Congressman Artur Davis has said that the House Democrat’s request for the recently freed Don Siegelman to testify in front of Congress is ill-advised, and that he would strongly advise Siegelman against making this trip to Washington. In published reports, the Congressman was quoted as saying it would be “extremely unwise” for Siegelman to appear because it would expose him to new Republican attacks. To Davis, a Siegelman appearance would not serve the interests of The Party because it would “undermine what we value most.” These words come from the same Democrats who did little or nothing, on a national scale, to address the circumstances of one of their own members being railroaded into prison as the result of a highly questionable investigation and trial. There were few words spoken by prominant fellow Democras, at least until Don Siegelman was already in prison, and not until they could mix the Siegelman situation with their own agendas concerning Karl Rove, and not until dozens of former Attorney Generals–including some Republicans–openly questioned the prosecution. This is the same Democratic Party, that while swirling into the midst of a particularly contentious election cycle, where the leading candidates routinely talk about Change and a new kind of politics, even when the candidates have yet to utter one word in defense of the persecution of one of their own members. It might be understandable that the political party would not want to spend any political capital on a corruption case–no matter how questionable or no matter how wrong–but it would be equally understandable if Governor Siegelman politely declines the advice of Artur Davis, and goes to Washington.

Davis said that he feared that Republicans would use the occasion of a Siegelman appearance to embarrass him, and to further discredit the former governor. With due respect to Representative Davis, and with a high regard for his motivation and sincerity, it would be hard for me to imagine anything that could be more embarrassing than to be shackled and jerked out of a crowded courtroom, and to be hustled off to prison. Siegelman went from General Siegelman and Governor Siegelman to not even being worthy of being called Mr. Siegelman, but more likely Convict or 24775-001. It is a pretty good bet that the most intense questions, the most vicious comments by members of Congress would not embarrass Don Siegelman any more than he has already been subjected to.

Artur Davis also said that his appearance could jeopardize his appeal or expose him to further charges like perjury or obstruction of justice. This is a legal matter, and I have no idea what Don Siegelman will choose to do, but if it truly was a politically motivated investigation and trial, then it would seem that having an opportunity to tell the truth could not possibly jeopardize further litigation. In fact, the Davis plan of hedging the bets might come off as a bunker maneuver that parallels the bunker mentality that has kept the truth buried and hidden throughout this whole affair. And even worse, Davis said that Congress might call some of the witnesses from the trial. Does he mean Nick Bailey? Again, I do not know what Siegelman’s plans are, but it seems that he would be delighted to have his old aide appear in a national venue. The exact nature of Bailey’s ever-changing testimony could be explored along with the circumstances of his interviews, the promises he was given, and his early release.

Davis curiously separates two related ideas. The Birmingham News quotes him as saying, “We will lose the high ground that maintains that the integrity of the criminal justice system is more important than an individual defendant’s guilt or innocence.” Yes, but one of the hallmarks of a Democracy is that the rights of every individual are important, and that if one innocent individual is deprived of his or her rights and is wrongly prosecuted, then it undermines the integrity of our entire system. Davis further asserts that Congress may be granting Siegelman his “day in the court of public opinion,” but that “critics will assail us for doing nothing more than second-guessing a jury-verdict.” But is bringing out the truth of a wrongful prosecution merely a matter of public opinion? Siegelman’s appearance will be up to him and his consideration of the counsel of Artur Davis. But I say bring on Nick Bailey. Give Karl Rove another chance to hide behind executive privilege, and give the administration another chance to say that most of the pertinent emails and documents have disappeared. Call Steve Feaga. Call Leura Canary. The more the merrier: Call investigator Bill Long. Call retired FBI agent Jack Brennan. Call Alice Martin. Even if the opposition is licking their chops, let them, as it is time to put it all on the table and allow the unvarnished truth to give us an answer. Davis might think it is risky–even distracting to their mission–but if the truth is on Siegelman’s side, let it erupt all over Congress. And then dare the 11th Circuit Court of Appeals not to kick the case out ot=f court and clear back to Mobile.

Public opinion indeed.

Uh-oh. Run for cover. The gates swung open today. Run and hide.

The Appellate Court’s ruling reached the same conclusions that would have been raised before Judge Fuller by Hiram Eastland, had he been allowed to address the court before Siegelman and Scrushy were hustled out a side door last summer: There were substantial problems with facts and law. Uh-oh.

Things could unravel and it may have already begun. When the Appellate Court found obvious issues, then why didn’t Judge Fuller allow the defendants to speak? Why was a Federal Judge presiding over a contentious white collar trial by treating the situation like he was adjudicating hard core thugs? And when Alabama Republican Party chairman, Mike Hubbard, says that Siegelman’s release does not, “change a conviction by a jury of his peers,” that is a good question. What about that jury? There were substantial allegations that the jury may well have been tainted, but Judge Fuller didn’t seem interested in finding out the truth. Run and hide. And Hubbard should know well that if a jury was given a trial presentation where there were “substantial problems of fact and law,” then the paradigms the jury was operating under were faulty so that even a conscientious effort could not produce an accurate result. Hubbard could join Fuller in the aftermath, and we could ask them both if either of them care about truth, justice and the constitution, or has their animosity and vindictiveness overwhelmed their rational and professional side so much that they just want to see a man punished and destroyed. Nine months is a long time. Unfortunately, the self-satisfaction enjoyed by his detractors can’t be taken back any more than the time can be given back to Siegemlan.

With the balance beam swinging back a little bit, evened by the added weight of the substantial problems of fact and law, the earnest, dire, pleading statements of the prosecutors–Feaga and Franklin–come into question, the secreted recusal of Leura Canary and the spidery connections that go through William Canary, Bill Pryor, Steve Windom, Bob and Rob Riley, and yes, Karl Rove, all come careening back into view. It is time to run and hide because if Siegelman was THAT dangerous of a voice that he needed to be shafted into prison, then he is now a dangerous voice with a story to tell. And he is free. Uh-oh.

Throughout time and recorded history Truth and Justice have had a way of bubbling to the surface and of finding a way of coming out. Whether or not the indictment, the investigation and the trial were bonafide and righteous, or whether they were motivated by a political agenda, I have said all along that the biggest red flag in this whole affair is the seemingly tireless effort to suppress the true nature of the charges and the investigation. No amount of press releases and declaratives from either side can change the Truth. It is immutable, unchangeable and ought to be a solid rock on which our system of Justice depends. So Judge Fuller’s swift administration of justice on June 28th, 2007, the diesel justice Fuller knew would follow, all the subsequent statements made by prosecutors Feaga and Franklin, the numerous press releases spewed out by the Republican Party, along with the decrees from people like Mike Hubbard, can not change or alter the Truth. For that matter neither can Siegelman’s attorney Vince Kilborn nor Congressman Artur Davis nor Don Siegelman himself. As of this writing, on this day, as Siegelman heads back to Alabama with his wife and daughter, the Truth has already happened and cannot be changed by words, thoughts, actions or emotions. But the complete nature of the problem arises when one side does not seem to care about uncovering the Truth, like finding out the circumstances of Leura Canary’s recusal, or fully investigating the allegations of Jill Simpson, or looking into the obvious problems with squeezed over-his-head witness Nick Bailey, or with investigating the facts behind allegations of a tainted jury, or being concerned with the lingering questions about Judge Fuller’s animosty toward Siegelman, especially with regards to the sentencing and the excessive leeway he seemed to give the prosecutors, or like looking into how Richard Scrushy was surreptitiously inserted into the trial in an effort to parlay public opinion into a conviction. And besides stridently wanting Siegelman out of prison–in light of all of these problems–the other side has steadfastly simply asked for the Truth.

