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!
Leura Canary’s Remarkable ‘Recusal’
Back on September 14, I ran “The Remarkable ‘Recusal’ of Leura Canary,” an examination of the very strange tap dance that the Montgomery U.S. Attorney’s office has made around the question of Leura Canary’s recusal from oversight of the Siegelman matter. It included discussions with several Department of Justice sources who all concurred that nothing about Mrs. William Canary’s “recusal” was normal, that is, it didn’t stack up with the standard procedures followed by U.S. Attorneys when they recuse themselves.
In the course of the week that followed some more rather odd things happened. One is that the Department of Justice, which had denied a FOIA request brought by an Alabaster, Alabama attorney named John Aaron, decided to turn over a key document to the Mobile Press-Register. As we have noted before, the Press-Register seems to have an extraordinarily cozy relationship with the Montgomery U.S. Attorney’s office. In particular, it seemed to find out just about everything that transpired in the grand jury investigations surrounding the Siegelman case. That reflected either quite extraordinary journalistic work on the part of Press-Register reporters or a breach of Rule 6(e) by staffers at the U.S. Attorney’s office (or possibly both). Still, let’s put aside for the moment why the attorney raising a FOIA request doesn’t get the letter, but the Press-Register does. Let’s just take a look at the letter.
It’s written on May 15, 2002 from David Margolis to David Cromwell Johnson. We should note at the outset that Margolis has been at Justice since the Ford Administration. His reputation is platinum-plated—he’s viewed as an incorruptible, straight-shooting professional. Here is an appropriately laudatory article about Margolis in the Legal Times (subscription required). My own instinct is to believe without hesitation anything that comes from him. So I was initially surprised to see that Margolis gave an opinion that Leura Canary had no conflict. But a number of amazing things emerge from the Margolis letter, in which he sets out in detail some of Johnson’s concerns:
You conclude that ‘U.S. Attorney Canary’s family has benefited financially from its connection with chief political rivals of Governor Siegelman’ and that the Governor’s political adversaries are benefiting ‘both financially and politically from the investigation surrounding the investigation of [your] client.’
Finally, you allege in your March 25 correspondence that there have been leaks of grand jury information in violation of Rule 6(e), Federal Rules of Criminal Procedure, and the Code of Alabama. You associate the leaks with an individual by the name of Claire Austin and then attempt to draw a relationship between Mr. Canary and Ms. Austin because of their business addresses.
And then Margolis comes to his conclusions:
In reaching our conclusions, we relied upon information submitted to the Department by United States Attorney Leura Canary as well as information that is publicly available. We also consulted with individuals who have first hand knowledge and/or particular subject matter expertise regarding the factual and legal issues you raise. . .
Our analysis leads us to conclude that no actual conflict of interest exists. However, United States Canary [sic] recognizes that a reasonable person might question her impartiality were she to continue her current role in the investigation you describe. As a result, United States Attorney Canary has, out of an abundance of caution, recommended to the Department that she be recused from any continuing role in the investigation.
Reading past the rather delicate and diplomatic language of this letter a number of things emerge:
First, the actual controlling standard is “appearance of impartiality,” and Canary was found to be in violation of that standard. She clearly held out until the Department ruled against her. Then she “voluntarily” withdrew in view of the determination made.
Second, the Department’s call rested very largely on submissions made by Leura Canary to the Department. The Department’s decision to decline the FOIA requests was based on Leura Canary’s confidentiality concerns. It doesn’t take an Einstein to figure out what’s going on here. Canary’s submissions are filled with things which she considers potentially extremely embarrassing, and she is desperate to keep them secret. Why might that be? Perhaps because she made false statements to her bosses in Washington and she is concerned about these false statements being exposed?
Again, the Department has concluded that there is no “actual conflict” based on Leura Canary’s submissions. How can that possibly be? The ethics experts I have consulted say it’s a gross error which can only be explained on the basis that the Department was misled by someone about the operative facts.
