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Update, April 22, 2008: Harper’s was informed on April 17, 2008 that the perjury investigation against Alice Martin was concluded on November 28, 2007, with a finding by the Department of Justice Office of Professional Responsibility that Alice Martin “did not commit professional misconduct or exercise poor judgment.” More information on the OPR’s findings is available on this site.
The U.S. Attorney for the Northern District of Alabama, Alice Martin, does not have the background or demeanor that one usually associates with U.S. attorneys: more importantly she has some very serious skeletons in the closet. Martin is one of the more colorful and alarming characters to figure in the Siegelman saga. Back when I started writing about the U.S. attorneys scandal, I got flooded with personal accounts of dealings and encounters with Alice Martin—they came in from attorneys, businessmen, political figures, and prosecutors who work for her, and even a judge. And not a single person had a positive thing to say about Martin. Many expressed questions about her professional competence—and her handling of the HealthSouth case may be the basis for some lasting judgments on that score. But in others she was characterized as mean-spirited, mercurial, petty, vindictive, and extremely partisan. Indeed, her extreme partisanship was a consistent theme of comment.
It’s easy to understand where that comes from. Martin ran for public office as a Republican twice, and lost twice to her Democratic opponent. In an interview with the Associated Press after she lost one of the races, in November 1998, she expressed bitterness and resentment towards Democrats. She has made her aspiration to stand as a Republican candidate for state-wide office in Alabama widely known.
But if she is to have a future career in politics, she has some obstacles to overcome. One is the broad and well grounded sense that she went after Governor Siegelman as part of a Republican political vendetta. Another is a small question of perjury arising from her testimony in an employment discrimination case. Indeed, it is extraordinary for Martin, as a sitting U.S. Attorney, to be the subject of a perjury investigation. As far as I can see, this is another of those amazing things which the Alabama press has saturated in total silence.
Moreover, the accusations against her are hardly trivial, and I have a great deal of difficulty seeing much short of an admission in her responses. I’ve looked over some of the record relating to the perjury charges and will set them out in this post. Here’s why this matters: First, it reflects very poorly on her moral character and fitness to serve as a federal prosecutor, or indeed to hold any public office. Second, the way the matter was managed by the Department of Justice again reflects an unseemly manipulation of serious matters relating to a senior prosecution with political motives lurking in the background. Third, we find the matter coming back into the court of a federal judge who has been the subject of a profile here already, and whose interventions again raise some basic questions about impartiality.
Background of the Perjury Matter
In May 2002, Martin fired a young assistant U.S. attorney named Deidra Brown who had been working in the Huntsville office. Brown is an African-American. She filed an EEOC complaint in which she alleged that she had been fired as an act of retaliation for assisting Brown’s former supervisor, H. Victor Conrad, who had also filed an EEOC complaint against Martin.
In defending the Brown EEOC complaint, Martin stated under oath that she made her decision to fire Brown based entirely on external factors, and free from any knowledge of Brown’s involvement supporting her former supervisor on his EEOC case. This claim was not circumstantial—it was the very core of her defense. In fact, Martin testified that she did not know about Conrad’s EEOC claim until March 2003, that is, almost a year after she fired Brown. Here’s the key clip from Martin’s deposition of May 28, 2003 (p. 32 of the Transcript):
Q: When was it, the first time that you knew that Mr. Conrad had an EEO claim pending against [you]?. . .
A: In the last couple of months.
Q: You weren’t aware that [Conrad] had filed his claims in December 2000 and June of 2001?. . .
There is at least one other passage in her sworn testimony in which she denies knowing about the EEO claim.
Now Martin had received a December 20, 2001 letter which set out this claim in some detail. The letter, delivered by FedEx, was marked “personal and confidential—to be opened by addressee [Martin] only.” Martin has admitted receiving, opening and examining the letter. Her claim now is apparently that she forgot what the letter was about. Martin also testified that she had no knowledge of correspondence between her First Assistant, Jim Lewis, and Conrad. There were six written communications between Conrad and Lewis.
Now Martin is claiming that she knew nothing about the communications between Lewis and Conrad because a “wall” had been put in place so that she would “be able to render an objective decision in the future.” But of course that very claim undermines her contention that she knew nothing: what was this objective decision supposed to be about?
A further very disturbing element lies in a March 18, 2002 email dispatched from the head of the Huntsville U.S. Attorney’s office, Will Chambers, to Martin. Chambers spelled out Conrad’s claims in the EEO suit in some detail and he notes that Brown was assisting Conrad in putting together his case. Here’s how Martin responded in a deposition looking into what she had understood from Chambers’s email:
Q: When was the first time that you became aware that Deidra Brown had any involvement in Vic Conrad’s EEO case?. . .
