Wednesday, December 16, 2020

Does Doug Jones' past suggest his future should include a role as U.S. attorney general? Nope, says journalist-lawyer-author Andrew Kreig

Doug Jones

Part One

Is U.S. Sen. Doug Jones (D-AL) cut from the cloth that indicates he has the right stuff to be U.S. attorney general. In a post dated 12/14/20 at the Justice Integrity Project -- under the headline "Sen. Doug Jones As ‘Confirmable’ Biden AG? Bad Idea!"-- Andrew Kreig answers with a firm no. Writes Kreig -- a journalist, lawyer, and author:

Alabama’s Democratic U.S. Sen. Doug Jones has been reported recently as at the forefront of President-elect Joe Biden’s prospects to lead the Justice Department as Attorney General.

That’s in part because Jones has served as a presidentially appointed federal prosecutor, holds a longtime relationship with Biden — and also is considered more readily “confirmable” by Senate Republicans than other top options.

A closer look at the senator’s career suggests that these supposed strengths do not meet the requirements of the job  — and are likely to blow up into controversy.

At first impression, the moderate and sometimes pro-Trump Jones voting record in the Senate confers confirmable status, especially coupled with Jones's former work as a Judiciary Committee Senate staffer.

But some in the Democratic base are already complaining about Jones as too moderate. That could escalate with wider recognition that he tilts to “go-along-to-get-along” careerism. It hardly helps that he is a white man and that reform pressures are coming most heavily from minorities and civil rights groups, including the NAACP.

Most relevant here is that Jones's connections failed to save his client in one of his biggest legal cases, aside from his duly-praised successes in leading a 1990s civil rights federal prosecution of 1960s Alabama church bombing murderers.

This case, the Bush Administration prosecution of Alabama Gov. Don Siegelman, became a worldwide human rights scandal. Another related matter enriched Jones, helping make it possible for him to secure the support enabling his ongoing leadership in the fractured, cash-strapped and largely ineffective Alabama Democratic Party.

Jones thus ascended in 2017 to the Senate seat, which he lost in November’s elections. He is now positioning himself as a frontrunner for the AG post.

What about Jones' weaknesses? Kreig has studied them for years:

My conclusions endorsing those criticisms of Jones are based on more than a decade of in-depth investigation by the non-partisan Justice Integrity Project of mind-boggling abuses in Alabama where Jones built his career with only occasional demonstrations of extraordinary commitment to rectifying the state's massive official corruption.

I first learned of these abuses in 2007 from an Alabama attorney, Dana Jill Simpson,. She was a longtime Republican political operative who became a whistleblower about a nationwide plot to use the Justice Department and scandal opposition research dossiers to destroy the careers of selected targets for political purposes.

Such allegations were so prevalent and concerning after the so-called “U.S. Attorney Firing Scandal” of 2007 that, following my career in business law and trade association work in Washington, I began a reporting fellowship with Brandeis University beginning in 2009 to research the scandal. The focus was on  the harms to communities where prosecutors undertook abusive methods.

The special danger for the Biden-Harris administration going forward is that Jones was close enough to such activities in relevant times, although not personally implicated, that his Justice Department could be regarded as part of a pattern of cover-up that included the Obama-Biden administration and less as a reformer of Trump-era abuses.

These decade-old issues remain far off the Beltway radar screen, as indicated by media coverage of the Biden Transition and the rosy prospects for Jones to advance to the top Justice Department post, as indicated by recent Washington Post stories.

That's partly because Alabama politics and related civic life is so dominated by the Republican Party and media. One commentator, communications lawyer, commentator and law professor Scott Horton, has described both the Justice Department's Office of Professional Responsibility and Alabama's media, for example, as part of the overall problem in both the Alabama cases and nationally. Digging beneath the surface takes more effort than national parties or media are able to provide. Rectifying that is the purpose of this column.

But perhaps also the Biden transition is simply floating names, hoping to “crowd source” research efforts before committing a nomination. Having participated as a volunteer for high-level operatives in previous presidential campaign and transition research, I’ll provide relevant background for others to assess.

This column contains an unusual feature: A detailed rebuttal near the end by Jones against the central allegations. This kind of response is highly unlikely for actual nominees before a hearing.

What about details of the Jones track record? Kreig provides them:

Doug Jones is an Alabama native, born in 1954. He began his professional career after law school working as a staff counsel for U.S. Senator Howell Heflin, an Alabama Democrat, before Jones became an assistant U.S. attorney in Alabama from 1980 to 1984.

