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.