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One of Weimar Germany’s great satirists, Kurt Tucholsky, once offered some very pointed analysis. “If you want to judge the internal qualities of any society,” he said, “I give you this test. How do they treat the political opposition? A true democracy will tolerate opposition political figures and will allow them space to assert their views, however uncomfortable to the mainstream. But if the political opposition becomes the focus of attacks by the tools of justice, democracy itself is in jeopardy, for the transition to tyranny has begun.”
In America today, Tucholsky’s test renders very disturbing results. Since early in 2002, the Bush Administration’s Department of Justice has made “public integrity” matters a top priority. U.S. Attorneys around the country have been urged aggressively to investigate and prosecute cases involving the corruption of elected officials. And, as academic studies have now revealed, this has been taken as an unambiguous mandate to persecute Democratic political figures. The raw political purpose of these prosecutions is rarely cloaked, as prosecutions are commenced concurrent with election schedules, and the most minute details of the criminal investigations invariably work their way on to the front pages of collusive newspapers. And sometimes prosecutions of Republicans by the Bush Justice Department reflects not even-handedness, but equally insidious corruption. That’s the point for my notes today.
If we had to pick one state in the nation where these evil tendencies are most obviously on display, then certainly it is Alabama, home to the nation’s highest profile and most abusive political prosecution. A major television network will shortly be exposing a number of lurid details surrounding the Siegelman case which point to corruption inside of the Justice Department. I have formed the view that the corruption on the prosecutorial side of the ledger greatly outweighs the corruption charged against the defendants in the Siegelman matter. The corruption inside of the Justice Department is exhibited on several different levels:
• The politicization of the U.S. attorney’s office
• The process of “targeting” political victims
• The corrupt manipulation of evidence
• The process of working to secure convictions through collaboration with “friendly” media
One of the cases I have been tracking from a distance for some time is an investigation by Alice Martin into corruption in the administration of Jefferson County, Alabama. The most populous county in the state, Jefferson is home to the city of Birmingham and the center of the state’s business and professional services community. Martin began an investigation into some of the county officials on suspicion of receiving bribes. This produced several criminal indictments, including one against a county commissioner named Gary White. When I started questioning Martin’s role in political prosecutions, several Birmingham lawyers told me, “but of course she prosecuted Gary White, and he’s a Republican.” So the White prosecution was cited, sometimes aggressively, as evidence of Martin’s fair-handedness. But other lawyers—most of them in fact Republicans, and a couple who worked for Martin—told me, “not so fast.” There was, they warned me, something extremely unseemly about the White prosecution as well, but I would have to overturn a lot of rocks to find it.
I have been examining the White case slowly over the last couple of months. There is evidence of petty corruption presented against White, and his answers don’t always strike me as compelling. When the jury returned a verdict against White, I wasn’t particularly surprised. But working through the case concerns mounted that the prosecution was never really about corruption in Jefferson County. The prosecution appears to have had an agenda which had little to do with law enforcement.
Reading accounts of the case in the Birmingham News would, however, convince you that this is a plain vanilla political corruption trial. I unfortunately initially made the mistake of taking the News accounts at face value. Then some friends at the Justice Department keyed me in to aspects of the case which the News consistently ignored, much of which has to do with the News.
And now the dark underside of this case has bubbled to the surface. After a trial on corruption charges against White ended in a conviction, White moved to have the verdict set aside. His arguments were fairly technical. He had previously sought a change of venue on the grounds that he couldn’t get a fair trial in Birmingham because of the highly tendentious press coverage. Essentially, he was talking about the Birmingham News’s incendiary and unbalanced coverage of his case (of course, you won’t read a word about this or indeed any aspect of the case which is favorable to White in the Birmingham News). The judge moved the case to a different district, but White argued it should have been moved to a different division. A very fine point.
Nevertheless, the Northern District’s Chief Judge, U.W. Clemon, granted the motion and is referring the matter for a new trial. All that seems pretty mundane. But wait a minute. Again, I made the mistake of relying on the Birmingham News’s reporting in following the case, and again the News’s coverage had been carefully sanitized to remove some things of ultimate significance. On a tip from some lawyers I went in and looked at the court files. I discovered that in addition to the entirely technical motion reported in the News, the defendant had also filed a motion to dismiss for selective prosecution, supported with an affidavit. And although the judge’s order dealt with the case on the technical prong, and noted that a mere affidavit was not enough to make out a case for selective prosecution, he was extremely troubled by what he read. The allegations reflected corrupt dealings inside the office of U.S. Attorneys Alice Martin and Leura Canary. And much of it had to do with the prosecution of former Governor Don Siegelman.