Resolve these problems. Balance the scales. If Mike Hubbard truly cares about the will of a jury of Siegelman’s peers, and if he cares about Justice and the Constitution, then he would willingly join with Siegelman and people on both sides of the aisles, and work to balance the scales; he would welcome the opportunity to present justice–unadulterated facts–to a jury and see what happens.

So happy freedom Don Siegelman. You too Mike Hubbard, Steven Feaga, Bob Riley and Karl Rove.

On a warm afternoon in May, near the beginning of a long white-collar trial, Richard Scrushy’s lead attorney, Art Leach, began probing the nature of the government’s investigation, as it related to the man who was on the stand, the prosecution’s star-witness, Nick Bailey. White collar cases can be tedious because there is no dramatic moment where the murder weapon is produced, there is no riveting testimony from the clever guys in the crime lab, where it is shown how physical evidence is linked to the defendants. The facts in a white collar case are centered around documentary evidence, conflicting vantage points and the reliability of stories told by eye witnesses.

The task of authenticating documents can be a long drawn-out process, and as for the eye witnesses, it is a matter of reviewing the statements that they made to investigators. Although the confessions of defendants are sometimes taped, the FBI never records the interviews of witnesses. Instead, they take notes, FBI 302 forms, and these notes are the FBI agent’s interpretation of statements made in witness interviews. This methodology is designed to prevent the defense from pointing out discrepancies between the testimony of a witness, during a trial, and the earlier statements made by the witness. In this way, the witnesses always maintain a high level of deniability because any discrepancy can be dismissed as an error in note-taking. (The prosecution made liberal use of this technique in the Birmingham-HealthSouth case, but the defense was able to counter-capitalize because since there were so many cooperating witness-defendants, the defense could point to the sheer volume of alleged mistakes in note taking.)

So in the midst of this process, with Nick Bailey on the stand on that day in May, Leach used a typical attorney gambit which was designed to establish that the accuracy of earlier statements should take precedence over the later statements of a witness. Leach asked, “And in terms of your memory of these events, would you testify to this jury that your memory was better on June 30 of 2003, or better today [May 6, 2006]?”

And Nick Bailey answered unequivocally, “My recollection of these events are better now than they were then, Mr. Leach.” When Leach acted surprised and taken aback by his response, Nick clarified, “My recollection of the events around the delivery of this check is better now than it was then.”

If the long drawn out investigation, and dual indictments of Siegelman had not already raised eyebrows, the first red flag went sailing up the pole that day. Set aside everything that has been said or has come to light about a possible political prosecution. Set aside the big-name political figures who are supposed to be involved in the affairs of Alabama. Set aside everything that is known or thought to be known about the HealthSouth trial, in Birmingham. Because on that day in May, early in the trial of Richard Scrushy and Don Siegelman, it looks like something is up. It looks like something funny is going on. Is Nick Bailey really a marvel of medical science? It doesn’t seem fair that his memory improves over time while the rest of us have to suffer from the deterioration of time and age.

The headline that came out of the recent 60 Minutes report, and that has been widely picked up and circulated by the media, is Nick Bailey’s revelation that his testimony was shaped and coached by his FBI handlers. He was not only coached as to what he would say on the stand—all witnesses have some of that—but he was encouraged to write out his testimony and to make improvements on it. With the 60 Minutes report, we now know that Nick Bailey was telling Art Leach the truth, about his memory, and we can finally reconcile that jarring day in May. His memory really did improve as it was aided, conditioned, bolstered and laid out by the FBI. But there are a couple of other things that underpin these recent revelations. It came out during his testimony that Bailey was in possession of the FBI 302 notes, pertaining to his interviews. This would allow him to review these notes and presumably refine them. Because of this possession, the attorneys could have had the court categorize this situation under the legal term ‘adoption,’ meaning that the witness accepted the notes as being his true and accurate statements. However, the government surprisingly did not oppose the use of the 302s and had them placed into evidence. My legal sources have told me that not only would this be unusual, but that the government would never allow the adoption of FBI notes without vigorous opposition. Never. Allowing adoption would take away the one-off layer of deniability the notes afford the prosecution. So why did they allow it this time? Two things come to mind. 1) They wanted to cut off further probing into the nature of those interviews; and 2) They knew—absolutely knew—that Nick Bailey’s 302 notes would be an exact match for their version of events because they wrote the story.

As yet another flag goes sailing up the pole, a close reading of the transcript reveals other indications that something is up with the investigation, as it relates to star-witness Nick Bailey. When Leach asks about a discrepancy between his testimony and something that was documented in a 302, Bailey says, “According to the 302, that is correct.”

In another exchange, Leach asks Bailey about Scrushy not taking Siegelman’s initial call to the Governor’s office, and Bailey says: “That sounds familiar.” Leach says, “Isn’t it true you told the FBI that?” And Bailey responds, “Again, it sounds familiar.” Leach finally asks him directly, “Is that a statement that’s in one of the 302s that you’ve got possession of?” And Bailey answers: “Yes, sir, it could be.” It is a telling moment because it appears that Bailey is relying not on his memory—as would be expected of a witness—but on the information that is contained in the 302. Typically, a witness will tell an attorney that the 302s are just the FBI agent’s interpretation of what was said in the interview, and that the memory of the witness on the stand is what should count. Bailey doesn’t do that and we now know why.

The appeal process is grinding forward and it looks like the two sides have something to say, but both Don Siegelman and Richard Scrushy have been incarcerated for over nine months, and if Siegelman is denied his release bond, both of them could be in prison for up to two years before the appellate decision is handed down. When the star witness declares, in open court, that he is a marvel of medical science, the issues on appeal are much more than trivial technicalities—but possibilities that range closer to willful obstruction and prosecutorial misconduct, and two years is a long time for people to be imprisoned under these circumstances. So is one day.

Click…Click…Click…Ralph Reed
When the political season finally went into full swing with the early primaries, a figure who is well known in Alabama turned up as a political analyst on CNN. One-time Executive Director of the College Republican National Committee, One-time religious organizer, one-time political operative, one-time partner of Jack Abramoff, one-time candidate for Lieutenant Governor of Georgia and now pundit Ralph Reed was on hand to give political insight into the New Hampshire primary. Some people go to prison and some people find a comfortable seat in a broadcasting booth where they can bring the news to a public primed to forget.