Appointed by President Bill Clinton to become U.S. attorney for Alabama’s Birmingham-based district, his most prominent cases were the successful prosecution of two Ku Klux Klan members for a 1963 Birmingham church bombing that killed four African-American girls and the indictment of domestic terrorist Eric Rudolph, a white supremacist.

Jones, moving to private practice at the conclusion of Clinton's presidency in 2001, represented clients who included former Alabama Gov. Don Siegelman (1999-2003), a Democrat whom Republicans prosecuted in two highly dubious federal prosecutions in 2004 and 2006 on corruption charges. Jones did not represent Siegelman in the trial stage of either case, and has told us that trials "are where the rubber meets the road" in cases.

In 2007, the 2006 convictions resulted in an 88-month prison sentences for Siegelman and his co-defendant in the second case, Republican businessman Richard Scrushy. Acting as a lead co-counsel, Jones had also been representing with Siegelman's approval plaintiff investors in a civil fraud class action suit against Scrushy's company, HealthSouth, that resulted in a $455 million settlement in 2006 of a $2.7 billiion accounting fraud that almost bankrupted HealthSouth.

Scrushy was acquitted of criminal wrongdoing involving those frauds, which served largely as a backdrop and not a key element for his corruption trial with Siegelman. The charges centered on prosecution claims that Scrushy made a $250,000 donation in 1999 to the Alabama Education Foundation (which Siegelman had founded) in order for Scrushy to remain on governor-appointed Certificate of Need regulatory board overseeing hospitals.

Trial and conviction on those bribery and extortion charges prompted years of popular outcry in appeals, petitions and the media over what appeared to many as serious human rights violations. Scrushy and Siegelman asserted, for example, that Scrushy didn't even want to remain on the regulatory board and that the chief prosecution witness, Nick Bailey, perjured himself in suggesting otherwise.

The trial irregularities were even more striking to civil rights experts, in a sense, because the defendants were white men, who were well-positioned and well-financed for defense counsel. Yet even their millions of dollars in defense spending failed to find relief for highly disputable convictions affirmed up to the U.S. Supreme Court.

Why the disputes? Because, among other reasons, trial evidence failed to show a “quid pro quo,” or explicit agreement, that Scrushy’s donation to the Alabama Education Foundation, a non-profit advocating better funding for the state’s K-12 public schools, was in return for Siegelman’s reappointment of Scrushy to the regulatory board. Scrushy, a Republican, had served under three previous governors, all Republicans whose campaigns Scrushy had financially supported with massive donations. But Scrushy resigned from the board at the time of Siegelman's election and Siegelman has always said that it was he who wanted the businessman on the board because of his perceived stature in 1999, and not Scrushy's own desire to serve as a volunteer on a relatively low-level board.

Why does the Siegelman-Scrushy case still stand out as an example of prosecutorial overreach?

The Siegelman-Scrushy imprisonment stands in stark contrast to what has long been standard practice at the local, state and federal level whereby political donors receive appointments (obtain ambassadorships in return for multimillion dollar contributions) and favorable federal contracts and policy consideration on a routine basis, according to critics of the Alabama prosecution.

These critics include former Arizona Attorney General Grant Woods, a Republican who was also co-chair that year of GOP nominee John McCain’s 2008 presidential campaign. That year, Woods spoke out to a nationwide audience on CBS “60 Minutes” (Did Ex-Alabama Governor Get A Raw Deal? Scott Pelley, Feb. 21, 2008.60 Minutes Reports On Bribery Conviction Of Don Siegelman In A Case Criticized by Democrats And Republicans.)

"I haven't seen a case with this many red flags on it that pointed towards a real injustice being done," Woods said as he led, in addition to his other duties, an unprecedent effort that grew to 113 former state attorneys general (the chief law enforcers in more than 40 states) who asked Congress and the Supreme Court to investigate the case.

"I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of," Woods says.

The Jones role in this raises wider implications and concerns.

Back in Alabama, the state Democratic Party has been shattered and ineffective for the most part in the years after Siegelman’s removal from politics.

His prosecutions, imprisonment and “scandal” consumed much of local activist energy after the disputed 2002 election of his Republican rival Bob Riley, right,who benefited from the mysterious late-night switch of some 6,000 electronic ballots in Republican Baldwin County in the late hours after Siegelman had been announced as statewide winner.

Gerrymandered congressional districts each year generate one Democratic seat, currently held by Rep. Terry Sewell in a “Black Belt” seat that stretches from Birmingham through Selma to the outskirts of Mobile.

But other Democrats face almost impossible odds aside from the remarkable situation in 2017 when Jones narrowly defeated sex scandal-plagued Republican Roy Moore in a special election after Republican Sen. Jeff Sessions was appointed Attorney General.

