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Thursday, June 30, 2016

Could federal bribery charges be headed for Florida AG Pam Bondi, who backed off Trump University case after receiving donation from . . . Donald Trump?


Pam Bondi and Donald Trump
(From victorygroup.com)
A scandal that has been brewing in Florida for roughly three years could have a profound impact on the 2016 presidential election. For good measure, it has an Alabama angle -- thanks to our long-time "gal pal" Jessica Medeiros Garrison -- and yesterday, a Massachusetts attorney asked for federal bribery charges to be brought against the AG, Pam Bondi, and the presidential candidate Donald Trump.

How did such an explosive story, which could torpedo Trump's presidential bid, get started? In 2013, Florida Attorney General Pam Bondi appeared set to join the New York AG's office in a lawsuit against Trump University. But then, Bondi personally solicited a campaign contribution from Donald Trump, and when a $25,000 check appeared . . . whoosh, Florida no longer was interested in pursuing the Trump University case.

The Sunshine State's press has covered the story with the kind of zeal you rarely see from Alabama's somnolent mainstream media (MSM). That's understandable, given that the story reeks of the kind of "quid pro quo" that could amount to federal-funds bribery, the statute upon which the Don Siegelman case largely was built in Alabama.

The story has gained new traction now that Trump has become the Republican Party's presumptive presidential nominee and -- surprise -- Bondi has endorsed him.

An Associated Press story, dated June 7, 2016, provides details:

Florida's attorney general personally solicited a political contribution from Donald Trump around the same time her office deliberated joining an investigation of alleged fraud at Trump University and its affiliates.

The new disclosure from Attorney General Pam Bondi's spokesman to The Associated Press on Monday provides additional details around the unusual circumstances of Trump's $25,000 donation to Bondi.

The money came from a Trump family foundation in apparent violation of rules surrounding political activities by charities. A political group backing Bondi's re-election, called And Justice for All, reported receiving the check Sept. 17, 2013 — four days after Bondi's office publicly announced she was considering joining a New York state probe of Trump University's activities, according to a 2013 report in the Orlando Sentinel.

After the check came in, Bondi's office nixed suing Trump, citing insufficient grounds to proceed.

Trump has more or less admitted on the campaign trail that he has little concern about federal bribery statutes. Writes AP:

The timing of the donation by Trump is notable because the now presumptive Republican presidential nominee has said he expects and receives favors from politicians to whom he gives money.

"When I want something I get it," Trump said at an Iowa rally in January. "When I call, they kiss my ass. It's true."

Florida Democrats are calling for an investigation, according to a recent report from Gray Rohrer at the Orlando Sentinel, but those efforts have yet to prove fruitful. Writes Rohrer:

Even as another Democratic state lawmaker called for an investigation of a campaign donation given by Donald Trump to Attorney General Pam Bondi, questions arose Wednesday about who would conduct such a probe.

State Sen. Dwight Bullard, D-Miami, wrote to U.S. Attorney General Loretta Lynch asking the Department of Justice to look into the matter.

"There have been many questions surrounding claims of fraud at Trump University," Bullard stated. "There is even a greater concern of whether a quid pro quo exists within the office for favorable treatment in exchange for campaign assistance."

But no one, so far, is heeding calls for an investigation.

In a not-so-shocking development, politics appears to be standing in the way of justice. Writes Rohrer:

Bondi's fellow Republicans control the Legislature and are unlikely to set up an independent panel to look into the matter. Gov. Rick Scott has referred reporters' questions to the Trump campaign.

There are few other avenues to investigate Florida's top law enforcement official. . . .

Bondi's office did not return calls for comment from the Orlando Sentinel on Tuesday or Wednesday. On Tuesday she provided a statement to some news outlets saying stories suggesting a quid pro quo between the donation and the decision not to investigate were "misleading."

A Massachusetts lawyer named Whitfield Larrabee does not intend to let the story slide into the good night. From a report at Raw Story:

Larrabee says he believes Bondi dropped the case as quid pro quo in return for receiving the money.

“If it looks like a bribe and quacks like a bribe, I think it’s a bribe,” Larrabee told the [Orlando] Sentinel.
His complaint, provided to the Sentinel, states, “Evidence strongly indicates that Bondi’s decision not to initiate or participate in litigation against Trump University was given in exchange for Trump’s contribution based on the short time period between the receipt of the political contribution and the announcement of Bondi’s decision not to participate in the New York litigation.”

How do Alabama and Jessica M. Garrison enter the picture? Until January of this year, the Birmingham-based Garrison was senior advisor to the Republican Attorneys General Association (RAGA) and the affiliated Rule of Law Defense Fund (RLDF). Before that, she was executive director of RAGA and President of (RLDF). Why has Garrison backed away from RAGA and its affilated groups? That's a post for another day, but it's curious that Bondi is a major figure in RAGA -- and she has been at the heart of several controversies.

In fact, a major part of Garrison's job at RAGA apparently was to defend Bondi, who serves on the organization's executive committee as immediate past chair.

When Bondi was criticized in the Florida press for her cozy relationship with out-of-state lobbyists and corporate lawyers, Garrison came to her defense:

Jessica Medeiros Garrison, executive director for the Republican Attorneys General Association, called it "absurd" when asked about The New York Times reporting, which made it appear there is a quid pro quo involving corporations and attorneys general.

"Like all national political organizations, RAGA pays for expenses for its member attorneys general that attend meetings to help with national fundraising," Garrison said in an email Wednesday. "RAGA does this in full compliance with federal and state laws that regulate fundraising and political activity for RAGA and its member attorneys general."

Did Garrison break ties with RAGA earlier this year because she knew the Trump-Bondi story was a bombshell that could explode at any moment? If someone heeds calls for an investigation of the matter, perhaps we will find out.

Whitfield Larrabee, of Massachusetts, might be just the guy to do it.

Wednesday, June 29, 2016

Don Siegelman, with no Rolex and no Ferrari, remains in prison while SCOTUS overturns Robert McDonnell's convictions, based on receipt of $175,000 in gifts


Don Siegelman
Don Siegelman yesterday reacted with disgust and sarcasm to news that the U.S. Supreme Court (SCOTUS) had overturned the convictions of former Virginia Gov. Robert McDonnell and his wife, who had received more than $175,000 in gifts (including a Ferrari ride and Rolex watches) from a constituent. Meanwhile, we have discovered a legal issue that might make it unlikely Siegelman and codefendant Richard Scrushy will receive any benefit from the McDonnell ruling.

Siegelman, the former Democratic governor of Alabama, remains in federal prison at Oakdale, Louisiana, because of his conviction in a case that involved no personal benefit to him, no evidence of an illegal "quid pro quo" agreement with Scrushy, and no sign that Scrushy wanted Siegelman to take "official action" that might benefit him.

With all that in mind, it's easy to understand why Siegelman might show disdain for Monday's SCOTUS ruling in McDonnell, authored by Chief Justice John Roberts. Dana Siegelman Kinkade, the former governor's daughter, released the following statement yesterday:

Dad's response to McDonnell Case Ruling:

"I would have been better off if the HealthSouth CEO had given me a Rolex and a Ferrari NOT to appoint him to the non-paying C.O.N. board on which I wanted him to serve and to which he begged me not to appoint him."

In the government's case against former Alabama's Governor Don E. Siegelman and HealthSouth CEO Richard Scrushy, there was no quid pro quo much less an express one. There was no personal benefit or self-enrichment scheme. Richard Scrushy, the CEO of Fortune 500 HealthSouth, spent five years in prison because the judge told the jury could infer or imply a corrupt agreement because a campaign contribution to a ballot initiative referendum could be considered something of value to to the Governor because he advocated the referendum's approval by the voters.

