Two weeks ago the Washington Post reported that U.S. District Judge Emmet G. Sullivan named federal prosecutor Henry Schuelke to investigate whether gross prosecutorial misconduct tainted the government's case against Republican Senator Ted Stevens of Alaska. At issue is whether prosecutors withheld critical evidence from the defense or whether the case was improperly handled under pressure to meet deadlines.
US Attorney General Eric Holder, in a stunning move, threw out the government's corruption case against Stevens last April and issued the following statement:
"After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial."
Holder also relocated attorneys who worked on the case including William H. Welch II, who ran the Department's public integrity unit.
The Post failed to report that William Welch is currently under criminal contempt of court for his role in the case against Stevens. Welch was also involved in the prosecution of former Alabama Governor Don Siegelman. Siegelman was convicted of bribery in 2006 and served nine months in prison before his release was ordered pending appeal.
Despite Welch's pending legal issues, his name continues to be listed on recent filings in Siegelman's case. Siegelman finds this "quite curious as he's been hot after my prosecution for a good long time now."
And while the DOJ is making a point to review Republican cases, not one Democrat case has been completely overturned. Aside from alleged governmental misconduct in the Siegelman case, there are paramount legal issues that have been recognized by 91 former State Attorneys General and a group of First Amendment law professors across the country. Both groups insist no crimes have been committed and the former AG's signed a petition for "Writ of Certiori" to the US Court of Appeals, urging Siegelman's case to be heard. The petition argues:
"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."
In 1990 the US Court of Appeals ruled:
"the prosecution must demonstrate an explicit quid pro quo connection between a payment and an official act in campaign contribution cases, to wit, an explicit promise or agreement made in return for a contribution."
According to the petitioners, the 11th Circuit court failed to prove Siegelman personally benefited from HealthSouth CEO Richard Scrushy's contribution, noting:
"The Eleventh Circuit adopted an extraordinarily expansive and unprecedented interpretation of the explicit quid pro quo standard necessary to sustain a conviction."
While Judge Emmet Sullivan's request for an independent prosecutor has been answered, the calls to throw out Siegelman's case by retired Federal Judge U.W. Clemon has fallen on deaf ears. Last May Clemon sent a letter to US Attorney General Eric Holder calling for the investigation of Justice Department's prosecution of the former Alabama Governor accusing federal prosecutors of allegedly 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."
But the Department of Justice for some reason has not budged on overturning the political prosecutions of Democrats - begging the question as to whether it believes the Democrats were properly tried. Just last month Solicitor General Elena Kagan issued a brief urging the US Supreme Court to deny hearing Siegleman's appeal.
When asked why he thought Kagan filed the petition, Siegelman responded:
"The people making the decisions are the same people who have been making the decisions all along. We've changed things at the top but the people who are doing the work, certainly doing the work on my case are the same who worked under George Bush and Karl Rove. There's no change. These people with a vested interest in the outcome and they're going to keep fighting for the same results."
Siegleman's case highlights gross conflicts of interest and prosecutorial misconduct by State Prosecutor Leura Canary. Canary's husband Bill Canary, a close friend of Karl Rove, worked for Siegleman's opponent Bob Riley.
Canary's wife Leura investigated and indicted Siegelman one month before the 2006 gubernatorial election while her husband was running Riley's campaign.
Leura Canary claims she went to the Department of Justice and asked whether she should recuse herself from the case but says she was told she could remain on the investigation. But Canary publicly stated in an abundance of caution, she would step down from the case. However, it was revealed that she never fully removed herself from Siegelman's prosecution and emails show she consulted prosecutors during his trial.
Siegleman's legal team filed a Freedom of Information Act request to obtain documents from DOJ to determine who instructed Canary to remain on the case. To date the Department has refused to turn over these documents to lawyers as well as House Judiciary Chairman John Conyers.
Siegelman says this information could be critical to his appeal:
"For some reason they're stonewalling and this is information that we feel we're entitled to. It could show that Leura Canary had a financial and political conflict or she lied about it."
"What I find a complete paradox is that Canary came forward and said she talked to the people at DOJ and said there wasn't a conflict but I'm going to recuse myself anyway. If they actually put that in a memo then there's a serious problem there because there was a financial and political conflict and we proved it. So if someone gave her a green light to go forward after we proved that her husband was a paid consultant working for my opponent than there's someone at justice who should get their pink slip from Eric Holder."
Leura Canary did not return calls for an interview.
Recent disclosures in Stevens trial indicate prosecutors failed to turn over all relevant materials to the defense - a discovery that many believe prompted Holder to drop Stevens' case.
Siegelman's legal team alleges the prosecution also withheld key documents, emailed jurors during the course of the trial and interviewed/coached former Siegelman aide Nick Bailey on nearly 70 occasions to make sure he had his story straight. Bailey has signed sworn statements confirming he was offered a deal on unrelated extortion charges in exchange for his cooperation with prosecutors.
Bailey was the key witness in the DOJ's charge that HealthSouth CEO Richard Scrushy bribed the former governor by arranging $500,000 in donations to Siegelman's education lottery campaign. The former assistant testified that in exchange for the donation, Siegelman would appoint Scrushy to the state's hospital oversight board.
Corroborating Bailey's charges of prosecutorial shenanigans is DOJ whistleblower Tamarah Grimes, who provided Department superiors and members of Congress with evidence Siegelman and Scrushy's rights were violated. Siegelman and Scrushy cited her revelations heavily in their motions since June 26, 2009, for a new trial based on new evidence.
Siegelman says he believes that the Administration appears to be sitting on its hands with regards to reviewing his case and other Demcorats who were politically targeted by the Bush Administration.
"I think Holder's well aware of my case and other cases so there's been a decision made not to do anything for what reason I don't know but it's pretty clear they've made a decision not to do anything."
If the opinion stands, Siegelman says it will give prosecutors way too much discretion to pick, choose and charge defendants and get a prosecution in cases of legal campaign contributions.
Meanwhile, the Supreme Court is expected decide December 15, 2009 whether it will hear Siegleman's case.