Three Felonies a Day Page 9
Are the feds actually serving the best interests of citizens, or do these indictments simply take issue with local political culture and control, and with the unremarkable reality that people with an “in” with city officials have an edge in getting municipal business and jobs? Shouldn’t these issues be decided on the basis of state and local political and legal notions of the acceptable bounds of human nature and political culture, rather than by the feds on the basis of law enforcement’s judgment as to where to draw the line defining a truly corrupt political and business environment? Shouldn’t it be the job of state and local officials to enact conflict-of-interest and other such laws and regulations to determine the acceptable limits of influence in their particular region, and shouldn’t federal prosecutors be required to accept these decisions? And if we as a society are willing to leave these decisions in federal law enforcers’ hands, should we not at least have the right to know how and where they draw the lines? It is one thing, after all, to be under the thumb of misplaced power but quite another to be subject to undefined rules.
As the Martinez and Anzalone prosecutions demonstrate, the pliability of federal law makes it all too easy for a self-serving U.S. attorney to take down his or her political adversaries. The situation has become more precarious, it seems, with every successive administration. The administration of George W. Bush was no exception. Staying on the good side of the nearest U.S. attorney’s office is no longer enough; simply being a member of the opposition party makes one vulnerable to indictment. The preliminary results of a study by Professors Donald C. Shields and John F. Cragan found that between 2001 and 2007 the DOJ opened investigations into seven times more Democratic public officials than Republican. The professors concluded that the odds of this discrepancy being a random occurrence were one in ten thousand.18 Indeed, a July 2008 report detailed how decision-making in the Bush administration’s DOJ was wrought with political bias.19
Given this state of affairs, it is not surprising that many quickly expressed skepticism over the 44-page indictment of Alabama Governor Don Siegelman, the most popular and accomplished Democrat in the history of modern Alabama politics, and three others, including HealthSouth Corporation’s then-Chairman and CEO Richard M. Scrushy, in 2005.
“It was a clear case of selective prosecution,” opined Scott Horton in Harper’s. “If the theory applied to the Siegelman prosecution were to be applied uniformly, many in the Bush administration would be in prison.”20
Forty-four former state attorneys general, both Republicans and Democrats, petitioned the House and Senate Judiciary Committees in July 2007 to look into suspected “irregularities” that “call into question the basic fairness that is the linchpin of our system of justice.”21 The attorneys general voiced their collective suspicion that Siegelman might have been “the victim of a politically motivated double-standard” by the federal prosecutors who recommended a sentence of 30 years but got the judge to impose what the attorneys general deemed a “harsh” sentence of seven years and four months.
The criticisms became even more severe after Alabama lawyer and Republican activist Jill Simpson came clean and told congressional investigators that she was a player in a plot, orchestrated by U.S. attorneys in different districts in Alabama, to remove Siegelman from the political stage via indictment.22 Siegelman himself described the case in terms of an “abuse of power” that he attributed to the influence of then-White House political operative Karl Rove and then-Attorney General Alberto Gonzales.23
But with all this focus on the politics behind the prosecution, critics lost sight of the real story: Siegelman was prosecuted based upon conduct that by no reasonable stretch could be considered a crime. Or, perhaps more to the point, the conduct involved would not likely be seen by most public officials, or even by lawyers, as illegal.
The heart of the indictment focused on $500,000 in donations made by Scrushy, an important figure in the Alabama health care industry, in 1999 to a cause Siegelman frequently championed: the creation of a state lottery, the proceeds of which would fund the public school system. The pro-lottery campaign was ultimately unsuccessful and amassed a debt of nearly one million dollars. Scrushy’s first installment of $250,000 helped fund the lottery effort, while a second installment of $250,000 went toward retiring the lottery campaign’s debt. Later that year, Siegelman appointed Scrushy to the State of Alabama Certificate of Need Review Board (“CON Board”), a panel that decides if state hospitals may add new services.
