Saturday, July 21, 2007

Simpson affidavit revisited

Folks on the right side of Alabama's political spectrum seem to be latching on to an Associated Press story with the headline: "Siegelman aides contradict main part of Simpson affidavit."

The article states that most of Simpson's affidavit is devoted to matters other than possible wrongdoing by GOP operatives in the prosecution of former Alabama Governor Don Siegelman. The affidavit, AP states, primarily deals with a possible Democratic party dirty trick (placing Bob Riley signs at a KKK rally) and how the threat to expose the scheme forced Siegelman to concede the 2002 election to Riley. Simpson quotes Terry Butts as saying he would confront Siegelman about the dirty trick and get him to withdraw.

AP's story goes on to quote two former Siegelman aides, Joe Espy and Rip Andrews, saying they don't recall any discussion of a KKK rally. Espy says he recalls Siegelman dropping the election challenge for several reasons. Espy gives no indication that a threat to expose the Democrat dirty trick had anything to do with it. Siegelman himself, in a separate article, has said he dropped out because he did not want a repeat of Al Gore's challenge to the 2000 presidential race.

A few thoughts on these latest developments releated to the Simpson affidavit:

* The AP article appears to have grown out of the nine-page press release issued last week by Louis Franklin, acting U.S. Attorney for the Middle District of Alabama. Franklin asserted several times that even the Siegelman side contradicted portions of the Simpson affidavit.

* The AP article states that Simpson's affidavit deals mostly with the KKK-related dirty trick. In terms of space devoted to one subject in the affidavit, the AP is correct. But the KKK-related dirty trick is hardly the main intellectual point of the affidavit. The main point is summed up in the final statement in Simpson's affidavit: That she believes everyone has a sixth-amendment right to have an attorney who does not have a conflict, and she believed Terry Butts did have a conflict in the Siegelman matter.

* The headline on the AP story is misleading. Neither Espy nor Andrews truly contradicts the Simpson affidavit. They simply say they do not remember any discussion in their circles about a Klan rally. Andrews goes on to say that he doesn't discount the substance of Simpson's affidavit. The headline makes no mention of this.

* Both the AP and Franklin's press release indicate that Simpson's affidavit says something it does not say. In her affidavit, Simpson says she was called by Rob Riley on November 18, 2002, and told Terry Butts had talked with Siegelman and that Siegelman would be resigning before the ten o'clock news. She goes on to state that Siegelman gave up his election contest that night. Simpson states that she called Art Leach, an attorney for Richard Scrushy, and "told him why I believed Don Siegelman had conceded and Mr. Butts role in getting Mr. Siegelman to concede." Simpson is stating what she believes happened regarding Siegelman's concession, based on what she has heard from people involved in the conference call that is at the heart of her affidavit. Recall that Simpson was (and apparently still is) a Republican, on the opposing side of Siegelman. She never claims to have first-hand knowledge of what was happening on the Siegelman side. But she does have first-hand knowledge of Butts' conflict, and that is the point of her affidavit. She never claims to know what caused Siegelman to concede.

* I have to give credit to Louis Franklin. My guess is that he hoped his press release would muddy the waters and somehow discredit Simpson's affidavit. And the press release evidently accomplished that, at least in the minds of some. But if you read what Simpson's affidavit actually says, and what the former Siegelman aides actually say in the AP story, there is no contradiction taking place.

* In terms of matters to which she had first-hand knowledge, Simpson's affidavit still looks rock solid from here. By the way, the Simpson affidavit is available here.

* Until someone truly contradicts the key points of Simpon's affidavit--that Terry Butts had a conflict and a conference call involving Republican operatives indicated that the Siegelman prosecution was politically motivated (with ties to the Bush White House)--folks on the right might want to keep looking for something of substance to latch on to.


Anonymous said...

