Article: Obama Justice Department Suffers a Monumental Failure

The Alabama bingo trial is the latest failure for Obama on justice matters.

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Milton McGregor signals to supporters

after yesterday's verdicts

Cross Posted at Legal Schnauzer
One of the most embarrassing episodes in the history of the U.S. Department of Justice (DOJ) ended yesterday when a federal jury found that all defendants in the Alabama bingo trial were not guilty.
The jury clearly reached the correct verdict--and after two trials and a months-long, anti-bingo crusade led by former Governor Bob Riley--citizens might be tempted to say, "Whew, thank God that's over." But the public should resist such a response, no matter how understandable it might be. That's because officials who were responsible for bringing this bogus case should be held accountable, either through an internal DOJ investigation or a Congressional review. Better yet, we hope the defendants can uncover some uncomfortable truths, and seek significant damages, with one or more massive lawsuits--perhaps through the civil provisions under the Racketeer Influenced and Corrupt Organizations Act (RICO).
If any of this shines unflattering light on the Obama administration, so be it. The president has either adopted many of George W. Bush's wrong-headed notions on justice--or turned a blind eye on his predecessor's corrupt activities--so now it's time for Eric Holder and company to "enjoy" some scrutiny under a white hot light. If it costs Obama the 2012 election . . . well, tough beans. The president has repeatedly proven that he is not deserving of progressives' support anyway.
The Alabama bingo investigation/trial was a disgrace from the outset, and the public deserves answers on why millions of its dollars were wasted on a sideshow designed to help Alabama Republicans. Obama has had almost four years to do the right thing on the justice front--to return us to a nation governed by the rule of law--and he has failed at every turn. He and his "justice department" deserve to be exposed.
Why is this so important? Well, the bingo trial was unconstitutional on its face. In fact, it might be the most blatant example of a political prosecution in the history of our republic--and it happened under a Democratic administration. The thought of a Mitt Romney presidency makes me want to puke, but I don't see how he could be worse than Obama has been on justice issues.
Multiple rulings from the U.S. Supreme Court have held that political prosecutions are prohibited by the Fifth and Fourteenth Amendment right to equal protection. Should we stand for federal prosecutors who ignore key provisions of the U.S. Constitution? Should we support an administration that countenances such unlawful activity? No, we should not--and that's why an investigation is needed.
As a sidebar issue, someone should make sure that former Alabama Congressman Artur Davis no longer has access to computers, microphones, Web accounts, cameras, or any other communication devices. That will save Davis, who long ago reached the status of "utterly irrelevant," from making the kinds of farcical statements he issued in the wake of yesterday's verdicts. Why did Artur Davis even care about the outcome of the bingo trial? I have no idea; on the surface, it didn't appear to involve him at all.
Before we touch on Artur Davis, let's get to the heart of what essentially was an easy case. The government charged that certain pro-bingo forces--the most notable being Montgomery gambling magnate Milton McGregor--bribed state legislators to vote for a bill that would boost electronic bingo. At the heart of the case was legislation that clearly had supporters and opponents--those who were pro-bingo and those who were anti-bingo.
The overarching question at the heart of the bingo trial should have been this: Why did federal investigators target only the pro-bingo side, made up mostly of Democrats? Why did the feds tape phone calls made only by pro-bingo folks, while ignoring the activities of anti-bingo folks?
The answer? The feds were not interested in prosecuting crimes; they were interested in prosecuting certain people. That mindset was at the heart of the unlawful Don Siegelman prosecution, and it is forbidden by our constitution. We examined the issue in a post titled "Don Siegelman and the Evil of a Political Prosecution":

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment. . . .

The nation's highest court has spelled it out for prosecutors, so there is no excuse for their actions in the bingo case:

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as "intentional and purposeful discrimination.'

U.S. District Judge Myron Thompson deserves credit for handling the bingo trial in a fashion that led to a just outcome. But he should have done more, by calling out the government for "intentional and purposeful discrimination." At the outset, Judge Thompson should have said something like this:

This case revolves around a political battle over certain proposed legislation, which had both supporters and detractors. If you were looking to prosecute crimes connected to this legislation, you should have examined the behavior on both sides. In other words, there are individuals who are 'similarly situated' to the defendants you have charged with crimes. That the prosecution has failed to investigate these similarly situated individuals means you have failed the test set out in Oyler and other U.S. Supreme Court cases. I am dismissing this prosecution on the grounds that it is unconstitutional.

I'm not a lawyer, and I don't pretend to be an expert on criminal procedure in federal courts. But I'm pretty sure Thompson had the authority under the law to make such a finding. Lawyers for the defendants should have filed motions, asking him to make such a finding. What if Thompson had taken this step? Justice would have been served, huge amounts of time and money would have been saved, and prosecutors would have been put on notice that politically motivated cases would not be tolerated in the Middle District of Alabama--and hopefully not anywhere else, either.
As for Artur Davis, perhaps he should join the circus. Get a load of his clownish reaction to yesterday's verdicts:

It's a huge setback for anyone who wants to root public corruption out of Alabama. Tragically, an Alabama jury was not bothered by evidence that a powerful interest group brazenly tried to buy votes with campaign contributions; that same jury was not bothered by evidence that legislators changed their votes solely because of those contributions; and that same jury was unfazed by the fact that the gambling lobby obviously viewed the legislature as a for sale, for profit institution.

I hope that the fact that this jury got it so wrong will not deter the Attorney General from his aggressiveness in pursuing corruption by current and former officials, and I hope that the new Republican majority understands that its calling now is to pass strict limits on campaign spending and instant disclosure rules so that money is limited and identified in real time.

Lastly, the Democratic Party is now officially the state's gambling party. Alabamians who want another economic future and real political reform should know that the party offers them no home and they should take their votes and their goals for the state elsewhere.

Artur Davis shows no concern about violations of fundamental constitutional rights. Instead, he displays only a warped sense of political gamesmanship. He takes the outcome of a criminal trial and uses it to bash the Alabama Democrats who soundly rejected him in November 2010. It's hard to get more loathsome than that.
Many citizens, I suspect, are smart enough to know that Artur Davis is a political buffoon; they don't need to take their cues from a bitter has-been. They should direct their anger in the right direction--toward the U.S. Department of Justice. And they should demand, in the wake of the Alabama bingo trial, that heads start to roll.
In the meantime, we hope the bingo defendants seek compensation through the civil justice system. Immunity of various sorts might protect many of those responsible for the prosecution. But we suspect there might be ways around those hurdles. Joe Espy, one of McGregor's attorneys, hinted yesterday that he will look at those options:

Espy said they were going to seriously look at avenues to try to recover some of that money McGregor had to spend in his defense.

He said they would also look at possible legal action against players who participated in the process, but would not specify who he was referring to.

I'm betting that certain individuals connected to the bingo prosecution are taking steps to hide/protect their assets. And that probably includes some prominent Republicans, both in Alabama and beyond. It might also includes some pro-Obama, elitist Democrats.
If justice still means anything in our so-called democracy, certain folks will be losing significant assets in the not-too-distant future. It couldn't happen to a more deserving bunch.