The U.S. Supreme Court Tuesday ordered to vacate the 11th Circuit Court of Appeals ruling upholding convictions of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy for honest services fraud.
Last week, the high court ruled unanimously the law was too vague and widely used for convictions in public corruption cases. The justices voted 6 to 3 to uphold the law but narrow its scope to apply solely to bribery and fraud cases. The decision was based on the case of discredited Enron CEO Jeffrey Skilling in which the court left it to a lower court to re-examine Skilling's convictions for honest services fraud.
Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy issued dissenting opinions arguing the law should be thrown out altogether instead of having it rewritten. In his written dissent Scalia wrote, "...it is obvious that the mere prohibition of bribery and kickbacks was not the intent of the statute. To say that bribery and kickbacks represented 'the core' of the doctrine, or that most cases applying the doctrine involved those offenses, is not to say that they are the doctrine. All it proves is that the multifarious versions of the doctrine overlap with regard to those offenses. But the doctrine itself is so much more."
Many defense attorneys agree with the conservative justice, noting the honest services law was widely used by prosecutors to gain convictions in business and political cases lacking evidence of fraud or kickback.
While the ruling is good news for Siegelman, Paul Minor and others who claim they were targets of political prosecutions, Citizens for Responsibility and Ethics in Washington's Executive Director Melanie Sloan warns the decision allows others to get away with breaking the law. "Previous convictions may be vacated and corrupt officials will have an easier time escaping accountability for their misdeeds."
The Department of Justice convicted Siegelman of bribery in 2006, charging that HealthSouth CEO Richard Scrushy bribed the former governor by arranging $500,000 in donations to Siegelman's education lottery campaign in exchange for a spot on Alabama's hospital oversight board.
Last year the 11th Circuit Court of Appeals struck down two charges against Siegelman but upheld convictions of bribery, conspiracy, obstruction of justice and honest service fraud.
But ninety-one state attorneys general, in a Writ of Certiori to the U.S. Court of Appeals urged Siegelman's case be heard, arguing, "a public official may not be prosecuted for the receipt of a campaign contribution in the absence of an explicit quid pro quo connection between the campaign contribution and an official act."
The petitioners found in the case of Siegelman's honest services conviction, the 11th Circuit Court adopted an expansive interpretation of the law without having the quid pro quo standard to support a conviction.
But the law has been widely used in DOJ convictions. Supreme Court nominee Elena Kagan was cited recently saying the honest services cases in front of the Supreme Court were of the highest importance to the Department. This may explain why Kagan filed a petition urging the Supreme Court to deny hearing Siegelman's appeal.
Siegelman's case returns to the 11th Circuit Court, which, many believe was tainted including retired Federal Judge U.W. Clemon, who last May sent a letter to U.S. Attorney Geneal Eric Holder, calling for a full investigation of Siegleman's prosecution. Clemon accuses federal prosecutors of jury-pool "poisoning" and "judge-shopping" Siegelman's case after he threw it out. Clemons told Holder:
"The 2004 prosecution of Mr. Siegleman in the Northern District of Alabama was the most unfounded criminal case which I presided in my entire judicial career. In my judgment, his prosecution was completely without legal merit; and it could not have been accomplished without the approval of the Department of Justice."
Perhaps lawmakers questioning Elena Kagan on Capitol Hill should ask why she fought so hard to have Siegelman's appeal denied.