What kind of political analyst would Reed be? Campaign financing is always a popular topic. Reed could give his first-hand insight into how to launder money from illegal enterprises to circumvent election laws and funnel a stream of money through PACS to support political candidates or the concerns of his backers. That would be a lively discussion. He could talk about how to use faith to manipulate the faithful to support issues and candidates while being paid by the very concerns he is vowing to oppose. Although it might not have been as dramatic a yarn as when he played a casino against itself, the artistic purity of his work with Channel One and the Alabama Lottery are a textbook marriage between cynical politics and shady business. And as the night grew longer, around the time when McCain was wrapping up his New Hampshire win, Reed could whip out his old signature ‘they-won’t-know-I’m-there-till-they’re-in-a-body-bag’ quote while he is reminiscing about the old days, like those days when he was being paid by Enron to run negative campaigns for George Bush. Now that’s a political commentator with something to bring to the table! Or there were those heady days when he worked to influence Alabama Christians to urge then Congressman Bob Riley to oppose legislation that would make the sweatshops in the Northern Mariana Islands subject to federal regulations while all the time being paid by Abramoff, who represented the Marianas.

The McCain victory, that night, should have had a faint ring to it while Reed must have been struggling to keep a straight face. McCain was the guy who investigated his partners, Abramoff and Scanlon. And now Reed’s a glib analyst now where was the investigation, where was the grand jury? And just why wasn’t Ralph Reed or ever called to be a witness in McCain’s investigation?

Click…click…click…the Karl Rove show.
Another political operative who honed his skills in Alabama, before moving onto Washington, alit briefly on CSPAN on the way to his place at a network newsdesk. Karl Rove was addressing the state Executive Directors and Party Chairmen at the Republican National Committee’s winter meetings. The man who has been known to choose his friends and associates solely based on party affiliation was delivering a message urging the state party operatives to devise a plan to unify America. Some of it was the usual slanted party rhetoric that both political parties tend to indulge themselves with, like talking about how Obama, as a one-term Senator, does not have the experience to be Commander-in-Chief, when the speaker had just left the administration of the current Commander-in-Chief, who was likewise a one-term governor with virtually no record of prior public service. But his language framing the Democrats as tax and spend liberals who are soft on terrorism and national security is to be expected in the same manner that Democratic strategists likewise define themselves with well-worn party-of-the people rhetoric. But rather remarkably, when Rove was discussing the political vulnerabilities of Hillary Clinton, he referred to “The Clintons’ refusal to release documents that are hidden in that library, and her failure to say let’s get’m out.” And he went on to say that, “This gives the American people a legitimate question about what she is hiding.” Yes it does. It is kind of like the legitimate questions about what Leura Canary is hiding with her and the DOJ’s refusal to release documents relating to the investigation of Don Siegelman; and it is kind of like the legitimate questions about what Karl Rove himself, and other White House officials, are hiding in their refusal to turn over documents requested by Congress, that pertain to the administration’s involvement in the prosecution of Siegelman and Scrushy. It is the failure to say “Let’s get’m out,” that belies the partisan nature of the rhetoric.

Karl Rove’s speech was meant to rally the troops in how to shape the nation into a Republican mold, resurrecting the image of his concept of a Permanent Majority, but I must have missed the part where he tells the party operatives that one of the best tools is to start a whisper campaign that builds into a spurious investigation meant to destroy the life and careers of your most formidable opponents. It works even better if you can link your ultimate prey to a very unpopular local figure. When the opposition is safely carted off to prison, a victory can be declared over liberalism, people can be sworn to silence, documents can be shredded or “lost,” and you can leave the scene, retirng to a state like Texas for instance, and write your memoirs.

And speaking of Texas, back in the Lonestar State, Texas Supreme Court Justice Nathan Hecht is in trouble for using campaign funds to pay for personal flights. The Honorable Nathan Hecht is connected to the Bush administration in at least two ways. Like George Bush, he was a Karl Rove client, and he was also the defender-in-chief of the nomination of Bush attorney Hariet Meirs to the Supreme Court. Facing ethics charges for the use of his personal time to defend Meirs, a bill was drafted to reimburse him for legal expenses that he had already been compensated for via donations. And now there are allegations that he has been misusing his campaign funds. But where is the indictment? Where is the investigation? Are there officials of the DOJ making copious statements pertaining to Hecht selling out the state of Texas? Although the exact level might be debatable, as it has been hidden in unreleased documents and the minds of recalcitrant individuals, the Alabama investigation was pushed from Washington. It will be interesting to see if the Texas situation, with its ties to high-ranking government officials, is likewise affected in the opposite direction.

Click…click…click…More Rove
It’s SuperTuesday and pundit Reed was apparently not asked to reprise his role as an election night analyst, but new pundit Karl Rove has settled into the color-commentator’s chair on the Fox News Network. His Fox colleagues have a tendency to gush with groupy-like enthusiasm over their excitement at sitting next to Rove. One of them marvels that Rove has scribbled the delegate count on a scrap of paper. But to dazzle broadcasters with feats of the obvious is not why he is here. It’s all about having a genuine Republican Star in their midst, and their fawning accolades sometimes make it easy for Rove to easily outshine his star-struck fellow commentators. For instance, Rove correctly notes that Obama’s main base of support and his biggest wins are in Red states that the Democrats would not win in the general election. But what kind of analyst could Rove really be? He could reminisce about how he refused to accept an election result in a close Alabama Supreme Court race, and how he slugged the battle through the courts for an entire year, until he could get the desired outcome. He could talk about how, in his former job, he had so much influence that he helped pick US Attorneys. How would that be for dazzling? Much better than impressing his fellow commentators with a delegate count. Or what about the time when Rove claimed that his office was bugged just before an election, or he could swap some good stories about John McCain, the big winner of SuperTuesday. “If it wasn’t for me,” he could tell them, “there’s a good chance John McCain wouldn’t be running for President, he would BE the President.” And he could go into how him and Reed savaged McCain in South Carolina, starting a whisper campaign that the Senator was a traitor. And just as all the results were coming in, and when Rove was really getting going with his stories, he might start talking about all those meetings he had with Abramoff before stopping in mid-sentence, staring deadpan into the cameras while his eyes flash with a realization that he is talking to newscasters and he never talks to the press. ("I’m the press? When did that happen?") Next thing you know there might be an investigation and even an indictment. So instead, he says hopefully, “I have some figures on the delegate counts,” and all the Fox commentators look pleased.

Click…click…click…Michael Mukasey.
At yet another Congressional oversight hearing, the House Judiciary Committee had Attorney General Michael Mukasey visit the House chambers for another question and answer session. His testimony seemed cagey as he has been pulling a Mark McGuire—preferring to look at the future (as in: that Gonzalez guy is gone) while closing the door on the past—an approach that is frustrating when it comes from a baseball player, but a rather jarring spectacle when it is espoused by one of the highest government officials in the land. At the very end of the four hour hearing, with almost the last question he would answer, Congressman Artur Davis asked about the circumstances surrounding the allegations of the political prosecution of the governor of Alabama.