Roger, in fairness, Simpson herself has not provided evidence that the call DID take place. If we are to follow your logic, then, that someone's word is good enough to constitute hard evidence, then Terry Butts's statement that the call did not happen means just as much as Simpson's statement. You are suggesting that those criticizing Simpson must prove a negative, that the call did not happen, when, in reality, Simpson must first prove it DID happen. Otherwise, anyone could make wild accusations against any individual without any substantiating evidence. Where are the phone records? Where are the pictures she took at the Klan rally? Why has she been unable to provide a shred of evidence supporting her claims when such evidence seems readily avaliable if it actually existed?

By the way, Mr. Espy is quoted as saying “I never heard that. I was never around any talk like that,” regarding talk of the Klan rally. Interesting, as Simpson claims to have gone to him to seek legal advice regarding her alleged involvement in the Klan rally situation. Thus, either Espy is lying about not having spoken to Simpson about the Klan Rally or Simpson is lying about having spoken to Espy. As a Democrat and Seigelman supporter, Espy has no reason to lie. Simpson, on the other hand....well, I'll let you fill in the rest.

Anonymous said...

And another note of interest on this affidavit. Let's not forget that Simpson herself also has acknowledged that her affidavit did not specifically state Bill Canary said in the call she alleges that Rove was behind the DOJ investigation of Siegelman. She notes while others have interpreted her statement to say she heard Canary make a specific link between Rove and the investigation, she herself agrees that Canary could have been noting that Rove heard Justice already was investigating Siegelman. She has said she very carefully worded the affidavit to allow for that fact because that is an accurate recounting of what she believed she heard, which would contradict your claim and others that a definite Rove connection with the start of the investigation existed. This is not a small point, and perhaps raises far more questions about what you call the key intellectual point of the statement.

legalschnauzer said...

I agree that Simpson has not provided evidence proving that the call took place. But her statement was made under oath, while the denials have been in the press. At some point, perhaps, everyone will be under oath to testify about what took place.

I don't mean to suggest that critics of Simpson must prove anything. But if Simpson has some evidence to at least show a conversation took place, and some authoritative body (such as Congress) takes an interest, the folks who were involved on the other side might have some explaining to do.

I agree that evidence beyond her affidavit will be important. Does she have any? Or does she just not have the proper venue for laying it out at the moment? We'll see.

Your point from The Birmingham News story about the two possible interpretations regarding the Rove is well taken. But after that came out, Simpson issued a news release saying she fully stood behind her affidavit. In that release, she seemed to indicate that the News reporter pretty much put words in her mouth. Does this call her credibility into question? I would say no. You might say yes.

The most damning phrase regarding Rove in the affidavit, to me, is Canary's statement that "I've gotten it worked out with Karl." Folks can read things different ways. But sounds to me like Karl was involved early on.

Democrats, I think, latch on to the Rove association because he's their devil, much as Bill Clinton was a devil of sorts for Republicans. Rove's possible involvment makes it a sexier, more national story.

But the central issue, I think, is this: Was the Siegelman prosecution politically motivated by the Justice Department (aside from any involvment by Rove), and therefore was the prosecution tainted and unjust?

For me, personally, the central issue is this: Will a Justice Department that aggressively pursued a former Democratic governor in Alabama also pursue Republican judges when a citizen (me) presents evidence that said judges have committed crimes (honest services mail fraud, which was a huge part of the Siegelman case).

Anonymous said...