Here’s what happened to Siegelman, with reactions by Jones, one of his lead attorneys. Siegelman himself has documented his two-decade ordeal in a memoir this year, author of Stealing Our Democracy: How the Political Assassination of a Governor Threatens Our Nation, published in June by New South books and in a documentary film produced by Steve Wimberly, Atticus vs. The Architect.

Chief U.S. District Judge U.W. Clemon the presiding judge of Siegelman’s first corruption trial in Birmingham, would force prosecutors to drop it soon after it began in 2004.

In 2009, I invited Clemon to appear at a 2009 forum at the National Press Club I organized about abusive prosecutions exposed in the U.S. Attorney Firing Scandal. The then-retired judge travelled to the nation’s capital at his own expense to speak at the event, which was cablecast for three hours by C-SPAN because of public interest in the national scandals.

In advance, the retired judge wrote Attorney General Eric Holder sharing a copy with me, that the Siegelman prosecution had been “the most unfounded criminal case” that he had presided over during his nearly three decades on the federal bench. Because there is a racial component to concern about fairness in the justice system it is worth noting that Clemon was a pioneering African-American member of the federal bench in modern times in the Deep South.

Did Jones undermine his own client? Kreig reports:

One big problem, though, was that the five-year statute of limitations for Siegelman’s 1999 and 2000 actions was set to expire.

Jones convinced Siegelman to waive the statute of limitations because of prosecutors’ supposed benign intentions, thereby subjecting defendant to indictment, imprisonment and financial ruin for his and Scrushy’s families.

There’s more, much more, and way too much to mention here except in passing.

Jones went on to co-chair with Gov. Riley’s son, Rob Riley, a plaintiff’s class action fraud suit against HealthSouth, a company that Scrushy had founded. With the Scrushy and HealthSouth defense hindered by his criminal conviction and imprisonment without bond, plaintiff lawyers won a reported $455 million judgment, with legal fees doubtless enriching the key lawyers.

In February 2008, the CBS news magazine 60 Minutes expose helped make the case a national and global human rights scandal.

The reporting by CBS correspondent Scott Pelley implicated via Republican attorney Jill Simpson Bob Riley’s campaign manager Bill Canary, head of the Alabama Business Council and a longtime ally of then-White House Senior Advisor Karl Rove, in a plan to use Canary’s “girls.” Simpson, in those days a Republican opposition researcher and attorney for contractors, said the “girls” meant Canary’s wife, Montgomery-based U.S. Attorney Leura Canary, and Birmingham-based U.S. attorney Alice Martin, who prosecuted Siegelman’s first trial, before Judge Clemon.

Chief U.S. District Judge Mark Fuller of Montgomery, was the presiding judge for the second Siegelman-Scrushy trial in 2006. He made a number of key, pro-prosecution rulings generating considerable controversy at the time and through the years. For example, he held secret ex parte meetings just with prosecutors and declined to find significant error in communications between the jury and prosecutors, perhaps most notably a potential flirtatous interest expressed by a juror about a prosecutor who seemed attractive to her.

Separately from the CBS broadcast, Simpson showed researchers via documents that Fuller secretly owned nearly 44 percent of the shares of Doss Aviation, a federal contracting company that received $300 million in no-bid Bush contracts without disclosure to the defendants or others appearing before the judge.

This reporter broke that story in 2009 on Huffington Post, which ran it for days on its front page under this headline: Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company.

The rarely photographed Fuller invited Alabama photo-journalist Phil Fleming after the verdict to take portrait shots in chambers, which Fleming shared, bought by the Justice Integrity Project. Fuller, later forced to resign his lifetime appointment after a misdemeanor arrest for assaulting his then-wife, a court clerk assisting in the Siegelman-Scrushy trial, has declined our invitation for comment.

I used Simpson’s evidence and other materials for a front-page Huffington Post story in 2009 reporting that Fuller “hated” Siegelman because the governor had tried to expose corrupt practices by Fuller in 2002.

The other materials included a 150-page recusal motion filed by Missouri attorney Paul B. Weeks III in Fuller’s court in 2003 charging the judge with corruption in a scheme to bilk Alabama’s pension fund while Fuller was a state prosecutor, thereby generating an investigative effort by Siegelman.

The court record shows that Fuller refused to recuse himself and suppressed the text of Weeks' ethics complaint from the federal records PACER system that he controlled as his district’s chief judge. Appellate courts found no basis to grant defendant evidentiary hearings despite astonishing prosecution breaches of required procedures.

To be continued


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