No Comment — October 5, 2007, 12:40 am

A Minor Injustice: Why Paul Minor?

(Continued from A Minor Injustice.)

Bagging a Democrat
When it came to funding Democratic candidates and causes, prominent Mississippi trial lawyer Paul Minor was a go-to guy. He was a major donor to Democratic candidates for office, and he was against tort reform and staunchly opposed limiting injury awards. Between 2001 and 2004, Minor and his law firm donated over $100,000 to a range of Democratic causes, from the John Edwards campaign, to the Association of Trial Lawyers of America, to the Democratic Senatorial Campaign Committee to the Democratic National Committee. Richard Opel & Glen Justice, “Developing the Strategies: Fund Raising,” New York Times, July 26, 2004. The Times notes that Paul Minor was the tenth largest donor to John Edwards, with donations totaling $129,000, and it also notes that almost every major attorney donor to the Edwards campaign mysteriously became the target of an aggressive Justice Department criminal investigation. Thus in 2002, when FBI agents began looking into the campaign funding sources of Mississippi judges, Minor’s name surfaced in connection with a loan he had guaranteed to help Supreme Court Justice Oliver Diaz secure a loan for election finance.

Ultimately, Minor was convicted of honest services mail fraud on September 7, 2007. He was charged with having helped Mississippi Supreme Court Justice Oliver E. Diaz, Jr., and his family secure loans to fuel Diaz’s election campaign by providing personal guarantees. Minor also allowed Diaz to use an apartment he owned. Diaz states that he used the apartment only on weekends to visit his children, who were separated from him thanks to a recent divorce, that he shared it with another renter, and that Diaz made payments for its use. Diaz’s statements on these points were corroborated by a series of other witnesses. However, none of this was noted in the charges brought by the prosecution. Indeed, the prosecutors also neglected to point out that the apartment was not solely Minor’s–a major shareholder was another prominent lawyer who had made the same sorts of loans that Minor had, and who, unlike Minor, actually had cases in front of the judges in question. The other lawyer, however, makes strong campaign contributions to the Republicans.

As the investigation began, a survey of local newspapers–particularly the Jackson Clarion-Ledger–shows that Minor and his fellow targets were under heavy assault. The local press began to print articles laden with innuendo and smear, and articles appeared accusing Minor of “corruption” based on information that was consistently sources to anonymous “sources close to the investigation.” As a practical matter this could only have come from the prosecution team. And the timing of the leaks–for instance in 2003, when Haley Barbour returned to Mississippi ready to recapture the statehouse for the G.O.P.–seemed to coincide with Republican campaign strategy. The leaks served a double purpose, however: they “poisoned the well” by predisposing the newspaper-reading citizenry to think that Minor and his colleagues were guilty; and they furnished essential fodder for the G.O.P. election effort in which high profile and prominent Democrats were constantly labeled “corrupt.” The prosecution’s case aligned with the G.O.P.’s Mississippi election strategy on another score: intimidate and dry up the trial lawyer campaign contributions which were the life’s blood of the Mississippi Democratic Party.

The Charges
The actual charges filed were almost incomprehensible. Several public integrity prosecutors with whom I conferred told me they were unfamiliar of any similar case raising charges quite like these. They were called “strange,” and “perhaps unique.” Most public corruption cases revolve on a quid pro quo: a public official is asked to do something for some form of compensation or reward. But in these cases there is no quid pro quo, and none is ever alleged. As the New York Times’s Adam Liptak observed:

The central charge against the two men is so convoluted that setting it out requires a diagram, if not a family tree: trying to influence a libel case against Mr. Minor’s father, Mr. Minor guaranteed a loan to Justice Diaz’s former wife.

Here’s my take.A very detailed and meticulous review of the charges and legal issues in the Minor case has been presented in Roger Shuler’s “Mississippi Churning” series, which can be visited here. I strongly recommend it for anyone interested in the case, and one good place to start is his primer on honest services mail fraud. But I’ll give you the short version: honest service mail fraud is an effort to conjure a crime which does not exist. The “crime” here is purely political.

First, Mississippi is a state in which judges are usually first appointed by the governor, and then must achieve election in their own right. Judicial elections are supposedly nonpartisan, but the shadows of partisan interest hang heavily over the entire process. There is no rule prohibiting attorneys who practice in front of a given judge from donating to, and even advising, that judge’s campaign–these happenings are in fact commonplace and drive the entire system. Given Mississippi’s small population, it is not rare for judges and attorneys to regularly interact and maintain close friendships. Both Minor and Diaz opposed the G.O.P.’s “tort reform” project, which aimed to materially reduce the potential exposure of manufacturers to large tort verdicts. This made the two natural allies, and offers an explanation for Minor’s support of Diaz’s campaign.