Mukasey didn’t exactly kick the table over, jump up and yell, “What? Our government was involved in a politically motivated prosecution? I’ll get right on it.” And when he was told that sworn testimony had indeed been given to a Congressional inquiry, Mukasey did not exactly say, “As the top enforcer of the laws of this great country, I will not rest until I get to the bottom of this. Give me names, dates and places. If someone’s been wrongly prosecuted and convicted, and if there is any chance that this government was involved, I will do my duty as the United States Attorney General who has sworn under oath to be completely independent of the administration or any outside political pressure.” No, he didn’t exactly say that.

Mukasey did concede that it would be improper for a politician or a member of the administration to inquire or otherwise meddle in a DOJ investigation. And the hearing was over. In his brief response, he also mentioned that he thought it would be improper for him, as a government official, to comment on a case that is under appeal. Did his employees get that memo yet? Numerous DOJ employees, including career prosecutors and political appointments have commented at length on this case that is under appeal. But apparently, and couched within his tepid response, Attorney General Mukasey is selectively conscientious in his approach to his new job.

Click…click…click…TV Guide…click….60 Minutes
And finally, the Siegelman case is ready for its close-up, with a 60 Minutes report scheduled to air on February 16th. It is a long way from the serve, volley and return match being waged in papers like the Tuscaloosa News and the Anniston Star on one side, and the Mobile Press-Register and the Montgomery Advertiser on the other side, to the national broadcast exposure of the 60 Minutes news magazine, on CBS.

From the outset, the far left has portrayed the Siegelman situation as the actions of an out-of-control Gustapo-esque government that has whisked the former governor off to an American gulag, while the right wing has portrayed the matter as the natural end-result of bankrupt liberalism, and the subversive mutterings of the “netroot.” Swinging back to the middle is the CBS program which was once a venerable bulwark of investigative journalism, but after the media has become fragmented by the various cable networks and Internet-spawned new media outlets, the program has become more uneven. Although it still sometimes offers some insightful pieces, it often takes on feel-good stories or contrived controversies imbedded in a format studded with softball questions (people of Alabama will remember that Scrushy was a subject of a Mike Wallace piece just a few days before he was indicted in the HealthSouth case). Nevertheless, the long-awaited 60 Minutes report does swing the Siegelman matter back toward the middle of the road, if perhaps stopping just left of center, but it is unlikely that the program will do much to bring the two poles closer together. However, after all of the channel surfing, the static, the voices, the visuals, the rhetoric, there is at least one thing that should be important to all Americans: A highly irregular trial followed a highly irregular investigation, and two innocent men were wrongfully convicted and sent to prison, in Alabama. Whether screamed by the Left, trumpeted by the Right, or picked up and addressed by 60 Minutes, what happened in Alabama should concern everyone in America and all of America should care about it.

Before they became pundits and long before they became government officials or party operatives, there was a Constitution that was a stop-bar, and which the underpinnings of political discourse would hang onto. What happened in Alabama, from the ardent Siegelman haters to the residual anger over Scrushy’s misguidance of a Fortune 500 company that once promised so much for Alabama, to people all across this country whom might happen to catch the 60 Minutes report and raise an eyebrow because they need to believe—we really need to believe—that our system of government is fair and honest, and it is neither in the throes of the Left’s dark vision of a Gulag nor in the Right’s total-destruction version of politics. Karl Rove might have said it best when he said that if they “don’t get’m out,” then America will have legitimate questions on just what is being hidden.

It is time to change the channel.

Confidence. Self-reliance. Righteousness. Justice. Morality.

These traits are not acquired by shouting the loudest, by self-proclamation, by streams of self-laudatory words. They are self-evident by their very nature. The American system of justice is a sacred cornerstone of our democracy and it needs no words or oratory to prop it up. The people who walk with the quiet knowledge and peaceful serenity of righteousness do not need to have their actions validated by the masses. Only people who can not clear their consciousness, who can not be honored by their actions alone, must constantly and consistently seek validation from their victims. It is that validation that gives them license to take what they could not achieve by having the confident self-reliance of a righteous cause.

Dire statements long after the successful trial and conviction of Don Siegelman were issued to refute the nosy meddling press and to quiet murmurs seeping out of Alabama. But it wasn’t enough. The sculpting of Nick Bailey had to be legitimized, to be justified, to be verbally decreed worthy in order to be validated. But it wasn’t enough. The silence of Lanny Young had to be bought in a language the wheeler-dealer would understand all too well. But it wasn’t enough. Legitimate questions about the sanctity of the jury, about the wrath of a judge and his need for vengeance, about bond issues, about a mountain of trivial evidence that was gleaned from the best efforts of years of biased journalism were all buried in legal arguments, in motions, in self-righteous decrees that served to only create distance between the men who were sent to prison and the truth about how they got there and the nature of their trial and conviction. But it still wasn’t enough. In a fountain of words that have come spewing out of a fissure in justice with an insatiable need for validation, the accused who were on trial have changed. The culprits have become people like Jill Simpson, Scott Horton, a group generically referred to as “Siegelman supporters;” the accused are the “ultra-liberal” newspapers, they have become you, they have become me. It is us. Until we pay homage to their wishes, until we collectively validate their rhetoric, until we give them the confidence that justice and righteousness could not, we are the accused.

The Alabama Republican Party is now going to bat for the Middle District of Alabama. Almost a year after issues were raised about the politicization of the Department of Justice, a situation that led to the resignation of the Attorney General, the Republican Party is showing how well it has learned the lessons of the past year and how willing it is to return to a non-partisan Justice Department by commenting on a legal case still under appeal. The latest instrument references the usual suspects, it is rife with false syllogisms, it makes a vague reference to the morality and righteousness of George Bush, it lists a number of debatable or questionable issues as facts; and after saying that Don Siegelman is guilty because he is a Democrat, and that to ask questions about his trial and conviction is to defend corruption, the document concludes by saying that he belongs in prison. From this latest statement, issued by the Alabama Republican Party, to the indignant running commentary of Louis Franklin and Steven Feaga, to the denials and stonewalling of Leura Canary, to the recalcitrant silence of operatives associated with the dispensation of justice in the Siegelman matter, it has apparently still not been enough. Only when the victims, all of us, validate their undeserved righteousness, can the Siegelman investigation be properly closed by the Republican Party and the Middle District of Alabama.

This is not about Democrats. It is not about Republicans. It is not about what Richard Scrushy did or didn’t do at HealthSouth, and what happened in Birmingham. Political passion is as old as our country and the adversarial relationships of political parties, with free and open debates, is one of the hallmarks that makes America unique among nations. However, in the issue at hand, it is the endless need for validation, the unrelenting deluge of nervous decrees about the righteousness of their cause, the furtive actions concerning Nick Bailey and Lanny Young, and the need for earnest orders from the 11th Circuit Court of Appeals that unravels this whole situation. The partisan trap makes us all victims of the rhetoric and an honest accounting of the truth is a casualty lost to us all.

Confidence. Self-reliance. Righteousness. Justice. Morality.

***************************************************************

[Fuller finally sent a response to the Appellate Court about the bond issue. So at this writing, the near future of the Siegelman situation is awaiting the higher court’s decision. Toward this end, the Republican Party’s instrument could have been a preemptive plea for justification ahead of an 11th Circuit decision that could be unfavorable to their rhetoric.]