Prosecutors alleged that the donations constituted a bribe of a public official.24 Out of this one act, they alleged a violation of the federal bribery statute,25 a criminal conspiracy,26 a violation of the honest services mail fraud statute,27 and extortion.28 To top it all off, because the indictment fashioned the conduct as a racketeering enterprise, the defendants were subject to the draconian penalties of the federal Racketeer Influenced Corrupt Organization (“RICO”) law.29
There were numerous problems with the indictment. For one thing, as Horton points out in Harper’s,30 Scrushy gained nothing from the alleged bribe. He had already served in this uncompensated position on the CON Board under three former governors. He testified, without contradiction, that he did not even want the position, but considered it a public service. This claim is bolstered by the fact that, in their indictment, prosecutors were never able to point to a single instance in which appointment to this board benefited Scrushy or his company financially. As Julian McPhillips, one of Montgomery, Alabama’s foremost trial lawyers put it, “the CON board did not, and does not, regulate HealthSouth, nor does it regulate any other health care company in Alabama.”31
Siegelman and his supporters throughout the ordeal took the position that the Scrushy contribution to an issues-oriented campaign (none of the money went to Siegelman nor his election campaign fund), and his subsequent reappointment to a volunteer position on a state board was routine political activity. This stance seems entirely correct, or at least perfectly reasonable. “George W. Bush singled out 146 individuals who gave or gathered $100,000 (to his actual political campaign) for appointment to far more desirable postings as ambassadors, cabinet officers, or members of his transition team. Not a single one of these appointments triggered a Justice Department investigation,” wrote Horton.32
The combination of the slipperiness of federal bribery law, a hostile judge, and some questionable prosecutorial tactics appears to have led to Siegelman’s conviction.
The judge in the case, Mark Everett Fuller, a long-time Alabama GOP insider and former member of the Alabama Republican Party’s Executive Committee, drew the wrath of the bipartisan former state attorneys general not only for denying Siegelman, who was not a flightrisk, the right to remain free on bail pending his appeal, but also because “the shackling of the Governor in handcuffs and leg irons as he was taken out of the courtroom was shocking.”
When Siegelman’s lawyers asked the Court of Appeals for the 11th Circuit to release their client during the appeal on the strength of the substantial legal questions that the case presented, the appellate court twice sent the bail-pending-appeal question back to Judge Fuller, who twice declined the appellate court’s pointed invitation for him to reconsider his denials. Finally, the Court of Appeals on its own ordered Siegelman released while the court studied what it deemed the “substantial question” raised by Siegelman as to the propriety of his conviction. 33 Presumably, the question of whether Siegelman’s conduct constituted any crime at all will eventually be decided by the courts.
Even when the law seems relatively clear, local and state politicians can find themselves in a world of trouble if a U.S. attorney is determined to go after them. Although bribery and extortion charges are the most favored weapons, resourceful federal prosecutors have much more in their arsenal.
The indictment of former Massachusetts House of Representatives Speaker Thomas Finneran, in 2006, is illustrative. Finneran, who had just taken a high-profile private sector job running a high-techno
logy consortium, was elegant, quick-witted, famously arrogant, highly controversial, but fastidiously incorruptible.
In announcing that he had secured Finneran’s indictment by a federal grand jury, U.S. Attorney Michael J. Sullivan solemnly declared that “a severe breach of the public trust” had occurred when, in 2002, Finneran testified as a witness in a civil lawsuit challenging the legality of a Massachusetts legislative redistricting plan. Sullivan charged that Finneran, then the House Speaker, lied about the extent of his knowledge of and involvement in the plan before it was disclosed to all members of the state House of Representatives. The testimony, the indictment alleged, would have been “material” to the claim by the citizens’ group—the Black Political Task Force (BPTF)—that sued the state, claiming that the plan discriminated against African-American citizens by concentrating black voters in too few voting districts. As a result, the BPTF had asserted (and the civil court had agreed) that the probable number of House seats that would be held by black reps was reduced.
