Jeffrey Toobin's piece at The New Yorker, titled "Why Obama Should Pardon Don Siegelman," leads a flurry of new coverage about a case that has become perhaps the most notorious political prosecution in American history.
Toobin, who has been legal-affairs analyst at CNN since 2002, says now is the time for President Barack Obama to act on a high-profile case of injustice:
Since the midterm elections, President Barack Obama has been acting as if he feels liberated from parochial political concerns. After taking action on immigration, Cuba, and climate change, he should take on another risky, if less well-known, challenge by commuting the prison sentence of Don Siegelman, the former governor of Alabama. . . .
Throughout Siegelman’s legal ordeal, the Supreme Court has been in the process of deregulating American politics, most notably in the 2010 Citizens United decision. In that case, the Justices found that money is speech—that contributing to a political campaign amounts to a protected activity under the First Amendment. As the appeals court in Siegelman’s case noted, the charges in his case “impact the First Amendment’s core values—protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities.”
The line between legal and illegal behavior in the campaign-donation environment has become so thin as to put numerous politicians and their donors, from both parties, at risk, Toobin writes:
It seems clear that Siegelman was conducting the seedy, but routine, business of contemporary American politics. Scrushy contributed because he wanted something in return, which is why many, if not most, people contribute to political campaigns. (George Will made this point in a column in defense of Siegelman.) Why do “bundlers” become Ambassadors in congenial countries? Why do local contractors support mayoral candidates? Why do real-estate developers give to prospective (and incumbent) governors? Because they want something. Siegelman was convicted because the quid pro quo was too “explicit”—but, beyond the conversation about what Scrushy might want, there was no clear evidence that it was. Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.
At Justice-Integrity Project, Andrew Kreig applauds Toobin's conclusion, but notes that the prominent commentator has joined a long line of journalists (including yours truly) who has gotten certain key facts wrong about the Siegelman case. In fact, Kreig uses quotations from codefendant Richard Scrushy to help set the record straight.
The most common error involves reports that Scrushy gave Siegelman $500,000 for an education-lottery campaign. In fact, Scrushy states, the amount was $250,000, and it came from his company, HealthSouth, not from him personally. Kreig reports:
The former HealthSouth CEO commented that Toobin is among the many journalists who have accepted a false prosecution narrative that Scrushy donated $500,000 in 1999 to the non-profit Alabama Education Foundation in order to obtain appointment to a governor-appointed regulatory board.
Scrushy . . . said the sum was $250,000 and it came from HealthSouth at the request of a fellow businessman, not Siegelman -- and Scrushy did not want to serve on the board. . . .
In a comment posted Jan. 14 on the Free Don Facebook page maintained by Siegelman supporters, Scrushy disputed Toobin's factual summary of the case, including regarding that of the chief prosecution witness, former Siegelman aide Nick Bailey. Scrushy's comments, with minor typographical changes made here, were:
I never gave a single dime to Governor Siegelman and the facts show this but for some reason the jury didn't care about the facts either and neither did the prosecutors or the judge.
First, I never wrote a check to him [Siegelman] and he never received any money. HealthSouth did donate $250,000 to the Alabama Democratic party along with Alabama Power, Alfa Insurance and many other companies and those funds were used to pay back the money the party had borrowed to pay the marketing expenses for the Educational lottery foundation.
The prosecutors kept saying that I gave the Governor $500,000. They said it in the courtroom and to the press over and over till they got it to stick in the minds of the jury and people everywhere. The press played right into their lies and propaganda. This actually helped them win the case and till this day every single article that is written about this case states that I gave the Governor $500,000 which is totally false.
I have repeatedly told the press, newspapers, magazines and television that I never gave the Governor a dime, but the press continues with the lies of our Government prosecutors. Their PR campaign was effective and it continues to have legs regardless that it is totally false.
Finally, Joan Brunwasser, of OpEd News, has an interview with me about the latest developments in the Siegelman case--especially revelations that U.S. Magistrate Charles S. Coody never ordered (or reviewed) documents related to the supposed recusal of prosecutor Leura Canary, and then lied about his actions in court documents. Brunwasser's piece is titled "Magistrate's Deceit Discovered in Siegelman case--Does Anyone Care?"
From the interview:
Brunwasser: Pragmatically speaking, what difference does it make? If the judges are corrupt, incompetent or both, what makes you think that anyone will give your revelations the attention they deserve?
Shuler: Good question. The Eleventh Circuit Court of Appeals certainly is not going to do anything about it. They've already denied Richard Scrushy's appeal, in which he raised the Coody issue, and the three-judge appellate panel just ignored it. It looks like the Obama DOJ is going to sleepwalk through the entire eight years he's in office. So, I don't necessarily think my revelations will receive much attention--beyond what I give them on Legal Schnauzer. And I have more posts coming on the subject. The only way I see to advance this issue is for the public to become engaged and somehow reach key media outlets that might take it to a broader audience. This is a case of a judge cheating and lying in a way that has caused individuals to go to prison and have unjust felony convictions on their records. If the public doesn't care about a story like that . . . well, God help our democracy.