It is the day after Veterans Day, a holiday originally set aside to commemorate the end of World War I, but was later generalized to honor all veterans who have served our country. Because it fell on Sunday, the banks, some schools and the delivery of the US Mail are shut down today. Courts too. There will be no decisions today. As of Veterans Day, 2007, it has been about four and a half months since Don Siegelman and Richard Scrushy were hauled off to prison, and it has been about four months since emergency appeals were filed on their behalf, appeals that could free them while they await disposition of the appellate process that could take up to two years.

In the early evening of June 28, 2007, after a three-day sentencing hearing, Judge Fuller pronounced the sentences on Siegelman and Scrushy and they were hustled out the door and shackled before they could even kiss their wives goodbye. In the scant seconds between Fuller’s sentence and when the Federal Marshall’s closed in, two attorneys with motions and prepared arguments in hand, rose for each of the defendants. Carmen Hernandez for Scrushy and Hiram Eastland for Siegelman. Eastland asked to be recognized by the court and Fuller said sternly, “No. We’re done here.” The rebuke was louder than his gavel and it was clear to the courtroom, to the media and to the world beyond that Siegelman and Scrushy were going to be punished regardless of any issues that yet remained to be solved.

That was four and a half months ago, and by Veterans Day, it has been four months since an Emergency Appeal was filed on behalf of both defendants. Three months later, the 11th Circuit Court of Appeals acted on the “Emergency Appeal” by sending it back to Judge Fuller and directing him to give the reasons he was recalcitrant to give at the end of that long day, in June. About a week later, apparently mindful that this was an “Emergency Appeal,” Judge Fuller replied to the court that the issue was whether or not Siegelman’s appeal would raise enough significant matters of law or fact that could result in a reversal of his conviction. And he preceded to tell the 11th Circuit that he thought about this and believes Siegelman doesn’t have a case, but because it is an “emergency,” he is not going to give them any reasons. And time passes. About a month later, the Court of Appeals returned Fuller’s lob with a volley of their own, telling the District Court that having some reasons might be helpful in order to rule on the defendant’s “emergency appeal.”

Siegelman’s motion for release was 80 pages long; it raised at least five substantial First Amendment issues, it challenged that a necessary quid pro quo arrangement was ever proved in the District Court, it challenged the nature of the obstruction of justice count and cites numerous facts to challenge the government’s theory that was presented to the jury. Eighty pages and Fuller summarily tells the Appellate Court that he thought about it and doesn’t buy the arguments even though Siegelman’s document appears to address plenty of substantial facts that go right to the heart of the case, so much so that if just one of these were found to have merit, the case could be overturned.

The Meaning of Emergency

One of my legal sources told me recently that there are indeed different meanings for the word ‘emergency’, depending on if you are a member of the lay community or of the legal community. To most of us, emergency means an urgent, usually unexpected occurrence that requires immediate action. But the 11th Circuit uses a different definition. To them it means that since we are appointed for life, as long as we rule before we die, it is a timely decision. That’s one meaning, but are there others? Federal Courts have some latitude on granting appellate bonds as the defendant must show that there are substantial matters that are at issue, and that a favorable resolution of these matters would likely result in a successful appeal. This rules out a defendant bonding out on a technical matter that would merely result in a trivial correction that would not affect the status of the defendant’s trial or of his sentence, and it would rule out a defendant remaining free with the sole purpose of delaying his inevitable prison term. But in this case, substantial questions abound. Even if an observer’s gut-feeling says that Siegelman and Scrushy are criminals, and they are exactly where they should be, it would be hard pressed for that observer to give a legal explanation to justify their internal feelings, based on what happened in the trial in Montgomery. And if that is true, why should Judge Fuller be so untroubled by the issue that he would be openly belligerent to the higher court?

There have recently been issues raised about Fuller’s ability to be impartial. Harper’s reported about another case where he was forced to recuse himself after documents and affidavits were filed that showed that he had some serious ethical and possibly criminal problems. And before the sentencing I talked with people who anonymously told me various things about Fuller that revealed, if nothing else, he may have exhibited some suspiciously furtive disclosure practices. There is also the matter of the grudge he was said to have against Don Siegelman, dating back to when Fuller was a DA. I have known most of these things for some time but have not given them as much weight as I have given to the paucity of evidence in the matter at hand. I have never wanted to believe that a Federal Judge could be so reckless and vindictive to be a party in the ruination of another man’s life, much as I previously had not wanted to believe that the Justice Department of the United States of America could become a political tool to be used to dispatch and destroy political enemies. It is with these things in mind, and the sheer lack of sensible reasons for Judge Fuller’s actions, that raises the possibility of a Federal Judge using his bench to hurt and destroy someone that he doesn’t like in an extra-legal sort of way. Did Fuller intentionally cut off the attorneys from speaking on June 28, 2007 and then belligerently disobey the higher court’s order, to make sure that Don Siegelman would be punished for questioning his integrity in the past and speaking out about his case in the present?

And there is also the forgotten-man factor. The man who was once the Chairman and CEO of HealthSouth now finds himself in federal prison and all but forgotten in the state of Alabama. Did Scrushy, who adeptly managed to beat the rap in Birmingham, become first a pawn that was used by the Justice Department as the final ingredient of a seven year quest to bring down a governor, and then was used yet again by a Federal Judge bent on imposing vindictive sanctions on a defendant in his court? If the outcry over the Siegelman investigation and trial has any merit, and if it turns out he was vindictively attacked and hurt by a willfully capricious prosecution, then Mr. Scrushy, the forgotten man, was also a victim. Fuller knew that he could not face the people at the country club if he became the second judge to let Scrushy escape from his courthouse, and he also must have known that he could impose vindictive sanctions on Siegelman because few people, in the State of Alabama, would rush to Scrushy’s defense; and questions asked about this application of justice, in the case of Siegelman, could be dismissed as partisanship. As it was the dearth of evidence in the trial that gave credence to charges of a Justice Department agenda driven by Washington, it is the similar lack of reasonable explanations behind the behavior of the Honorable Mark Fuller that likewise bolsters a notion that there was an external human element behind the application of justice in the Middle District of Alabama, and that the blindfold worn by Lady Justice might have slipped a little bit, allowing her to peek at a pre-determined outcome.

Holding the Fort in Montgomery

Meanwhile, back in Montgomery, odd nervous statements continue to be churned out of the Middle District of Alabama, supposedly emanating from lead prosecutor Louis Franklin. Scott Horton, writing for Harper’s, cites unnamed Justice Department sources as saying that Franklin has been told by Washington to stop granting interviews. Indeed, there might be good reason for this and it couldn’t come too soon for the DOJ. It seems that just when the earnestness and self-righteous rhetoric of Feaga and Franklin make an observer almost willing to give them the benefit of a doubt and buy into their impassioned circle-the-wagons defense, one of them invariably says one thing too many and it can only make the observer doubt everything. Like dominos tumbling and triggering a regressive algorithm, suddenly the lingering unanswered questions about Leura Canary’s recusal, the uninvestigated allegations of Lanny Young, the affidavit and testimony of Jill Simpson, the questions about the exact proximities of Rob Riley or Dan Gans or Claire Austin, the specter of the pre-Judge Bill Pryor, the election of 2002, the involvement of Michael Scanlon and ultimately the activities of Karl Rove, all come lurching back into view. This time, the moment arrived when Louis Franklin was quoted as saying that they were debating, in 2004, about whether or not Don Siegelman and Richard Scrushy could be convicted. Is he kidding? Franklin’s memory might contain something about a debate, but it could not possibly be this one.

