Imprisoned Democrat Paul Minor's Appeal Has Major 1st Amendment Implications

After much deliberation and an unprecedented three rounds of post-oral argument supplemental briefing, the Fifth Circuit Court of Appeals is primed to issue a judgment on the appeal of prominent Mississippi attorney Paul Minor. Minor was wrongly accused and convicted of bribery stemming from his campaign fundraising for two Democratic candidates for state judgeships in Mississippi.

The appellate court has undertaken an extensive, thoughtful review of Minor's case, repeatedly asking the government to document and explain the quid pro quo "this for that" deal necessary to put -- and keep -- Minor behind bars. The judges have also questioned whether the government incorrectly applied the federal bribery statute in Minor's case, and whether charges against Minor regarding one of the judges amounted to constitutional double jeopardy.

Minor was originally indicted in 2003 in what many believe was a targeted political prosecution, ginned up by Karl Rove's GOP cronies in the partisan Bush Justice Department. As a successful plaintiff's attorney, Minor posed a threat to corporate interests, including the Chamber of Commerce which largely bankrolled the specious "tort reform" attacks on plaintiffs' rights to sue corporations for illegal behavior.

Karl Rove and his GOP operatives, long-time puppets of Big Business, targeted Minor and other Democrats in a coordinated effort to scare off big-ticket donors to the Democratic Party nationwide. In Mississippi, Paul Minor was the prime target as a successful trial attorney who repeatedly won big decisions against corporate interests and fought against tort reform as a champion for the little guy's right to a just day in court. Minor was also the top Democratic fundraiser in the state, and had a keen interest, as an attorney would, in seeing fair, impartial candidates win the state's elected judgeships rather than the business-friendly candidates endorsed by the GOP.

In August of 2005 Minor was acquitted on part of the charges and the jury hung on the rest of the charges. Minor was immediately re-indicted by a partisan U.S. Attorney desperate to save his job after learning that his name appeared on a list of U.S. Attorneys recommended for dismissal by Bush White House officials. Minor's campaign contributions to the Democratic candidates were mistakenly ruled "bribes" in the botched 2007 retrial. The conviction resulted in Minor's hefty 11-year sentence for non-violent white-collar crimes he never committed.

Minor has languished in a Pensacola prison camp for the past three years, where he recently endured the tragic ordeal of his wife Sylvia passing away after a long battle against brain cancer. Despite the substantial questions raised in his appeal - upon which the federal bail statutes mandate release pending outcome of the appellate review - Minor was repeatedly denied release and never got to say goodbye to his dying wife. Adding insult to injury, Paul was denied a furlough to attend Sylvia's funeral where he planned to deliver a eulogy honoring their 41 years of marriage and to comfort their children in the family's time of loss.

But the sun may soon shine again in Minor's brutally interrupted life, as the Fifth Circuit appears poised to rule in his favor on appeal. At oral argument in April, the Court repeatedly posed troublesome questions that the government attorneys struggled to answer. The appellate judges subsequently requested three rounds of post-oral argument supplemental briefing, a rare level of probing that indicates to many observers that the court is likely ready to reverse Minor's conviction. The final round of supplemental briefing was submitted on September 3rd, and the judges could issue a decision at any time.

During the botched 2007 retrial, Bush DOJ attorneys glossed over existing case law to persuade the district court not to require critical instructions to jury members that the government must prove a specific quid pro quo deal in order to convict Minor on the federal bribery charges lobbed at him by the partisan, conflicted U.S. Attorney Lampton.

As extensively briefed by Minor's lawyers during the appeal, specific quid pro quo proof was clearly required for all of the charges against him. Since the jury was never required to find any proof of a "this for that" quid pro quo agreement for the trumped up charges, the prospect of reversal of Minor's conviction appears not only likely, but mandated under Supreme Court and other case law.

The Fifth Circuit is not only deliberating the fate of one man. There are profound First Amendment implications in this case. The failure to instruct a jury that it must find quid pro quo proof in a case involving campaign contributions essentially means that anyone who gives money to a candidate vying for public office could face bribery charges without any underlying proof of a favor or deal promised in return by the recipient. If the court rules that Minor was correctly convicted, it would send shockwaves through the political world, as anyone - including members of Congress and the administration - could be targeted for the long-time tradition of giving campaign contributions to candidates who share the values of donors, an expression of free speech central to our participatory democracy.

Amicus briefs recently filed with the Supreme Court supporting former Alabama Governor Don Siegelman's request for Supreme Court review confirm these profound implications. Siegelman was convicted on remarkably similar charges of bribery involving campaign fundraising.

Ninety-one former Democratic and Republican state Attorneys General and nine distinguished First Amendment law professors filed amicus briefs with the Supreme Court this week asserting the importance of requiring exacting, explicit quid pro quo proof in such cases. The law professors argue that, absent exacting quid pro quo proof that campaign fundraising actually constituted bribery, both private individuals and public officials who participate in political fundraising could "face the risk that a prosecutor will single them out for prosecution."[PDF] The professors rightly point out that this would "place a chilling effect on the First Amendment right to contribute to political campaigns," activity that is essential to our participatory democracy unless campaigns are publicly funded.

Without quid pro quo proof of a deal between donor and recipient, anyone - regardless of political affiliation - could be accused of "bribery" just for giving money to a candidate running for office. The Fifth Circuit's decision in Paul Minor's case will determine if this form of free speech is indeed protected as laid out in the Constitution, or punishable by severe prison sentences dictated by partisan politics.

