The Marketing of Nick Bailey

He’s the son of a County Democratic Party Chairman, he has a degree in finance, he was once the driver for Don Siegelman and later became his aide and advisor. And now, Nick Bailey has become a hot commodity, a figure who needs to be marketed and sold in order to justify a case that has even ardent skeptics and political opponents murmuring about the fairness and propriety of the seven year crusade to put a former governor in prison. To the dismay of the prosecutors, conviction and prison was not the ending, the closure they had hoped it would be, but only the beginning. And now that the case is reverberating all the way back to Washington DC, with the White House taking steps to ensure that damage control measures are in place to contain the Alabama situation, and amidst the usual statements that oscillate between denying there was anything improper about DOJ’s handling of the case and affirming the integrity of the people involved, there is a dug-in Attorney General and an administration that has been quick to deny any suggestion of political motives behind the Siegelman prosecution but not as quick to supply documents or any other proof in support of their denials.

Nick Bailey was being marketed before and during Siegelman’s trial, and today, the prosecutors have put up their final billboard in the campaign, recommending that Bailey not spend a single day in jail. So how did Nick Bailey, who was briefly a minor government official and was well known as a friend and confidante of Governor Siegelman, become the Scooter Libby of Alabama? Even though the case is over with a successful conviction and two defendants sent off to prison; and the prosecutors should only be making sweeping statements about how justice prevails, or they should be clapping themselves on the back, posing for pictures, updating their resumés and popping the cork on a celebratory bottle of bubbly, the case is instead seeping out of Alabama and it is on a collision course with an inevitable Congressional investigation. If the pressure that is on entrenched Attorney General, Alberto Gonzales, is factored in along with related headlines concerning the politicization of the Justice Department, and the political mood of a country heading into an election season, then the murmurs must be silenced. The damage has to stop or else the bubbly will have to go back on ice, and dreams of a return to a quiet status quo minus one former governor will evaporate like the ethereal memory of a Rove-Canary mid-90s Alabama partnership.

So how does the marketing work? To hear the prosecutors tell it, you would think that Nick Bailey was a mild-mannered pencil pusher who courageously sacrificed his life and security to do battle against the mob to bring down a Kingpin. To hear the prosecutors tell it, Nick Bailey was a naive little boy who was lured into the web of corruption by Don Siegelman, who used him for his own evil devices. To hear the prosecutors tell it, Bailey was a good foot solider, who refused to follow the illegal orders of a general, and instead, made a bee-line to sound the alarm to the authorities. The problem is that none of these stories are true, but the more perplexing problem is why is the prosecution going to bat for this corrupt minor official, to the point of almost total forgiveness? The reason is that while the wagons are circling around a case that refuses to go away, the prosecutors need the public to believe Nick Bailey. They need to have the public believe that their actions have nothing to do with plea bargains, plea agreements, cooperation, or squeezing a guy who was over-his-head in criminal activities, but they need the public to believe that the prosecution really, really thinks that Nick Bailey is a conscientiousyoung man who was telling the Truth and that it was this Truth that helped the DOJ set things right in Alabama. This is the only logical explanation for the prosecutor’s illogic actions.

So keeping in mind the tenants of this marketing program, let’s review:

In 2004, Don Siegelman, Dr. Philip Bobo and Paul Hamrick were indicted in what was called a “bid-rigging” scheme where it was alleged that Siegelman-supporter Bobo was helped by the governor in a scheme to win some medical contracts. Before the case went to court, Bobo won a separate trial from Siegelman, which led to Siegelman and Hamrick having their case thrown out of court by Judge U.W. Clemon. The judge took exception to the prosecution’s theory about how the crime was supposed to have been committed, which he called a legal impossibility, and he gutted the case by tossing out most of the supporting evidence.

Young inexperienced prosecution-hero Nick Bailey didn’t show up until after Siegelman’s trial was abruptly halted, and part way through Bobo’s trial. But even then, he was only there in spirit, referenced as a shadowy figure called “Nick,” who had made some calls and brought some documents to Bobo. Was this the lion-killer, the brave foot solider of the Siegelman trial, who the prosecution didn’t even bother to call as a witness? Was there a problem with this key witness; enough of a problem that the prosecution kept him off the stand in that first trial? Perhaps more background will help.