Here’s a passage from an affidavit submitted by Commissioner White’s wife Judy in support of the motion, which Judge Clemon quotes from extensively. On behalf of the Siegelman prosecution, federal agents
repeatedly and insistently told my husband that they ‘needed’ for [a particular] meeting [between Governor Siegelman and Richard Scrushy] to have occurred at the particular and specific date, and that they wanted him to testify that it did. My husband maintained that he could not do so, as he did not know when the meeting occurred. They even attempted to persuade him that the meeting ‘could have’ taken place on the date they stated, and reminded him that he had no calendar saying that it did not.
The whole of Mrs. White’s affidavit can be read here. Mrs. White is describing the cajoling of federal agents, including an individual named Long, who were working under the direction of Louis Franklin, the prosecutor of the Siegelman case. Franklin is the head of the criminal division for U.S. Attorney Leura Canary.
The implication of these passages is quite clear. White was being pressed to give false evidence against Siegelman in his trial in Montgomery, and was being threatened with the prospect of a corruption investigation and prosecution if he did not do so. In particular he was to have placed the initial meeting on a certain date, which the prosecutors needed to sustain their case. White refused to give false evidence. The prosecution followed. These accusations, if true, amount to a corrupt manipulation of the criminal justice system, a felony.
The judge’s order states that having failed to request an evidentiary hearing and put on a case on selective prosecution, the defendant could not sustain a claim for selective prosecution. Nevertheless the judge was clearly bothered by what he read. “The allegations. . . are serious and quite disturbing,” he wrote. And the judge continued “It seems there is at least prima facie evidence that this prosecution may have been influenced by impermissible considerations.” That’s a bombshell–whenever a federal judge says that he sees evidence of improper conduct by a prosecutor, and that is exactly what the judge is saying, alarms should go off. Read the entire opinion by Judge Clemon here. Another point: the judge in question is not any judge. He is the chief judge of the Northern District. In that capacity he has under federal law special supervisory responsibility over the conduct of the U.S. Attorney. That makes his conclusions still weightier.
What is it that has the judge so troubled? Judy White’s affidavit provides strong evidence that the prosecutors knowingly proceeded against Siegelman on the basis of evidence or claims that they knew or should have known were false. And even more substantial evidence to the same end will very shortly appear in the media.
So how did the Birmingham News deal with the situation–the chief federal judge in Birmingham raising serious questions about the ethics of a high profile prosecution to which they have given prime coverage? Just like Alice Martin’s perjury problems (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.), it just never happened. Not a word reported about it. In the world of the Birmingham News, only the news that suits their purpose gets reported.
This is just another element in an overall picture of gross impropriety and misconduct surrounding the prosecution’s conduct in the Siegelman case. That has included:
sworn evidence by a Republican campaign operative, corroborated by documents and other witnesses, that White House figures including Karl Rove manipulated the prosecution to support G.O.P. election campaign projects,
well-documented evidence of conflicts of interest by the two U.S. attorneys involved (Alice Martin and Leura Canary),
admission that the two most senior career prosecutors on the case recommended against a prosecution of Siegelman,
testimony before Congress that political appointees overrode their determinations in directing a prosecution,
confirmation that evidence of criminal wrongdoing by William Pryor and Jeff Sessions, far stronger than any of the charges against Siegelman, was swept under the carpet by a prosecutor assigned to handle the matter, who was the wife of William Pryor’s lawyer (Pryor and Sessions belonged to the “home team,” as Time’s Adam Zagorin was told).
These matters are studiously ignored in the complicit Alabama media. But they’re being followed closely by the national media and by Congress. Attorney General Mukasey was pressed by Senator Schumer and Congressman John Conyers, chair of the Judiciary Committee, to conduct an independent investigation through his office of the conduct of the Siegelman case. During the hearing last week, he was again pressed twice to explain the gross improprieties surrounding this case. He refuses to do so “at this time.” As in the case of torture, Mukasey is hellbent on a cover-up. He knows what went on in Alabama, and is still going on. And his inaction is slowly rising to the level of complicity. I am fully with the Tuscaloosa News on this. In their lead editorial this morning, describing the on-going travesty of the Siegelman case, they write:
Michael Mukasey may have a distinguished career as a judge but as U.S. attorney general, he’s a loser. For all the interest he has shown in the duties of his new office, we may as well have a smiling wooden puppet seated in his chair.
