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Tuesday, June 5, 2012

SCOTUS' Refusal to Review Siegelman Case Will Forever Stand As a Reminder of Obama's Shame

Nick Bailey

The Obama Department of Justice, on multiple occasions, opposed U.S. Supreme Court review of the Don Siegelman case. The DOJ got its wish yesterday when the nation's highest court announced that it would not review what has come to be seen as the most notorious political prosecution in American history.

One can only wonder why a Democratic administration would be unconcerned about the prosecution of a former Democratic governor in a heavily Republican state. The wonder turns to amazement when you consider that evidence in the Siegelman case, even if taken as true, did not amount to a crime, as described by the U.S. Code and relevant case law.

But here is the most distressing part of the DOJ's actions in opposing certiorari review of the Siegelman case: A review of documents filed by government lawyers proves that even they do not believe the testimony of the key prosecution witness. Either that, or DOJ officials do not even bother to review documents they file in cases of national importance--and if that's the case, someone is committing professional negligence, misconduct or both.

What are we talking about? Let's consider the government's opposition brief in Siegelman's bid for certiorari review. It apparently was written by DOJ lawyer John-Alex Romano and approved by Solicitor General Donald B. Verrilli Jr. and Assistant Attorney General Lanny A. Breuer. (The full opposition brief can be read at the end of this post.)

The following items are taken directly from the government's brief. First, we have what we will call Exhibit A, which can be found on page 4 of the brief. It involves interaction between Nick Bailey, a former Siegelman assistant who became the chief government witness, and Eric Hanson, a former HealthSouth executive under former CEO and Siegelman codefendant Richard Scrushy:

Bailey also testified that Hanson subsequently told Bailey that Scrushy wanted control of the CON Board and “made it clear to him that if Mr. Scrushy gave the $500,000 to the lottery campaign that [they] could not let him down” with respect to the CON Board seat.

With Exhibit A, we've established that Bailey knew exactly what Scrushy wanted in exchange for a  $500,000 contribution. With Exhibit B, we have Bailey reminding Siegelman about what Scrushy wanted. Again, from page 4 of the government's brief:

Bailey periodically reminded Siegelman of their conversations “with Eric Hanson about what Mr. Scrushy wanted for his contributions, and that was the CON Board.”

Exhibits A and B established, beyond any doubt, that Bailey knew what Scrushy wanted in exchange for his contribution. But look what happens with Exhibit C. From page 5 of the government's brief:

Siegelman and Scrushy subsequently met in Siegelman’s office. Bailey testified that, at some point after the meeting, Siegelman showed Bailey the IHS check and said that Scrushy was “halfway there. . . . ” Bailey asked, “what in the world is he [Scrushy] going to want for that?” Siegelman replied, “[T]he CON Board.” Bailey responded, “I wouldn’t think that would be a problem, would it?” Siegelman replied, “I wouldn’t think so.”

Here is the sequence of events, all from Bailey's testimony: (A) Bailey knows what Scrushy wants in his exchange for his contribution; (B) Bailey reminds his boss multiple times about what Scrushy wants in exchange for his contribution; (C) After a meeting between Siegelman and Scrushy, Bailey suddenly has no idea what Scrushy wants for his contribution.

It's easy to see that something does not add up here. And that sound you hear is Bailey's credibility being flushed down the toilet--with the government pushing the lever. Siegelman's lawyers recount the same evidence in their petition. (You can read the full petition for certiorari at the end of this post.) On page 7, Siegelman lawyers note the inconsistencies in Bailey's testimony with the following footnote:

The conflict within Bailey’s testimony, as recounted above, demonstrates how unsteady the proof of a quid pro quo can be, while still passing muster under the view of the law taken by the court below. Bailey first has himself telling Governor Siegelman repeatedly what Scrushy wanted; but then, quite oddly, he has himself asking Governor Siegelman what Scrushy wanted. In neither version is there evidence that Governor Siegelman actually promised Scrushy the appointment in return for the contribution. If shaky proof such as this will suffice instead of proof of an actual quid pro quo communication by the official to the donor, then proof of the crime is markedly easy and the range of potential prosecutorial targets is troublingly wide.

That range could someday include former President Obama. After all, it's well established that the president has rewarded some of his loyal contributors with plum ambassadorships. Could a future federal jury "infer" that those appointments involved illegal quid pro quo agreements? Under the loose standards set in the Siegelman case, the answer undoubtedly is yes.

Team Obama appears unconcerned about Don Siegelman's plight at the moment. But here is some free Schnauzer advice for the president and his staff: You had better figure out a way to beat Mitt Romney in November; if you don't, a Republican attorney general is going to have the facts and the law necessary to send a bunch of you to federal prison.
Siegelman--DOJ Reply Brief on Certiorari
Siegelman v. USA Cert Pet

9 comments:

Robby Scott Hill said...