"I feel sure Mr. Scrushy would have gladly paid me not to reappoint him to his 4th four year term to a time-consuming board." The McDonald ruling does nothing to answer George F. Will's call:

"Until the court clarifies what constitutes quid pro quo political corruption, Americans engage in politics at their peril because prosecutors have dangerous discretion to criminalize politics." Wash Post, 2/12/12

Don E. Siegelman

Governor of Alabama, 1999-2003

I outlined yesterday three pathways to freedom that the McDonnell ruling might provide for Siegelman. And I still think that might be possible. But our followup research revealed a legal issue that could mean McDonnell doesn't offer much for Siegelman.

America's federal bribery laws are a confusing mishmash, covered under several different statutes, written in language that is largely unintelligible. In fact, the statutes are so confusing that courts often turn to case law to determine what is, and is not, illegal.

The Siegelman case, for example, largely was governed by McCormick v. United States, 500 U.S. 257 (1991). He and Scrushy were prosecuted under 18 U.S. Code 666, which is known as the "federal funds bribery" statute and generally applies to cases involving campaign contributions. (Scrushy's donation to help pay down debt for the Alabama Democratic Party, after Siegelman's lottery proposal had been defeated, was considered a campaign contribution.)

McDonnell, however, was prosecuted under 18 U.S. Code 201, a general bribery statute that usually does not involve campaign contributions. On the case-law side, McDonnell invoked Evans v. United States, 504 U.S. 255 (1992), which tends to involve bribery outside the context of a campaign contribution.

The bottom line: In Siegelman, Scrushy gave a campaign contribution. In McDonnell, constituent Jonny Williams showered McDonnell and his wife with gifts, which went directly to them, but he apparently did not make a campaign contribution. That means the two cases are covered by different law -- Siegelman is covered by the 666 statute and the McCormick case; McDonnell is covered by the 201 statute and the Evans case.

That might not be good news for Siegelman and Scrushy. If they seek review based on McDonnell, a federal judge easily could rule, "These cases present very different facts. Siegelman was about a campaign contribution, and McDonnell was not. Siegelman was governed by 666 and McCormick, while McDonnell was governed by 201 and Evans. We have different facts and different law -- and that means the Siegelman defendants can receive no relief from McDonnell."

There is a flip side to that, however. Both cases were prosecuted under the Hobbs Act, 18 U.S. Code 1951, so that might give Siegelman lawyers an avenue to argue that the new definition of "official act" outlined in McDonnell should apply to Siegelman.

If Bob Riley and Mike Hubbard really talked about "everything," that suggests the former Speaker knows about, but never reported, massive corruption


Mike Hubbard
(From wiat.com)
What was the most intriguing moment in the Mike Hubbard trial, which ended with the former Alabama House Speaker convicted on 12 counts of ethics-law violations? There are plenty of choices, but the one that stood out to me came when former Governor Bob Riley was asked on the stand about his relationship with Hubbard. Here is how al.com described it:

Riley testified that he and Hubbard talked so frequently that some of their conversations could just be called "banter."

"You have to understand my relationship with Mike. . . .  We talk about everything," Riley said.

If Riley is to be believed here -- and that's a big if -- he told Hubbard "everything" about dubious activities the former governor, his family members, and allies have been involved in over probably the past 20 years or so.

What does that mean? It could mean that Hubbard -- who has been described as a greedy, lying, cheating, arrogant, self-centered tyrant -- could be way worse than that. It suggests Hubbard has a severe character or personality disorder--likely antisocial personality disorder, also known as sociopathy. It suggests Hubbard might be dealing with narcissistic personality disorder, too.

We are not qualified to make a medical diagnosis of Hubbard or anyone else. But we do know one state journalist has compared him to Caligula. Based on the implications of Bob Riley's testimony, that might be an insult to Caligula.

If Riley actually told Hubbard about "everything" associated with his tenure as governor and the activities of the political machine that has come to be known as Riley Inc. -- and Hubbard reported none of it to authorities -- well, that means the Speaker is a seriously warped individual, who probably needs to be incarcerated to the fullest extent of the law. It also might mean that he should be prosecuted for at least one federal crime -- ironically, one now associated with the mass shooting at a gay nightclub in Orlando, Florida.

What would it mean if Bob Riley told Hubbard "everything." It probably means Hubbard knows about a bottomless pit of corruption--much of it involving felonies, or significant civil liability--and he's kept it largely to himself. That's not how it's supposed to work, under the law.

Just consider what Hubbard likely knows involving my wife, Carol, and me:

* He knows who cheated me out of my job at UAB, after I had worked there for 20 years;

* He knows who cheated Carol out of her job at Infinity Insurance, where she had worked for three years;

* He knows who caused Carol and me to be cheated in our federal employment-discrimination cases. (Mine also included First Amendment issues.) In my case, Judge William M. Acker II flagrantly violated the Federal Rules of Civil Procedure and Eleventh Circuit case law by considering summary judgment before any discovery was conducted. In fact, Acker never allowed any discovery in the case, which simply cannot be done under black-letter law. In Carol's case, Infinity's lawyers never responded to key discovery requests, especially those that would have shown she was treated differently than her "comparators,'' those Infinity employees who were similarly situated to her in the work environment. Infinity's lawyers said they "were going to" provide the requested information, but they never did it, and Judge T. Michael Putman let them get away with it;

* He knows who arranged to have Shelby County deputies kidnap me and throw me in jail for five months, making me the only U.S. journalist since 2006 to be incarcerated;

* He knows who caused our home of 25 years to be stolen out from under us via a likely wrongful foreclosure;

* He knows who arranged for Carol and me to be unlawfully evicted in September 2015 here in Missouri, with an assault rifle aimed at me and a deputy brutalizing Carol and leaving her with a broken left arm.

Now. let's consider what Hubbard likely knows about events that do not involve Carol or me. This is nowhere near a comprehensive list, by the way:

* He knows that then Alabama Attorney General Bill Pryor was assigned (by Karl Rove?) to investigate Don Siegelman before the Democratic governor's fanny had barely touched his chair in 1999;

* He knows how millions of laundered dollars made their way from Indian gaming interests in Mississippi to help "defeat" Siegelman in the 2002 governor's race against Riley;

* He knows who arranged to steal the 2002 election, with Siegelman votes disappearing overnight in Baldwin County, and how it was done;

* He knows how certain GOP kingpins (Karl Rove? Bill Canary?) arranged for a bogus prosecution of Siegelman, and who ensured that corrupt federal judge and Bush appointee Mark Fuller got the case;

* He knows who arranged for the U.S. Eleventh Circuit Court of Appeals to repeatedly violate its own precedents to ensure that at least some of the Siegelman convictions would be upheld;

* He knows who arranged for Riley and current AG Luther Strange to develop a pipeline to the Alabama Supreme Court, resulting in repeated dubious rulings against VictoryLand, Country Crossing, and other non-Indian gaming facilities.

Noor Salman
(From wptv.com)
How ugly could all of this be? We've written about the deaths of five prominent Alabamians, all of which were labeled "suicides" (or in one case, a murder via home break-in), even though evidence strongly suggests at least some of them were murders. The victims -- most of whom had direct or indirect connections to GOP financial maneuvers during the Riley years -- were Major Bashinsky, Ralph Stacy, Bob Caviness, Zoa White and Charles "Bubba" Major.

Does Mike Hubbard know what happened to some, or all, of these individuals? Does he know about some, or all, of the other events mentioned above? If he does -- and he failed to report it to authorities and took steps to conceal it, he might have committed "misprision of a felony," a crime described at 18 U.S. Code 4:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Noor Salman, the wife of Orlando shooter Omar Mateen, could face misprision charges if an investigation shows she knew her husband was about to commit an act of violence and failed to notify authorities.

The 12 counts for which Mike Hubbard was convicted under the ethics law certainly are serious matters. But they might seem relatively mundane if details become known about conversations Hubbard and Bob Riley have had over the years.

