SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
Noel Hillman (photo) is a federal judge in Camden, New Jersey appointed to the court by President Bush in the spring of 2006. He gathered the support of New Jersey’s two Democratic senators, and his appointment was considered uncontroversial. Hillman was portrayed in the confirmation process as a “career prosecutor.” Early in 2007, the Bush White House decided to appoint Hillman to a coveted seat on the Third Circuit Court of Appeals.
Again, Congressional support was lined up and Hillman’s confirmation seemed all but a “done deal.” And then something happened. New Jersey’s leading newspaper, the Newark Star-Ledger, put it this way in a report on June 10:
Hillman, a former assistant U.S. attorney in New Jersey and the lead Justice Department prosecutor in the Jack Abramoff Capitol Hill lobbying scandal, had full White House support and the backing of New Jersey’s two Democratic senators, but the Bush administration pulled the nomination for reasons that remain a mystery.
Did Hillman’s deep involvement with the prosecution of Alabama Governor Don Siegelman, Wisconsin administrator Georgia Thompson, and a growing number of other cases in which political manipulation of prosecutions are involved cost him a court of appeals judgeship? This is what sources close to the process on Capitol Hill are telling me.
Hillman is a “loyal Bushie,” and a long-time protégé of Homeland Security Secretary Michael Chertoff, with whom he served in the New Jersey United States Attorney’s office. Hillman followed Chertoff to the DOJ’s Criminal Division in 2001, and was later selected by Chertoff to head the Public Integrity Section (PIN), one of the most sensitive, and also one of the most intrinsically political positions in the Department of Justice. Reduced to its essence, PIN decides who and what is corrupt in the American political landscape.
Hillman is also one of four sitting federal judges who have played roles in connection with the prosecution of former Alabama Governor Don Siegelman. The quartet consists of U.W. Clemon, a judge in Birmingham who dismissed the first proceedings against Siegelman with prejudice and went out of his way to suggest he suspected inappropriate conduct on the part of prosecutors. Clemon is the only Democratic appointee among the judges. And, as the case unfolds, I firmly believe that all of Clemon’s suspicions will be fully validated.
The balance are not only Republicans—they were all appointed by George W. Bush. Moreover, Karl Rove is suspected of having played a role in each appointment.
Mark Fuller is the judge to whom the case was shopped when Clemon dismissed it. In fact, moving the case out of the district in which it was initiated so as to evade the control of the federal judge to whom it was assigned was the first clear-cut sign of prosecutorial misconduct in the history of the Siegelman prosecution.
William Pryor, a ferociously partisan figure and one of the most controversial judicial nominees in recent memory, previously served as Alabama’s attorney general. He used his position to initiate a criminal investigation of Siegelman within weeks of Siegelman’s inauguration as governor. Throughout the history of the Siegelman investigation and prosecution, Pryor figures right at the center of it, concocting new theories, discarding old ones, and ultimately, after concluding that there was an insufficient basis under Alabama law to act, lobbying the Justice Department to bring a case. Throughout this period, Pryor consulted with and involved senior Alabama GOP figures in the matter. Pryor is also a friend and confidant of Karl Rove, whom he hired to manage his election campaign, and who played a key role in his ascendancy to the federal bench.
The fourth judge is Noel Hillman. Hillman was, through the core period in which this case was developed, the head of the Public Integrity Section (PIN) within the Department of Justice’s Criminal Division. His unit had responsibility for the prosecution of elected and appointed public officials at all levels of government – state, federal and local. It also had responsibility for criminal action involving elections officials.
Hillman and the U.S. Attorneys Scandal
Congressional hearings conducted over the last five months have raised very serious questions about the conduct of PIN under Hillman’s leadership. Former U.S. attorneys in San Diego and Arizona, for instance, expressed concern about the way in which politically sensitive cases involving Republicans were being handled. They noted extremely lengthy delays in getting authority to issue subpoenas and bring charges before the grand jury. Hillman did not stymie this process altogether, but it is clear that he used bureaucratic procedures to put the brakes on. Conversely, other federal prosecutors have indicated that when Democrats were in the crosshairs, all caution was thrown to the winds, and intense pressure was applied to bring and hype charges. The strongest examples of this so far have come out of New Mexico, where David Iglesias described the immense and improper pressure brought to bear to indict a Democratic official before the 2006 elections. He resisted that pressure, and his resistance cost him his job. And Wisconsin, where U.S. Attorney Steve Biskupic, obviously under intense pressure from the White House, prosecuted a senior civil servant on charges tied to the state’s Democratic governor. That case produced a conviction. An all-Republican panel of Court of Appeals judges then overturned it with one stinging word: “preposterous.” Hillman and his office were right at the center of all of these matters.