I think you're correct in stating the central issue, that is was there prosecutorial misconduct, regardless of Rove. But I must say there are some startling assumptions that have placed this issue in this context, in other words no evidence of actual misconduct and here were are discussing it as if it's an issue. Your earlier point, that Simpson's press release after The Birmingham News story was published is incorrect, I believe. She did not say she had words put in her mouth. In fact, I urge you to reread that release. Not only does she confirm what was in the article by saying the interpretations are possible. She also helps the reader distinquish what is "fact" -- what she says was in the conversation -- and what is "interpretation" -- what others say is in it or assume from it. She, herself, assumes that Canary meant to say Rove engineered this investigation. But this is not what she said in her affidavit, which could easily mean if the conversation occurred it was referencing well established public knowledge about an ongoing Justice investigation nearly one year after it was publicized. Now this is critical, as you say, because this is the very issue that everyone latched on to as "sexy' claiming White House involvement. If this is not true, or is misinterpreted, than what is the basis for selective prosecution? Is it Canary's comments she claims, which she has offered no corroboration for? The fact that Siegelman's own aides who worked with him in 2002 say that Simpson's claims of campaign signs being planted at KKK rallies never surfaced in their camp raises serious credibility questions about this affidavit. If that never happened, and if Canary never said Rove engineered the investigatioin, then what are we left with as the basis for claims of prosecutorial misconduct? And if this selective prosecution occurred, or there were claims of that, then where were all these people three years ago offering this information to help Siegelman? He stood alone, making claims of political persecution, and no one else stepped up to help him prove it. And now we base our concerns and we say that proof exists because of this affidavit, which has been shred to pieces with little real credibility left about its contents. A reasonable person should carefully look at this for what it is.

And one other thing -- you do understand, don't you, that Simpson has not legally "sworn" to anything. No one has submitted this statement to a court to assert its truthfulness. There are no consequences as it is now for those statements to be false, as opposed to such a statement being filed with a court and a sworn statement to the court affirming its truthfulness. There is no penalty in Georgia to even have a false affidavit signed by a notary and offered as duly sworn. The penalty doesn't attach until its filed with the court. This has always intriqued me, personally, as to how no one has pointed this out, and the media and others claiming legal knowledge have characterized it as a sworn affidavit subject to rules of perjury. That should tell us all something more about this issue.

legalschnauzer said...

Hmm, interesting stuff about affidavits. Do you know of any citations to law on the subject? I haven't research the issue of when an affidavit becomes sworn.

Anonymous said...

Well, actually, I'm personally less impressed with the issues on the affidavit, and more about the issues IN the affidavit that I discussed earlier. But I understand your point.

This is not so much a statutory issue regarding affidavits as it is a procedural issue(although in Alabama there is a civil penalty for signing a sworn affidavit that is known not to be factual; don't believe Georgia has a similar civil penalty.) Procedurally, the affidavit is of no significance from a legal standpoint until it's filed. It technically isn't "swearing" to anything until its filed with a court. The notary on an affidavit simply states the person signing it is who they say they are, but doesn't affirm the truthfulness. So anyone can type out an affidavit at the house saying anything, run to a bank or somewhere else a free notary public is handy, and have a "signed, sworn" affidavit.

We could say, for example, that we heard a friend of Bob Riley's say that Riley stole paintings from the mansion, and we can recount that telephone call in our statement that was signed by our notary. But until we file it with a court, it is not actually "sworn" to the court. Signing it and having it notarized without filing it with the court doesn't make it so. Does that make sense?

Anonymous said...

And one other point I forgot to mention. There is no way to produce a consequence against someone who types up an affidavit, but doesn't file it with the court without having the document actually filed in the court. At that point, the court could decide to hear testimony on the affidavit, its contents or challenges to it. When filed with the court, it must withstand the court's scrutiny. If it doesn't, the affiant -- person making the statement -- can be found guilty of perjury. But this cannot happen if the affidavit is not filed with the court.

legalschnauzer said...

Yes, I understand. Thanks for the insight.

Anonymous said...

Actually, she provided phone records as proof that a call took place, which were reported on by the Annistan Star and the Locust Fork News and Journal and Harper's magazine online. The Birimingham News story from a few Sunday's back basically acknowledged that a if a phone call took place, which it did, then it might have a different interpretation than the one reported on by the New York Times and Time magazine. That was a way for Republicans to try and give Jill Simpson a way out, a setup of the Birmingham News reporter by Bill Canary through the publisher, but it didn't work. She didn't take the bait. The reporting on this in Alabama newspapers has not been honest or comprehensive, except in the Locust Fork Journal.