Tuesday, June 28, 2016

U.S. Supreme Court overturns white-collar corruption convictions of former Virginia Gov. Robert McDonnell, but what about Don Siegelman, of Alabama?


Robert McDonnell
(From slate.com)
The U.S. Supreme Court (SCOTUS) yesterday overturned the convictions of former Virginia Gov. Robert McDonnell, leaving many Alabamians and justice activists asking: Does this create a pathway to freedom for Don Siegelman? Our answer is . . . maybe.

In fact, Siegelman's best hope might have little to do with the McDonnell case and everything to do with the fact that trial judge Mark Fuller no longer is on the federal bench.

Appellate-court decisions often focus on narrow issues that might, or might not, apply to similar cases. Such rulings are written in a form that is . . . well, let's just say they hardly are models of clarity. Both of those qualifiers apply to McDonnell v. United States, which was issued yesterday morning (The opinion is embedded at the end of this post.), and that makes it difficult to come to solid conclusions about how it might apply to the Siegelman case.

First, McDonnell dealt almost entirely with this narrow question: Did McDonnell take "official action" to benefit a constituent (Jonnie Williams) who showered the governor and his wife with favors and more than $175,000 in gifts (Rolexes, designer clothes, catering for a daughter's wedding), apparently in hopes of receiving favorable action for his vitamin and dietary-supplement company.

The McDonnells helped arrange meetings for Williams with state university and health-care officials who might be able to help launch his products. Federal prosecutors argued that was an illegal "quid pro quo" -- the gifts (the "quid") in exchange for access to key state officials (the "quo"). But SCOTUS found that setting up meetings for Williams was part of everyday activity for a governor; it was not an official action, meaning their was a "quid" but no "quo."

In our coverage of the Siegelman case, plus a quick review of documents yesterday, I have not found any evidence that the "official action" question was raised. It appears that both sides conceded Siegelman's appointment of former HealthSouth CEO Richard Scrushy was an "official action." Does that mean McDonnell offers nothing for Siegelman, that the former Alabama Governor (still in federal prison at Oakdale, Louisiana) is out of luck because yesterday's ruling focused narrowly on an issue that didn't seem to be in play at the Siegelman trial?

Not necessarily -- at least in my view?

Here are three possible avenues that Siegelman might be able to pursue:

(1) What in the heck is an "official action" now, anyway?

Here is how the McDonnell court described it on page 26 of its ruling:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit.

Was Siegelman's appointment of Scrushy to the Certificate of Needs (CON) board a "question, matter, cause, suit, proceeding, or controversy?" Scrushy had served on the board under three previous governors, so it doesn't appear there was much of a "question," "cause," "suit," "proceeding," or "controversy." The prosecution might argue that it was a "matter," thus making it an "official action." But is there anything in the language that plainly states an appointment to a board, especially one the appointee already had served on under three governors, is an "official action"? I don't see it, and this could be an avenue of review for Siegelman.


(2)  Was the Scrushy appointment "pending" before Siegelman?

The new definition of an "official act" includes an emphasis on decisions that are "pending" before a public official. From page 22 of the McDonnell ruling:

In addition to the requirements we have described, §201(a)(3) states that the question or matter must be “pending” or “may by law be brought” before “any public official.” “Pending” and “may by law be brought” suggest something that is relatively circumscribed—the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete. In particular, “may by law be brought” conveys something within the specific duties of an official’s position—the function conferred by the authority of his office. The word “any” conveys that the matter may be pending either before the public official who is performing the official act, or before another public official.

Was the Scrushy appointment "pending" before Siegelman at the time of the donation? That seems to be in doubt. There long has been confusion about how much money Scrushy donated in the Siegelman matter, when he donated it, and why he donated it. In a recent interview with Legal Schnauzer, Scrushy said he gave $250,000 (not $500,000, as has been widely reported), he gave it not to promote Siegelman's education-lottery proposal, but to help pay down the Alabama Democratic Party's debt after the lottery had been defeated, and he gave the money as he was stepping down from the CON board.

Don Siegelman
Neither Siegelman nor Scrushy testified at trial, so it's unclear how much of the above information is in the official court record. But if it is in the record -- or is allowed in the record -- it could be argued that the Scrushy matter was not "pending" before Siegelman, at all. In fact, Scrushy says he was finished serving on the CON by the time he made a donation to help pay down the lottery debt.

If that's the case, there was no "quid pro quo" at all. Either way, it appears the Scrushy appointment was not "pending" before Siegelman at the time of the donation -- and that means it may not have been an "official act," as described in McDonnell.


(3) The constituent (Williams) in the McDonnell case clearly wanted something that would favor his company. Evidence at trial showed that Scrushy did not want anything from Siegelman.

At its heart, the McDonnell case is about a constituent (Williams) who showered favors and gifts upon the governor and his wife, in hopes of receiving positive official action for his company. Here is how Chief Justice John Roberts put it in his McDonnell opinion:

Petitioner, former Virginia Governor Robert McDonnell, and his wife, Maureen McDonnell, were indicted by the Federal Government on honest services fraud and Hobbs Act extortion charges related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.

Clearly, Williams wanted something from McDonnell, and that appears to be at the heart of the court's analysis on whether McDonell gave him something in the form of an "official action." The high court ultimately concluded that McDonnell took no such action.

But what about the Siegelman case. Evidence at trial showed Scrushy did not even want anything from Siegelman. Here is how a 2006 Associated Press story, written by the late Bob Johnson, put it:

Former Alabama Power Co. CEO Elmer Harris, the chairman of Don Siegelman's transition team when he was elected governor in 1998, testified Monday that Scrushy said he had no interest in serving on the Certificate of Need Review Board. The prosecution claims he was named to the panel in exchange for arranging for $500,000 in contributions to Siegelman's campaign for a statewide lottery.

"He did not want to serve on the CON Board. He was not going to serve on the CON Board. He was going to tell Don Siegelman he didn't want to do it," Harris said.

Harris was called by the defense to challenge testimony of Bailey, who said Siegelman told him that Scrushy had agreed to arrange the campaign donations in exchange for a seat on the CON Board. Bailey has pleaded guilty and defense attorneys say he is lying to in hopes of getting a lighter sentence.

How could a jury believe Nick Bailey, who had pleaded guilty to corruption charges, and not Elmer Harris, one of the state's most respected corporate executives at the time? I don't think anyone's ever been able to explain that one. But regardless of what was going on with the apparently compromised Siegelman jury, Harris' testimony raised clear reasonable doubt that, by law, should have precluded convictions.

The McDonnell ruling helps drive that home. If no one asked Siegelman to take "official action" -- and court testimony from a highly credible witness showed Scrushy did not -- then how could Siegelman take "official action," as now defined by McDonnell? The answer: he couldn't.

Item No. 3, in my view, might be the strongest route for Siegelman and Scrushy to seek review. Will they try to use McDonnell to earn Siegelman's freedom and get Scrushy's name cleared (He's already served his prison sentence.)? If so, will a court expedite the appeal, given that a 70-year-old man is in prison for a crime that does not exist, under the law -- and the McDonnell case adds to Siegelman's possible grounds for relief?

As regular readers know, I'm not a lawyer, but there might be more than one way for the Siegelman/Scrushy legal teams to go. My semi-educated guess is that they would need to file something akin to a Motion to Reconsider in the trial court (or perhaps a petition for a Writ of Habeas Corpus), and with Mark Fuller booted from the bench, they might actually have a chance to get a fair hearing. Depending on the speed of the defendants' legal teams, such a motion probably could be filed by the end of this week. If the court grants an expedited hearing -- and it should -- that could come in, say, the middle of July.

