLeaks team piggybacked on the operation, recording the data stream in real time as the intruders stole it.

In an encrypted e-mail dated Jan. 7, 2007, decrypted and made available to TIME by its recipient, one of the participants boasted, "Hackers monitor chinese and other intel as they burrow into their targets, when they pull, so do we. Inxhaustible supply of material?... We have all of pre 2005 afghanistan. Almost all of india fed. Half a dozen foreign ministries. Dozens of political parties and consulates, worldbank, apec, UN sections, trade groups."

The theft scandalized some WikiLeaks insiders, and Assange has held back from publishing most of its fruits. But shortly before his arrest in London, he issued a veiled threat that "comes straight out of cypherpunk fiction," according to Christopher Soghoian, a well-known security researcher.

Last July, it turns out, as controversy erupted over its release of the Afghanistan war logs, WikiLeaks had posted, without explanation, a 1.4-gigabyte encrypted file called "insurance.aes256." Some 100,000 people around the world have downloaded it. On Dec. 3, Assange said in an online chat with readers of the Guardian newspaper that the file contains the entire diplomatic archive, most of which has yet to be released, and additional "significant material from the U.S. and other countries." He added, "If something happens to us, the key parts will be released automatically."

From a domestic standpoint, the most intriguing information might be the reference to "political parties" and "trade groups." Could that mean the Republican Party during the George W. Bush years? Could that be one reason GOP guru Karl Rove seems particularly determined to see that Assange is "hunted down"? Could "trade groups" include the U.S. Chamber of Commerce, which has been a powerful force in the GOP's electoral strategies.

Our source finds it particularly interesting that the WikiLeaks files were obtained on the backs of Chinese hackers. This brings to mind SMARTech, the Chattanooga-based company whose servers hosted 2004 presidential-election results for Ohio, plus Bush-administration e-mails that went outside of official White House channels.

According to several published reports, SMARTech CEO Jeff Averbeck has ties to Oak Ridge National Laboratory and the Tennessee Valley Authority (TVA) and possibly has routed information through servers at those federal facilities. Says our source:

If I was working in Chinese intelligence, I think Oak Ridge Labs would be an inviting target for hacking. If SMARTech has used those lines, the Chinese might have obtained all kinds of information about stolen U.S. elections. I would want the NASA and TVA servers, as well, and who knows what the Chinese might have found there? With information about stolen elections and more, the Chinese could blackmail the U.S. government for about a century. I suspect Assange has stuff we haven't even thought of.

The next court date in Assange's extradition battle is February 7. Meanwhile, we can ponder these questions: Is it possible that WikiLeaks will force the U.S. government into rediscovering its conscience? Wouldn't it be ironic if we wind up having to thank Chinese hackers for helping to get our democracy back on track, to essentially save us from the criminality of the Bush years?

Monday, January 17, 2011

The Birmingham News Kisses Bob Riley's Ass One Last Time

Bob Riley

Bob Riley could not leave office without the editorial chiefs at The Birmingham News puckering up and planting one last sloppy kiss right on the governor's white, doughy behind.

Could it be a send-off for a Riley run at the White House? We wouldn't be surprised.

The latest shameless love letter from Alabama's largest newspaper to our outgoing GOP governor comes in an op-ed piece titled:

Life Under Riley: From economic development to education to quality of life, Alabama's outgoing governor leaves the state in better shape after eight years in office

The piece, written by former News reporter Tom Gordon, is astounding (even by News standards) for several reasons:

* The content of the op-ed piece does not match the headline. Gordon dives into all kinds of statistics, none of which support the headline's claim that Alabama is in better shape after eight years of Riley rule. Gordon's article, taken charitably, shows Alabama has tread water under Riley. But when you include unemployment statistics, which Gordon conveniently ignores, the state clearly has gone backwards.

* Gordon's op-ed is contradicted by an article on the front page, of the same issue, about incoming Governor Robert Bentley. In so many words, Bentley says he is inheriting a mess. So how did Bob Riley leave us in better shape?

* Gordon's op-ed is accompanied by a piece from editorial-page editor Bob Blalock, titled Riley legacy: education governor. After reading the article, one can only ask: Has Bob Blalock been in a catatonic state for the past eight years? Since he works at the News, the answer probably is yes.

What does Tom Gordon actually say in his op-ed piece? This pretty much sums it up:

Admittedly, no governor, even one as powerful as Alabama's, can single-handedly raise incomes, reduce the poverty and school dropout rates or stave off a major economic downturn. But governors get a lot of the blame or credit when numbers show declines or improvements in various areas that define our quality of life. Some of these numbers suggest we are moving in the right direction; some, influenced by the recession, have taken the opposite tack; others suggest that on some issues, we might as well try to squeeze tears from a stone.

That sounds like Riley helped Alabama barely keep its head above water. Gordon goes on to cite statistics that show Alabama remains among the poorest states, fattest states, and most litter-infested states, with one of the nation's most regressive tax systems. So, again, how did Bob Riley move us forward?

Gordon comes up with two areas of improvement: (1) Our rate of high-school graduates increased under Riley a whopping two percent--and remains below the national average; (2) Our infant-mortality rate dropped from 9 to 8 percent.