This is why the State of Alabama's Attorney General outsources so many important civil cases to private law firms. There are "too many cooks in the kitchen" at federal and state legal offices.

Career employees at the Department of Justice work from a much different perspective than the political appointees who lead them. Political appointees have money and power in behind them & are much more willing to "take one for the team," while career employees have to worry about what happens if they get disciplined by a bar association & if they can't pay their mortgage.

I can tell you from my short time in government that heated arguments frequently take place behind closed doors and government employees who are at odds run and tell on each other. Then, a phone call comes down from somewhere. It's not always the White House or the Governor's Office. It might just be a secretary from the office of the state senator who chairs the committee that funds the issue at hand, but the phone call comes & people are forced into supporting the "current truth" which changes from month to month depending on which big fish lobbyist has raised the most money.

legalschnauzer said...

As always, Rob, very interesting thoughts. It's scary when you think that someone (or several someones) could contact the U.S. Supreme Court and ensure that a case is not heard. I thought part of the Supreme Court's role was to decide issues where we have circuit splits. In the Siegelman case, the Eleventh Circuit departed from previous law on bribery in the context of a campaign contribution. It's hard to understand how SCOTUS can allow that to stand, unless political pressure was applied.

jeffrey spruill said...

Sounds like Ms. Leura Garrett Canary intricately prepared Bailey’s testimony before trial--confusing Mr. Bailey.

legalschnauzer said...

Jeff:

Yes, it's hard to keep your story straight when it's not your story--it was concocted by someone else.

David said...

Try this. Bob Riley sends his hit squad to reaid bingo hall in White Hall, AL. Bingo hall files suit in circuit cout. Some body in Roger favorite B'ham law firm where Riley's son-in-law works gets case moved to St. Supreme court, court of appeals. Riley is on trip to DC and calls two justices at their homes late in the evening. Court rules for Riley.
Nobody does anything to Riley or tehe justices for ex parte conversations. No body reports this but Bob Martin.

David said...

Try this. Bob Riley sends his hit squad to reaid bingo hall in White Hall, AL. Bingo hall files suit in circuit cout. Some body in Roger favorite B'ham law firm where Riley's son-in-law works gets case moved to St. Supreme court, court of appeals. Riley is on trip to DC and calls two justices at their homes late in the evening. Court rules for Riley.
Nobody does anything to Riley or tehe justices for ex parte conversations. No body reports this but Bob Martin.

legalschnauzer said...

David:

Excellent point. Just the Riley/Bradley Arant scenario probably presents much more of a federal crime than anything Siegelman and Scrushy even contemplated. And that doesn't include other Riley sleaze, such as Paragon Source, the Huntsville biotech quid pro quo, etc. Bob Lowry, perhaps the last real MSM journalist in AL, got shown the door at The Huntsville Times when he investigated such matters. I got shown the door at UAB not long after I wrote on this blog (with my own resources, on my own time) about conflicts of interest involving Doug Jones/Rob Riley and their dual roles in the Siegelman/Scrushy criminal case and the federal HealthSouth civil case. A federal whistleblower has alleged significant health-care fraud involving a company that Rob Riley owns, and the MSM hasn't touched the case. It wound up, interestingly, with a Reagan-appointed judge named William Acker, who unlawfully dismissed it. Acker also unlawfully dismissed my employment case against UAB, and that is on appeal. Interesting how, when Rob Riley and Doug Jones need to be protected, a federal lawsuit in Birmingham always winds up with William Acker. That's the judge who told me in open court that he was going to cheat me--and then he did it.

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Anonymous said...

Madison v. MERS et al

Madison v MERS et al

Editor’s Comment:

The Madison decision from the Arizona Appellate Court is an example of two warnings that I have repeatedly stated on these pages, in my books and in my seminars. First doing an appeal yourself without getting appropriate advice from competent licensed counsel is most likely to result in failure. It is a rare layman who understands the Rules of Civil Procedure. And it is even more rare that a layman understands the Rules of Appellate Procedure.

http://livinglies.wordpress.com/

When this happens to Don Siegelman!?

WE MUST all rise up into our SIREN selves and stop the madness.

Killery said Obummer is the next president and therefore, the new order for our world of tragedy continues:

No truth, no justice and therefore, no reality other than the Palestinian, Libya, Syria, and America clearly since Russia has been here with the Hitler Nazi regime before.

HOPE FOR ROMNEY? He was at Bilderberger so perhaps we get a newer puppet with the same agenda since the "people" pulling the real reins of power tell the Supreme Court how to, too.

WHO is really governing?

R