A new judge (not Mark Fuller) could make an immediate ruling, take several months to issue a written order, or free Siegelman pending a determination on the issues raised. Does that mean Siegelman could be released in about a month? Well, that might be a pipe dream on my part, but I welcome the comments of those with deeper knowledge about procedure in such cases.

Meanwhile, the key point is this. The McDonnell ruling hardly provides a "gimme" for Siegelman and Scrushy. But it has cracked the window open just a bit. Is the crack wide enough for the defendants to seek a review based on SCOTUS' new definition of "official action"?

Whatever you might think of Siegelman and Scrushy, they have proven to be fighters. They have shown no signs of giving up. I doubt they will start showing such signs now.





Monday, June 27, 2016

Are rumors of an FBI raid in Montgomery connected to Alabama Gov. Robert Bentley's efforts to trump up criminal charges against Donald Watkins and me?


Robert Bentley
Alabama was awash with rumors late last week that the FBI was raiding government offices in Montgomery. Both al.com and the Montgomery Advertiser reported on the story (see here, here, and here), but the full picture remains blurry. The real story, according to one Web-based report, is about Gov. Robert Bentley's ongoing efforts to seek bogus criminal charges against attorney Donald Watkins and myself, in retaliation for our reporting about Bentley's extramarital affair with former advisor Rebekah Caldwell Mason and the apparent misuse of state resources.

On a related note, corporate interests are pushing for the U.S. Department of Justice to prosecute Bentley, concerned the governor's buffoonish and apparently criminal actions will sully the state's business climate, according to a new report.

What exactly happened late last week in Alabama's capital? Here is our best guess, based on a review of multiple press reports: (1) State auditor Jim Zeigler said his office had received multiple reports that FBI agents had seized records and equipment during a raid at the Information Services Division of the Governor's Finance Office; (2) Bentley fired James Nolin, chief information officer in the finance office, and placed Rex McDowell, assistant director of finance information/administrative services, on leave; (3) Members of the Bentley administration claimed there had been a computer-security breach, and they invited the FBI to help investigate the matter; (4) The Alabama Law Enforcement Agency (ALEA) said Bentley was asking the FBI to assist with a "routine administrative audit"; (5) An FBI official said the agency was not involved with an audit in Alabama "at this time."

Is all of this a full, or partial, smokescreen? Watkins, reporting at his Facebook page, says the answer likely is yes. From Watkins post last Friday:

Alabama Governor Robert Bentley has thrown two more staffers under the bus in an effort to conceal his criminal conduct in improperly accessing two federal criminal databases in an unsuccessful effort to frame Roger Alan Shuler and me on trumpeted up criminal charges. Former Alabama Law Enforcement Agency chief Spencer Collier refused to participate in the governor’s scheme to frame Shuler and me. The scheme violated federal criminal laws.

Bentley was attempting to retaliate against Shuler and me for publishing online articles last year that criticized his improper conduct as governor and exposed his love secret affair with executive mistress Rebekah Caldwell Mason. The passage of time has confirmed that these articles were true in all material respects. . . .

The governor's effort to discredit Shuler and me failed, miserably. We continue to break the news on Bentley's "sex for power" and public corruption scandal.

The FBI's investigation of Bentley is focused on his racketeering and public corruption conduct as governor. His primary accomplice in these crimes was Rebekah Mason.

The governor is aware that his federal criminal indictment is imminent. The number of counts in the indictment is expected to set a record for a federal racketeering and public corruption case. Bentley will be arrested at his capitol office, which is the headquarters for his racketeering enterprise.

Is Watkins' analysis on target? An al.com report indicates at least one criminal database, which Bentley reportedly had ordered used to help frame Watkins and me is, in fact, involved with the current raid/seizure/audit. From al.com reporter Paul Gattis:

According to Bentley's letter, ALEA Secretary Stan Stabler informed the governor that "several contract personnel working for (the finance department's Information Services Division) were improperly granted access to IT resources that support ALEA and the state of Alabama's CJIS (Criminal Justice Information Systems) network."

CJIS, a part of the FBI, is the world's largest repository of criminal fingerprints and history records available to investigators and police professionals that is the "cornerstone of protecting the nation," according to the FBI website.

How do corporate executives enter the picture? Watkins, who has been successful enough in a number of business ventures (banking, energy, transportation) that he could bid to become owner of multiple professional sports franchises (Minnesota Twins, Tampa Bay Rays, Los Angeles Angels, Montreal Expos/Washington Nationals, and St. Louis Rams), explains, in post published on Saturday:

Alabama is home to three major automobile producers: Mercedes-Benz U.S. International, Honda Manufacturing of Alabama, and Hyundai Motor Manufacturing Alabama. The state is also home to two major engine producers, International Diesel of Alabama and Toyota Motor Manufacturing, Alabama, Inc.

Last year, Google, Inc., the world’s second most valuable company, announced that it would invest $600 million to locate a massive data processing center in north Alabama, one of only fourteen in the world. Google’s financial investment in Jackson County matches Airbus’s $600 million investment in Mobile, Alabama, where the aerospace giant began building its first U.S.-based production facility in 2013.

These companies are global conglomerates. They could have easily located their manufacturing facilities in other countries. For a variety of reasons, they chose to locate their facilities in the United States and to site them in Alabama.
None of these companies can afford to be associated, directly or indirectly, with Alabama Governor Robert Bentley's “sex for power” and public corruption scandal. All of them have stellar international reputations that must be safeguarded from embarrassing scandals at all times. Under no circumstances can they bring world leaders and industry giants to a meeting with a sitting governor who is the “target” of an ongoing federal criminal investigation for racketeering and public corruption.

Furthermore, Alabama’s governor has become the laughingstock of the nation. Bentley’s salacious scandal has dragged Alabama back into the negative spotlight of every major newspaper and electronic media organization in the world. Yet, Bentley, whose situation is analogous to a “dead man walking”, refuses to resign.

The United States government is keenly aware of its affirmative obligation to project America in a strong and positive light to its trade partners around the world. Once the Justice Department in Washington learned that Bentley was operating a full-scale racketeering enterprise directly out of the governor’s office in a state that is home to five of the world’s largest international corporations, the Department realized the huge negative impact that Bentley’s criminal conduct could have on America’s mostly positive image in the international business world.

In short, Bentley has become an embarrassment on both the national and international stages. Writes Watkins:

While major in-state corporations could choose to stick their heads in the sand and tolerate the governor’s buffoonery, the international conglomerates in Alabama could not afford to do so. Some of these conglomerates made it known to the Justice Department, via private channels, that Bentley’s sexcapades with Rebekah Mason and his publicly reported public corruption were bad for America’s international business image and growth. What is more, the sex tapes of Bentley reminiscing about putting his hands on Rebekah’s breasts and parading in front of her in his boxer shorts were too much of an embarrassment for the home office executives of these companies to stomach. Alabama’s public officials may not have minimum standards of decency and ethics in office, but the heads of these international conglomerates certainly do.

Something had to be done about Bentley’s out-of-the-closet and out-of-control criminal conduct. As 2015 was nearing an end, the timing was right for responsible corporate action to address Bentley’s growing scandal.

Where does the situation stand now? Watkins explains:

Recognizing the serious international implications of Robert Bentley’s racketeering case from an equal justice and international business development standpoint, the Justice Department launched a criminal investigation of the governor. The Department’s first assessment centered on Montgomery U.S. Attorney George Beck, Jr., and his fitness to serve as a member of the prosecution team. The Department quickly concluded that Beck was nothing more than a “bootlicking flunky” for Bentley and his chief legal adviser, David Byrne. Additionally, Beck did not have adequate legal skills for this prosecutorial job. The Department thereafter removed Beck and his entire office from any involvement in Bentley’s criminal case.