Second, during the immediate period of the loan, Diaz never voted on a case in which Minor held an interest. However, two years after he accepted Minor’s loan, Diaz did join in a unanimous decision favoring Minor’s father, a prominent journalist, who was defending a libel case before the state’s Supreme Court. As we reported previously, Diaz, along with the two lower court judges, was accused of failing to report loans on financial disclosure forms, and failing to disclose to attorneys in the case before them the details of Minor’s loans. These two failings, the prosecutors argued, effectively deprived the people of Mississippi of the honest services of their judges.

But in fact, the shoe fits perfectly on the other foot. By pursuing an investigation and bringing the charges, the Justice Department was depriving the State of Mississippi of the services of these judges. In fact Oliver Diaz had to step down from the bench for a period of several years while he defended the charges brought against him. The charges were ludicrous and his acquittal was a foregone conclusion. But what was the purpose of the prosecution? To keep Diaz off the bench, and thus remove one Democratic vote, shifting the Mississippi Court’s partisan balance. Seen this way, what the Justice Department did was an assault on the political franchise of Mississippi voters and an attack on the State’s Constitution, all pursued for partisan political purposes.

But in the prosecutors’ view, Minor was guilty of participating in the scheme; hence the charges of honest services mail fraud, deprivation of honest services, and the application of the RICO act against him. An excerpt from Minor’s motion to dismiss clarifies the workings of Mississippi’s judicial politics, and the vague line drawn between contributing to a judge’s campaign and acting improperly to influence the state’s judiciary:

Those from the side of big business would say that their support for specific judges was for the purpose of changing the overall judicial philosophy of the state and not so that a specific judge would be beholden to them in any case. Those individual attorneys who supported different judges did so for the same reason. This is the tug-of-war when there are popular elections of judges in which attorneys and those with case interests can participate. In the midst of this keen political debate about Mississippi judges and the future of how elections would be influenced by outside business interests, the U.S. Attorney decided to seek an indictment converting Mr. Minor’s actions not as his desire to take part in the political process but as his attempt to corrupt judges for his own personal benefit. Again, others were not treated in this fashion, and the question remains “why?”

The first concern raised by this case is Minor’s claim, as noted in the brief above, that he was the victim of a selective prosecution.

The second is the conduct and background of the U.S. Attorney Dunnica Lampton, which adds substantial weight to Minor’s claims that he was a political victim.

And the third is the very mysterious circumstances surrounding the selection of the federal judge and the judge’s aberrational conduct in the case. As we will see, although this is a case involving charges of improperly influencing judges, in pursuit of the case the Department of Justice engaged in conduct involving the trial judge which was at best at the outermost periphery of what the canons of ethics permit. In many respects the case against Minor looks like a rehashing of the prosecution of Governor Don E. Siegelman next door in Alabama.

The Teflon Litigator
As Minor recounts it, and other lawyers with whom I spoke confirm, the idea of rushing in to support the judges who came under fire from the Chamber of Commerce started with Richard Scruggs, probably the best known and wealthiest member of the Mississippi trial lawyers bar. Scruggs, like Minor, made loans to Mississippi judges and came under investigation in the original study launched by the FBI. However, there was a critical difference. Scruggs tends to support the Republicans, not the Democrats. In 2000, for instance, he gave $250,000 to the Bush-Cheney campaign and to the G.O.P.,Federal Election Commission Report, Sept. 15, 2000 (in addition to this donation, Scruggs has made several others, and his wife has given over $500,000 to various Republican causes). and only $20,000 to Democratic candidates.Brian Perry, “Bad Judges,” Madison County Journal, Nov. 21, 2002. And more significantly, Scruggs was the brother-in-law of Mississippi Senator Trent Lott, who at the time was the Republican leader in the U.S. Senate.

If the conduct that Minor engaged in was unlawful, then Scruggs should also have been charged. Indeed, an outsider looking over the file would come pretty quickly to expect to see Scruggs as the lead defendant in the case. But that’s not the way U.S. Attorney Lampton and Public Integrity section head Noel Hillman saw things, and several people who have asked to remain anonymous have told me that that Lott was aggressive in acting to protect Scruggs. Indeed, FBI Agent Matthew Campbell out of the Gulfport field office is reported to have expressed disbelief that the case was pursued against the Democratic donors but dropped as against the Republican-connected Scruggs. The Biloxi Sun Herald reported“Web of Connections,” Sun Herald, Apr. 23, 2004.:

Matthew Campbell early on was a lead agent in the judicial probe, but he was reassigned after he questioned Scruggs’ ties to Sen. Lott and Attorney General Moore. Campbell wanted to investigate Scruggs, and questioned whether Moore should be involved in the investigation.

The result: Special Agent Campbell, a forensic accountancy expert, found himself quickly reassigned. His new duty station was Guantánamo, where his accountancy skills were unlikely to be of much use, but from which he was not likely to be heard again.“FBI Agent Reassigned After Questioning Ties in Judge-Attorney Probe,” Associated Press, May 29, 2003.