Just to recap: as this matter was proceeding, Siegelman was running for re-election as Governor. (1) Leura Canary’s husband, William Canary, was serving as advisor to Steve Windom, a man running against Siegelman, who used the pendency of the investigation managed by Leura Canary as his principal campaign grist. William Canary receives $38,000 for this engagement, which flows into the matrimonial partnership shared by Leura Canary. (2) At the same time, a person Johnson links to William Canary is, according to Johnson, leaking confidential grand jury materials relating to the Siegelman case, to the press. (3) Mr. Canary then also signs up as campaign consultant for Bob Riley, the current governor, and steers him through to a successful campaign against Siegelman, drawing heavily on the federal investigation for campaign advertising. I don’t yet know how much Mr. Canary was paid for this, but it was certainly a substantial five-figure sum. (4) Mr. Canary was advising Alabama Attorney General William Pryor, the man who instigated the criminal investigation of Siegelman, and was taking home $40,000 for the engagement.
Margolis thinks this is not a conflict? I have one word to say about that: impossible. It’s as egregious a conflict as I’ve ever seen, and it meets the actual conflict standard head-on. So what is Margolis thinking?
But the question needs to be focused elsewhere. It’s not really what is Margolis thinking? It’s what did Leura Canary tell Margolis that resulted in this false analysis?
And that helps explain, again, why Leura Canary is dripping with cold sweat over the prospect of those documents coming out. And perhaps why a decision was reached to drop one single document from the enormous stack which she thought would help her out to the Press-Register.
In “Hundreds of Pages Denied to Lawyer,” Brian Lyman of the Press-Register does a workman-like job of reviewing the basic facts. One paragraph left me amused. Lyman talks to a Justice Department paralegal who told him that perhaps a paralegal simply missed the documents. Nice try. But as I noted before in an interview with a Justice FOIA officer, it was understood that these documents existed and the decision not to disclose them provoked internal controversy. Indeed, if you examine the decision on appeal, it’s clear that the partial reversal rests on the consciously false statement that there were no documents. This was a conscious deceit. And Mrs. Canary’s office was involved in it. Moreover, as a source at Justice has repeatedly confirmed to me, the push to hold back documents in the case is coming straight from Leura Canary. They point to the fact that Milwaukee U.S. Attorney Steve Biskupic is fully cooperating with the Judiciary Committee. This path was open to Leura Canary, and she vehemently refused all cooperation. Still, Lyman covers the issue very ably—I have to admit, I am surprised to see good reporting in the Press-Register, but it does happen sometimes.
Bob Johnson’s AP piece reporting the same story has a serious error in it. Johnson states:
Canary announced her recusal in 2002 after Siegelman attorney David Johnson questioned the U.S. attorney’s impartiality, citing her husband Bill Canary’s work as a Republican political consultant.
The fact that Mr. Canary worked as a “Republican political consultant” would provide no real basis for a recusal. That is not the argument that was made. Johnson really misunderstands the point. It was Bill Canary’s work in opposition to Governor Siegelman that created the conflict, and that was documented in spades.
Smelling the Coffee
In the meantime, kudos to the Montgomery Advertiser and the Tuscaloosa News. Both papers took a look at how Leura Canary has been handling the request for her papers and both realize that something is seriously amiss. The Tuscaloosa News editorializes:
The Justice Department’s stonewalling of requests for documents in the criminal investigation of former Gov. Don Siegelman only strengthens charges that the case was politically motivated. Siegelman, a Democrat, was convicted in 2006 on political corruption charges. He maintained throughout that the Republican Justice Department targeted him for political reasons. Justice officials denied the claim, but the fact that they are withholding documents in the case doesn’t boost their credibility.
The editorial concludes with a reminder of what similar stonewalling did for the reputation of the Justice Department during the Watergate period.