Donald Watkins
Next, the Department assigned Atlanta U.S. Attorney John A. Horn to handle Bentley’s case. Horn has been a federal prosecutor since 2002. His focus was mainly on prosecuting cases involving dangerous international drug cartels, including the takedown of a significant component of Mexico's Beltran-Leyva cartel including kingpin Edgar Valdez-Villarreal, a/k/a "La Barbie”. Unlike Beck, Horn is a tough federal prosecutor with litigation skills that match the job. Horn has also amassed an impressive record in prosecuting hardcore criminal fraud and public corruption cases.
Since taking over the case, Horn’s team of prosecutors and FBI agents has aggressively investigated Bentley’s racketeering conduct. They have interviewed scores of key witnesses in the case, and some of them have been interviewed on multiple occasions. They have seized bank records, donor records from non-profit corporations, financial records from Bentley’s campaign, records of electronic transmissions between Bentley, Mason, Byrne and other culprits, records from businesses associated with Mason and Bentley, and state government computers. They are well aware of attempts by Bentley and some of his loyalists within the Alabama Law Enforcement Agency to obstruct their investigation. . . .

In the end, Robert Bentley’s arrogant and small-minded thinking was no match for the private back-channel calls for criminal justice by the powerful international conglomerates that invested billions of dollars in manufacturing facilities in Alabama. Their voices, along with others, were heard within the Justice Department.

Thursday, June 23, 2016

Rebekah Caldwell Mason's financial difficulties and Robert Bentley's boredom with an idyllic life led to an epic scandal, according to new report at GQ magazine


Robert Bentley and Rebekah Caldwell Mason
The scandal enveloping Alabama Gov. Robert Bentley started when one of his sons tried to help a family at his church that was going through rough financial times. File that under "No Good Deed Goes Unpunished."

A toxic psychological brew that helped touch off the scandal began when Gov. Bentley grew bored with a life that probably seemed idyllic to others. File that under "Idleness Is the Devil's Workshop."

Gov. Bentley was susceptible to sexual temptation because . . . well, he married young, was averaging looking (at best), and he was not used to receiving come-ons--especially from former beauty-queen types like Rebekah Caldwell Mason. File that under "You're Never Too Old to Become a Horndog."

Finally, a key moment in the scandal was touched off when Bentley's sons wisely realized that Mason, as their father's mistress, could take steps that would devastate their mother financially. File that under "No Scandal is Complete Without Courtroom Drama."

Those are four of many revelations in an article published yesterday by GQ about a man who has gone from being a mild-mannered dermatologist to being seen as our "horndog governor." That transformation has placed Bentley and Mason at the heart of a federal investigation that could see both of them serving lengthy prison sentences.

The article, by political reporter Jason Zengerle, is titled (appropriately enough) "The Love Song Of Robert Bentley: Alabama's Horndog Governor." Zengerle does not touch much on the legal problems hanging over Bentley and Mason. But he provides a compelling and incisive account of the human weaknesses and foibles that led the governor and his senior advisor into an "inappropriate relationship" of epic proportions.

In shades of the Mike Hubbard scandal, money problems -- or perhaps we should say perceived money problems -- led down a slippery slope. From Zengerle's GQ article:

As political temptresses go, Rebekah Mason was, in some ways, a familiar one. A onetime news anchor, she'd done a tour of minor Alabama media markets before leaving TV to raise her children. In the summer of 2010, she and her husband, a meteorologist, were facing financial difficulties. Their church, First Baptist of Tuscaloosa, had tried to help the young family, praying for God's assistance. When their fellow congregant Robert Bentley had an opening in his campaign press office, one of his sons suggested the nice young woman from church who was struggling to make ends meet, according to a person familiar with the circumstances behind Mason's hiring. After Bentley was elected, he appointed the former TV reporter the governor's communications director, and he even gave her husband, Jon, a $90,000-a-year job as the head of the governor's office of faith-based initiatives. It seemed that everyone's prayers had been answered.

None of this would have happened if Bentley had not decided, fairly late in life, to enter politics. And that would not have happened if he had not grown bored with his life as a respected dermatologist; (seemingly) devoted husband to Dianne; and attentive father to four sons. Writes Zengerle:

According to this friend, Mason was dismayed by how alone the governor felt. Bentley had gone into politics, he once told her, because he could no longer stand the tedium of his dermatology practice and the banality of those Lean Cuisine pizza lunches at home with Dianne. “He wanted more,” this Mason friend told me, “and his family didn't understand that.”

Mason was young, ambitious, and attractive and could present temptations that Bentley did not know how to handle, Mason's friends apparently saw her as the kind of "visionary" strategic planner the governor needed. Those close to Bentley saw Mason as . . . well, maybe the term is "political gold digger."

People close to Bentley, however, told me they viewed Mason's role in starkly different terms. They believe that Mason wormed her way into the governor's good graces through flattery and flirtation. To their minds, Bentley—an awkward man with a heart-rending comb-over who'd married young and come late to his lofty position—was unaccustomed to female attention. And foolishly susceptible to it. When his advisers would caution him about pushing for things the legislature wouldn't support, like a teacher pay raise, Mason would counter in a syrupy voice, “But you're the governor. People love you.”

The story of the Bentley/Mason affair finally became public in late August 2015 when Dianne Bentley filed for divorce to end a 50-year marriage. Legal Schnauzer was the first news outlet to report the affair and name Mason as the governor's mistress. At about the same time, attorney Donald Watkins presented a multi-part series on his Facebook page, describing many of the scandal's inner workings. The mainstream media (MSM) largely ignored the story, although MSM reporters offered a number of attacks on me.

Jason Zengerle
(From gq.com)
Their approach changed when audio tapes emerged of Bentley and Mason having discussions of a "sexual nature" -- proving that Watkins and I had been right all along.

What prompted Dianne Bentley to file for divorce when she did? GQ provides insight:

For the Bentley sons, according to people close to the family, anger now metastasized into a fear that Mason could bring further havoc. (Bentley family members have declined to comment.) Should things sour, they worried Mason could claim she was sexually harassed and file a devastating civil suit. They implored their mother—who they knew still loved their father—to divorce him so that she could at least lay claim to half his assets now. And so, last August, Dianne Bentley filed for divorce. She cited irreconcilable differences. She did not claim infidelity, nor did she make any mention of the incriminating tape.

Bentley might be a sorry excuse for a governor -- and a husband -- but he and Dianne did not raise dummies. The brothers provided shrewd advice that probably ensured their mother would live out a comfortable life. And yes, the possibility of Mason bringing a sexual harassment claim probably was very real.

How badly have the people of Alabama been served in all of this? That might be the most important question of all, and GQ provides insights:

Whatever Mason's motives—to buck up a governor who she felt needed to assert himself or to win the affections of a lovelorn old man—the ego-stroking worked so well that some people were shocked. “When she became his top political adviser, it was like the Hindenburg came down and fell on the Titanic as the Titanic hit the iceberg,” one person who was once close to Bentley told me. “I was watching a woman who didn't know how a bill becomes a law running the state of Alabama.”

Yep, those conservative, "Christian" Republicans sure know how to govern -- when they aren't busy figuring out ways to satisfy their inappropriate urges, on the public dime.

Wednesday, June 22, 2016

What do the Mike Hubbard convictions mean? If Bob Riley, Bill Canary, and other kingpins of corruption don't go down, it probably won't mean much


Bob Riley, on the stand at Mike Hubbard trial
(From wiat.com)
The conviction of former Alabama House Speaker Mike Hubbard might seem like a huge first step toward cleaning up corruption in a Deep South state. But published reports indicate Hubbard is a relatively small fish in the toxic sewer of Alabama politics. In fact, these reports suggest, if the true kingpins of corruption don't go down -- we're talking about Bob Riley, Bill Canary, and their associates -- the Hubbard conviction might not mean a whole lot.

