The Cheating of Don Siegelman, Part II

In Part I of our series, we showed that a three-judge panel of the U.S. 11th Circuit Court of Appeals got it wrong regarding the statute of limitations in the Don Siegelman case.

Now we will show that the appellate panel got it wrong on the fundamental tenets of bribery law.

I don't think I've ever read of any portion of the Siegelman case described as comical. But it's almost funny to read the 11th Circuit's pathetic attempt to split hairs on the Siegelman appeal.

The judges go on an extended discourse about the subtle differences between two words--"explicit" and "express." In fact, you could make a strong argument that Siegelman and codefendant Richard Scrushy might be headed to federal prison for the rest of their lives because of the way three Republican judges interpret those two words.

But when you look at the full picture, as we have endeavored to do, you realize the three judges are full of that stuff you try not to step in when walking in a barnyard.

The critical case law in the Siegelman appeal is McCormick v. United States, 500 U.S. 257 (1991). A discussion of that case is what leads the 11th Circuit into its "explicit vs. express" soliloquy. It's also where the 11th Circuit goes badly off track.

It gets off to a solid start by correctly stating that McCormick "made clear that only if 'payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.'"

The court acknowledges that this is the quid pro quo ("something for something") required by law. So far, so good.

But then comes this:

Defendants, however, assert that the instruction was inadequate under McCormick. Defendants assert that the instruction failed to tell the jury that not only must they find that Siegelman and Scrushy agreed to a quid pro quo, the CON Board seat for the donation, but that this agreement had to be express. We disagree that McCormick requires such an instruction.

There's only one problem with the court's assertion that the Siegelman team argued that the agreement must be "express." It isn't true.

By my unofficial count, the Siegelman appellate brief argues at least a dozen times that the agreement must be "explicit." Here is just one example:

To recognize the correctness of our argument on this point, it is useful to begin with McCormick v. U.S., 500 U.S. 257, 111 S.Ct. 1807 (1991). There, the Supreme Court read the extortion statute, 18 U.S.C. § 1951, in precisely the way that we are suggesting that the present statutes ought to be read as well. Recognizing that campaign contributions are a constant in the real life of politicians, the Court held that a link between such a contribution and an official act would constitute the crime of extortion only if there was an “explicit quid pro quo.” Id., 500 U.S. at 271 & n.9, 111 S.Ct. at 1815 & n.9 (formulating the question in that way); 500 U.S. at 273, 111 S.Ct. at 1816 (“only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”). The Court held that if the Congress wanted to criminalize conduct short of that, conduct that “in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures,” Congress would have to be explicit about it. 500 U.S. at 272-73, 111 S.Ct. at 1816.

Over and over, the Siegelman team makes the same argument, quoting directly from McCormick: The agreement must be "explicit."

Never does the Siegelman team do what the 11th Circuit claims it does: assert that the agreement must be "express."

By my count, the core portion of the Siegelman brief uses the word "express" twice. Once, it's a parenthetical, almost throwaway, use. Here it is:

The Court was thus speaking overtly in terms of explicit, express, promises and agreements.

On another occasion, the brief states that a prominent law dictionary says the two words are interchangeable. But never does the Siegelman brief argue that the agreement must be "express" instead of "explicit"--or even "express" in addition to "explicit."

The Siegelman brief mentions the word "express" only in terms of paraphrasing. Contrary to what the 11th Circuit claims, that is not its core argument. Its core argument is based on a word-for-word recitation of McCormick, which the 11th Circuit admits is the controlling law. In fact, after its one primary use of the word "express," the Siegelman team comes right back with this:

The criminally-prohibited situations, said the Court, are those in which there is an “explicit promise or undertaking” by the official to act in exchange for the contribution, in which “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.” Id., 500 S.Ct. at 273, 111 S.Ct. at 1816. To rise to the level of a crime, there must be a communication by the official, amounting to an overt promise or undertaking.

So there you have it. The Siegelman brief repeatedly cites McCormick and states, correctly, that the agreement must be "explicit." And the 11th Circuit takes one throwaway use of the word "express" and misstates the Siegelman argument entirely.

How to explain this curious reading by the 11th Circuit? I can only think of two explanations:

* One of the judges on the panel (James C. Hill) is 84 years old. Another (Gerald Bard Tjoflat) is 79. The whipper snapper of the group is 61-year-old J.L. Edmondson. Perhaps Hill and Tjoflat have lost their ability to read simple, clear language, and Edmondson was "out to lunch" on this opinion. Thus, we are talking about incompetence.

* The judges intentionally misstated the Siegelman argument as a way to get the result they wanted. Thus, we are talking about corruption.

As we will see in a moment, the "explicit vs. express" argument really didn't matter. That's because trial judge Mark Fuller's jury instruction didn't use either word.

In other words, Fuller's jury instruction did not cite the correct law--no matter how you slice it.

And the 11th Circuit is letting him get away with it.

(To be continued)

Previously . . .

Here's How An Appellate Court Cheated Don Siegelman (introduction)

The Cheating of Don Siegelman, Part I (statute of limitations)