With Special Agent Campbell off the case, a new FBI agent stepped in. His name was Kevin Rust. Campaign finance records show that Rust was an active participant in and supporter of the Chamber of Commerce-supported judge who contested Justice Diaz’s seat, and who had been defeated in the 2000 election. Under FBI ethics rules, Rust should have been excluded from the case. Instead, he assumed leadership for it. Thus, this “public integrity” prosecution started with a systematic and very revealing violation of the basic rules of public integrity. And it was just one of a great many ethics infractions which were to follow.

Why did the Justice Department decide against proceeding with charges against Scruggs? If it was because of Scruggs’s connection to Trent Lott, then Senate ethics rules concerning interference with pending investigations and prosecutions were violated. Indeed, several members of Congress are now under investigation because of their abusive involvement in investigations and prosecutions of political rivals at the apparent invitation of the Bush Justice Department. The Biloxi Sun Herald quotes Lott as acknowledging having had discussions with the prosecutors about his brother-in-law’s case.“Lott Asked Investigators About Scruggs,” Biloxi Sun Herald, May 31, 2006. Lott quickly corrected his comments as “a mistake.” But the circumstances surrounding the case leave many wondering just how mistaken the remarks might have been.

Or perhaps, following the same reasoning that the federal prosecutors used in going after Minor and his co-defendants–in which a sinister motive is imputed to every campaign contribution–the decision not to prosecute simply reflects the current protection payment necessary to secure immunity from the Bush Administration’s “public integrity” racket. A $250,000 payment into the Bush-Cheney campaign coffers apparently buys a lot of peace of mind.

U.S. Attorney Lampton never offered a coherent explanation or response to the accusations of selective prosecution. He didn’t have to. The federal judge handling the case never really entertained or ruled on the motion. I’ll look into that at a later date.

Ultimately, two trials occurred. The first resulted in a deadlocked jury. When time came for the second trial, Minor found that the judge had decided to change the rules. In the first trial, Minor had offered a great deal of exculpatory evidence. He showed that he had an established practice of making small loans and guaranteeing loans to his friends and colleagues in the legal community who couldn’t get them. This included a series of loans and loan guarantees he made over a long period of time to Black lawyers who had a notoriously difficult time securing credit from Mississippi racially conscious banks. The evidence showed that the guarantees that Minor made to the three judges here, to allow them to fund their reelection campaigns, were nothing out of character for him. It directly offset claims that his intent was corrupt. But as the second trial got under way, the presiding judge announced he had changed his mind about this evidence, and he was going to exclude it. This was a clear and conscious changing of the goal-posts in mid-game designed to help the prosecution get a conviction. And the second go-round in fact produced just that result.

It appears to me that what got Paul Minor in trouble is that he facilitated campaign finance for Diaz and for two lower court judges. In the mind of the Justice Department prosecutors, he did not give money because he supported the candidates, nor because they were his friends, nor because he agreed with their judicial philosophy. In the Justice Department’s view his donations were made in order to influence cases he had pending before the court.

At the same time, to the Bush Justice Department, it is perfectly appropriate to funnel millions of dollars from mysterious corporate donors to “pro-business” candidates via organizations set up by the Chamber of Commerce–and then to brush off the fact that these donations violated state campaign finance regulations by claiming that they were protected as “free speech.” Meanwhile, donations by trial lawyers to judges on the other side of the electoral fence–judges who threatened the constituents of the Chamber of Commerce–were perceived as corrupt.
This demonstrates very clearly the two-tiered standard of justice which lies at the core of the Paul Minor prosecution. The flavor of justice dispensed depends entirely on your politics.

Mississippi’s most prominent living writer is novelist John Grisham. His thrillers–The Pelican Brief, The Client and The Testament among others–are filled with tales of corrupt prosecutors, bought judges and a handful of decent innocent citizens convinced that justice really means something. Grisham grew up in Southaven, Mississippi, and it’s often said that his novels are informed by what he saw and learned in the courthouses of the Mississippi delta. And will the case of Paul Minor figure in a Grisham novel to come? In any event, Grisham has just published a new novel called Playing for Pizza. At the launch party for his book, he was asked how he assesses the strange doings of the Bush Justice Department. “I’ve always thought that they were bad people with evil intent – and all that, it’s playing out now,” he told the Des Moines Register. “You can’t hardly look at any aspect of the government in the seven years so far that’s been run properly.”

When the last installment ran, Paul Minor was in a prison in his native Mississippi. Since then he has been moved to a new prison, in Oklahoma. There’s no doubt he will echo Grisham’s sentiments. And so will millions of other Americans.

Evan Magruder contributed to this post. In the next installments we will look at U.S. Attorney Lampton’s role in the prosecution, his own record in the area of campaign finances, and the reappearance of Public Integrity head Noel Hillman.

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