The first report comes from former lobbyist Jarrod Massey, who spent more than three years in prison after pleading guilty in the Alabama bingo trial -- which produced zero guilty verdicts. After Hubbard was found guilty on 12 of 23 counts on June 10, Massey wrote two Facebook posts (see here and here) that showed empathy for Hubbard and his family -- and disgust at a system that has been rigged by figures who are far more powerful (and dangerous) than Hubbard.

This is from Massey, the voice of experience:

First, politicos (especially elected officials) largely suffer from a false sense of entitlement which is fueled to a great degree by people catering to them over an extended period of time. . . . Over time this greatly clouds the somewhat rationale thinking of many politicos. Even though Mike Hubbard heard guilty verdicts yesterday and is dealing with that reality as I write this, his thinking is still likely very fouled up. The other thing is many successful people are very optimistic people....so, someone like Mike is likely still thinking of a better outcome and holding on to that which is likely clouding his judgement even now in the face of many years in a state prison facility.

What should Hubbard do now? Massey has ideas:

Mike should think long and hard about having his attorneys approach the government and see if he can work out an arrangement to come clean and take ownership of his actions at sentencing without the fear of a perjury charge. Mike, if you truly are innocent absolutely fight with your last breath and continue to state your innocence...BUT, if not, he should outright tell the Judge he has no plans to appeal the conviction and that he plans to accept his sentence whatever it may be (within the law and reason of course).

Mike should realize he faces the likelihood of other charges coming his way and as pressure will certainly be put on others to tell what they know about Mike that is a very real possibility. You've got to be pretty thick-headed to have spent the time listening to the testimony you did and not connect a few dots of what is to come for those who interacted with you in the matters brought up at trial alone. You AND YOUR FAMILY are not out of the fire. Right now those you may think of as friends mostly are not your friends. . . .

This is not about Mike "ratting" out others but rather facing the reality of the situation he is in, which he alone appears to have created . . . with a long list of co-conspirators it would pretty solidly appear. Yes, the process is really fouled up but that is not going to change any time soon. We often hear folks talking about keeping your mouth quiet and not implicating others and so forth....take your medicine per se (I've said it many times in the past). It is far from that simple. Once you are in the spot Mike is a lot of this is not even in your hands.

Massey then turns his attention to former governor Bob Riley--and the future of Alabama:

No question, I am not a fan of any sort of Mike Hubbard, nor Bob Riley. This has nothing to do about my previous guilt or innocence. I was guilty and deserved to go to prison. However, I know all too well the extent of time and energy both these men devoted to ensuring my downfall and that of others who were later proven innocent . . . and I know many of the tactics they used to not only ensure they snared me and others, but I know very well who benefited financially and otherwise from my fall . . . my top clients found their way overnight . . . in fact, they were headed in another direction before I was even indicted.....mostly into the firm of Hubbard's and Riley's closest lobbying and consulting ally at the time. It will not be by me, but one day a book or some true telling of the period between 2008-2010/2012 will come about. As with most things like this it will be years later when people are more secure in their stages of life. Much of Alabama changed in 2010 with Riley and Hubbard's prevention of a measure coming before the people of Alabama that would have allowed the people of Alabama to decide an issue. THERE WAS SO MUCH MORE THAN JUST BINGO occurring in 2010! It was not so much about the issue of electronic bingo but more so about how the door was about to be opened to a totally new source of political influence. Yes, I realize I am being a bit cryptic here, but this is all I am really comfortable saying at this point in my own effort to rebuild my life. . . .

Then, Massey gets to the heart of the matter -- Alabama will continue to be a cesspool as long as Riley Inc. remains intact:

[The Hubbard conviction] was a win for justice in our state. However, it will only be a token win unless Bob Riley is required to go before a similar process and have a jury of peers review his dealings in similar detail and whereby Riley has to decide whether to tell the truth or risk perjury himself. Motorcycle crash.....unbelievable that worked? If I had tried that one just imagine....they would have had the U.S. Marshalls hauling my supposedly mangled body to the nearest video camera for questioning.

Other than perhaps child molesters and animal abusers, I despise hypocrites most of all. . . . There are more rocks to turn over before enough have been turned over to find all the Hubbard and Riley accomplices. This said, those who typically go after Riley in particular don't usually fare well. It will take strong men of character to do just that. I am prayerful we have some who have the stomach and strength of character for the work.

The second report comes from Joe Miller, a faculty member at Columbus State University who wrote a five-part series on Alabama scandals for The New Republic. Miller's last installment is titled "Beyond Mike Hubbard: How Deep Does Corruption in Alabama Go?" In it, the author points a finger directly at Bill Canary, portraying him as a cowardly and slippery character who is ethically challenged to his core. Writes Miller:

Midway through former Alabama Speaker Mike Hubbard’s corruption trial, the state’s most powerful man was hiding in an empty corridor of the Lee County courthouse. Another long day of courtroom drama had come and gone, and the TV news crews had set up their cameras outside the main entrance to catch the defendant and his co-stars as they emerged. But tucked into a nook that used to house public phones stood Billy Canary, a former White House staffer for George H.W. Bush, a longtime friend of Karl Rove, and president and CEO of the mighty Business Council of Alabama (BCA). “I want to wait until the media is gone,” he said to his lawyer.

Bill Canary (right) and prosecutor Matt Hart
(From alreporter.com)
 Canary was named in one of the 23 felony counts against Hubbard, of which the former speaker was found guilty of twelve on June 10. The charge alleged that Canary, a registered lobbyist, had given Hubbard a thing of value, which according to Alabama law is illegal for both the receiver and the giver—a law that Hubbard spearheaded in his first move as speaker in 2010. In other words, though it was Hubbard who would ultimately stand up for the verdict, he wasn’t the only one on trial. With the grand jury still empaneled in Lee County, all of the people named in Hubbard’s indictments—nationally connected political operatives like Canary, and some of Alabama’s wealthiest men—are at risk of prosecution.

Canary, it seems, managed to neatly sidestep most of the fallout from the Hubbard trial -- as did Bob Riley. How long will their good fortune last? Writes Miller:

The members of the jury were in deliberations for a little less than seven hours. Their 12 guilty verdicts were for three different schemes: voting on legislation benefiting American Pharmacies Cooperative, Inc., a registered principal with which Hubbard had a consulting contract; using state resources to do work for, and lobbying state officials on behalf of, Bobby Abrams, owner of CV Holdings, who was paying the speaker $10,000 a month; and receiving contracts and investments from principals, including Canary’s boss, Will Brooke, and Hubbard’s longtime friend, Jimmy Rane.

As for Canary—who was instrumental in the schemes that took the speaker down and now threaten to ensnare four top leaders in the very business community for which the BCA advocates—the charge in which he was named came back not guilty. (Same for former Governor Riley.)

It was friendship and stinginess that came through for Alabama’s most powerful man. Unlike Rane and Brooke, Canary never gave Hubbard anything of real value. Under cross-examination, he said of the former speaker, “I love him like a brother.” The two pals had even gone to a ZZ Top concert together, Canary testified, adding sheepishly: “I’m embarrassed to admit that.”

Why would Canary be embarrassed to attend a ZZ Top concert? The concert undoubtedly was more wholesome than many of Canary's other activities. Writes Miller:

Now Canary, who didn’t have the courage to face the cameras after his day in court, is free to craft the BCA’s annual “Blueprint for Success,” and continue lobbying for the pro-business agenda that has made Alabama one of the worst-run states in the union. And his “brother” is out on $160,000 bond, awaiting his sentencing hearing scheduled for July 8.

This series began with a question: “Is Mike Hubbard the most corrupt politician in America?”

Three weeks of trial and twelve guilty verdicts later, the answer is no.

He’s not even the most corrupt figure in the state.

