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On July 2, 2007, in the federal courthouse in Montgomery, former Alabama Gov. Don Siegelman, the most popular and successful Democrat in recent Alabama electoral politics, was sentenced to serve seven years and four months following a conviction on corruption charges. In a dramatic scene, the judge directed that Siegelman be handcuffed, shackled with leg irons, and perp-walked before waiting reporters. Motions for a stay pending appeal, routinely granted in such cases, were denied. Defense counsel were aghast. They weren’t the only ones. Editorial pages from Alabama to New York saw political theatrics in the way the sentencing was managed and started to question many other aspects of the prosecution and trial. And last week, inspired by a number of apparently politically motivated cases, the House Judiciary Committee held a hearing to look into selective prosecution of public officials by the Bush Justice Department. One of the witnesses was G. Douglas Jones, a Birmingham, Ala., lawyer and former U.S. attorney who had represented Siegelman. A year earlier, the jury had returned a guilty verdict on seven of 32 counts against Siegelman, but the conviction had garnered relatively modest public attention. What had happened in the meantime to raise the profile of the case? ‘TAKEN CARE OF’ In May, a lifelong Alabama Republican lawyer, Dana Jill Simpson, provided an affidavit � later backed up by a 143-page deposition and a small mountain of documents � to support a potential motion for a new trial for Siegelman. Simpson had worked with the campaign of the current governor, Bob Riley, in 2002 when he defeated Siegelman, the incumbent, by a very slim margin. She wrote that shortly after the election, she had participated in a telephone conference call in which William Canary, an important figure in Alabama Republican politics and head of the Business Council of Alabama, remarked that he had “spoken with Karl” and that “Karl had spoken with Justice.” Siegelman was going to be “taken care of,” and Canary’s “girls” would handle it. Canary had previously worked with Karl Rove, who has a long history of in-the-trenches involvement in Alabama politics. The “girls” were presumably Canary’s wife, Leura, and Alice Martin, the U.S. attorneys in Montgomery and Birmingham, respectively. Each sought and obtained indictments of Siegelman. Martin took the first shot. Her case was based on a bid-rigging scandal. It came before U.S. District Judge U.W. Clemon, who openly questioned the government’s evidence and whose rulings ultimately forced Martin to drop her case against Siegelman. Leura Canary went next. Her case had two major elements: first, a corruption charge involving bribery by Richard Scrushy, onetime chief executive officer of HealthSouth Corp., and second, a laundry list of other charges woven into a claim under the Racketeer Influenced and Corrupt Organizations Act. Canary recused herself after Siegelman’s lawyers complained that it was a conflict for the wife of a leading figure in the Alabama GOP to handle the prosecution of a leading Democratic politician. The case was carried to trial by career prosecutor Louis Franklin Sr., with the assistance of prosecutor Stephen Feaga and an attorney from the Justice Department’s Public Integrity Section in Washington, D.C. SKEPTICISM PERSISTS As soon as accusations began to fly following the publication of the Simpson affidavit, Franklin stepped forward to claim responsibility for decision-making in the case. Karl Rove had played no role, he insisted. With Franklin in the spotlight, political appointees at Justice stepped quickly into the shadows. But skepticism about Franklin’s account persists. Following sentencing, 44 former state attorneys general from around the country, including many Republicans, were moved by the numerous irregularities surrounding the case to petition Congress for a special inquiry. The ex-attorneys general cited the Simpson affidavit, a series of irregular steps by the prosecutors and the court in handling the case, and, in particular, the strange scene with the shackling of a former governor before cam-eras. All of this fueled concern that the case had been politically tainted, according to the ex-attorneys general. The House Judiciary Committee decided to take up the question. Chairman John Conyers Jr. (D-Mich.) and three other members requested that Justice produce related documents and expressed a particular concern about Leura Canary’s recusal. On Sept. 4, Justice said no to the congressional request, citing confidentiality and privacy interests. As Rep. Artur Davis (D-Ala.), a member of the Judiciary Committee and a former federal prosecutor, noted, Justice is relying on a policy that was designed to protect an individual’s reputation to block an inquiry into whether an investigation was politically motivated. Conyers has pressed for the documents, and the question of contempt proceedings hovers over this (and other pending document requests that Congress has made of the executive branch). ‘FAR ABOVE HIS LEVEL’ Few people question Louis Frank-lin’s claim that he himself had no contact or communications with Rove. The questions focus on Rove’s direct or indirect dealings with others, especially Leura Canary and key political appointees at Justice, and on Franklin’s suggestion that he was the ultimate decision-maker. Lawyers who were involved in the case state that they learned early on that Franklin’s discretion was narrowly constrained by senior figures at the Justice Department, who were managing decisions about the prosecution. In fact, Justice guidelines would have required that at several levels. The heart of the case brought against Siegelman involved a series of RICO claims. Under long-established Justice Department guidelines, the bringing of RICO claims requires high-level approval in Washington. Approval is sought through a so-called prosecution memo, which would have been prepared jointly by Canary’s office and the Public Integrity Section. Arthur Leach, counsel for Scrushy, is a former career federal prosecutor and head of the Atlanta Organized Crime Strike Force. In pretrial dealings with Franklin and Feaga, says Leach, he was invited to consider a plea bargain under which Scrushy would walk away as a free man on the corruption charges provided that he testified against Siegelman. Scrushy declined the offer. However, Leach says, he later learned that Franklin had no authority to make such a deal, which would have to be discussed with the head of the Public Integrity Section. Leach held a meeting in Washington with Andrew Lourie, then acting head of the Public Integrity Section, and had a series of follow-up phone calls. Leach says, “Lourie made clear to me during these discussions that there was intense involvement with the case far above his level at the department. He made clear that the objective was to convict Siegelman. He informed me that the decision was out of his hands, that it was being made above him, and the fact that he even made that statement to me could get him in trouble.” Lourie’s immediate boss was Criminal Division head Alice Fisher. But Leach understood Lourie to be referring to the need for approval at a still-higher level � from the associate deputy attorney general, the deputy attorney general, or perhaps even higher in the administration. EXTRAORDINARY ACTION Historically, the Public Integrity Section was viewed as a bastion of independence and integrity within the Justice Department. Today, things have changed rather dramatically. According to an ongoing study run by professor emeritus Donald Shields of the University of Missouri-St. Louis (who also testified last week before the House Judiciary Committee), the Public Integrity Section during the Bush years has amassed a remarkable record of bringing more than four prosecutions against Democratic public officials for every one case against a Republican public official. One of these cases, the conviction of Wisconsin civil servant Georgia Thompson, was overturned with an extraordinary immediate order for release issued the day of oral argument this past April. The stinging decision by the U.S. Court of Appeals for the 7th Circuit described the prosecution’s theory as “preposterous.” Other cases, including that of Siegelman, are just now drawing close scrutiny. Although both Karl Rove and Alberto Gonzales have left the administration, congressional leaders are signaling their resolve to continue with the investigation. Conyers has made it clear that this will include a probe of the Siegelman case. What remains unclear is whether or how the Justice Department, presumably under Michael Mukasey, will cooperate with this congressional oversight. The Bush administration is now aggressively asserting executive privilege to block congressional efforts to probe Rove’s various dealings with Justice. Yet the Siegelman case promises to be around for some time.
Scott Horton lectures at Columbia University Law School, works on military contractor issues for Human Rights First, and is a member of the board of the National Institute of Military Justice. An earlier version of this commentary appeared in The American Lawyer , an ALM publication.

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