Hillman and the Siegelman Case
And then we come to Alabama, and the prosecution of Governor Siegelman.
Now we still don’t know all the specifics of Karl Rove’s manipulation of matters in the Department of Justice. We do know that he was feverishly involved, and that manifested itself in the decision to sack nine (and perhaps as many as a dozen) U.S. attorneys who he felt were failing to take instructions with an appropriate level of party discipline.
It seems reasonably clear that one of Rove’s key levers at Justice throughout this period was the Public Integrity Section (PIN). This is both because PIN had responsibility for prosecuting corrupt politicians and because of its key role in the elections process. At this point, we have a much more detailed profile of the misconduct in the Civil Rights Division than the Public Integrity Section – largely because a significant number of former Civil Rights Division attorneys have come forward to describe exactly what went on. The evidence for the political manipulation of PIN is of a different nature, but it is arguably even more powerful.
The starting point is a study done by two professors at the University of Minnesota. They examined the Bush Justice Department’s record of criminal prosecutions of public officials since 2001 – that is, since Noel Hillman came to head the unit that handled the prosecution of public officials. And they found that after Mr. Hillman showed up on the scene, seven cases were opened against Democrats for every one case against a Republican. Professors Shields and Cragan state that “the current Bush Republican Administration appears to be the first to have engaged in political profiling.”
The “Abramoff Prosecutor”
The place where this profiling occurred and from which it was orchestrated was Noel Hillman’s PIN.
Hillman seems to have become deeply involved in Alabama matters from a fairly early point. He was touted at the time of his nomination as the “Abramoff prosecutor,” because the investigation of matters relating to Jack Abramoff was the highest profile single pending case within PIN. The Abramoff investigation led smack into Alabama at a very early stage, and a platoon of Abramoff protégés were deeply engaged in the 2002 Alabama gubernatorial election. And they were all deeply involved in the effort to oust then-Governor Don Siegelman. Not only that, it seems that the campaign to defeat Siegelman – run by current governor Bob Riley – was fueled to a considerable extent by Abramoff-related money.
Few figures play quite so critical a role in the entire Abramoff case as Michael Scanlon; he sits right at the middle of the case, offering the essential links between Abramoff and Tom DeLay. Yet it seems forgotten that Scanlon’s primary link – what got him established in GOP circles in Washington – was his service to current Alabama Governor Bob Riley. His political career was launched as Riley’s Congressional press secretary. Scanlon left Riley to work for Tom DeLay and then went to work for Jack Abramoff. He has since pleaded guilty to conspiring to bribe a member of Congress. A Senate Report prepared under the supervision of John McCain details how Scanlon and Abramoff funnelled Choctaw funds into the Alabama gubernatorial race in 2002. They had a simple goal: to sink Siegelman. And they pursued it by telling their Choctaw clients that Siegelman’s lottery plans would undercut their casino gambling revenue. The solution, they argued: pump money into Bob Riley’s campaign to defeat him.
Election Fraud in Baldwin County
A second key figure from the Alabama clan of Abramoff associates is Dan Gans, who served as Riley’s chief of staff both in Washington and Montgomery. He left Riley to work with Ed Buckham and Christine DeLay at the Alexander Strategy Group, which has been repeatedly implicated in the Abramoff Scandal. Gans is a Republican “voting technology expert” who played a mysterious role in the 2002 gubernatorial election – he was in Republican controlled Bay Minette, Alabama, when 6,000 votes inexplicably shifted from Siegelman’s column to Riley’s due to a “computer glitch.” Now this is significant for a number of reasons. The likelihood that this was an innocent “computer glitch” in which only one single candidate – Don Siegelman – lost votes is approximately zero. “Glitches” do occur in computer vote processing, but they do not produce a shift in a single, photo-finish election contest, and not affecting any other race. The only explanation for this is willful manipulation of the voting equipment, and that is a very serious crime. Indeed, Auburn University’s Professor James Gundlach studied the 2002 returns in Baldwin County and found all clues pointing to the same result:
Someone is controlling the computer to produce the different results. Once any computer produces different election results, any results produced by the same equipment operated by the same people should be considered too suspect to certify without an independently supervised recount.