My other entertainment comes from looking at the series published in the Birmingham News, the Pravda of the south, attacking Artur Davis. On Sunday the first installment appeared right on schedule. There it was right on the front page, where I was told it would appear, and the story was bizarre. You have to read it three or four times to understand—now what is it here that is supposed to be corrupt on the part of Davis? He allows someone to work for him who is taking a state salary?
If you know the Washington world, you know that Congressional offices are filled with volunteers and people under secondment from other agencies, from education in the workplace programs, from internships. That’s corruption?! If so, the wheels of the Capitol would grind to a halt.
Of course, the Rovian machine operates according to some time-proven concepts and one of them is that if you scream “corrupt!” loudly and often enough, some feeble-minded people will actually believe it.
Still the underlying principle, as the News states in an editorial it runs today, is ironclad:
Employees who get paid through the two-year college system ought to have actual jobs in the two-year college system.
I don’t think anyone is going to dispute that. The practice of doling such employees out smacks of featherbedding. In fact I hear from my relations in the world of Alabama education that this is a problem and that there is no shortage of incompetent, underperforming people on the staff who owe their jobs to political connections. But note the young ace reporter’s laserlike focus on one particular woman who is a–gasp, shock–Democrat! The News devotes a whole series of articles and then an editorial all to this one woman who was in a two-year college compensation track and went to work in government offices. Isn’t that queer? And it becomes particularly strange when you think about the scandals now breaking over Bob Riley which the News is doing it’s damnedest not to cover.
No the real message behind the News series is clear, and it got clearer as the week progressed. The idea was to slime Artur Davis. And the reason is equally clear. He has been pushing the Siegelman matter within the Judiciary Committee; he even had the temerity to question General Petraeus and his prescriptions for an endless war in Iraq. And the political interests that the B’ham News backs to the hilt, in particular a certain man known for his fondness for $2,000 crocodile boots—a real “man of the people”–the man that the News fronts for at every turn, is very nervous about this entire affair and determined to fire a shot across the bow.
Indeed, the coordination couldn’t have been more perfect. The News runs its story, and Bob Riley erupts in mock indignation, getting feature coverage that presses the story in the headlines of the News a few more days. I’d say you’d have to be deaf, dumb and blind not to understand the cheap scam that the News is playing. But of course, their anxiety is mounting with good reason, since their little game is now running to its end. It’s a shame. This paper once had a reputation as a decent mid-sized city newspaper.
One other note: the News’s ace reporter on this has an amazing practice of knowing exactly what’s going on in Alice Martin’s and Leura Canary’s offices. He also seems to know everything that happens in front of a grand jury. Of course, that’s supposed to be secret—for good reason. He has a piece out today talking about a federal investigation and grand jury testimony. And going back through the archives, his reporting about the Siegelman matter dating all the way back to 2002 reflected a detailed inside knowledge of the prosecutor’s playbook from the beginning. Take a look at his article entitled “Siegelman’s Finances Probed,” Birmingham News, Feb. 10, 2002:
State and federal prosecutors are reviewing Gov. Don Siegelman’s personal financial records as part of an investigation. Investigators subpoenaed Siegelman’s banking and investment records, The Birmingham News has learned.
Just a for-instance. Don’t you wonder how it is that this ace reporter knows everything that’s under investigation and everyone who ventures before the grand jury?
At some point I hope a historian will explain the forces at play here. My suspicion is that Victor Hanson up in Mountain Brook knows the answer. He’s blessed all of this, or he may even be the force behind it.
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
From the June 2014 issue
Number of U.S. congressional districts in which trade with China has produced more jobs than it has cost:
Young bilingual children who learned one language first are likelier than monolingual children and bilingual children who learned languages simultaneously to say that a dog adopted by owls will hoot.
An Oklahoma legislative committee voted to defund Advanced Placement U.S. History courses, accusing the curriculum of portraying the United States as “a nation of oppressors and exploiters.”
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”