In June, 2003, Nick Bailey pled guilty to counts that included bribery in connection with wire and honest services fraud, filing a false tax return and felony ethics violations. He admitted taking bribes from Lanny Young and from legendary bad architect Curtis Kirsch. Although he pled guilty in the middle of 2003, he was not sentenced until November, 2006. The prosecutors kept this soldier dangling on the line for three and a half years. Comparing the evolving nature of Bailey’s story mirrors his parallel rise in stature, in the government’s case. The day would eventually come when Bailey wouldn’t be just a corrupt minor government official, but he would be a brave soldier, a lion killer, and a little boy led astray. At the time Bailey worked for Governor Don Siegelman’s administration, he was a thirty year old man with a degree in finance to go with his family’s political background. To say that he was a young man led astray by the best plans of evil politicians is a disservice to thousands of young college graduate public servants who did not cover their financial indiscretions by taking bribes. Not because of his youth, but more likely because of his financial situation, Bailey may have indeed been somewhat corrupted by opportunity-sniffing Lanny Young. It was clear that Young knew how to use people and situations to get things that he wanted, so to some extent, to say that Young helped corrupt an inexperienced Bailey might be partially accurate. But the prosecutors won’t go down that path. It doesn’t fit the storyline. In the end, Bailey has to be successfully marketed in order to sell their crumbling case, the kind of marketing that might be achieved if they could show the government’s gratitude to this brave individual by wiping out his entire prison term.

So what did Bailey do with the money that he received through his corrupt activities? Did he plug in his young idealism and invest it in a program so Alabama’s children could get a free college education? Did he help the elderly? Or was this poor young man squeezed by a sickness in the family and with a lack of affordable healthcare, desperation turned him to graft the government? During Siegelman’s trial, Bailey admitted on the stand that not all of the bribes he took were even in the plea agreement. Besides Young and Kirsch, Bailey said that he had also accepted goods or services from Milton McGregor, Anthony Fant and Jim Lane. The man who is about to be rewarded for his service to the state admitted that he was lying when he signed his plea agreement, and that there were crimes he committed that he was not held responsible for. This means that in the zeal and fury to bring down a governor, the prosecutors were not only willing to forgive crimes but to under-investigate or outright ignore other crimes that took place. And all of this financial malfeasance was to cover Bailey’s personal finances that had gone out of control. More specifically, Bailey was trading in hog futures and losing his shirt. The little boy who made great sacrifices to be a good soldier for the government sold out the state to cover his own greed. And now he is reaping a great reward for telling a story that turned out to be the only “evidence” in a trial that stands out for its dearth of evidence and proof.

So Bobo was eventually convicted in a trial where Nick Bailey is only referenced. On appeal, the conviction is thrown out for pretty much the same reason the judge threw out Siegelman’s version of this trial. The prosecution’s theory didn’t make sense and the evidence didn’t match what the indictment was supposed to be charging Bobo with. The Siegelman/Hamrick case was dead because the judge dismissed it with prejudice, but the government re-filed charges against Bobo.

Three years after Nick Bailey pled guilty to charges against him, and after a few grand jury appearances, Bailey finally shows up on the witness stand. After three years and many many many meetings with his FBI and DOJ handlers, his story is ready to go, and he is called on to give evidence against Don Siegelman, Paul Hamrick and Richard Scrushy. This entry will not go through a detailed account of his testimony although notes on his testimony, taken from the courtroom, are available elsewhere on this site. But at least a couple of things about his testimony are noteworthy. Bailey appeared to be very well rehearsed and certainly seemed to be willing to say whatever he was told to say, and he didn’t appear to fully understand the bribery charge. At one point, he told the defense attorney that since all of the board members gave donations, then you could say they all bought there way onto the board; on another occasion, he agreed that because Margie Sellers, who’s Nursing Home Association had given more money than Scrushy, she deserved to be president of the board and Scrushy should be vice president. These exchanges both seem to indicate that Bailey was aware Scrushy donated a large amount of money to the Lottery Foundation, and since he ended up on the board, then this was automatically a bribe, as it had been characterized by his handlers for three years.

But there is a clincher in the marketing of Nick Bailey. Philip Bobo was finally retried and this time, Bailey takes the stand. Full disclosure should say that I was not in the courtroom as I was when he testified in the Siegelman trial, but he told his story: Calls, letters and documents delivered. And the jury didn’t buy it. Not guilty on all counts. Now what is the difference between the Siegelman trial and the Bobo trial, a case that Siegelman was once a part of. More evidence? Different evidence? Better evidence in Siegelman than Bobo? Whatever it was, the jury didn’t buy Nick Bailey, who was telling his story four years after he pled guilty to crimes that he still hoped to be absolved of. Whatever it was, the jury didn’t think there was very much there, and with Siegelman convicted on the strength of this lone-eagle young soldier-boy Bailey, the murmurs are getting louder. The prosecution has to sell that they really believe in Nick Bailey more than ever. Because after all, what is the difference in the two trials? Try this one: Richard Marin Scrushy. It was the prosecution’s masterstroke. Nick Bailey’s shop-worn story couldn’t convict Siegelman any more than it could convict Bobo. But arrange Scrushy to be next to Siegelman, and give Bailey a song to sing, and a couple of people are going to prison. It didn’t matter if either of them were guilty, it was a winning formula.

So they had better market Nick Bailey well as the flag-bearer of Truth, the Alabama patriot who bravely took the stand not once but twice, before the people begin to figure out how a two-bit criminal became Nick the Lion Hearted and how the Richard Scrushy card was deftly played to convict both men. Nick Bailey has to be marketed well or the bubbly may have to stay on ice for some time to come.