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As Robert Jackson noted in his speech, “The Federal Prosecutor,” the idea of a prosecutor who wields his office as a political tool, targeting and taking out enemies is one of the persistent nightmares of our democracy:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.
Precisely this sort of abuse is hardly an unknown phenomenon. In the presidency of John Adams, Federalists wielded the prosecutorial power brutally to silence and lock up their most effective adversaries. In a private letter from Thomas Jefferson during this period which I reproduced here, Jefferson termed this practice the “reign of witches,” and he so much feared himself being the target of a prosecution he insisted that his correspondent take care to keep his letter secret. The dilemma repeated itself frequently throughout the nineteenth century.
Over time, a series of practices were developed to preclude this congenital defect. Federal prosecutors were to be depoliticized (the Hatch Act, which has been systematically undermined and violated by the Gonzales Justice Department, is the key to this protection); grand juries were to act as a check; and the process by which criminal cases were begun was to be tightly controlled to avoid a top down order to prosecute a target. So assuming that the Bush Justice Department is engaged in a rampant process of political prosecutions, how are these safeguards defeated?
Some young federal prosecutors have led me through the process: how in theory it might work. They didn’t want to discuss any specific cases, but I kept noticing as things were detailed that the “theoretical” scenario they set out to me corresponded perfectly to what actually happened in the prosecution of Governor Siegelman. I came away thinking they weren’t describing a “theoretical” scenario at all.
It’s simple, effective and seemingly failsafe. And the key is to have a hyper-partisan local prosecutor. State criminal justice systems usually don’t have the same sorts of safeguards. An attorney general–let’s just say, for sake of an example, William Pryor of Alabama–might just undertake a special investigation of his principal political adversary–for instance, Don Siegelman. He would develop some issues and accusations, and then he would pay a call on the U.S. Attorney and request that the investigation be pursued on a joint basis. And when that U.S. Attorney is none other than his former assistant, Leura Canary, previously involved in criminal investigations in his office, he’s likely to get an ever-so-enthusiastic response.
Let’s remember: other than the fact that Leura worked for Pryor, what are the other links between them? William Pryor’s two campaign advisors are the other links. And the names of those campaign advisers? Karl Rove and Leura Canary’s husband, William Canary. A powerful, politically-oriented quartet.
Indeed, this is the quartet that brought us the Siegelman prosecution. So when William Canary says, in the conversation relayed by Jill Simpson, that he “spoke with Karl” and that “Karl spoke with Justice” and that “his girls would take care of” Siegelman—it’s all within the corners of that little quartet. Karl is not giving orders to Justice to cook up a criminal case; that would be crude and too obvious. Karl is instead insisting that Noel Hillman wade into the case, providing pressure from the top and resources to dig deep into the Pryor allegations and find something. Remember that at key times in this process, Noel Hillman is visiting and communicating with the White House in connection with his hoped-for judicial appointment. He eventually became a judge.
Pryor also left to become a judge, becoming one of the most controversial judicial appointees in modern times. He was criticized for his intolerant views, but also for his long track record of stridently partisan political engagement. He was replaced by Troy King, who played a very curious role in installing his former client, Congressman Bob Riley, as governor in the face of mounting evidence of election fraud in Baldwin County.
But it’s curious that neither Pryor nor King usually bring high profile political corruption cases on their own. Their modus operandi has been consistent: to take the cases to the federal prosecutors and let them handle the cases, which they raise and push in the background. It’s a plain case of one-hand-washes-the-other. The attorney general provides the basis for the complaint—a request from a local law enforcement agency—and then the federal prosecution provides cover for the state officials. They will say that the federal prosecutors are handling the case, so how could anyone imagine that it’s political? And the scam seems to have worked for quite some time.
Now, however, Alabamians are waking up to the realization that their Attorney General has been playing political games with prosecution for some time.
In a two-part series, Mobile’s Lagniappe took a close look at the long simmering accusations that Attorney General King was playing political games, and struck paydirt. They found an investigator working for King who described how King pushed him for dirt on a former District Attorney who was prepared to challenge King for the position of Attorney General:
Asked to divulge details of those investigations, Castaldo declined elaboration, citing the credo that an investigator does not talk about the specifics of cases. In late October 2005, Castaldo rolled across Birmingham in a vehicle with King and one other staff member. Mobile County District Attorney John Tyson, Castaldo’s former boss, had recently announced his intention to challenge Troy King for the state’s top prosecutor slot, and King was reading a newspaper story about it in the vehicle.