Finneran, a white Irish-Catholic politician, lived in and was elected by a district classified by the 1990 census as consisting of roughly 70 percent racial minority voters. Yet the district consistently re-elected Finneran by huge margins. This was no small feat in Boston, a city still uneasy about decades of racial distrust. Finneran enjoyed a respectable level of support among black voters, in addition to support in nearby Dorchester’s Irish-American community and upscale Milton’s middleclass neighborhoods, because he was a good politician. Two African-American candidates ran against Finneran during his 26-year tenure in the House (he resigned from the state legislature in 2004) and both were beaten handily. And yet, in group-identity obsessed Boston circles, this phenomenon was viewed not as a triumph of good government over racial balkanization, but rather as a sign of the failure of group-identity electoral politics correctly practiced.34
Finneran had also earned a reputation for a close and effective alliance with Representative Byron Rushing, a respected African-American pillar of Boston’s black and politically liberal communities. George Keverian, one of Finneran’s predecessors in the House Speaker’s chair, was known to joke that only in Boston would Byron Rushing represent a primarily white district, and Tom Finneran represent a black one.35
Massachusetts had earned more than its share of high-profile political corruption prosecutions in both state and federal courts. Indeed, Finneran’s predecessor, Charles Flaherty, pled guilty in 1996 to federal tax evasion charges. The State Ethics Commission had also found him guilty of taking bribes while in office, including free use of a posh Cape Cod vacation home. “Corruption is a way of life in Massachusetts,” concluded the Ward Commission, a special panel appointed to look into corruption in certain state projects, in a high-profile 1980 study of the problem. Finneran was widely viewed as a stark exception, a breath of fresh air.
So how did this former public servant who conducted his office with a high degree of personal probity, without even a whiff of scandal, end up indicted?
The story begins with the panel of appointed judges before whom the civil redistricting case, which fell under the federal Voting Rights Act (VRA), was tried. On the panel were two highly respected and cerebral district court judges, Douglas Woodlock and Michael Ponsor, and a member of the Court of Appeals, Bruce Selya. While the written opinion that decided the redistricting case was signed by all three judges, it was authored by Judge Selya, the highest-ranking member of the panel.
Very early in the panel’s opinion, which found in favor of the Black Political Task Force, Judge Selya added one of the gratuitous footnotes for which he had become somewhat notorious.36 Selya made a fact-finding that the House committee in charge of putting together the redistricting plan “was content to leave the heavy lifting to Finneran” along with the chair of the committee designated by Finneran, Representative Thomas M. Petrolati, as well as their aides and staffs. “Finneran and Petrolati kept the process on a short leash,” concluded Selya. Then came a crucial and, unbeknownst at the time, fatal footnote:“Although Speaker Finneran denied any involvement in the redistricting process, the circumstantial evidence strongly suggests the opposite conclusion. For one thing, he handpicked the members of the Committee and placed Petrolati at the helm. For another thing, he ensured that the Committee hired his boyhood friend and long-time political collaborator, Lawrence DiCara, as his principal functionary. Last—but far from least—Finneran’s in-house counsel, John Stefanini, had the Maptitude [redistricting] software installed on his computer in the Speaker’s office suite and was one of only four legislative staffers who received training in how to use the software.”37
It was not unusual to see Judge Selya go beyond the immediate requirements of a case to criticize, often in sarcastic and sometimes grandiloquent fashion, a party or a witness. He had earned a reputation for tossing around both his power and his perceived command of language. The opinion was laced with his trademark use of hundreddollar words where a half-dollar word would suffice. Consider some of his phrases. He noted “the parties’ plenitudinous submissions,” rather than simply numerous filings. We’re told that in a major voting rights case “the Supreme Court limned three threshold conditions,” instead of simply outlined. And who could forget the “three-step pavane” that the plaintiffs had to perform in order to win the case. (Webster’s defines a pavane as a “stately court dance by couples that was introduced from southern Europe into England in the 16th century.”)
