Don Siegelman's Prosecutor Lied to Whom? It's Either the Court or Congress

Who decided to indict Governor Don Siegelman and his co-defendant, Richard Scrushy? It's a simple question that deserves a direct answer, since the legality of the prosecution may depend on it.

For Assistant U.S. Attorney Louis Franklin, the answer is, "It depends." It depends on which type of prosecutorial abuse you're looking at. Franklin offered two different answers that flatly contradict each other. In effect, Franklin admitted that he lied.

Franklin isn't stupid. No prosecutor would expose himself to that type of professional disgrace unless he believed that the Federal courts, the Justice Department, the Alabama bar and the Alabama press would overlook his unethical behavior. So far, that assumption has proved correct. So far, all indications are that the prosecutorial misconduct documented in the public record is only the tip of the iceberg.

Franklin's response to the allegation reported in Time -- that Don Siegelman and Richard Scrushy were indicted because of political pressure from Washington -- is that, "I alone maintained the decision making authority to say yea or nay as to whether or not the U.S. Attorney's Office for the [Middle District of Alabama] would proceed with the prosecution." [Emphasis added]

Franklin's sworn response to a different allegation -- that prosecutors deceived defense attorneys prior announcing the indictment -- is that the authority to make the charging decision resided in the Criminal Division of the Justice Department in Washington.

The defense lawyer who alleges that Franklin and others lied to him is a 19-year veteran of the U.S. Justice Department. Here's how Scrushy's defense counsel, Arthur Leach, described the prosecutors' maneuvers in a letter dated April 14, 2008 to House Judiciary Committee Chairman John Conyers:

"The government sought information from Mr. Scrushy which I provided under the belief that providing the information would possibly avoid indictment. In fact, the government was lying to me, my client had already been indicted and they were ferreting out my defense in the case. We moved to dismiss the case based upon these lies and that motion was denied. And he has others who back up his allegations."

Back in February 2006, Franklin's sworn affidavit to the Federal District Court, said:

"[As of October 11, 2005] we continued to work on and seek permission to present, a superceding indictment to the grand jury."
[...]
"I do not have any specific recollection of what was said during that conversation [made on October 25, 2005]...If in response to a question by attorney Leach inquiring whether a charging decision had been made, I misspoke to the extent of leaving any misimpression about the original indictment. I intended only to address what was foremost in my mind: the final position from the Criminal Division [in Washington] regarding the superseding indictment." [Emphasis added.]

Franklin's initial story was echoed by Richard C. Pilger, from the Public Integrity Section of the Criminal Division in D.C., who testified in court that the final decision to indict was made by the ranking people at the Justice Department in Washington on October 27, 2005.

Franklin, you may remember, was the prosecutor who violated a judge's direct order not to investigate certain suspicious emails between jurors.

The Push To Extort False Testimony

Leach's letter to Conyers leaves no doubt as to what was going on. Prosecutors were pressuring Scrushy make their case against Siegelman, and the push was coming from high ranking people in Washington:

"As to the information the government wanted from Richard Scrushy, AUSA [Assistant U.S. Attorney in Alabama] Steve Feaga was always very direct as to what he wanted Mr. Scrushy to say. He wanted Richard to say that there was a quid pro quo, that is, an agreement between Richard Scrushy and Governor Siegelman to the effect that Richard would make a campaign contribution and the Governor would appoint Richard to the CON board. We repeatedly told Feaga and Franklin that there was no quid pro quo. The conversations with Feaga always ran a familiar course. We would discuss the facts as we understood them from our client and Feaga would say, "this is what I must have" and he would outline a quid pro quo which we repeatedly informed him our client could not provide because neither the campaign contribution nor the appointment to the CON board happened that way.

"The discussions with AUSA Feaga (often with Franklin present) occurred long after we learned about the indictment, as we approached the trial, and were for the purpose of trying to resolve the case for Mr. Scrushy. As time passed Feaga and Franklin were amenable to getting Richard out of the case with some nominal plea in state court. The precise nature of the agreement was never finalized due to the need for DOJ approval for the overall plan to dismiss. I was told by the prosecutors in Montgomery that any agreement was dependant upon approval from the Department of Justice in Washington. It was during this time period that AUSA Feaga told me that in his opinion Richard Scrushy was a "victim" in this case. In political corruption cases prior to the passage of Title 18, United States Code, § 666, the vernacular and legal concept was that the politician extorted funds from "victims."