And then Gordon gives us this: The state's prison system had 26,000 inmates when Riley took office, and we now have 27,000. Yee-haw, that's the good news of the Riley years! I can see a marketing campaign now--Come to Alabama: Our Prison Population Never Stops Growing!

As for Blalock, how does he come to the conclusion that Riley has been "The Education Governor"? Mainly by citing the Alabama Reading Initiative and the Alabama Math Science and Technology Initiative. Never mind that one of those programs launched in 1998 and the other in 2000--and both took flight under Riley's predecessor, Democrat Don Siegelman.

What about those unemployment numbers? Well, the News folks apparently want to ignore those. Here are the facts: When Riley took office in January 2003, Alabama's unemployment rate was 5.3 percent; by January 2010, after seven years of Bob-O-Nomics, the unemployment rate was 11.1 percent--the highest Alabama had seen in 25 years. In other words, Alabama's unemployment rate almost doubled with Riley at the wheel. And he was our "economic development" governor?

Yes, Riley helped develop the personal "economies" of his spoiled-brat kids, Rob and Minda, plus those of other family members and cronies? But regular Alabamians? Well, they learned under Riley how to file for unemployment.

Oh, and what about the article on incoming Governor Robert Bentley? Well, it seems he didn't get the memo about Bob Riley leaving Alabama in better shape. Consider this quote from Kim Chandler's story:

"I don't want people to be under any illusion that things are great right now. They are not," Bentley said. "We've spent every penny of every rainy day (account) we have in education. We've basically spent every penny that we have in the rainy day we created for the general fund. We don't have any money. But I do want to give people hope, because we are going to come out of this."

That's on the front page of the same issue in which News' editorial writers extol Bob Riley's many virtues. Do the op-ed folks even read their own news pages? Apparently not.

The News' op-ed pieces are significant not for what they say about the newspaper--everyone with three brain cells knows the paper is a shameless suck-up for the GOP--but for what they say about Riley. The newspaper's pro-Riley slant has been so blatant--and so at odds with reality--that one can only assume it is part of an orchestrated campaign. To us, it appears the governor's office and the newspaper's editorial types have been working in conjunction on this effort to portray Bob Riley as a successful governor--rather than the corrupt, incompetent slime merchant he really is.

What does that say about Riley? For one, it probably says he is a world-class narcissist. We're not sure who is most infatuated with Riley's image--The Birmingham News or Riley himself. Second, this long-running campaign of puffery indicates that Riley, deep down in his soul (assuming he has one), knows he's a fraud. He probably knows that he's been the beneficiary of election theft, money laundering, political prosecutions and God only knows what else. He knows he's inextricably linked to Jack Abramoff and Michael Scanlon, perhaps the two most notorious political felons in American history.

A governor who knows he's done good work, who knows he has a legitimate record of achievement and ethical behavior, doesn't need a newspaper to toot his horn. Riley seems to welcome The Birmingham News' efforts to portray him as something he's not. That suggests to us that Bob Riley, at best, is an empty suit with cowboy boots and a poofy 'do.

Perhaps most alarming about the News' pieces is what they might bode for the future. We suspect certain words in the News' headline--"Alabama's outgoing governor leaves the state in better shape"--are a thinly veiled reference to the line Ronald Reagan used to great effect against Jimmy Carter in the 1980 election. Never mind that the line does not remotely apply to Riley. We suspect it signals that Bob Riley, and his Reaganesque bearing--are destined for a presidential bid.

Riley already has shown that he's the Teflon governor. Who's to say he can't become our next Teflon president?

If Riley does make a run for the White House, one can only imagine the kind of puckering that will commence at The Birmingham News. Can't wait for that.

Friday, January 14, 2011

No Wonder Alabama Democrats Are In Pitiful Shape

George Beck

If you want to know why Democrats are in perhaps their weakest position in Alabama history, consider two stories that have broken in recent days.

The stories reveal that too many Alabama Democrats, particularly those of the white variety, have no principles and no spine. And one of the stories adds to the Obama administration's already horrible record on justice issues in our state.

First, comes word that Montgomery lawyer George Beck is likely to become the new U.S. attorney for the Middle District of Alabama. Then we learn that Birmingham lawyer Nicole Gordon "Nikki" Still, who claims to be a Democrat, has been appointed to a Jefferson County judgeship for the second time by Republican Governor Bob Riley.

With appointments like these, things are likely to get worse before they get better for Democrats in Alabama.

The Alabama Democratic Party's Presidential Advisory Committee has endorsed Beck, even though he comes from a law firm with ties to Republican strategist Karl Rove and Business Council of Alabama (BCA) President Bill Canary. A source tells Legal Schnauzer that Beck's firm, Capell and Howard, often serves as a home base for Rove when he visits Alabama.

If Beck is nominated and confirmed, he will replace Leura Canary, the abominable George W. Bush appointee who ramrodded the Don Siegelman prosecution and, inexplicably, has served for more than two years under the Obama administration. Leura Canary, of course, is married to the BCA's Bill Canary, and given Capell and Howard's ties to Rove, we probably can look for more political prosecutions under George Beck.

