Roger Shuler Muses on Justice Department's Odd Priorities

photo credit: Carol Shuler, aka Mrs. Schnauzer

I wish it was a joke, but it's not. Eric Holder and company actually have indicted nine traffic-court judges in Philadelphia for a widespread scheme to fix tickets. This is such a low level of court that you don't even have to be a lawyer to sit on that bench. And yet, the Obama DOJ is going after them. And two of the judges are charged with fixing one ticket each.

Most people who care about justice probably don't have a problem with corrupt officials being outed, whether it's in a high-level position or not. But when you think about the justice-related problems the Obama administration has ignored--the Don Siegelman case in Alabama, the Paul Minor case in Mississippi, to name just two--you have to wonder, "Who is minding the store?"

Going after the traffic-ticket outlaws in Philadelphia would make sense maybe, if the DOJ had taken serious action on these other more important matters. But when they ignore the big stuff and go after minutiae . . . well, as you suggest, it seems like a joke.

There are many readers out there who are not familiar with Don Siegelman, Paul Minor or any of the others you mention in your article. Can you back up and do a refresher for us?

Sure. Don Siegelman is the former Democratic governor of Alabama (1998-2002). He had become adept at winning statewide office in an increasingly Republican state, and that made him a target for the Bush Justice Department. Siegelman was indicted on various corruption charges, apparently at the direction of White House strategist, Karl Rove. A federal judge in Birmingham dismissed one set of charges against Siegelman, but a Bush-appointed judge in Montgomery helped obtain convictions in a second case that has come to be known as the most blatant political prosecution in American history.

The case of Paul Minor, an attorney in Mississippi, might come in a close second. Minor was a highly successful plaintiff's lawyer, winning big settlements against the tobacco and asbestos industries. He also was a generous donor to Democratic Party candidates, especially to the John Edwards presidential campaign. That earned him a powerful enemy in the U.S. Chamber of Commerce, and in another case that appears to be driven by Rove acolytes in the politicized Bush DOJ, Minor was indicted--along with three former state judges. Minor and two of the judges eventually were convicted, largely because a GOP-appointed federal judge gave jury instructions that were not even close to what the relevant law says.

The bottom line? Don Siegelman, Paul Minor and former Mississippi Judge John Whitfield sit in federal prison at this moment for crimes they did not commit. In fact, the "crimes" they committed do not even exist under the law; that's because the jury instructions in both the Siegelman and Minor cases were so wildly off target. (The second former judge in the Minor case, Wes Teel, has served his sentence and was released a few months ago.)

These cases should shock the conscience of all Americans who care about democratic ideals, about the constitutional guarantees of due process and equal protection. They truly are Stalinesque examples of political enemies being turned into criminals--and sent off to our version of gulags.

Numerous pleas have been made to the Obama DOJ to at least investigate, and hopefully correct, these gross injustices. Dana Siegelman, Don's daughter, is making major headway in bringing this issue to the nation's attention. But so far, the Obama administration has done nothing of substance.

Meanwhile, traffic-court judges in Philadelphia are in big trouble.

Let's go back to Don Siegelman for a minute, Roger. Don's conviction for a non-crime put at risk every single public official, past, present or future, who accepts campaign donations. That's a scary thought. Can you explain that one to us? 

Don Siegelman, outside Atlanta courthouse in an earlier appeal 

photo credit: Glynn Wilson

It is scary on a number of levels, Joan. Most Americans probably understand the definition of a standard bribe--a person holds an office, someone offers him money or another incentive to provide a favor, and the favor gets done. That's what I call an "everyday bribe"; people understand what that is. But in the context of a campaign contribution, the law is different. And that's because our system is built around candidates raising funds in order to run for office.

I'm not sure bribery law regarding a campaign contribution even is spelled out via statute, so many officeholders have no way of knowing what it is. It is spelled out in case law, in a U.S. Supreme Court case styled McCormick v. United States. That says prosecutors must prove "an explicit agreement," also known as a quid pro quo ("something for something" deal) in order to convict for an alleged bribe in the campaign context.

All sides in the Siegelman matter agreed that McCormick was controlling law. But trial judge Mark Fuller, a Bush appointee, gave jury instructions that did not match the key language in McCormick. No evidence was presented at trial that Siegelman and contributor Richard Scrushy had an "explicit agreement"--that Scrushy would give $500,000 in exchange for a seat on a hospital-regulatory board. After all, Scrushy had served on the same board under three previous governors, so there was no indication that he even received a favor.

Fuller's jury instructions, contrary to law, did not require that an "explicit agreement" be present.

That means Don Siegelman resides in a federal prison because he violated a "crime" that Judge Mark Fuller created; it's not based on real law. This might be the scariest part of all about the Siegelman case: You can be convicted in our country of a "crime" that a judge simply pulls out of thin air on the bench. There is nothing that requires a judge to base his jury instructions on the real law.

In the Siegelman case, the U.S. Eleventh Circuit Court of Appeals in Atlanta allowed the bogus jury instructions to stand. And the U.S. Supreme Court refused to grant certiorari to hear the case. That essentially means that we now have one set of law in the 11th Circuit, which does not require an "explicit agreement," and different law in all other circuits.

The whole point of having appellate courts, to a great extent, is to ensure that the law is consistently applied across jurisdictions. That's part of what "equal protection under the law" is all about. But our highest courts have utterly failed at this critical task in the Siegelman case.

That this could happen in what supposedly is the world's foremost democracy . . . well, it's chilling stuff. And yes, it does put every public official at risk. A lawful campaign contribution can become a bribe, based on the whims of prosecutors, trial judges, and appellate courts that aren't doing their jobs. It's a political version of "The Wild, Wild West."

Is it fair to blame this entirely on Karl Rove? I certainly don't want to give him a pass on this but isn't part of it simply that the system is broken? Also, there has been a rare show of bipartisanship on the part of states' attorneys general on the Siegelman case. Does that count for anything?

Yes, it definitely goes beyond Rove to a truly broken system. Rove got away with all kinds of questionable political activities in Texas. He joined forces with the U.S. Chamber of Commerce to essentially buy state courts in Alabama. That's how he built his political base, and the modern-day GOP sold its soul to this guy whose No. 1 talent was winning elections by cheating.

Our political, corporate, judicial, and media systems all have failed us. They've allowed this to happen. Karl Rove has been aided by what therapists call "enablers."

The bipartisan response of the former states' attorneys general is encouraging, and I think, unprecedented. But such groups are powerless in the face of corrupt courts that simply refuse to follow established law. We desperately need citizen oversight over our courts. The judicial branch of government runs on an "honor system," dominated by lawyers who have no honor. I would argue that we need justice reform every bit as much as we needed health-care reform.

Finally, I think Democrats have to take a lot of blame for letting all of this happen. Too many liberals cower in the face of corporate and conservative thugs. I'm hopeful that the Occupy Wall Street and Anonymous movements are a sign that is changing. We certainly are not likely to see any change from the Obama administration.

No matter what the president might accomplish in his second term, he's going to have a huge black mark on his record if he allows the continued rot of our justice system.

How do you explain the president's reluctance to take on any of the hard but important cases like Siegelman's? Is he afraid? If so, of whom? Of what?