"As part of this plan to possibly dispose of the case I was given the name of the Acting Chief of Public Integrity, Andrew Lourie. I spoke with Mr. Lourie on April 4, 2006 in order to set up a meeting at his office in Washington. During this discussion Mr. Lourie told me that he did not want to take me down a wrong path and that his position was fixed on a plea to misprison of a felony. I asked him whether that meant that he would not consider a misdemeanor and he told me that he would discuss it but he did not think he would approve it. He told me he would not agree to dismiss the case. Lourie said based upon the proffer that misprison of a felony was the best fit in terms of a plea and that Richard would just have to add a new portion to his proffer, that is, Richard would have to change his statement to the government. Lourie suggested that Richard admit that he knew that the Governor was committing a crime by demanding (that is extorting) a contribution, that Richard should have rejected the Governor's demands, but because he did not, Richard would admit that he committed a crime. Mr. Scrushy rejected any such plea as completely inconsistent with the facts. I went forward with the meeting in Washington hoping that along with my efforts, the prosecutors in the Montgomery office would persuade Lourie that getting Richard out of the case was best for Mr. Scrushy and the government.

"The meeting with Andrew Lourie took place in Washington D.C. on April 6, 2006. We met him in the Public Integrity office and the meeting went as one would expect. Under normal circumstances when the prosecutors in the field desire a particular resolution Washington approves and the agreement moves forward. We discussed the fact that the prosecutors in Montgomery had informed me that they supported getting Scrushy out of the case. By the conclusion of the meeting it appeared to me that some arrangement would be approved. As we departed Mr. Lourie told me that he would have a decision within a week.

"On Friday April 14, 2006 I received a phone call from AUSA Franklin informing me that no decision would be made until the next week. He also told me that he was embarrassed to make the call. Later that afternoon, I received a phone message from Andrew Lourie in which he informed me that the offer for Mr. Scrushy was felony misprison. I returned the call but I could not get Mr. Lourie on the phone and I left a message asking that he call me.

"As time passed and the trial approached I made several attempts to get Mr. Lourie on the phone and could not get Mr. Lourie to take my call or return my call. I eventually got him on the phone and he seemed unprepared for the conversation. He said Mr. Scrushy would have to plead to misprison of a felony in order to resolve the case. I asked him what happened and why Washington would not approve a resolution which had been supported by the field (the Montgomery U.S. Attorney office). Lourie informed me that the decision was made over his head. I immediately asked if that meant that it was the Assistant Attorney General (AAG Alice Fisher) for the Criminal Division. He responded to me that it was not the AAG and that the decision had been made higher than the AAG for the Criminal Division. I was completely puzzled by this response and I asked him if he meant that it was made in the Deputy Attorney General's office because I could not imagine a decision like this rising to that level of the Department of Justice. (AAG Fisher and everyone above her were political appointees.) He told me that he could not discuss the decision making process any further and that he really should not have shared what he did with me and that he would be in trouble if it were known that he had shared the little information he provided to me.

"My client would not agree to plead guilty to misprison of a felony because he did not agree - and would not say - that he had done anything illegal in his dealings with Governor Siegelman." [Emphasis added.]

Comments

[heal57]

The Siegelman prosecution should warn every American out there, 'they' could do this to anybody or even any country who gets in the way.

[BenMAF]

I get a twist in my stomach every time I read about Don Siegelman seemingly wrongful prosecution.

[knowBuddhaU]

Thanks for the update. This case could turn out to be the complete undoing of our era's master propagandist, Karl Rove. His greasy fingerprints are all over this.

In light of the Pentagon Propaganda Program, I think we should stop seeing a consecutive string of events as failures, and start seeing through the lies, as you've done with your reporting on this tell-tale case. The media is failing us, yes, but not passively, not ineptly.

Rove is a master of an updated, upgraded Goering method of manufacturing consent, to myth-jack to hell individuals like Gov. Siegelman, or whole nations at a time.

[JackieW]

David, thank you for investigating and writing this. This case is rank. Don Siegelman's prosecution has been the worst dog-and-pony show. MSM has failed miserably in reporting on the injustices in this case.