Tuesday, June 21, 2016

Are Birmingham law firms -- especially Maynard Cooper Gale -- angling to tackle Mike Hubbard's appeal on convictions related to Alabama ethics law?


Mike Hubbard
Of the many questions raised by the conviction of former Alabama House Speaker Mike Hubbard on ethics-law violations, this might be one of the most interesting: Who will handle Hubbard's appeal? (A related question: Will the matter go to the Alabama Court of Criminal Appeals or directly to the Alabama Supreme Court?)

The obvious answer to the primary question is Bill Baxley and his Birmingham-based law firm. After all, they represented Hubbard at trial and should be well acquainted with issues that might be raised on appeal. The Baxley firm, however, produced a poor result for Hubbard the first time around. According to one report, court insiders rated defense attorney Lance Bell's closing as the "most bizarre and amateurish" they had ever witnessed.

I can think of at least two other Birmingham firms who might want in on the Hubbard appellate action -- one is Bradley Arant and the other is Maynard Cooper Gale. In fact, one of those firms already has produced written material that indicates it's ready to jump into the game.

Bradley Arant might be a fairly obvious choice for Hubbard. It's a right-wing, pro-business firm with longstanding ties to former governor Bob Riley and his Riley Inc. political machine, of which Hubbard is a prominent member. Kevin C. Newsom, chair of the firm's appellate group, reportedly has an exceptionally close relationship with U.S. District Judge William Pryor. It was Pryor, of course, who largely ushered in the Riley governorship by refusing to allow a recount after votes for Democratic incumbent Don Siegelman had disappeared overnight in heavily Republican Baldwin County.

Kevin C. Newsom
(From bradley.com)
As for Maynard Cooper Gale (MCG) the firm already has produced a blog post titled "The Hubbard Verdict: Some Initial Thoughts on What Businesses Need to Know." What is the purpose of the blog post? The headline suggests it is designed to counsel MCG's business clients (and potential business clients) about possible lessons from the Hubbard verdict -- and that might be the post's one and only purpose.

But it also has a tone of, "We think the jury got it wrong, and here are key points we could use to get the verdict overturned and ensure Mike Hubbard's freedom." In fact, the post highlights five points, with brief explanations, that could form the foundation of Hubbard's appeal. Here they are:

(1) The prosecution and jury broadly interpreted the term "principal"

"In the Hubbard matter, two of the counts on which the Speaker was convicted (Counts 16 and 23) involved the receipt of a “thing of value” from an individual described in the indictment as a board member of a trade association. According to the prosecution, therefore, a board member of an association that employs lobbyists is a principal, and is therefore prohibited from providing a thing of value to a public official. Given the conviction on these counts, the jury seems to have agreed with this interpretation. If the verdict stands, the meaning of principal would apparently be much broader than many believed prior to the Hubbard trial and places many businesses and associations at unknown risk if they employ lobbyists."

(2) The prosecution and jury interpreted the phrase "thing of value" broadly, and included intangible items such as advice and introductions.

"In the Hubbard matter, Count 23 alleged that a board member of a trade association provided “assistance with obtaining new clients . . . and/or financial advice” to the Speaker. Essentially, the charge alleged that the board member assisted the Speaker with an analysis of the Speaker’s business, and advice as to how to revive that business. Further, the Count alleged that the board member helped find possible investors in the Speaker’s company and may have provided introductions to those potential investors. The “thing of value” provided in Count 23 was therefore intangible, and not a gift, a sum of money, a trip, or a junket. Instead, it was something that—at least arguably—had no resale or intrinsic value. From the perspective of interaction with public officials and public employees, this creates the risk that non-monetary assistance such as advice will be considered a “thing of value.” If it is provided by a principal or lobbyist, it may create criminal liability.

(3) Though a “friendship” exception exists in the Act, the jury did not always accept the defense’s arguments based on it.

Throughout the Hubbard trial, the defense elicited testimony from those alleged to have provided things of value to the Speaker that they were friends with the Speaker, and that this friendship was what had motivated them, rather than the Speaker’s role in Alabama government. The jury appears to have accepted that defense in certain instances, as it acquitted the Speaker on numerous counts involving the receipt of advice or assistance from some people. However, the jury rejected the defense on other counts, particularly on that [involving] a person who had known and considered the Speaker a friend for 14 years before Speaker Hubbard ever ran for office.

A fairly strong argument could—and likely will—be made on appeal that the standard set forth in the statute may be too vague to impose criminal liability.

(4) The definition of a legislative "conflict of interest" is broader than the language of the Act itself.


Drayton Nabers
(From maynardcooper.com)
"In Count 5 of the indictment, Speaker Hubbard was charged with having acted under a conflict of interest when he voted for a General Fund budget that included language that would have benefited a business for which he was acting as a consultant. Section 36-25-5(b) of the Act prohibits a legislator from taking action on a measure when he knows or should have known that he has a “conflict of interest”. A conflict for a legislator is defined in Section 36-25-5(f), which states that conflict of interest exists when a legislator “has a substantial financial interest by reason of ownership of, control of, or the exercise of power over any interest greater than five percent of the value of any . . . business entity of any kind”. This conflict language was adopted by the Legislature following an Alabama Supreme Court case which held the same, and has been in place since the 1990s. However, it is undisputed that Speaker Hubbard did not have a “substantial financial interest” in the company at issue as defined under section 5(f). Instead, he simply had a contract with that company, under which he was paid a monthly fee. In other words, he was not even an employee. Despite these facts, the jury returned a guilty verdict on this count."

(5) Written consultation with the Ethics Commission is more important than ever.

Speaker Hubbard was acquitted on several counts for activity about which he had specifically met with the Ethics Commission’s staff and had received a letter indicating he was permitted to undertake. In contrast, the Speaker was convicted for conducting very similar activity for other entities in situations that he did not have written pre-clearance. It appears that the different verdicts on these similar counts may have been based [on] the existence of the letter authorizing the Speaker’s employment and activities.

What does this sound like to you? To me, it sounds like the lawyers of Maynard Cooper Gale believe Hubbard has some substantial issues to raise on appeal--and they are just the lawyers to do it.

Will that prove to be true? It's too early to tell, but Drayton Nabers, former chief justice of the Alabama Supreme Court, is "of counsel" at MCG. Who appointed Nabers as chief justice? Why, it was none other than then Governor Bob Riley, who had to fill the vacancy in 2003 when Roy Moore was removed from office for his insistence on keeping a Ten Commandments monument in the courthouse. Nabers served for three years, until Democrat Sue Bell Cobb beat him in a major 2006 upset.

Nabers clearly is a member of Riley Inc., and if Hubbard still is making the mistake of taking advice from the Riley clan, Nabers' law firm could wind up at the heart of Hubbard's appeal.

Monday, June 20, 2016

Amid reports that Gov. Robert Bentley's mental health is cracking, we have new evidence that he is out of touch with reality--as feds' hammer is about to fall


Robert Bentley
Gov. Robert Bentley's mental health appears to be cracking under the weight of a federal investigation into apparently rampant corruption in his administration. (See here and here.) Now, we have new evidence that Bentley, in fact, is out of touch with reality. And if an Alabama legal expert's account is correct about the deluge of criminal charges that likely will be leveled against the governor in the coming weeks, Bentley's mental health probably will not improve anytime soon.

The latest evidence of Bentley's thin grasp on reality comes in an al.com article last week titled "Gov. Robert Bentley: People of Alabama 'not interested in impeachment.' In case citizens failed to grasp that message the first time, Bentley repeated it at a ribbon-cutting this morning. To claim Alabamians don't care about the possible impeachment of their governor is nutty in itself. But Bentley does not stop there. Consider this from the al.com piece:

"We're going to be very cooperative with the legislature," Bentley said. "We have nothing to hide. We have no charges against us at all. We have nothing to hide. The truth always has a sound. And I can tell you, we tell the truth and we've done nothing wrong. We'll work with them and it's really not a problem. They are trying to feel their way through this process so we'll let them do that."

