Justice Department Downplays Evidence of Politics in Probe of Governor

New evidence related to one of the most controversial public corruption cases in recent years, the 2006 conviction of Alabama’s former Democratic Governor, Donald E. Siegelman, indicates that Department of Justice prosecutors, who are supposed to ignore politics, were thinking and acting in partisan terms when they probed the governor’s administration.

The same evidence illustrates a systemic problem at the Justice Department: When the Department investigates allegations of misconduct by its own prosecutors, it typically avoids transparency or public accountability. As a result, the public can be left with a question: Is the Justice Department whitewashing prosecutorial abuse?

In 2002, during the Justice Department’s investigation of Siegelman’s administration, a federal prosecutor emailed the son and campaign manager of Siegelman’s principal Republican opponent updating him on the confidential probe, according to a Justice Department document obtained by the Project On Government Oversight and reported here for the first time.

In the email, the prosecutor said he had been “thwarted” after starting an investigation “into the Siegelman administration.” He added that it was “frustrating for me and a small group of like minded conservative prosecutors” to “fight the tide in order to do the job we are sworn to do.”

According to the document, an internal affairs unit at the Justice Department reviewed the email in the course of investigating whether various Department actions against Siegelman were “politically motivated.” The internal affairs unit, known as the Office of Professional Responsibility (OPR), determined that the prosecutor “should not have sent the e-mail. . .and that the fact he did so raised serious questions about his judgment, especially given his supervisory authority over public corruption cases.”

However, as in many OPR cases reviewed by the Project On Government Oversight for a report published in March 2014, there seems to be a disconnect between facts uncovered in the investigation and the conclusions drawn by the Justice Department’s internal watchdog.

Despite the email quoted above and other findings critical of “several current and former Department attorneys involved in the Siegelman cases,” OPR “concluded. . .that the evidence did not establish that political motivation played a role in the investigations or prosecution of Mr. Siegelman,” the document said.

Under Wraps

The document is a June 3, 2010, letter from an assistant attorney general at the Justice Department to Representative John Conyers Jr. (D-MI), who was then chairman of the House Committee on the Judiciary.

In 2008, Conyers called on OPR to look into allegations that the Department engaged in “selective, politically-motivated prosecutions,” and the letter summarized the results of OPR’s inquiry. Siegelman was prosecuted twice: once in 2004 in the Northern District of Alabama, a case that was thrown out, and once in 2006 in the Middle District of Alabama, which resulted in his conviction.

However, even as the Justice Department recapped OPR’s findings for one of its top congressional overseers, it gave him only a partial view of the facts; it did not give him the full report of its investigation, which has never been made public.

The letter’s condensed version of OPR’s findings is at times so fragmentary that it is unclear exactly how and why OPR concluded that prosecutors were to be faulted for nothing more serious than exercising poor judgment. In OPR terminology, poor judgment is not considered professional misconduct. Based on the information in the letter, it is also hard to see how OPR could conclude that the investigations of Siegelman were free of political motivation.

The summary does not name the assistant U.S. attorney who authored the email to the son and campaign manager of Siegelman’s Republican rival.

The Justice Department also tried to keep the summary under wraps. “[D]ue to the privacy implications of this information, we are sending this response only to the [Judiciary] Committee, rather than to each of the Members who joined in your letter to us,” the letter to Conyers says.

In November, in response to a Freedom of Information Act request from Siegelman’s son, the Justice Department refused to release either the OPR report or the letter to Conyers.

A Justice Department spokesperson, citing Privacy Act concerns and pending appeals in the matter, told POGO she would be unable to comment. Ronald Weich, the Assistant Attorney General who signed the letter to Conyers, said he did not recall the details, which were sent more than four years ago.

A spokesman for Conyers said, “At this time, Mr. Conyers does not have any comment on this matter.”

Court Dates

Siegelman’s legal saga is approaching a pivotal moment. The ex-governor must soon appear in federal court, first at a bond hearing in Montgomery slated for December 15, when a judge could free him from federal prison, and then before the 11th Circuit in Atlanta, which is scheduled to hear the second appeal of his conviction in January next year.

Both the letter to Conyers and the OPR report could be relevant to the appeal because the two documents address political issues, including allegations of misconduct by a former U.S. Attorney accused of having political and financial conflicts in the 2006 case.

A lawyer for Siegelman, former White House Counsel Gregory B. Craig, declined to comment for this report.

