The Supreme Court's recent decision in Citizens United v. Federal Election Commission - duly criticized for clearing the way for runaway corporate money to further undermine the democratic election process - did contain one silver lining for political prisoner Paul Minor, a former Mississippi plaintiffs' attorney and prominent Democratic funder who was targeted for prosecution by overzealous U.S. Attorneys in the Bush Administration.
In fact, the SCOTUS ruling provides all the more reason to free Paul Minor, who remains wrongfully convicted of "honest services fraud" despite the total lack of proof of a "quid pro quo" agreement between Minor and the state judges to whom he gave campaign contributions.
In Citizens United, the Supreme Court emphasized that the glue that holds the integrity of America's campaign financing process together is a fundamental understanding - embedded in every American's First Amendment right to free speech - that a campaign contributor necessarily hopes to influence the election of one's favored candidate and ideas, and is not acting corruptly simply by participating in the process. Unless there is explicit proof of a corrupt "quid pro quo" agreement (a "this for that" exchange) between donor and candidate, the Supreme Court correctly ruled that every American has the right to donate money to political candidates without fear of prosecution.
The quid pro quo corruption requirement recognized in Citizens United, and many other Supreme Court and Circuit Court decisions, in effect has dual purposes. It serves to protect the integrity of America's democratic process. But, just as importantly, it safeguards contributors and public officials, such as Paul Minor and the state court judges whose campaigns he supported, from being accused of bribery without explicit proof that their actions involved "quid pro quo" corruption.
Just imagine if the courts were clogged with bribery allegations every time someone contributes to a political campaign. Everyone who donates to a friend running for political office could be thrown in jail for bribery by an overzealous prosecutor with political or other motivations. That's why our legal system requires proof of a quid pro quo corrupt agreement in order to convict someone for campaign-related bribery or fraud.
Indeed, politicians of all stripes - and the big corporate political players who bankroll their campaigns - better hope that the courts continue to make that distinction. Otherwise, considering the floodgate of corporate money that the Citizens United decision has now unleashed into America's political system, they could all be prosecuted and jailed at the whim of a federal prosecutor just for taking part in the campaign finance system.
The irony of that point is worth noting - it is players like the Chamber of Commerce, Big Oil and Wall Street who would be well advised to get in Paul Minor's corner on this quid pro quo issue. As former ABC News producer Rebecca Abrahams detailed recently, the Chamber has aggressively targeted Democratic judicial candidates and their major funders, including Paul Minor and other plaintiffs' attorneys.
Many have questioned the Chamber's political activity and its extensive connections and influence within the courts, suggesting that it has clearly gotten much in exchange for its massive cash outlays during state and federal elections on behalf of Big Business interests. It's not a stretch to suggest that the Chamber could be successfully prosecuted for quid pro quo corruption, especially if the jury were not clearly instructed that it must have proof of such corruption in order to convict.
So the Supreme Court's clear reinforcement of the necessity to prove "quid pro quo corruption" is great news for political prisoners like Paul Minor, and the justice system as a whole.
And that's not the only promising development in Minor's long struggle for justice. On December 11, the Fifth Circuit Court of Appeals reversed Minor's conviction under the federal bribery statute, which will reduce his 11-year sentence considerably.
But, as Minor's attorneys Hiram Eastland and Abbe Lowell argue in a new appeal for a rehearing, the Appeals Court should have also reversed Minor's "honest services fraud" conviction. They argue that the panel failed to recognize the impact of the improper jury instructions that led to the convictions of Minor and former judges John Whitfield and Wes Teel on honest services fraud charges in 2007.
While the appeals panel correctly identified the legal requirement of providing proof of a "quid pro quo" agreement, it failed to recognize that the jury instructions in Minor's second trial didn't meet that critical legal requirement.
That error has huge implications, as the Sun-Herald newspaper notes: "The honest services fraud charges...are the basis for the remaining charges on which Minor was convicted: racketeering and conspiracy. If the fraud charges were reversed, his 11-year sentence would be vacated, as would those of Whitfield and Teel."
As discussed in detail in Minor's rehearing brief in front of the Fifth Circuit, there was nothing in the jury instructions that in any way conveyed the necessity for the jury to find a quid pro quo in order to convict Minor.
A little background - in his first trial, with proper jury instructions regarding quid pro quo, Minor was acquitted on most counts and the jury hung on others due to lack of evidence. But when a partisan prosecutor from the Bush Justice Department immediately re-indicted Minor, the jury was incorrectly instructed that it didn't need proof of a corrupt quid pro quo agreement in order to convict him and the judges he supported.
As Minor's rehearing petition states:
"This Court properly held that the quid pro quo element for bribery required 'an exchange of things of value for favorable rulings in the judges' courts,' but the actual jury instructions in this case failed to require such a finding." (Pg 9)
"Unfortunately, this court appears to have misread the actual jury instructions given in this case because that concept was never conveyed to the jury." (Pg 1)
Quid pro quo is a crystal clear legal concept. In order to convict Minor, the jury must have been properly instructed that the government must furnish clear evidence that Minor's campaign contributions were made as part of an explicit quid pro quo agreement in exchange for favorable decisions by the judges.
The Bush DOJ prosecutors didn't even try to convince the second jury that a quid pro quo existed, they simply pursued a conviction for federal bribery without the goods to show for it. The partisan prosecutors had no business whatsoever trying to convict Minor of bribery without proper jury instructions and evidence of a quid pro quo "bribe."
Like the federal bribery convictions, the district court should have never even entertained the remaining "honest services" charges without clearly requiring quid pro quo proof for the jury to find Minor guilty.
The lack of quid pro quo jury instruction in Paul Minor's case is not just some technicality. Paul Minor's case involves profound issues that go to the heart of whether we make political prisoners out of American citizens when the Supreme Court itself recognizes they are entitled to First Amendment protections when participating in our democratic process--especially here, where there was no requirement of proof of "quid pro quo corruption." (See SCOTUS discussion on pages 40-45)
The Fifth Circuit clearly must reconsider its decision now that this glaring error has been pointed out, and it must reverse all of the honest services fraud-related convictions as a result.
The critical questions remain: How did Minor end up in prison in the first place? And why is he still in prison when he is entitled to bail pending the appeals courts' resolution of these profound issues?
Those are questions the Obama Justice Department should strongly consider, continue to investigate and take swift and deliberate action on.
Regardless, with the Supreme Court likely to toss the honest services statute entirely, Paul Minor should soon be set free. And not a moment too soon.