Let’s go back in the time machine to 2004 to see what the merits of this “debate” might have been. Midway through 2004, Don Siegelman was indicted with Philip Bobo and Paul Hamrick by prosecutors in the Northern District of Alabama, who apparently were not a party to the debate over convicting a former governor. During the prelude to the trial that was eventually thrown out of court, the prosecution leaked much of the investigation to the press, included many allegations that Siegelman was not charged with. If Don Siegelman’s popularity was not brought down enough via his indictment, public opinion was dragged down even further by the circus-like free-for-all created by these leaked allegations. Much of this information would end up as charges that made up the 2005 indictment, charges that he was eventually acquitted of even after the public had been hearing about them for almost two years. As for Scrushy, it was only one year after HealthSouth was raided and before Scrushy’s fraud trial (in January, 2005). It is safe to say that Scrushy could not have been less popular, in 2004, and there were few people in Alabama—even amongst supporters—who did not think he would eventually be convicted of something, and that he would wind up in prison. So Franklin claims—apparently with a straight face—that they were having a debate over whether or not two of the most unpopular men in the state could be convicted by the Justice Department.

If officials in Washington have actually asked Louis Franklin to please shut up, then it is possible that they may have made this request or given this order a couple of weeks too late. When people are involved in a secret organization or are involved in a clandestine meeting, and someone asks them what was discussed, a simple truthful answer or a “no comment” might be sufficient to keep the proceedings secret, but when the answer turns out to be a lie or stretches the credulity of the public beyond the limit of the believable or possible, it again casts doubt on the nature of the speaker’s version of the truth.

So Veterans Day passes by. The “emergency” appeal is languishing in Atlanta and people are still holding the fort in Montgomery.

Under the long shadow of a years-ago recusal of the US Attorney from the Middle District of Alabama, and just days away from the commencement of a Congressional hearing, Louis Franklin has yet again stepped up to defend and explain the integrity of his District. Almost two years since the indictment was unsealed, over a year after the District won a conviction and months after the defendants have been sent to prison, the prosecutors continue to defend their actions with denials and now childish name-calling instead of open, honest and forthright answers to legitimate questions. The latest proclamation takes aim at a broad range of the questioning voices, but Franklin’s statement is most likely meant to coincide with the publication of national print coverage in Time magazine. The tone and tenor of the various District proclamations has evolved over time regardless of who’s name appears at the top or bottom of the documents, and they appear to be the work of multiple authors. Just as reliable sources have said that the case was pushed from Washington over the early objections of the Middle District prosecutors, there now appears to be an unseen hand pulling the strings and speaking through Mr. Franklin.

Like one of the last soldiers on the rampart, defending the indefensible, it is not that difficult to have some sympathy for Louis Franklin and what lies ahead for him. It is so much better to be on top of the mountain than to be underneath it. And if we look at the piles of unreleased documents, the unanswered questions, the mounting denials without proof, that mountain is becoming formidable and it must be a great weight looming over justice as it is being played out in the Middle District of Alabama. But it is not only Siegelman. Franklin’s lone howling voice, coming from a proclamation of dubious authorship, is even more plaintive, more alone, more weak, more hollow when taking into consideration that Siegelman-like prosecutions seem to be breaking out all over the country. There is Georgia Thompson in Wisconsin; Paul Minor in Mississippi; Geoffrey Fieger in Michigan, and Don Siegelman in Alabama. That is the growing mountain that Louis Franklin and Steve Feaga and Leura Canary find themselves under. There will be more written on The Mountain in coming articles, but all four of these cases share more than a few common threads. (For instance, Noel Hillman’s fingerprints are liberally slathered over all four cases; the cloud created by the Thompson case featured a familiar blueprint of a Republican Congressman running against the Governor on an ethics platform. Before their indictments, Fieger, Minor and Siegelman had all recently taken high profile stands against the current administration, and had demonstrated support for opposing candidates.) This is ultimately not about Republicans or Democrats, because when the already high price attached to the blood sport of politics and public service has been elevated to an individual’s complete destruction, a ruined career, and imprisonment, everyone loses. Everyone.

In this climate, when the denials are backed up with foot-dragging, withheld documents and obfuscation, it is difficult to believe Franklin’s repetitive rhetoric even while it is easy to be sympathetic with the plight he is in, and with his career and professional integrity swaying in the balance. Even though the notes on this site are not likely to show up on the radar, and even though Franklin was most likely taking a preemptive shot at Time Magazine, I still say that it is easy to by sympathetic with the prosecutor even after his latest proclamation has called me an ignorant liar.

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The mantle of the “Siegelman supporter:” The observer characterized by Mr. Franklin as the Monday Morning Quarterback or a person who doesn’t have all of the facts. (I generally and usually try to leave myself out of these notes, as I prefer to let the story tell itself. But as Louis Franklin has found it necessary to [repeatedly] respond to what he perceives to be an attack on himself, I likewise feel the need to respond to his attack.]

As before, I feel certain that Louis Franklin has little regard for whatever has been said in these notes, and that his comments were directed more at Scott Horton, writing for Harper’s, and at the coverage and attention that the case has been given by Time Magazine (both print and online versions) and perhaps some of the wide-circulation blogs like the Daily Kos. But nonetheless, I have written some articles critical of DOJ’s efforts in the Middle District of Alabama, and especially as it relates to what appears to be a deliberate effort to blur the lines and to avoid a revelation of the whole truth, in this manner. The media and the Middle District often refer to comments and articles that are published in various places, as being put out by “Siegelman supporters,” with the implication that contrary facts or truth would be overridden by their support for Don Siegelman.

Unlike some people whom Franklin is more likely directing his comments toward, I was at the trial, in the courtroom, every day, including the empanelling of the jury and the sentencing hearing. As some people know, who have frequently read or have stopped by this site for the almost three years that it has been in existence, my original interest was Richard Scrushy, and I have been tracking the twists and turns in his case for over four years now. I came to Montgomery not because there was a political prosecution going on or because Don Siegelman was on trial, but because Richard Scrushy was there. And when I came to Montgomery, I had a completely open mind, and was perfectly willing to listen to the cases of the prosecution and the defense, to see what the outcome would be. Not only was I willing to except a strong prosecution case and a guilty verdict, I expected nothing less. I was aware that Siegelman had been claiming that the case was politically motivated and that Scrushy was likewise claiming that he had been swept into a Siegelman witch hunt, but quite frankly, I was skeptical. I do not easily buy into wild-eyed conspiracy theories as I have a tendency to generally believe our government is on-the-level and honest, even if I don’t always agree with some officials. Politicians often, if not always, claim that charges are politically motivated and in the fast-and-loose unraveling days of HealthSouth, I thought Scrushy could have done something like what he was being charged with.