Siegelman is in the middle of serving a seven-year prison sentence following his conviction on 7 of 33 counts against him, including conspiracy, bribery, fraud, and obstruction of justice. A co-defendant, former HealthSouth CEO Richard Scrushy, was convicted on all 6 counts charged against him, including bribery, fraud, and conspiracy. The principal accusation against both was that the businessman paid Siegelman a $500,000 bribe in exchange for appointing him to a health policy board. But ever since, critics have questioned the logic of the accusation, pointing out that the money did not go into Siegelman’s pocket but rather was used to pay off expenses incurred in a Siegelman-supported ballot initiative to fund public education in Alabama. Others have asked whether Siegelman’s prosecution was selective and political in nature. A 2008 report on CBS’s 60 Minutes asked, “Is Don Siegelman in prison because he’s a criminal or because he belonged to the wrong political party in Alabama?”

A federal appeals court upheld five of seven counts against Siegelman in an earlier review of the case. Then, in 2012, more than 100 state attorneys general filed an amicus brief with the Supreme Court arguing that Siegelman’s conviction mistakenly identified routine political contributions as criminal violations. The Supreme Court elected not to hear that case.

Accountability?

When allegations of prosecutorial abuse are raised, it is OPR’s job to determine whether Justice Department attorneys have violated rules or laws meant to protect citizens from being railroaded.

In the Siegelman matter, OPR interviewed “more than 60 individuals, some more than once,” including FBI agents, Justice Department attorneys, and political figures such as former White House Deputy Chief of Staff Karl Rove, the letter to Conyers says.

(As has been widely reported, a Republican lawyer in Alabama years ago alleged that, while he was serving in President George W. Bush’s White House, Rove spoke to Justice Department officials about bringing a case against Siegelman. In its letter to Conyers, the Justice Department said OPR found no evidence that Rove had any contact with the Department regarding Siegelman.)

In listing the people OPR interviewed, the Justice Department letter summarizing the probe does not name Rob Riley, the son of and campaign manager for Siegelman’s political rival Bob Riley and the recipient of the “like minded conservatives” email. As a result, it is unclear whether OPR contacted him.

The DOJ letter also offers no indication of why the prosecutor emailed Riley in the first place, and on whose instructions, if anyone’s. Nor does it say whether Riley replied or took any subsequent action. It does not explain how the “small group of like minded conservative prosecutors” fit into the picture, or why the prosecutor injected his own political leanings and those of his colleagues into the matter.

The unanswered questions also include who may have “thwarted” the conservative prosecutors and why, and what penalty the prosecutor faced, if any, for sending the email.

“I do not recall receiving the email in 2002, but I had nothing to do with the U.S. Attorney’s Office pursuing charges against Don Siegelman,” Rob Riley told POGO, noting that the contact would have occurred more than a decade ago. “I also do not recall being contacted by OPR one way or the other.”

These unanswered questions, the Justice Department’s refusal to release the letter to Conyers or OPR’s full report on its investigation—which, based on the Department’s response to the FOIA request from Siegelman’s son apparently totals more than 160 pages—and its decision not to identify by name certain officials OPR faulted are consistent with the Department’s long tradition of secrecy surrounding investigations by the internal affairs unit.

In its March 2014 report, Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards, POGO showed how, through the handling of internal investigations, “the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.”

Court Arguments

The letter summarizing OPR’s investigation into prosecutors’ handling of the Siegelman matter shows that the internal watchdog singled out four prosecutors for at least some criticism, but nonetheless concluded that “political motivation” played no role in the case.

One of those singled out was Leura G. Canary, an experienced DOJ career lawyer who served as U.S. Attorney for Alabama’s Middle District, where Siegelman was tried and convicted.

A few months before Bob Riley defeated the incumbent Siegelman in the 2002 election, Canary formally recused herself from the Siegelman investigation. She did so following accusations, widely disseminated by the Siegelman camp, that she had a variety of political conflicts of interest. For example, citing public records, a lawyer for Siegelman protested that one of Siegelman’s political opponents had paid fees to Canary’s husband, a prominent Republican consultant.

In a letter explaining Canary’s recusal, Deputy Assistant Attorney General David Margolis wrote that DOJ had found no conflict, but that out of “an abundance of caution,” Canary would withdraw from the case anyway. She issued a similar statement.

