Viewing Mike Hubbard's Actions Through the Prism of the Don Siegelman Case

Don Siegelman

Attorneys for Don Siegelman go before a federal judge in Montgomery, Alabama, today to argue issues related to selective prosecution and government misconduct in the former governor's case.

That gives us a window through which to view recent news stories about House Speaker Mike Hubbard (R-Auburn). It also calls to mind earlier reports about the questionable spending habits of Alabama Republicans.

Long-time followers of the Siegelman case will want to stay tuned on the fallout from today's hearing before U.S. Magistrate Judge Charles S. Coody. Andrew Kreig, of the D.C.-based Justice Integrity Project, has an excellent summary of issues that are expected to be addressed today:

Historic Siegelman Case Showdown Looms Nov. 2

How does all of this shine light on the evolving Mike Hubbard story? If we can use as an indicator the actions of prosecutors and judges in the Siegelman case--or in the case of the late Republican Governor Guy Hunt, for that matter--Hubbard and his GOP cohorts might be in trouble.

Why is that? If federal laws were applied to Hubbard the way they were applied to Siegelman--and the way state ethics laws were applied to Hunt--Mr. Speaker might want to start thinking about how he looks in an orange jumpsuit.

Translation: If equal protection of the law means anything in postmodern America--and last time I checked, the 14th Amendment still is prominently displayed in the U.S. Constitution--Mike Hubbard and some of his conservative brethren have earned serious federal and state investigations.

Much still is not known about Mike Hubbard's "boss style" actions as chairman of the Alabama Republican Party (2007-10) and speaker of the Alabama House of Representatives (January 2011-present).   The story is unfolding, and Hubbard is fortunate that the right-leaning mainstream press in Alabama has ignored it. But the portrait of Hubbard in two recent Montgomery Independent (MI) articles is deeply troubling.

Two traits seem to be apparent in Mike Hubbard's style of bare-knuckles politics:

* He likes to use public funds for partisan political reasons; and

* He likes to set up a "pay to play environment," where he benefits personally from his role as a lawmaker.

If the principles of the Siegelman and Hunt cases are applied, Mike Hubbard should be "defecating in his dungarees"--to borrow a phrase from a devoted and learned Legal Schnauzer reader.

Let's look at some specifics of criminal law: In the Siegelman case, prosecutors argued that the former governor violated federal law by accepting a contribution to an education-lottery fund from former HealthSouth CEO Richard Scrushy and then appointing Scrushy to a hospital-oversight board--one he had served on under three other governors.

Siegelman was indicted under two primary federal statutes: 18 U.S.C 666 (federal funds bribery) and 18 U.S.C. 1346 (honest services mail/wire fraud). The 666 statute does not require that federal funds be directly involved; it requires only that the entity involved--a state, for example--receives at least $10,000 a year in federal assistance. The State of Alabama clearly receives such assistance, and that's why 666 applied in the Siegelman case.

Based on news reports so far, the same federal statute probably would apply in the Hubbard case. The full title of 666 is "Theft or bribery concerning programs receiving Federal funds." Allegations of bribery were at the heart of the Siegelman case; allegations of theft might be in play with Hubbard.

Here is how we summarized the MI's reporting on Hubbard in a recent post:

We learned in the first article that since 2007, the year Hubbard became Alabama Republican Party chair, about $136,000 of taxpayer funds have been used for what appear to be purely partisan activities. The money went to David Azbell, of the Montgomery lobbying firm Swatek Azbell Howe and Ross (SAHR), with at least $80,000 going for public-relations work on behalf of the House Republican Caucus. An undetermined portion of the total appears to have gone for Azbell's work in "helping Hubbard with research, writing, and editing" on Storm in the State House.

Particularly curious is the fact that Azbell's monthly check shot from $2,000 to $8,000 in March 2011, about the time Hubbard began to express interest in writing a book.

Now, let's look at the key language in 666 regarding theft:

Whoever . . .

(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that-(i) is valued at $5,000 or more, and (ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or

(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or

(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal
government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more;

shall be fined under this title, imprisoned not more than 10 years, or both.

