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