But Mrs. White’s affidavit also provides a vivid demonstration of the unseemly relationship between the prosecutors and some of the Alabama media, particularly the Birmingham News. She says she emerged from the courthouse after accompanying her husband on his visit to the grand jury to a storm of questions from the Birmingham News. Now the News must have the best reporters since Clark Kent left the Daily Planet because it always knows exactly who appears before a federal grand jury in an Alice Martin investigation, what questions are put and the essence of the examination that transpired. Of course, perhaps they have X-ray vision. Or perhaps someone on Alice Martin’s staff is feeding them all this information. Alice Martin is well known for her attitudes about developing close relations to the press. When asked about charges that someone had bribed newspapers to run stories, Martin had this to say to the Associated Press:
Federal prosecutor Alice Martin. . . told the AP that, if true, there is nothing illegal about someone offering money for favorable news articles. ”If you want to pay someone to write favorable stories and can get a paper to print them, I don’t know of any law it violates,” Martin said.
Other prosecutors have a different view. Of course, Martin may well have been moved by the fact that more than a dozen instances have now been documented in which the Bush Administration offered substantial payments to newspaper writers to publish stories favorable to it, or perhaps her experience is closer to home. In any event, the comments help us understand Martin’s attitude towards media relations.
But Mrs. White notes that questions were shouted to her husband by a News reporter. The next day she opened the News to discover a series of gross inaccuracies. They reported that Mrs. White had testified before the grand jury, which was untrue. When she demanded a correction, the News, again very typically, refused to correct its false report. This incident gives a good flavor to the attack journalism which is being practiced, eager to strike a blow whenever possible, and generally disinterested in the truth.
Finally, Mrs. White explains why she believes her husband, though a prominent Republican, was picked as a political target by Alice Martin. She deals extensively with internal Republican squabbles, particularly involving Bettye Fine Collins, the Republican National Committeewoman for Alabama. As Judy White relates the matter, Collins and Gary White were major adversaries within the Alabama G.O.P., and Collins wanted White out of the picture. Moreover, she relates that Alice Martin was campaigning for a federal judgeship (something I’ve heard from prominent lawyers all over Alabama) and she needed Collins’s support.
So the argument in the Judy White affidavit is that the attack on White served two purposes: first to coerce him into supplying false evidence against Siegelman, and second to score points with still more powerful figures in the state G.O.P. who were White’s enemies.
Now it will be up to a federal judge to look at this evidence, put Alice Martin under oath to see whether she denies the claims made against her, and make a call on who’s telling the truth. But it’s very clear that the judge takes these accusations seriously. It’s also clear that Mrs. White has an interest in helping her husband–she is not what lawyers call a “disinterested” witness. Alice Martin makes vehement denials. But then again, Alice Martin’s evidence will be even more strongly questioned. Not only is Alice Martin not “disinterested,” she appears to have a problem telling the truth, even when under oath and testifying in legal proceedings. One judge already found her testimony related to her conduct as U.S. attorney to be inherently unbelievable. The suggestions about Alice Martin’s political and judicial aspirations are also widely believed in Alabama and have been repeatedly reported in the Alabama media without protest from Martin.
What next? If the Birmingham News sticks to its past tactics, it will next launch another smear campaign against the federal judge handling the case. But the News’s crude partisanship is wearing a bit thin. Isn’t it strange that Birmingham has a U.S. attorney under an internal Justice Department investigation on charges that could lead to prosecution, but the News reports on her in glowing, heroic terms and never mentions a word about her perjury problems. Isn’t it strange that the News always has the inside scoop on every one of Martin’s key investigations? Isn’t it strange that when Martin bungled the highest profile prosecution of her career, against Healthsouth CEO Richard Scrushy, the News had only words of solace? The evidence against Scrushy was overwhelming, and any prosecutor worth her salt should have secured a conviction on the case. How did Martin blow it? That was not a test of political clout, it was a test of raw prosecutorial competence. The real internal dynamics of Alice Martin’s relationship with the Birmingham News would make a fascinating story. I hope someone researches it and writes it up.
My prediction: Alice Martin and the Birmingham News will be a team to the bitter end. But it will be interesting to see how they maneuver their way through the rough waters ahead. Both of them are having their credibility tested severely, and neither has much of a record to stand on.
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
Estimated total calories members of Congress burned giving Bush’s 2002 State of the Union standing ovations:
A fertility scientist named Panayiotis Zavos announced that he had created human-cow embryos that were theoretically viable, but denied that he planned to allow such a hybrid to be implanted in a woman’s womb. “We are not trying to create monsters,” he said.
A statistician determined that the five most common first names among New York City taxi drivers are Md, Mohammad, Mohammed, Muhammad, and Mohamed.
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