Perhaps most troubling is the role Beck played in the Siegelman case. Beck represented key government witness Nick Bailey and allowed him to be bullied by federal prosecutors, who questioned Bailey some 70 times. Then there is this, which we reported in an earlier post:

Numerous reports have indicated that government prosecutors had Bailey write down portions of his statement in order to help him keep it straight. Those notes should have been turned over to defense counsel, but they were not.

Was Beck aware that this exculpatory material was withheld from the defense? If so, why did he quietly let it happen? Is this a serious breach of legal ethics? Does it approach a conspiracy to obstruct justice?

Sounds like just the kind of guy we need as a U.S. attorney, doesn't it? What are Alabama Democrats thinking? Are they thinking at all?

As for Nicole Gordon "Nikki" Still, we know what she's thinking. She's desperate to be a judge, and if she has to jump in bed with perhaps the most corrupt governor in Alabama history . . . well, so be it.

Nicole Gordon Still


Still now has twice accepted judicial appointments from Bob Riley. What does that say about Still's principles? Consider that Riley has documented ties to Jack Abramoff, Michael Scanlon, Karl Rove, Bill Canary . . . the list goes on. He represents the worst the Republican Party has to offer--and that's saying something. But Nikki Still is more than happy to suck up to Alabama's King of Sleaze.

Still's first appointment didn't end so well. When she had to run for election, she lost in the Democratic primary to Kenya Lavender Marshall. That prompted the Alabama State Bar, apparently at Riley's urging, to conduct a witch hunt against Marshall, suspending her license and causing her to be disqualified.

When the Alabama Democratic Executive Committee bypassed Still and nominated Elisabeth French, Still pitched a major snit.

Unable to win an election, Still jumped back in Riley's lap and was chosen to replace Judge G. William Noble, who retired last month. Still will serve the final two years of Noble's term before she has to face election again.

Why is Still so cozy in the Riley camp? Her father, prominent Birmingham attorney Bruce Gordon, has ties to Riley's son, Rob Riley. Here's how we explained it in an earlier post:

For several years, Bruce Gordon and the Gordon Dana law firm represented a company called Alabama Pain Consultants in a lawsuit involving Aspen Medical Products. That case is ongoing, and the Gordon firm has withdrawn from representation of Alabama Pain Consultants. But the case establishes a tie between Bruce Gordon, Nicole Gordon Still's father, and Rob Riley.

Alabama Pain Consultants is owned by Thomas Spurlock and David Marshall. Spurlock, a chiropractor, works in the UAB Department of Surgery and is a business partner with Rob Riley. Spurlock is an owner and officer in Performance Group LLC, a company whose other owners include Rob Riley.

As we have reported here at Legal Schnauzer, Performance Group and Alabama Pain Consultants are among the defendants in a federal whistleblower lawsuit, alleging they have engaged in Medicare fraud.

Bottom line? Bruce Gordon has tried to help Rob Riley and his buddies fight off charges of health-care fraud. Bob Riley probably would like to have a friendly judge on the Jefferson County bench to help limit  Junior's exposure. And thus, an alliance is born between the Gordons (supposedly Democrats) and the Rileys (the sleaziest of Republicans).

As we said, so much for principles.

The problems for Alabama Democrats, however, go way beyond George Beck and Nikki Still.

Consider the Birmingham law firm of Wiggins Childs Quinn and Pantazis (WCQP). It's the largest employment law firm in the state, and in local legal circles, it's labeled a "Democrat law firm." But does WCQP exhibit solid progressive principles? Not exactly.

Bruce Gordon used to be a named partner at WCQP before leaving to start his own firm. The ties, however, between WCQP and the Gordon family appear to remain strong. Public documents show that Nicole Gordon Still has done extensive work with Dennis Pantazis, a current named partner at WCQP.

On its Web site, WCQP touts itself as "a leader and advocate for the rights of individuals." But I've seen evidence that the firm avoids cases that might shine light on Bob Riley's dark regime, probably because it wanted to help Nicole Gordon Still become a judge.

Nikki Still is hardly the only opportunist among Alabama Dems. Doug Jones, a former Clinton-era U.S. attorney, jumped in bed with Rob Riley to help earn hefty attorney fees in a federal lawsuit involving individuals and entities connected to HealthSouth Corporation.

Perhaps saddest of all is Obama's appointment of Abdul Kallon to a federal judgeship in the Northern District of Alabama. Kallon came from the conservative and pro-Riley Birmingham firm of Bradley Arant, and apparently was hoisted upon Obama by former U.S. Rep. Artur Davis.

We've had personal experience with Judge Kallon, and we will present overwhelming evidence that the man is either incompetent, corrupt--or both. And we are not talking about a Bush appointee; this is an Obama guy.

As a black lawyer who replaced a historic figure, retired U.S. Judge U.W. Clemon, Kallon is perhaps Obama's most high-profile appointment in Alabama. But we've seen from firsthand experience that Kallon is a disgrace to the bench and is little more than a corporate puppet--in other words, he's just like a Bush appointee.

Can things get worse for Alabama Democrats? At the rate the party is heading south, I would say they undoubtedly will.