It was only days into the trial when I first became appalled at the sheer lack of evidence that was being presented against Siegelman, Scrushy and the others. This was the first red flag that went up the pole. It wasn’t the claims of Siegelman or his supporters, it wasn’t any preconceived animosity against Feaga, Franklin, Gonzales or the DOJ, it certainly wasn’t any firm belief in the innocence of Scrushy; but it was the evidence and the manner in which the trial was being conducted. I have always said that I’m not a journalist who needs to sell papers in the morning or next week, but I am more interested in the whole story as it plays itself out. So I then went and read everything I could find about Siegelman—all the Eddie Curran articles, all the articles and legal documents about the first indictment against Siegelman, Hamrick and Bobo, all of the editorials for and against Siegelman—and I found a governor that made mistakes, there is no denying that, and a governor who’s mistakes may have been legitimate campaign issues that would have to be decided by the people. I also found a lot of good things that Siegelman had done, and in a fair and honest election, the people would have to make an informed choice by evaluating his mistakes along side of the positive things he had done for Alabama. But was there anything in these matters that should be elevated to ruining a man’s life and career and putting him in prison? I couldn’t find that. Anywhere. Not in the issues past and present, and not in the evidence presented at the trial. And as the trial wore on, it became painfully apparent and obvious that Hamrick, Roberts and Scrushy were all being used as tools to culminate a six-year investigation with the goal of finally bringing down a governor; it became clear that Nick Bailey was just another tool, and that his misfortunes were being shaped, contrived and molded in order to craft an alternative version of the truth. And once again, I was appalled that our government, my government, would recklessly and malignantly use individuals to satisfy their own selfish goals. In the military, they call this collateral damage and a risk factor is usually assigned that sets a level on how much collateral damage is acceptable, depending on the value and need of taking out a particular target. In Alabama, the lives of at least four people were ruined or seriously harmed. What value did this reckless action have to justice and our country?

In the aftermath of the trial, questions continued to be asked, and more red flags were running up the pole. Besides the wanton use of human collateral damage, and besides a lack of evidence in a case that appears to have been a strident crusade against a former governor, there were many other questions that heightened the suspicion-factor. There was the refusal of the recused US Attorney and the DOJ to turn over supporting documents behind her recusal. US Attorney Leura Canary recused herself because she was involved in the early stages of the investigation, but there are lingering questions effectively hidden by withheld documents about the exact nature of the nascent prosecution. Canary’s husband, Bill Canary, is an associate and one-time partner of Karl Rove, and he has spindly relationships to several people who were either political opponents of Siegelman or were involved in his prosecution, including Bill Pryor, Alabama’s former Attorney General, and Bob Riley, the current governor. Instead of coming clean with the documents behind her recusal, the District is instead relying on the unbacked-up denials of the Acting US Attorney. There is the DOJ’s refusal to turn over any documentation about the process and procedure behind bringing these charges. There is the DOJ’s refusal to investigate documents that could indicate the jury was improperly and illegally in collusion before returning a verdict. There is the judge who has exercised his discretion to make sure the defendants are punished even if they mount an effective and creditable appeal. And with all of these issues outstanding, it is simply difficult not to continue to raise questions over the hollow denials and self-righteous indignation of the Acting US Attorney.

Knowing about the Scrushy situation as well as I did (and having sat through his six month trial in Birmingham) it became apparent that from the DOJ’s perspective, the linking of Scrushy to Siegelman was a brilliant move, and the hopes of the prosecutors were being pinned on parlaying the anger against Scrushy’s acquittal into a cobbled together conviction of an ex-governor. I had this thought throughout the trial, and when it was confirmed by the juror’s emails that Louis Franklin or Leura Canary, or whoever is in charge in the Middle District, refuses to investigate, then the flag pole was getting crowded with all of the red flags fluttering in the breeze.

I am a citizen of this country who is as interested in the truth as Louis Franklin claims to be, and I resent being called a liar and yes, it is difficult for me to accept his version of the truth based on unsupported denials when there is all of the racket from the banners that are fluttering over my head.

It would seem that even the most ardent hope-he-rots-in-prison Siegelman haters would want the clouds and fog that hover over the government’s investigation to be lifted. If everything was put on the table and it turned out that it was a righteous prosecution that was the end result of a forthright investigation, they could claim a victory for the American system of justice, and walk away. If nothing else, putting everything on the table would allow the people who are involved in the investigation and prosecution to quit making contradictory unnervingly absurd statements. Besides the bunker mentality that surrounds and protects the mechanism of the Siegelman prosecution, it is these statements that tend to underscore the official nervousness that is becoming increasingly apparent at the Middle District of Alabama, it is these statements that make it uncomfortable for even true believers of the means, methods and motives of the prosecutors, and it is these statements that fuel the very reasons why questions continue to be asked.

In the last couple of weeks, there have been a couple of glaring examples of the self-contradictory nature of the proclamations from Montgomery’s DOJ outpost:

Years after US Attorney Leura Canary recused herself from the investigation and eventual prosecution of Don Siegelman, she has been making statements about a case that she is not supposed to be participating in. If Leura Canary, wife of one-time Rove associate Bill Canary, had truly dismissed herself from the case for whatever reasons are contained within the over 500 pages of documents that are being withheld despite FOIA requests, then she would not have sufficient knowledge or insight into the mechanisms and development of the case to make any sort of meaningful comment about it. If the case was not being surreptitiously directed by her or by DOJ higher-ups, then it would be impossible for her to comment on the efforts of Acting US Attorney Franklin or AUSA Feaga. But yet she has come to her prosecutor’s defense, offering declarative statements about a case in which she was not supposed to have been any part of. It is an uncomfortably absurd moment not unlike a judge who has recused himself from the bench for a particular case, but continues to comment on points of law and the merits of the various litigants. If Leura Canary was not a participant in the investigation and prosecution of Don Siegelman, then what is the basis of her commentary?

And not to be outdone by the boss, the level of contradiction reached a new high in published quotes attributed to Louis Franklin. When asked about the over 500 pages of withheld documents pertaining to Leura Canary’s recusal, Franklin said: “I don’t know what’s in those pages.” OK, so Louis Franklin is in the dark and the only person that knows the contents of that tome is supposedly the Canary’s and the DOJ keepers who refuse to disclose their contents. But then after making that statement, he is reported to have said there was nothing sinister about Canary’s recusal. And there we fall into that frustrating problem again. If Louis Franklin really doesn’t know what is contained in all of those documents, how could he possibly know there was nothing sinister about the recusal?

Five hundred pages and someone is afraid of something because it doesn’t add up: The prosecutors have continued to argue a case long after the defendants have been sent to prison; the trial’s star witness all but admitting that his testimony was shaped by his prosecutor-handlers, and openly regretting that he had taken a plea deal; Louis Franklin says he doesn’t know what is contained within pages and pages and pages of withheld documents, yet he makes the illogical assertion that there is nothing sinister about the contents or the recusal the documents reference; Leura Canary continues to discuss a case she claims to have not participated in and knows nothing about, and with all of these unsettling contradictions, it is simply difficult to feel comfortable that justice has been served even if we really try.

