The marketing of Nick Bailey hasn’t gone so well for the DOJ’s Middle District of Alabama, so now the First Amendment is breaking out all over the place, and it is galling the prosecutors in Montgomery. The recent furtive actions of the DOJ prosecutors show that they are desperately racing against time to sell this crumbling case to the general public. Besides the integrity of the Justice Department and implications that run all the way back to Washington, imbedded in the heightened rhetoric, other ripple-effect concerns may be held in the balance, including the careers of the prosecutors and the reputation of a newspaper in Mobile.
Instead of adding to the rhetoric, let’s look at the evidence to see if we can make some sense out of the situation. The first and most glaring indication that something is amiss, in the Middle District of Alabama, is the startling and remarkable continuation of the case after the defendants were found guilty and have been sent off to prison. The numerous mini-speeches about Scrushy’s and Siegelman’s bad behavior was part of this, it continued with the selling of Nick Bailey and it reached a high water mark when Feaga made threats, in court, about the possibility of charging Siegelman or Scrushy with obstructing justice from their jail cells. The structure of a high-profile case is that it begins with a large amount of hype and media buzz. The defendants, their legal teams and the prosecutors make frequent appearances in front of cameras and behind banks of microphones. And the whole thing reaches a crescendo at the moment when the judge asks the jury if they have reached a verdict. Then it’s over. There may be a little sniping from either side, but as the post-trial days go by, the story is replaced in the media by more current events, and the furor dies down. People believe in the American system of Justice and the legal system, and even if people do not always agree with the outcome of a legal case, as long as it was a fair trial decided by an honest jury, time generally has a way to level the battlefield and erase the memories of the conflict that was once fought there. But for some reason, the high profile trial of Don Siegelman and Richard Scrushy didn’t follow this script. Even if one side has gone so far as to make some waves about launching an investigation, if the opposing side truly believes they tried and won a righteous case, then the best strategy is to turn their backs and move on. An investigation, especially of a political nature, will never hurt anyone who has the truth on their side. So walk away. But for some reason, the prosecutors in Montgomery have been unable to do that, so make so mistake about it, they are feeling the heat.
How hot is it, in Montgomery? In the long legal battle, there has been a fair measure of shrill voices weighing in from both sides, one faction calling for the process to be reviewed by a Congressional investigation, while the other side is saying that justice was served and that the defendants are bad criminals who deserve no voice, no consideration or any other protections. In this week, in a court hearing where the prosecutors stood up to make good on the promises they made to Nick Bailey where he was to tell his story in exchange for having his sentence disappear, AUSA Feaga vaguely suggested that there might be additional obstruction of justice charges brought against Siegelman or Scrushy, and that the imprisoned defendants were “reaching out from their jail cells.” In setting the context of this scene, it is important to note that neither DOJ’s Middle District of Alabama nor Nick “The Lion Hearted” Bailey got what they wanted from Judge Mark Fuller. Instead of having his already reduced sentence evaporate into house arrest (or Bailey’s suggestion of probation) his original sentence of 18 months was reaffirmed. In either a measure of hot-under-the-collar frustration, or as a pre-emptive strike, Feaga suggested that Scrushy or Siegelman are manipulating events in Alabama, from their Louisiana and Texas prisons. But who or what were these comments really aimed at?
At this point in the narrative, let’s go back to Washington for a minute, where Congressman Davis, Senator Conyers and others are calling for an investigation into possibly politicized prosecutions, including the prosecution of Wisconsin’s Georgia Thompson and Alabama’s Don Siegelman. But it is not the same Washington that it was a month ago. Old Alabama operative and Bill Canary associate Karl Rove has resigned and Attorney General Alberto Gonzales has also resigned in the wake of pressure over the politicization of the Justice Department. This means that the Department of Justice is about to be reformulated, and it means that Karl Rove will be safely far away from the present administration if his name happens to come up in the reams of email that he left behind or on the lips of witnesses that Congress will want to talk to. Think about the possibility of a reconstituted Justice Department under an increasingly lame-duck President, all part of a political party that is going into an election season. With the earlier and earlier primaries, the two parties will probably have presumptive candidates by mid February or early March, so could the party afford to have an investigation on a slow burn blow up six months from now? The heat is on, and if there is anything wrong or untoward about the investigation and trial of Scrushy and Siegelman, someone is probably getting rather squirmy in Alabama. It is hard to tell exactly what it means, but the best strategy is to look for the one who is shouting the loudest and acting the most frantic. For instance, we might look at the illogic behavior of hurling threats in open court about a case that has already been won and disposed of. Maybe that.
So what exactly did Feaga have in mind about his suggestion of obstruction of justice. Was he talking to the public? There has been a lot of that from both sides in this long legal struggle. Was it aimed at the media, perhaps as a reply to Siegelman’s recent open letter that he sent out? Maybe they’re posturing for the appellate court, and Feaga wanted to reiterate his position for the distant ears of the 11th Circuit judges, so they wouldn’t get any ideas about bonding out the defendants, because they would be liable to influence people and manipulate events. And regardless of his audience, if Feaga was referring to specific charges that have yet to be brought in front of a Grand Jury or are now in front of a Grand Jury, then he was violating the DOJ’s own policy regarding the confidentiality of investigations. This policy is in place to protect the integrity of the potential Grand Jury, the integrity of the investigators, and to protect the reputation of un-indicted targets from being slandered by indiscreet comments. So in order to raise the rhetoric in a case that has already been resolved, and to violate his own department’s policy, Feaga must have really wanted to send a message.
This is a career case for the prosecutors, both for career prosecutors Feaga and Franklin, and for Leura Canary, the recused political appointment who has lurked in the background of this case behind unrequited FOIA requests. If Scrushy and Siegelman each slip through the hands of justice for a second time, the reputations of the prosecutors could be damaged, and if anything is found to be tainted about the prosecution, if anything comes out of the promised investigation, their legal and/or political careers could come to an abrupt ending. Today, Karl Rove leaves the White House while a hearing is taking place to consider contempt charges against disbarred DA Mike Nifong, in North Carolina. Regardless of just who or what Feaga was talking about in Fuller’s courtroom, these events would certainly make it pretty hot in Montgomery.
So if an investigation is started and earnestly picks up some steam, just who might Congress want to talk to? There was someone in the courtroom with Feaga who might be feeling a little duped right about now, a little bit conned; someone who has been shaping and telling a story for a long time on the promises that his friends in the Justice Department would help him make his sentence go away. It is the recently highly marketed commodity, Nick Bailey. What if everything he said wasn’t exactly true, that he strung together some stories in a long-haul effort to stay out of prison, and he came up a little bit short, and what if the whole experience has left him in a foul mood. With no less than the White House watching what is going on in Alabama, with an about to be reformulated Justice Department, with a Congressional investigation about to take flight, with careers hanging in the balance, was Nick Bailey the true audience for Feaga’s comments? It is difficult and not at all clear if this scenario is possible, but the complete illogical nature of the recent prosecutorial outbursts has to have us looking for some sort of reasonable explanation.
A few words from Bailey and it all could come crashing down, so was the notion of additional obstruction of justice charges a threat: Either a threat to Siegelman to shut up or a threat to Bailey, reminding him of who holds the keys. And if so, who is obstructing whom?