The integrity of our entire political system hangs in the balance. They must get it right.

Follow Brendan DeMelle on Twitter: www.twitter.com/bdemelle

Comments

[politicscorner]

Not only should Minor be acquitted, but those involved in his prosecution should be disbarred and what ever (appropriate) legal action should be taken against them. What a travesty!

[rOundman09]

If Paul Minor's conviction stands and he is not released it will create another crack in the First Amendment rights of all Americans. If this chipping away at our rights continue, soon there will be no Bill of Rights to Protect and Defend.

Release Paul Minor!

[esoterica]

There is no reason for this to continue. Paul Minor did NOT bribe anyone and doesn't deserve this.

[piinthesky]

The lack of any quid pro quo evidence at court flies in the face of SCOTUS precedent; the Supreme Court has recognized that a this-for-that understanding is absolutely imperative in order to distinguish between a legitimate loan between friends and an illegal bribe. Coupled with the fact that the district court did not allow Minor to present evidence that he gave similar loans to friends who were not judges, this case amounts to an injustice. Period. Whether you have personal issues with Paul Minor or not, this case reeks of selective prosecution. Were democrats targeting republicans because of their political affiliations, I would have a problem with that too. If you have hard evidence that someone committed a bribe, by all means, lock them up and throw away the key. But without proving the elements of the offense, you do not have a crime.

[piinthesky]

If you are from Mississippi, you might have an idea of how it is to live in a small town....people all know each other. This is especially true in the legal community. From what I understand, Paul Minor and John Whitfield were friends long before Whitfield was appointed to his judicial position--much as any other judge in Mississippi has personal friends who practice before him. The $100k you speak of was, according to Paul Minor, given to Whitfield as a loan from one friend to another. Whitfield was in the middle of getting a divorce and wanted to buy a new house, so Minor loaned him the money. His friends all say that this was nothing unusal, that Minor always loaned money to friends in need. And, if the indictment is to be believed, you are mistaken...at the time the personal loan was given, Mr. Minor did NOT have a case pending before Judge Whitfield. The Archie Marks case was filed in Circuit Court three months later, and was given to Judge Whitfield on random assignment.

[low tide]

The fact that some would be willing to throw their own 1st Amendment rights out the window due to their differences in political views or dislike for another person is befuddling to me. The bottom line to be taken from the Minor case is that folks should not go to jail for bribery where the prosecution has failed to prove just that. A bribe. A quid pro quo.

If you allow one man to remain in jail for a bribery conviction that didn't require a bribe (quid pro quo); then, you are risking the freedom of all US citizens to make political contributions to candidates that they support.

I feel confident that the 5th Circuit is going to follow the law and overturn Minor's conviction. Hopefully they will do so sooner than later.

[Atlas1776]

Unreal that Rove and crew can pull this kind of thing with barely a peep inthe mainstream media and at the same time Beck and Fox can force the administration's hand to make Van Jones step down. Madness.

[bmmorgan]

Thank you, Mr. DeMelle for updating us on the Paul Minor case, since the 1st amendment is one of my favorites. Any corruption of judicial power that abrogates it affects me, too. Here's to justice in the Paul Minor case. And to thoughtful reporting about important, but overlooked, cases.

[Swan17]

If, "The integrity of our entire political system hangs in the balance," as the writer of this article claims, then Paul Minor and his cohorts need to stay in prison. Otherwise the proof will be that there are two standards of justice in the U.S. one for the wealthy and well connected and the other for the rest of us.

Perhaps we need to question something else. Complaints and evidence about Minor's financial influence over judges was given to the DOJ during the Clinton administration. But the Democratic party did not want to bring a claim against one of its big contributors, so they refused to investigate. It appears the Democratic party looked the other way when wealthy Democrats were accused of corruption. When the Republicans took over, there must have been a healthy selection of corrupt Democrats to prosecute.

[Swan17]

Paul Minor is where is should be - in prison. Minor was my former attorney. The judge he bribed, also in prison, was my former judge, Harrison County Circuit Court judge John Whitfield. They both still feel that they did nothing wrong - that there was nothing wrong with Minor giving Whitfield over a $100 grand while Whitfield was deciding Minor's cases. That means both, if they got out, would feel justified to engage in bribery again. At least Dickie Scruggs admitted to his bribery and apologized.

When I discovered the bribery scheme and reported it to the FBI, both turned and retaliated against me. Even though Minor was not the attorney at the time in my case, Minor wrote court documents that Whitfield signed, which threatened that if I continued to voice my complaints to ethical commissions and law enforcement that Judge Whitfield would find me in contempt, jail me or fine me or both.

I wonder what Minor and Whitfield would contemplate for retaliation if the get off?

[awoj]

There may be a conflict of interest that would require an attorney to recuse his or her self from a case if he or she had made a campaign contribution to the Judge assigned to that case. Howver, the charge of bribery is quite different. And yes, anyone who has ever contributed to a political campaign could be arrested and charged with bribery absent a quid pro quo requirement.

[Florentine]

The Fifth Circuit must not delay their decision to free Paul Minor any longer. Minor will never get back what Karl Rove and the Bush Justice Department have so tragically taken from him; but we can - and must immediately - overturn his wrongful conviction and restore justice.