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Why Is Don Siegelman Still in Jail?

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Actually, the first question is why Don Siegelman was prosecuted and jailed at all. The second question is why President Obama has not yet pardoned him or commuted his sentence. Of all the abusive, vindictive, and politically-driven prosecutions by the U.S. Department of Justice, the prosecution of Don Siegleman stands at the top. Over a hundred Attorneys General from both political parties have condemned the legality of his prosecution. The House Judiciary Committee has documented the partisan cabal between the Bush White House and the Justice Department to take down Siegelman and destroy his career. Commentary by journalists, academics, and disinterested observers has uniformly decried the legal and ethical irregularities that contaminated his prosecution and blackened the reputation of the Justice Department. Despite all this, President Obama, apparently on advice from his "Pardon Attorneys," has refused to grant Siegelman a pardon or commute his seven-year sentence. Why?

Don Siegelman at one time was the most powerful and popular Democrat in the blood-red state of Alabama. A former Rhodes Scholar, Siegelman was Governor from 1998-2002, and previously held many important state positions, including attorney general. He lost reelection in 2002 to Republican Bob Riley after a few thousand votes from a small rural county mysteriously were discovered in a polling place vacated by Democratic poll-watchers after polls closed. Siegelman, voter surveys showed, was expected to win a rematch against any Republican opponent. But that was before federal prosecutors began their hunt.

In 2004, Siegelman was indicted by the U.S. Attorney for the Northern District of Alabama, Alice Martin, for bid-rigging on state contracts. The indictment was dismissed almost immediately by Federal District Judge U.W. Clemon, one of the most senior federal judges in Alabama, for lack of evidence. Judge Clemon stated that the Siegelman prosecution "was completely without legal merit" and, indeed, "was the most unfounded criminal case over which I presided in my entire judicial career."

Undeterred by this thrashing, the Justice Department and the U.S. Attorney for the Middle District of Alabama, Leura Canary, brought a second indictment a few months later, this time charging Siegelman with RICO violations and bribery for accepting a large donation to a state lottery campaign to fund free tuition for high school graduates and appointing the donor to a seat on the state medical board, a position that the donor had occupied under three previous administrations. The trial was held in 2006, but this time before a different federal judge, Mark Fuller, handpicked by the Justice Department because, according to sworn testimony before the House Judiciary Committee, Fuller could be trusted to "hang Don Siegelman." Indeed, Fuller previously had been investigated by Siegelman for financial fraud when Siegelman was the state Attorney General.

The jury deliberated for 11 days, and after reporting itself deadlocked several times, acquitted Siegelman of most of the charges -- including the inflammatory RICO charges that appear to have been brought solely to portray Siegelman as part of a corrupt conspiracy. However, perhaps because of the contaminating influence of the RICO charge, the jury convicted Siegelman of the bribery count pursuant to Fuller's questionable legal instruction to the jury in which he omitted one of the key requirements that to find a bribe, the jury needed to find an explicit promise or understanding. There was no proof of an explicit promise. And Siegelman, the evidence showed, did not profit one penny from the contribution to the state lottery campaign. Indeed, the bribery prosecution of Siegelman is the first bribery case ever brought by federal prosecutors that was predicated on an issue-advocacy campaign contribution in which the alleged beneficiary received nothing in return.

The proof against Siegelman came from one witness only, Nick Bailey, a convicted extortionist who made a deal with the prosecutors for favorable treatment. He had been the prosecution's chief witness in the earlier aborted prosecution in northern Alabama, and who stated in that proceeding that he had no knowledge that Siegelman was involved in any illegal conduct. Federal prosecutors, in preparing Bailey for the new trial, interviewed him approximately 70 times over three years, interviews that included threats, cajoling, and intimidation, to get him to say that he actually witnessed Siegelman receiving a check from the donor. Interestingly, no notes or memos were taken by the federal prosecutors of any of these interviews. Moreover, Bailey's critical testimony was almost certainly false. After being confronted with documentary evidence that the contribution could not have been made at the time Bailey stated, Bailey changed his story and said he had no idea how the check got into the hands of Siegelman.