The truth always has a sound? Has the governor been listening to his collection of Grateful Dead records? More importantly, Bentley portrays himself as an honorable guy who tells the truth--when we have indisputable evidence that he and the truth have a fractured relationship, at best.

In December 2015, Bentley told al.com reporter Chuck Dean (has he gone into a witness-protection program?) that the two citizen journalists -- attorney Donald Watkins and yours truly -- who broke the story of the governor's affair with advisor Rebekah Caldwell Mason got it wrong. Bentley declared "the rumors were not true," that "people on blogs" had "crossed the line," that the bloggers were "just ridiculous," and he did not know "how anyone could believe them."

In March of this year, audiotapes surfaced of Bentley speaking rapturously about fondling Mason's breasts and exploring her nether regions. Hmmm . . . it seems the "bloggers" weren't so "ridiculous" after all. Mason promptly stepped down, and new reports suggest another batch of tapes are out there, much more graphic than the first ones.

So Bentley claims to be a truth teller, despite a mountain of evidence to the contrary. What would a truth teller have done when former First Lady Diane Bentley took a walk on the beach and set up a cell phone to capture Bentley and Mason engaged in "dirty talk?" Well, here's what a really truthful guy would have said when Mrs. Bentley returned from her walk: "Hey honey, guess what. I just got off the phone with my mistress, Rebekah--you know, the one who is young enough to be our daughter--and we had the best time talking about those special moments when I fondled her breasts and caressed her . . . well, you know, down there. I told her that no 50-year marriage to an old crone like you could compare to the thrill of taking in her lustrous young flesh. Just wanted to keep you posted because I am one truth-tellin' guy."

The Alabama House Judiciary Committee began impeachment proceedings against Bentley last week. But Watkins, who surely is one of the most skilled criminal-defense and civil-rights lawyers Alabama ever has produced, says impeachment is relatively minor compared to the roaring freight train that is bearing down on Bentley and his colleagues. Writes Watkins, in a Facebook post titled "Bentley's indictment more important than his impeachment":

I am not worried about Governor Robert Bentley's impeachment. His indictment on racketeering and public corruption charges is coming soon. The only real question is who will help him make his sky-high bail. I think Bentley is a flight risk and should be denied bail. He will be "perp walked" out of the governor's office since he will not leave on his own.

The number of criminal charges against Bentley is expected to establish a record for a federal racketeering case. I can't wait for Bentley's post-indictment press conference to see which public officials stand by Bentley's side to proclaim his innocence.

Ouch, it hurts just to read that.  But as you can tell from the video below, taken last week at a ceremonial groundbreaking in Huntsville, the guv seems to have no clue about what likely awaits him:





Thursday, June 16, 2016

Former Stanford University swimmer Brock Turner was convicted of sexually assaulting an unconscious woman, but he's expected to spend less time behind bars in California than I did for blogging in Alabama


Brock Turner
(From theguardian.com)
A former Stanford University swimmer is expected to spend less time behind bars for sexually assaulting an unconscious woman in California than I did for blogging in Alabama.

If that paragraph sounds beyond belief to you . . . well, that's how it sounds to me, too. But every word of it is true. It might be the most blatant sign yet that our court system is a dysfunctional mess, one that will require citizen oversight--and perhaps a bunch of federal prosecutions--to clean up.

Brock Turner, 20, was convicted on three felony charges in March and sentenced earlier this month to six months in county jail. Turner was arrested on January 18, 2015, after two students saw him on top of a woman behind a dumpster at about 1 a.m., near the Kappa Alpha fraternity on the Stanford campus. How brazen were Turner's actions? According to news reports, he had to be forced off his victim, then chased down and detained by passers-by until police arrived.

Charges against Turner originally included rape, but he was convicted on three felony counts--(1) Assault with intent to commit rape of an intoxicated woman; (2) Sexually penetrating an intoxicated person with a foreign object; and (3) Sexually penetrating an unconscious person with a foreign object.

Here is how The Guardian described the incident:

Turner, who is from Dayton, Ohio, was arrested on the Palo Alto campus on 18 January 2015 after two Stanford graduate students spotted him lying on top of the victim outside of a Kappa Alpha party behind a dumpster. When officers arrived, the woman, who is not a Stanford student, was “completely unresponsive” and partially clothed, with a blood-alcohol level three times the legal limit, according to police.

The two witnesses who were biking past that evening said they saw Turner “thrusting” on top of the motionless woman and that they intervened and held him until police showed up.

Turner, who had a blood-alcohol level that was twice the legal limit, testified in court that he could walk and talk at the time and acknowledged that the victim was “very drunk”. He claimed that he did not intend to rape the woman and that the encounter was consensual.

The victim, who gave emotional testimony during the trial, regained consciousness at a hospital more than three hours after the assault and told police she had no memory of the attack.

 According to Alabama attorney Donald Watkins, writing on his Facebook page, California law calls for a minimum sentence of two years on each of the three counts. This apparently is why prosecutors asked for a sentence of six years. Judge Aaron Persky, of Santa Clara County Superior Court, ignored the request and the law, sentencing Turner to six months.

Multiple news outlets have reported that Turner is expected to spend only three months behind bars. US News reports that Turner is expected to be out of jail by September.


My mugshot after being arrested for blogging in Alabama.
The swollen eye is courtesy of Shelby County deputies, who
pummeled me inside my own home (including use of pepper
spray) without showing a warrant or stating
why they were there.
Now, let's consider what happened to me in fall of 2013, in Alabama. GOP operative Rob Riley and lobbyist Liberty Duke filed a lawsuit against me, claiming certain Legal Schnauzer posts about them were false and defamatory. They sought a preliminary injunction, which has been prohibited in defamation cases as a "prior restraint" by more than 200 years of First Amendment law. I was going to challenge the suit on that issue, but first, I moved to quash service because neither my wife, Carol (who was sued even though she had nothing to do with the blog at the time) nor I had ever been lawfully served. In fact, an attorney's review of the sealed filed showed that no summons had been issued in the case at the time Riley/Duke sought to have me held in civil contempt for failure to appear at a hearing. Never mind that people generally do not appear when they never have been summoned to appear.

I was waiting for a ruling on the Motion to Quash, when Shelby County deputy Chris Blevins entered our home (the basement/garage), beating me up and dousing me with pepper spray while never showing a warrant and only stating his reason for being there after I had already been brutalized. I was hauled to jail, where I stayed for five months, until Carol was able to remove certain posts--even though they never had been found at trial to be false or defamatory. In fact, there was no trial, and there was no jury trial, as required by long-held defamation law.

I still can remember having inmates ask me, "What are you in for?" and seeing them double over in laughter when I said, "I was arrested for blogging." After dabbing their eyes from laughter, they usually said, "So you're the blogging guy. I heard about you. I didn't think you looked like you belonged in here."

Was I kidding when I gave that answer to such queries? Absolutely not. Riley and Duke's own actions--seeking an unlawful preliminary injunction, never asking for a trial, never asking for a jury--indicate they knew they had no defamation case. And as a matter of law, even a kangaroo court's actions showed my reporting to be neither false nor defamatory.

But I was in jail from October 23, 2013 to March 26, 2014--becoming the only journalist in the Western Hemisphere to be incarcerated during that time period. In fact, I'm the first U.S. journalist to be jailed since 2006, and I'm apparently the only one in U.S. history to be jailed because of a preliminary injunction in a defamation case.

So Brock Turner likely gets three months for sexually assaulting a woman; Roger Shuler gets more than five months for writing a blog--one that has never proven to be anything but accurate.

Is it any wonder the public might be losing faith in a court system that wastes tax dollars in huge sums--and doesn't come close to dispensing justice?