Encouraging Signs in the Paul Minor Appeal

We noted that yesterday's oral arguments in the Paul Minor appeal were shaping up as an ugly April Fool's joke.

But events both before and during the proceedings indicated things went much better than expected.

First, U.S. District Judge Priscilla Owen recused herself from the three-judge panel. Owen had been scheduled to hear the appeal in the politically charged case even though she has close ties to Karl Rove.

Brendan DeMelle, at Huffington Post, reports:

Owen, whom the New York Times has described as "guided by the hand of Karl Rove," apparently took to heart Minor attorney Hiram Eastland's letter [PDF] asking Owen to recuse herself since Rove is being investigated by Congress and the Justice Department for his possible role in targeting Minor for indictment.

Owen was replaced immediately by Judge Fortunato Benavides, a Clinton appointee, adding a measure of balance to the panel, which would've been an all-Republican panel with Owen present.

DeMelle reports that the hearing itself produced encouraging signs:

Led by Judge Will Garwood, a Reagan appointee, the panel asked very thoughtful questions and seemed very receptive to the arguments raised by Minor's attorneys and asked repeated, tough questions of the Justice Department attorney, Elizabeth Collery. (Given the last minute announcement, Benavides had little time to review the details of the case, but still managed to pose tough questions and seemed to grasp the important 1st Amendment implications of Paul Minor's alleged bribery of judges through campaign contributions.)

The toughest questions came from Catharina Haynes, President Bush's sixth and final nominee to the Fifth Circuit who was confirmed by the Senate last April.

Haynes repeatedly asked Collery, the government attorney, to specifically explain "what is the deal" that the government alleges Paul Minor had with the judges whom he was accused of bribing. Haynes pointed out that, in order to qualify as an explicit quid pro quo bribe, there had to be an agreement between Minor and the judges on a specific result, and also pointed out that Judge Teel wasn't even a judge yet, he was simply running for the judgeship at the time Minor contributed to his campaign, so how could there be a specific official action offered by Teel to Minor in return when Minor couldn't possibly have had any cases pending before Teel.

Asked again and again to supply a concrete example of what that crucial quid pro quo was, the DOJ attorney seemed to waffle badly, arguing (again, with "vague" charges as the New York Times described this case originally) that Minor's campaign contributions must've been meant as bribes for some "future decisions" in his favor from the Judges.

The line of questioning mirrored what should have been present in the Don Siegelman appeal. But the three-judge panel that heard Siegelman's appeal in the 11th Circuit apparently did not measure up to the 5th Circuit panel:

Haynes, clearly understanding the requirement that there must be a specific official act in return for the contribution in order to constitute bribery, asked the DOJ attorney, "Don't you have to be able to articulate the deal?"

Judge Garwood asked excellent questions as well, probing the government's understanding of the Supreme Court decision in McCormick v. United States pertaining to the required quid pro quo for charges involving bribery. The government's case against Minor teeters on the assertion that Minor received a specific, favorable result from the judges which both parties must have agreed upon prior to such a ruling to constitute bribery under federal law.

By all indications, the DOJ failed to prove that today. The tough questioning and apparently skeptical looks from Judges Garwood and Haynes seemed to indicate that they were not persuaded by the government's arguments.