There is overwhelming evidence to conclude that Siegelman was targeted for prosecution not because he committed any crimes but because of who he was. Grant Woods, a Republican and former Attorney General of Arizona, stated: "This was a Republican state and Siegelman was the one Democrat they could never get rid of." Former Alabama U.S. Attorney Doug Jones stated: "It appeared that agents were not investigating any allegations of a crime, but were fishing around for anything they could find against an individual." Former Republican Congressman from Alabama Parker Griffith called the Siegelman case a "political assassination."

Strongly corroborated sworn testimony before the House Judiciary Committee disclosed that Karl Rove had contacted the Justice Department about bringing a prosecution against Siegelman, and that his close friend Bill Canary, the most prominent Republican operative in Alabama and, coincidentally, the husband of U.S. Attorney Leura Canary, who prosecuted Siegelman, spoke to Rove about getting the Justice Department's Public Integrity Section to mobilize additional resources against Siegelman. Canary declared confidently that "his girls would take care of" Siegelman. When Canary was asked who "his girls" were, he said they were his wife Leura, and Alice Martin, the same U.S. Attorney who previously brought the unfounded indictment against Siegelman. Rove and Canary have denied these allegations, but have refused to be interviewed under oath.

Legally, the charges against Siegelman appear to be more factually baseless than any case brought by the federal government. Politically, the case appears to have been permeated by the kind of irregular conduct that smacks of selective and partisan-driven prosecution. Ethically, the conduct of lawyers in the Justice Department appears to be utterly inconsistent with a prosecutor's professional duty to serve the cause of justice. From these perspectives, one would expect that the Siegelman case is a perfect occasion for President Obama to grant a pardon and rectify an injustice. Siegelman has been deprived of his liberty because of a relentless abuse of power by a combination of political and prosecutorial forces, and Siegelman's only recourse now is the president's constitutional power to pardon.

To be sure, Siegelman's case differs markedly from other recent and embarrassing Justice Department miscues. The prosecution was not marked by the kind of overt instances of prosecutorial misconduct that led the Justice Department to seek dismissals of the criminal charges against the late senator Ted Stevens, and the River Birch defendants in New Orleans. The Siegelman prosecution pales in comparison with other recent misguided prosecutions of John Edwards and the Alabama casino operators, but those cases resulted in acquittals. Interestingly, several of the same prosecutors who were involved in some of these cases were also part of the Siegelman prosecution team.

Some might argue that before a pardon or commutation is granted, the applicant must demonstrate remorse. However, if a person convicted of a crime has done nothing wrong, how can that person realistically be expected to show remorse? Would observers view an act of presidential mercy to Don Siegelman as a politically-motivated act, rather than a fair and reasonable use of the pardon power? To be sure, the president's pardon power has been perceived in the past not as a mercy-giving dispensation but as an act of raw political power, as with President Gerald Ford's pardon of President Richard Nixon, and President Bill Clinton's pardon of financier Marc Rich. But Don Siegelman's case is different.

To be sure, pardoning Siegelman is not as easy as the pardons President Obama has already made. He has pardoned several offenders, mostly for minor offenses which drew light penalties in the first place, and most of those pardoned have already been placed on probation. These are easy pardons, and are not likely to risk any criticism. Pardoning Don Siegelman is a harder case, and takes more principle and courage. But the unique record in this case, including the many Republican officials who have condemned the government's overreaching, would certainly insulate President Obama from criticism.

Although a pardon, or commutation of the several years left of Siegelman's sentence, will not provide complete closure to this bad faith prosecution, it will afford some measure of belated justice. The Siegelman case will continue to resonate -- it is even taught in law schools -- as a paradigm of the way the criminal justice system can miscarry when the worst in partisan politics combines with overzealous and misguided prosecution. Indeed, if anything good can ever come of this bad case, it is this awareness.