That's a lot of legalese to digest, but the bottom line is this: The theft component of 18 U.S.C. 666 might be applicable to the transactions between the Alabama GOP and David Azbell, which apparently were made with Hubbard's OK. If Azbell's partners in the Montgomery lobbying firm of Swatek Azbell Howe and Ross (SAHR) were in on the scheme, they could be included under a federal conspiracy charge.

MI Editor Bob Martin raises an important issue about possible federal violations in the Hubbard scenario:

There have been suggestions around the legislature that the Speaker has rewarded his friends and fellow legislators with . . . perks. If that has happened I wouldn’t suggest there is an explicit quid pro quo attached, but such might not even be necessary.

Martin has a point. We see no sign that a quid pro quo provision ("something for something" agreement) exists for the theft component of 666. An "explicit" quid pro quo, of course, is required for the bribery component--and that was a central issue in the Siegelman case. But possible theft, not bribery, is at the heart of the Hubbard story, so far.

Even if bribery becomes an issue, here is where the Siegelman prosecution could wind up being bad news for Hubbard. U.S. District Judge Mark Fuller, contrary to clear federal law, did not give an "explicit quid pro quo" jury instruction in the Siegelman case. And in an act of stunning unlawfulness, the U.S. Eleventh Circuit Court of Appeals held that Fuller's jury instruction was perfectly fine.

The appellate court found that the Siegelman jury was free to "infer" that an unlawful quid pro quo existed, whether evidence showed an explicit agreement or not. This is contrary to precedent set by the U.S. Supreme Court and a blatant violation of the stare decisis principle upon which American jurisprudence is built.

Residents of Florida, Georgia, and Alabama--the states covered by the Eleventh Circuit--can only assume that the "explicit" quid pro quo requirement no longer applies in our neck of the woods. So Bob Martin is correct, on multiple grounds, when he notes that an explicit agreement might not be necessary in any prosecution of matters concerning Mike Hubbard.

Guy Hunt

If Hubbard did not step in doo-doo on the federal side of the fence, he almost certainly stepped in it on the state side. We turn to the Guy Hunt case for a little history in Alabama ethics laws.

Here is how The New York Times summarized the state charges against Hunt in a 1993 article:

Guy Hunt, the Primitive Baptist preacher who in 1986 became Alabama's first Republican Governor since Reconstruction, looked on calmly today as prosecutors in the first day of his felony trial accused him of illegally using his office to collect $200,000 for his personal use.

Deputy Attorney General Steve Feaga said the state would prove that Governor Hunt, deep in debt, used the money raised for his inauguration for personal needs ranging from mortgage payments to cattle feed and failed to report the transfer of money as required under state ethics laws.

Hunt was prosecuted primarily under the Alabama ethics law, which is found at Code of Alabama 36-25 (5-27). Among other things, this prohibits:

* Use of official position or office for personal gain. (36-25-5)

Code of Alabama 17-17-5 addresses "Improper use of state property, time, etc., for political activities" and holds:

No person in the employment of the State of Alabama, a county, or a city whether classified or unclassified, shall use any state, county, or city funds, property, or time, for any political activities.

Did Mike Hubbard OK the use of $80,000 in public funds for public-relations work on behalf of a particular political party? Did Hubbard OK the use of $56,000 in public funds for similar partisan activities--perhaps including "research, writing, and editing" on a book about the GOP takeover of the Alabama Legislature?

Alabamians need to be asking such questions--and so do officials in the U.S. Department of Justice and the Alabama Attorney General's Office.

Bob Martin and The Montgomery Independent are not the only folks to raise questions about GOP spending. Bradley Unruh, a former member of the Alabama Republican Party Steering Committee, filed an ethics complaint against former Governor Bob Riley in spring 2010.

Unruh, of Warrior, accused Riley of using his office to "enrich not only himself but also members of his family . . ." Unruh also has called for an audit of the Alabama Republican Party, pointing particularly to expenditures involving Minda Riley Campbell, the former governor's daughter.

Given that Mike Hubbard long has been closely aligned with the Riley family, now might be a good time to ask a couple of questions:

* What happened with Brad Unruh's ethics complaint?

* What happened with Brad Unruh's call for an audit of the Alabama GOP? If an audit was conducted, what did it show?

Here is a video of Brad Unruh discussing his concerns about GOP spending under the Riley/Hubbard cabal: