THE BLOG
03/18/2010 05:12 am ET Updated May 25, 2011

Why Is Paul Minor Still Behind Bars?

In a recent unanimous decision, the Fifth Circuit Court of Appeals overturned federal bribery charges against prominent Mississippi trial attorney Paul Minor, offering a ray of hope that Minor will soon be a free man.

Minor has spent the past three years a political prisoner, left to rot in jail after partisan operatives in the Bush administration targeted him for being the top funder of Democratic candidates in Mississippi. Minor was convicted in 2007 along with John Whitfield and Walter "Wes" Teel, the Mississippi Democratic judges he was wrongly accused of bribing through campaign contributions that were perfectly legal and common practice among donors of all political persuasions in the state. Among the charges against Minor were federal bribery and honest services fraud, for which Minor received a draconian 11-year sentence that he is now serving at federal prison camp in Pensacola, Florida.

Minor and the judges appealed immediately, arguing that jury instructions were botched in the trial, allowing jurors to incorrectly convict without evidence of a clear and unambiguous exchange of official acts for the contributions, or quid pro quo, between the judges and Minor.

In the wake of the Fifth Circuit ruling, which reversed the federal bribery charges, Minor will now have his case sent back to the lower court for re-sentencing.

That's great news for justice in America, but the fact is that Paul Minor should be at home with his family already. By knocking out the key charge that was misused to convict Minor for federal bribery, the Fifth Circuit court has provided more than ample proof that Minor raised substantial questions on appeal, as his attorneys have long argued. The law clearly states that an appellant deserves to be free on bail awaiting the outcome of his appeals process if substantial questions have been raised.

The Justice Department, both under the Bush administration and now under President Obama, has failed to release Minor despite this obvious discrepancy. The DOJ's disregard for Minor's right to release has had severe consequences on his life.

Over the past three years that Minor spent in prison, he endured the loss of his wife Sylvia to brain cancer, a painful ordeal in which he was repeatedly denied release to be by his wife's side by the Bureau of Prisons, a subordinate arm of the DOJ. Paul's right to comfort Sylvia, to say goodbye in her final hours, and even to attend her funeral to deliver the eulogy he wrote about their 40-year marriage together, was stripped by the DOJ. Minor also remained behind bars when his son Paul Jr. was married in October, yet another important family moment this proud father will never get back.

Why was Paul Minor left rotting in jail while Sylvia passed away and Paul Jr. married? And now, with the federal bribery charges tossed out, why is he still behind bars today?

Attorney General Eric Holder had barely gotten his office set up when he ordered the Justice Department to drop charges against former Alaska Senator Ted Stevens based on prosecutorial misconduct, vowing to send a message that misconduct would not be tolerated in President Obama's DOJ.

Yet the American justice system's abhorrent treatment of Paul Minor has often been far more absurd, consistently unjust and shockingly inhumane. So why is Paul Minor continually left to rot in Pensacola federal prison camp?

Former Alabama Governor Don Siegelman, convicted on similar honest services charges as Paul Minor, was granted release after raising 'substantial questions' in his own appeal and given the chance to reunite with his family as he continues to argue his innocence. Why has Paul Minor not received the same treatment while his appeal progresses?

Those are all valid questions that Attorney General Eric Holder and the Justice Department must ultimately answer, as soon as possible for Mr. Minor's sake.

For those not familiar with the background of this case, Paul Minor's "crime" was that he took a particular interest in the outcome of judicial races in his home state of Mississippi, an obvious concern for a trial lawyer hoping to ensure that his clients would face only fair judges. As long as judges are elected, they will rely on campaign contributions from all vested interests, including lawyers, and those contributors have every right to donate within the bounds of campaign spending laws. As the Jackson Free Press correctly stated in a recent editorial, "critics scream that Minor was out to install pro-plaintiff judges, and they may have a point--but that, in itself, was not illegal."

Apparently, Paul Minor's legal campaign contributions were viewed through a different lens. The make-up of the Mississippi judiciary also happened to be of high importance to powerful business interests, most notably the U.S. Chamber of Commerce, which sunk millions into efforts to install industry-friendly judges throughout the South. Taking down a man like Paul Minor - the top funder of the Democratic judges whom the Chamber and its ilk despise - was a major coup for Big Business and its friends in Washington during the Bush administration.

The impact of Minor's conviction was felt immediately, casting a chilling effect on Democratic fundraising, particularly among judicial candidates. Many traditional Democratic donors now shy away from the contested races for fear of ending up in Minor's shoes.

The way in which federal bribery and honest services fraud charges were used in the Minor case has huge First Amendment implications, potentially threatening the rights of - and leading to the possible conviction and incarceration of - any elected politician who accepts a campaign donation. If you're keeping score at home, that would mean every U.S. Congressman, the President, even local school board candidates. In other words, every American citizen engaged in the campaign finance process.

A Ray of Hope
Regardless of the DOJ's failure to apply the bail statute law equally, there is plenty of reason to suspect that Minor will soon be free. Minor's re-sentencing may be deemed unnecessary as the U.S. Supreme Court is set to rule on the constitutionality of the "honest services" law that constituted the other major federal charge against Minor.

Legal experts believe that recent comments made by Supreme Court Justices reveal the overwhelming likelihood that the high court is set to rule the "honest services" charge unconstitutional, which would undermine the entire basis of the remaining charges against Minor and the former Mississippi judges.

Critics from all ideological persuasions have railed against the honest services law, arguing that it affords federal prosecutors far too much power to target their political enemies, or anyone else for that matter.

Chief Justice John Roberts Jr. agrees that honest services is flawed, noting that the public "has to be able to understand the law, and if it can't, it is invalid."

Even über conservative Justice Antonin Scalia has pointed out the absurdity of the statute, saying recently that honest services amounts to a law that says, "Nobody shall do bad things." Scalia joked that it could even make a crime out of an employee phoning in sick so he could slip off to a baseball game.

"The vague honest services statute has created a legal twilight zone and nightmare that no citizen or public official would want to be faced with defending--whether they are Democratic or Republican," Minor's attorney Hiram Eastland recently told reporters.

Columbia University law professor Scott Horton, who has extensively covered Minor's saga for Harper's magazine, recently said that "it's clear that a solid majority of the [Supreme Court] justices think the honest-services fraud statute is unconstitutional," and predicted that Minor would soon be a free man. "It will take a few months for this to work its way out, but it's clear that Minor and his co-defendants are on their way home," Horton predicts.

Horton is correct. But in the meantime, Attorney General Holder should immediately release Minor on bail pending the resolution of his case, and then continue a deeply needed investigation into the politicization of the Justice Department during the Bush/Cheney/Rove reign.

Otherwise, failure to apply the law equally, and failure to live up to their campaign promises to restore integrity and public trust, may be the Obama Justice Department's unfortunate legacy.