“I can still see it,” Castaldo described, “King said, ‘Looks like Tyson’s throwing his hat in the ring now.’ Then he turned to me and said, ‘You used to work for him. You got anything we can use on him?’” Castaldo slowly shook his head. “I just looked at him and said, ‘I’ve worked for politicians and never spoke out of school about any of them and would afford you the same respect should the opportunity present itself.’”
He wasn’t going down that path. The investigator wanted to do his job and rise above the petty stuff. The answer apparently wasn’t what King wanted. “That was the last time I spoke with Troy King,” Castaldo said.
In the next months, Castaldo found his office lock was forced, his papers rifled and his timesheets examined. He has become a target of a Troy King vendetta.
Lagniappe went on to outline King’s involvement with a major Alabama-based gambling interest, operated by Milton McGregor, which appears to have given $65,000 to Troy King’s campaign. King’s prosecutorial efforts seemed suspiciously to target Mr. McGregor’s competitors.
Castaldo started talking about his suspicions about Attorney General King’s curious prosecutorial priorities and agendas, and Castaldo quickly found himself on the other end of a perjury charge. He was offered an out—the charges would be dropped if he quit. Castaldo refused to quit. The perjury count went to trial. The jury instantly found Castaldo innocent; in fact they seem to have had little doubt about who was lying in the controversy surrounding Troy King.
But as noted last week, one of Troy King’s specialties has been turning electoral law to partisan advantage. With the G.O.P. launching a major effort to take control of voter registration matters, and facing opposition from the state official with responsibility for that area, Nancy Worley, a Democrat, it seems that Troy King had the answer. He launched a criminal investigation into Worley. Lagniappe reports:
The AG’s office claimed Worley sent campaign literature to five workers in her office, envelopes stuffed with election paraphernalia and solicitation. King’s office discovered the incident and brought charges against Worley, attempting to charge her for not only the five misdemeanors for soliciting contributions but also five felonies for soliciting votes. Montgomery County Circuit Judge Truman Hobbs, Jr., threw out the felony charges, citing them as “vague and overly broad.”
“I’m real worried that this statute . . . potentially criminalizes a lot of everyday conduct that happens all over the country,” Hobbs said in a pre-trial meeting with defense attorneys and prosecutors, according to the Birmingham News. The judge said under the section, a state official could commit a misdemeanor for asking a subordinate for a $50,000 donation, but face a felony for asking them to erect a yard sign. “There’s something just inherently illogical and wrong about that,” Hobbs said.
And the Birmingham News reports, drawing again on Castaldo, that Troy King launched a “witch hunt” to remove a Bessemer judge whose ruling that a certain sort of gaming machine was legal had lead to their proliferation in the area. Even Pravda gets it right sometimes. Castaldo had investigated the judge and found no basis to insinuations that he had been corruptly influenced. But Troy King, whose campaign was fueled by competing gaming interests, continued to act with unprecedented harshness.
Now looking at all these different matters (and there are many more not included because of space concerns, but consider this one, for example) is there any reason to doubt even for a second that the Alabama attorney general would use his power to take out the state’s most successful Democrat?
Federal Prosecutor Louis Franklin and his boss Leura Canary appear to want the citizens of Alabama to think that the Siegelman case is not political because it originated with complaints from the Alabama attorney general. That sort of appeal can only work with a public that is ignorant of how this process worked.
Troy King apparently views himself as the G.O.P.’s gubernatorial candidate to succeed Bob Riley. Anyone who gets in his way—Democrat or Republican—had better watch out.
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
Percentage increase in the annual number of polio cases in Pakistan since 2005:
A bowl of 4,000-year-old noodles was found in northwestern China; and a spokesman for the Chinese Academy of Sciences said that “this is the earliest empirical evidence of noodles ever found.”
A federal judge sentenced the journalist Barrett Brown to 63 months in prison for sharing a link to information stolen from the private-intelligence firm Stratfor by a hacker in 2011. “Good news!” Brown said in a statement. “They’re now going to send me to investigate the prison-industrial complex.”
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“I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.”