James H. Gundlach, A Statistical Analysis of Possible Electronic Ballot Stuffing: The Case of the Baldwin County, Alabama Governor’s Race in 2002 (Apr. 11, 2003).
The irregularities identified by Gundlach are far more severe than those which occurred in the Ukrainian presidential elections of October 31, 2004, which the United States Government denounced as fraudulent, forcing a new vote which overturned the officially certified results of the first round. In reaching these conclusions, the U.S. Government relied on exactly the sort of sampling comparisons that Gundlach used in his study. So how did the law enforcement authorities with responsibility for this issue behave?
Well, that would be two gentlemen who are now both federal judges. One, then-Alabama Attorney General William Pryor, intervened in opposition to Siegelman’s demands for a recount connected with this serious irregularity – essentially shutting the process down. Indeed, Pryor seems to have done everything within his power to obscure the matter and to insure that Siegelman was defeated. Pryor’s partisan interests throughout this process were completely obvious. As was his interest in avoiding any deep examination of the strange events that had transpired in GOP-controlled Baldwin County, Alabama.
That left the Justice Department in Washington, which had a long and highly respected record of intervention in the Deep South when questions of voting fraud have arisen. This record, however, came to an abrupt end in 2001. The Justice Department official responsible for a question of voting fraud which directly involved the conduct of voting officials – as was the case in the Bay Minette incident – was Noel Hillman. Hillman should have looked at the case and acted upon it. However, Hillman did nothing.
Siegelman lost the 2002 election and was forced from office in Montgomery in one of the strangest and most bitterly contested elections in Alabama history. Three men, William Pryor, Noel Hillman and Dan Gans, played a decisive role in this process. Each of these three then also appear to have played a critical role in setting a prosecutorial process in train to “get” Siegelman, apparently on the theory that not withstanding his doubtful “loss,” Siegelman posed a continuing threat to the dominance of the GOP in Alabama.
The Department of Justice has stonewalled FOIA requests about the history of the development of the prosecution. But from public statements and other reports, we know that two U.S. attorneys – Alice Martin and Leura Canary (the wife of Karl Rove confidant William Canary) were deeply involved from the beginning, as were Pryor and Hillman.
In October of 2005, Hillman even traveled to Montgomery to participate in the press conference announcing Siegelman’s indictment. He was quoted extensively by the Birmingham News, the Alabama newspaper whose coverage of the Siegelman case has consistently—and conspicuously—been an uncritical parroting of the prosecution:
Prosecutors and U.S. Department of Justice officials said the indictment sends a message that corruption in government will not be tolerated. “If you abuse the power of your office to advance your own political and financial interests at the expense of the people who elected you, the Department of Justice will identify you, investigate you and prosecute you to the fullest extent of the law,” said Noel Hillman, chief of the U.S. Department of Justice Public Integrity Section. Hillman, based in Washington, came to Montgomery for the press conference announcing the charges.
Who’s In Charge Here?
Louis Franklin, the acting U.S. Attorney in the prosecution of former Alabama Governor Don Siegelman, has repeatedly defended himself from accusations that he led a politically-motivated prosecution by insisting that the Public Integrity Section of the Criminal Division guided him. Here’s an excerpt from a recent statement issued by Franklin on the case, released through the DOJ press office, in which he mentions it:
The indictment was solely the product of evidence uncovered through an investigation that began before Leura Canary became U.S. attorney and continued for three years after she recused herself. I have never spoken with or even met Karl Rove. As Acting U.S. Attorney in the case, I made the decision to prosecute the former Governor. My decision was based solely on the evidence uncovered by federal and state agents, as well as the special grand jury, establishing that Mr. Siegelman broke the law.