A: Define what you mean by “involvement.”. . .
Q: Did you know on or about March 18, 2002, that there was some involvement between Deirdra Brown and Vic Conrad regarding complaints? . . .
A: No. What I know is that Will Chambers reports that Brown has advised him that Conrad is in the final stages of preparing a lawsuit. I don’t know what the lawsuit’s about, and I don’t know whether a claim is the same as a lawsuit.
Okay, so Martin did receive and read the email. And she’s engaging in word-splitting that would top even the Monica Lewinsky-era testimony of President Clinton. “Define involvement,” she says, and then “I don’t know whether a claim is the same as a lawsuit.” Remember, this is not a layperson. Martin is not merely a lawyer; she is the nation’s chief law enforcement officer within an important jurisdiction.
But at this point it makes sense to go back and look at the actual text of that Chambers email to Martin. Here’s a key passage:
Brown advised me that among the claims Conrad was going to advance was one related to Doug Jones tolerating a racially hostile work environment. Brown informed me that she would be playing a key or important role in that case and would be a witness for Conrad.
There you have it: Martin did know in some detail about Conrad’s EEO claim. She did know about Brown’s work with Conrad to put it together and push it forward. And her reaction was to fire Brown.
There are of course all sorts of technical defenses that can be raised to a perjury charge. Perjury is not frequently charged all by itself. It tends to be an add-on. I am sure that Martin’s counsel has formulated a rafter of defenses to the accusation.
But we’re dealing with a sitting U.S. attorney who gave false evidence under oath in a legal proceeding–the same U.S. attorney who leveled charges of corruption and obstruction against Governor Siegelman. The conclusion of the Commission’s proceedings on Brown’s claim was that Martin’s testimony was “not worthy of credence.” I’ll say. But how can a person who behaves in such a way–let’s put it as mildly as possible–as cavalierly with the truth, under oath, in legal proceedings–serve as a United States Attorney?
You might think that the Department of Justice would be worried about this. But think again. This is Department of Justice of Alberto Gonzales, Paul J. McNulty, Monica Goodling and Bradley Schlozman. And their reaction appears to be that they could care less.
Internal DOJ Investigation
How does the Bush Administration’s Justice Department deal with facts like these? In August 2004, the Office of Professional Responsibility (OPR) received copies of the deposition transcript, the Chambers email and related documents with a request to fully consider a claim of perjury against Martin. OPR declined action. The letter from OPR brushing off the claim was ludicrous. It suggested that the perjury matter should have been addressed in the EEOC proceedings. EEOC, of course, had no jurisdiction to entertain such a matter.
What was going on that caused OPR to deep-six the Martin perjury matter? Go back and check your calendar. This was one month before the commencement of the trial of Governor Siegelman. So maybe Justice was anxious not to do anything that would shake the boat of the Siegelman prosecution or more specifically rattle confidence in the federal prosecutors behind it.
Note that when lists were being prepared of U.S. attorneys to be sacked, Martin’s name never shows up. She had bungled all the high profile cases she handled, and she was facing serious perjury accusations. You’d think this would set off a bell somewhere. But apparently Alice Martin was just the kind of U.S. attorney that Gonzales and Rove wanted.
In April 2007, out of the blue, with a major Congressional investigation running, OPR suddenly dusted off and reopened the accusations against Martin. But aside from that decision, absolutely nothing has transpired. The case appears simply to be in limbo.
Enter Judge Mark Fuller
Another angle of this case raises some issues. Back in October 2002, Brown filed a FOIA request, Brown v. Ashcroft, to compel the Justice Department to release documents relating to the case. The case was bounced down to Montgomery and assigned to Mark Everett Fuller. Shortly after the suit was filed, Justice responded, releasing over 1,000 documents, and then seeking summary judgment on the grounds that the relief that Brown was seeking had been granted.
Two years later, Fuller disposed of this case acting sua sponte. He struck the names of Alice Martin and John Ashcroft from the caption and then dismissed the case for “failure to state a claim,” concluding that Brown’s letters of request had been too vague.
Fuller’s conduct is bizarre. There was nothing vague about the letters, and indeed, the Justice Department found them in order and processed the request. It appears to me that Fuller was spinning, trying to clean up the record in a way that would eliminate Alice Martin’s name from public visibility. He had become a far more engaged defender of the Gonzales Justice Department than the department was of its own interests. And that’s also the posture he adopted at the Siegelman trial. Is this the way an impartial federal judge handles a matter?
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