DOJ’s letter to Conyers also highlights the recusal issue. It cites an example where Siegelman was sending out campaign literature claiming that his prosecution was political, a copy of which apparently reached Canary. Despite her recusal, she then forwarded the campaign literature to Siegelman’s prosecutors, suggesting it could provide “a basis for a gag order” to prevent the ex-governor or his lawyers from raising allegations of undue political influence at trial. The letter says Canary should not have done this.

Soon after she contacted the prosecution team, it did in fact seek such a gag order, though a judge refused to grant one.

OPR minimized this example of Canary’s continued involvement in the case. It found that “Canary did not commit professional misconduct or exercise poor judgment in connection with her recusal from the Siegelman case.”

When asked for comment, Canary told POGO it would be inappropriate for her to say anything given her recusal from the case and Siegelman’s pending appeal.

Siegelman’s lawyers have since alleged that Canary repeatedly refused to honor her recusal. They allege that she directed subordinates’ conduct of the case and lobbied to obtain the DOJ funds necessary to pursue it. But in 2011 a federal magistrate denied the relevance of that evidence, which the 11th Circuit will reconsider in January.

In another reference to politics, the DOJ letter says one assistant U.S. attorney working on the case “exercised poor judgment by failing to identify and alert her supervisors to potential conflicts or appearance issues stemming from her husband’s connections to, and activities for, Republican politicians.” The letter does not name the prosecutor or what discipline she may have faced, if any. Nor, in its recap of an OPR report focused specifically on political influence, does it offer any clue as to which “Republican politicians” her husband had ties to, the nature of those ties, or how they may have impacted the case.

At another point, the DOJ letter refers to a separate attempt in 2004 by the Northern District of Alabama to prosecute Siegelman for corruption. A federal judge with nearly 30 years tenure threw that matter out of court, later calling it “completely without legal merit” and “the most unfounded criminal case over which I presided in my entire judicial career.” Citing the 2004 case, the judge wrote a letter to Attorney General Eric Holder calling for an investigation of prosecutorial misconduct in Siegelman’s subsequent 2006 conviction.

OPR had a different view. It concluded that, while the evidence in the 2004 case was “weak, the decision to prosecute. . .did not violate the Principles of Federal Prosecution.”

According to the DOJ letter, OPR had a procedural complaint. It found that the U.S. Attorney who brought the case, Alice Martin, “exercised poor judgment by failing to comply with Department guidelines” requiring her to “provide timely notice” of Siegelman’s indictment to DOJ headquarters.

Reached by POGO, Martin said, “We exercised great judgment in bringing the case, after a grand jury indicted Siegelman.”

Media Under Fire

In another finding, the letter flatly contradicts a report by CBS anchor Scott Pelley on 60 Minutes. According to the letter, OPR examined the circumstances surrounding two key witnesses against Siegelman who also became the focus of media scrutiny. OPR determined that “evidence did not support” an allegation broadcast on CBS’s 60 Minutes in 2008 that one witness had met with prosecutors to prepare his testimony “more than 70 times,” or that he had produced various “written versions of proposed testimony.”

In response, a CBS spokesman told POGO: “It’s unfortunate that the Department of Justice wasn’t willing to be interviewed on 60 Minutes when we broadcast the story in 2008.”

The letter also says that “evidence did not support” an allegation that appeared in TIME magazine in 2007. That story, written by the author of this article, cited FBI documents showing the prosecution relied on a witness who gave incriminating evidence against Siegelman and two prominent Republican politicians in Alabama. Investigators and prosecutors allegedly ignored the evidence against the two Republicans.

The letter says OPR concluded that investigators and prosecutors did not pursue those matters because of “concerns” about the witness’s “credibility” as well as a “lack of resources.” The letter also reports that a lawyer in DOJ’s Public Integrity Section later re-interviewed the witness and determined that his allegations “lacked merit” and were probably “time barred” from prosecution. The letter says nothing about why, given those weaknesses, prosecutors chose to have the witness testify for four days at Siegelman’s trial, where the witness’s allegation figured in about half of the 32 corruption counts brought against the ex-governor.

Finally, the letter says that OPR offered the U.S. Attorney for the Northern District of Alabama and the two Assistant U.S. Attorneys found to have exercised poor judgment a chance to appeal its findings. They did so, and the matter was reviewed by Associate Deputy Attorney General David Margolis. He affirmed the findings.

As long as the Department of Justice keeps the report about its internal investigation under wraps, it will be impossible for anyone to independently assess the Department’s investigation into itself or the soundness of its conclusions.