During the investigation, I consulted with career prosecutors in the Public Integrity Section of Main Justice to obtain guidance on the prosecution of the former Governor, but I alone maintained the decision-making authority to say yea or nay as to whether or not the U.S. Attorney’s Office for the MDAL would proceed with the prosecution. Contrary to how the prosecution is portrayed in Adam Zagorin’s Time article, rather than the U.S. Department of Justice pushing the MDAL to move forward with the prosecution of former Governor Siegelman, the push has always come from the Middle District’s U.S. Attorney’s Office and has been spearheaded by me as the Acting U.S. Attorney in the case.
But of course a number of Mr. Franklin’s statements here are demonstrably untrue or misleading, starting with the statement that the “push has always come from the Middle District” and has “been spearheaded by me.” In fact it’s now well established that the effort was begun by William Pryor, and that it began in the Northern District under Alice Martin, and only moved south after her effort was thrown out of court by a federal judge who suspected political manipulation. Franklin was uninvolved in either phase. And indeed, he came only to nominally run the matter after motion papers were filed against Leura Canary, demanding her recusal.
Now Leura Canary’s husband, William Canary, is a principal mover in the Alabama GOP and a figure actively engaged in efforts to take down Governor Siegelman. He is a tight friend of Karl Rove who, according to a Republican lawyer working on the Riley campaign, bragged about bringing Rove into the effort to “get” Siegelman, and how Rove had involved the Justice Department in the process.
Leura Canary stated that when these recusal papers were filed, she turned to the Department of Justice for guidance—that would, once more, likely mean Noel Hillman was involved. She asserted in a Birmingham News article that Justice advised her there was no conflict:
Associate Deputy U.S. Attorney General David Margolis said he found nothing to substantiate Johnson’s [Siegelman's lawyer] claims.
“No actual conflict of interest exists,” Margolis wrote Johnson in a May 15 letter. He told Johnson in the letter that Canary had recommended that she recuse herself. “I am confident that these measures adequately address any perceived appearance issues,” Margolis wrote.
Ethics experts with whom we have conferred say that’s strange advice, because the conflict was obvious from the beginning, and the decisive test of “appearance of conflict” would have required her to distance herself from the case.
Similarly, Franklin’s claim that he was calling the shots in the case contradicts a number of earlier statements he made to the effect that it was being guided by the Public Integrity Section. That would accord with the practice in other districts and other cases, as we are told by Justice Department veterans. In the ordinary course, a prominent elected official cannot be indicted without the case progressing through Public Integrity, which gives or withholds permission to seek the indictment, and which plays the essential role in the vetting process – deciding which cases will be carried forward, and which will be dropped. And that most assuredly happened under Hillman’s leadership at Public Integrity, which by all accounts was tight-reined and intensely political.
So why does Franklin change his account? It looks like higher-ups have forced Franklin to qualify his earlier remarks about taking instructions from the Public Integrity Section. More details have started to emerge about the Siegelman prosecution and the details point to consistent and disturbing irregularity in the process of prosecutorial decision-making. Main Justice, which is already looking like a besieged leadership bunker in the final days of a lost war, is anxious to deflect attention and inquiry. Of course, in addition to this, Franklin’s supposition that by putting the onus on “career professionals” like Hillman in Washington he would deflect suspicions of political manipulation was sorely mistaken. The Public Integrity Section was the operational center in a process of politically-inspired prosecution. Consequently, Franklin’s statement had only fanned the flames.
Did the Bush administration reward Hillman’s political loyalty and his careful management of the Abramoff scandal – which could easily have been far more damaging that it ultimately was – with a judicial appointment? Maybe. But the appointment had other distinctive advantages. It put Hillman beyond the reach of Congressional investigators who are now beginning to ask probing questions about the case. And putting Hillman up for a Court of Appeals judgeship would have opened a door that the White House is now intent on keeping shut and bolted.
Evan Magruder contributed to this post.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
Acres of mirrors in Donald Trump’s Taj Mahal casino in Atlantic City:
Rhesus macaques, who normally are not self-aware, will, following brain surgery, examine their genitals in a mirror. Similar evidence of self-awareness was previously limited to higher primates, dolphins, magpies, and an elephant named Happy.
In New Hampshire, Huckleberry Finn was arrested for sexual assault.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”