Judge Selya’s seeming personal hostility toward Finneran emerged in the court proceedings and opinion in various contexts. For example, at one point the plaintiffs’ lawyer asked Finneran whether he’d read a particular article in The Boston Globe. Finneran responded that he had “some doubt” whether he had. Judge Selya suggested during the court hearing, at which Finneran testified, that the Speaker was being less than candid, not crediting Finneran’s entirely plausible (if not entirely obvious) explanation that sometimes it’s just “physically impossible” to read everything every day.
At another point, Selya interrogated Finneran over whether the Speaker in fact appointed committee chairs. Under Finneran’s leadership, the House, as was commonly known in Massachusetts at the time, was something of a dictatorship—sometimes benevolent, but not always. Finneran insisted that he only “recommended” chairs, but that House members had the final say over their leader’s recommendations. When Selya asked Finneran whether “since you’ve been Speaker” the House has even once failed to approve “your recommendation,” Finneran admitted, with notable candor, that he’d never met with a rejection of his candidate. In general, Selya assumed that Finneran was lying when he played down the level of his involvement in and power over House affairs. Yet Finneran, like most powerful figures in his position, would have thought it impolitic to be too blunt about the extent to which he was more or less a king and the House members his vassals. Thus, while Finneran in the end admitted the result of his exercise of power—his wishes were obeyed—he tried to preserve at least the façade of the sovereignty of the House members. This careful dance, this pavane, performed by Finneran during his entire cross-examination was, in the end, grossly misunderstood by Judge Selya, and reflected the clashing worldview of a life-tenured cloistered federal appellate judge versus that of a popularly elected state pol.
Finneran’s modus operandi might have been better understood by a jury of 12 ordinary citizens who might well have acquitted the former Speaker had the case gone to trial. U.S. Attorney Sullivan, who had previously served in the state legislature, may have understood the realities of political life and leadership invoked by Finneran even when Judge Selya did not. But it was in Sullivan’s long-term political self-interest to ignore his own experience in the State House and to accede to Judge Selya’s unrealistic and excessively antiseptic notions of state politics.
The Selya footnote caught the attention, according to later newspaper reports, of at least two people who did not have a high opinion of, nor kindly
thoughts toward, Finneran. The first was Pamela H. Wilmot, executive director of Common Cause, the well-known liberal advocacy and good-government group. The second was Jeanne M. Kempthorne, a former federal prosecutor, by then in private practice, and a member of Common Cause’s board of directors. Kempthorne worked with Common Cause to persuade U.S. Attorney Sullivan to bring a perjury charge against Finneran. Common Cause’s Board of Directors lobbied Sullivan to go after Finneran.38
Common Cause and the plaintiffs in the redistricting case had a right to feel irked by what they must have viewed as, at best, Finneran’s testimonial arrogance and legerdemain, and, at worst, the crime of perjury. Sullivan, however, had a different obligation. He had to determine whether a federal crime had been committed by the former Speaker, whether the crime was sufficiently clear as well as serious enough to seek an indictment, whether it was in the public interest to expend governmental resources to prosecute the case, and, just as importantly, whether it was likely that 12 jurors would credit the government’s evidence and interpretation of events “beyond a reasonable doubt” and unanimously vote to convict. By indicting Finneran, Sullivan missed on all scores and stood a good chance of losing the perjury case had Finneran stuck to his announced intention to fight rather than seek a plea bargain.
Perjury is, in theory, one of the harder federal crimes to prosecute successfully and is thus rarely charged. For one thing, another federal crime, that of making a false statement to a federal governmental official, is considerably easier to prosecute since it criminalizes any “material” false statement to such an official without the Speaker being under oath.39 Furthermore, it is relatively difficult to secure a perjury conviction because the lie has to be shown to be a clear and direct as well as a knowing one. Vague, misleading, or “cute” testimony—that is, intentionally narrow, relying on word games and on the failure of a questioner to pin down the witness with sufficient clarity and specificity—is not sufficient. And, as in any prosecution for telling a lie, the lie has to be shown to be “material,” which is to say, clearly relevant to the proceeding in which the witness testifies. In the Finneran matter, the prosecutor would likely have had problems convincing jurors that the Speaker in fact materially misled, or even tried to mislead, the three judges.