It would seem that even the most ardent hope-he-rots-in-prison Siegelman haters would want the clouds and fog that hovers over the government’s investigation to be lifted. If everything was put on the table and it turned out that it was a righteous prosecution that came out of a forthright investigation, they could claim a victory for the American system of justice, and walk away. If nothing else, the people who are involved in the investigation and prosecution would be able to quit making contradictory unnervingly absurd statements. Besides the bunker mentality that surrounds and protects the mechanism of the Siegelman prosecution, it is these statements that tend to underscore the official nervousness that is becoming ever apparent at the Middle District of Alabama, and it is these statements that have to make it uncomfortable for even true believers of the means, methods and motives of the prosecutors, and these statements fuel the very reasons why the questions will continue to be asked.

In the last couple of weeks, there have been a couple of glaring examples of the self-contradictory nature of the proclamations from Montgomery’s DOJ outpost:

Years after US Attorney Leura Canary recused herself from the investigation and eventual prosecution of Don Siegelman, she has been making statements about the case she is not supposed to be participating in. If Leura Canary, wife of one-time Rove associate Bill Canary, had truly dismissed herself from the case for whatever reasons are contained within the over 500 pages of documents that are being withheld despite FOIA requests, then she would not have sufficient knowledge or insight into the mechanisms and development of the case to make any sort of meaningful comment about it. If the case was not being surreptitiously directed by her or by higher-ups in the DOJ, then it would be impossible for her to comment on the efforts of Acting US Attorney Franklin or AUSA Feaga. But yet she has come to her prosecutor’s defense, offering declarative statements about a case in which she was not supposed to have been any part of. It is an uncomfortably absurd moment not unlike a judge who has recused himself from the bench for a particular case, but continues to comment on points of law and the merits of the various litigants. If Leura Canary was not part of the investigation and prosecution of Don Siegelman, then what is the basis of her commentary?

And not to be outdone by the boss, the contradictory level reached a new high in published quotes attributed to Louis Franklin. When asked about the over 500 pages of withheld documents pertaining to Leura Canary’s recusal, Franklin said: “I don’t know what’s in those pages.” OK, so Louis Franklin is in the dark and the only person that knows the contents of that tome is supposedly the Canary’s and the DOJ keepers who refuse to disclose their contents. But then after making that statement, he is reported to have said there was nothing sinister about Canary’s recusal. And there we fall into that frustrating problem again. If Louis Franklin really doesn’t know what is contained in all of those documents, how could he possibly know there was nothing sinister about the recusal?

Five hundred pages and someone is afraid of something because it doesn’t add up: The prosecutors have continued to argue a case long after the defendants have been sent to prison; Louis Franklin says he doesn’t know what is contained within pages and pages and pages of withheld documents, yet he makes the illogical assertion that there is nothing sinister about the contents or of the recusal; Leura Canary continues to discuss a case she claims to have not participated in and knows nothing about, and with all of these unsettling contradictions, it is simply difficult to feel comfortable that justice has been served even if we really try.

Although his exact whereabouts are currently unknown and although he has a growing stake in events unfolding in Alabama, it is highly unlikely that Karl Rove’s fingerprints will be found at the scene or that his DNA will be found in the blood spattered aftermath; but recent revelations and allegations reported by the Birmingham News conjures up distant memories of a blueprint, and a familiar pattern that has shown up in Alabama, in Texas, in California and in Washington DC. Leak or whisper something that finds its way into the press, and then follow it up with an investigation.

It has been reported that Gina Bailey McKell was on the payroll of Alabama’s two-year college system while she was employed first by Siegelman’s administration, and then in the offices of Congressman Artur Davis, not coincidentally one of the primary politicians who has pushed the Siegelman situation into Congress, and has been holding the White House’s feet to the fire, requesting documents and an investigation into the Siegelman prosecution.

This may not be direct evidence of Karl Rove or Washington influence, but it is Rovian in nature, but before making that jump, there are at least two bright red flags that must at least give us some pause before taking the Birmingham News story (or the Mobile Press-Register’s rather predictable editorial that will surely follow) at face value. The first problem is that there seems to be a lack of stealth or deception in this alleged unethical or corrupt example of cronyism. McKell was apparently not paid under the table or from slush funds or in any way that would suggest an improper situation, but moreover, when Siegelman left office, she stayed on for a few months under newly-elected Riley, and has said that she told Riley’s administration that she was paid by the two-year college system. And it should also be noted that she left Riley’s administration under her own volition, and was not fired or exposed for this supposed transgression. So the question must be asked: If Riley and his administration, who ran under a clean-government platform, didn’t expose or oust this Siegelman holdover, then why now? The second question is even more troublesome. The FBI investigated the Siegelman administration for six years. Six long years. It is more than likely that every single person who worked in or around Siegelman’s office was examined as to what their duties were, how much they were paid, where the money came from and that every little detail would have been explored, because after all, the government prosecutors maintained that the state was being run as a criminal enterprise. But the unlikely possibility that a suspicious relationship would slip through the FBI’s dragnet is not the only logic-defying aspect of this situation. Wouldn’t it be extremely likely that someone who has the name ‘Bailey’ in any part of her name would have been targeted for two or three double-takes? It doesn’t take any high-tech crime scene analysis to understand that the cousin of Nick Bailey, someone who has pled guilty to multiple crimes, would be subjected to a thorough and complete inquiry under the investigative microscope. But that didn’t happen and years passed.

So why now? Is it a coincidence that the hard-hitting investigative reporters of the Birmingham News happened to have found something on their desks years after the fact, and that the person at the center of the reporting happens to be one of the most vocal supporters of Don Siegelman. This page can be ripped right out of the Rove blueprint, but it doesn’t necessarily have to be. Using smear and whisper campaigns to slow down or silence opposing voices is as old as politics. The story appeared a day after Jill Simpson raised the nervousness factor when she testified to Congress about her interaction with the Riley campaign as it might relate to Karl Rove and the prosecution of Siegelman. So here comes the kitchen sink; something that prosecutors in the Middle and Northern Districts of Alabama have some experience with, as they threw a six-year investigation, thirty-five counts and a couple defendants into an effort to get anything to stick to Siegelman. It wasn’t until they were able to parlay anger over Richard Scrushy’s acquittal in his 56 (originally eighty-something) count kitchen-sink-case into a tenuous conviction that they were finally able to make some old fog-producing media leaks bear fruit. There have been a number of claims, accusations and innuendo concerning Alabama’s two-year college system over the years: Some were unproven allegations, some were unsourced whispers, some were more meritorious and had the possibility of real ethical lapses; but following the deft fusing of Scrushy and an unrelated scandal onto the prosecution of Siegelman, it makes sense that after the public has been primed with years of various unconnected allegations, concerning the two-year college system, that the same mechanism that was used to bring down a governor could now be re-used to silence a questioning voice.

In the case and the investigation that is surely on the horizon, it appears that not only Feaga and Franklin are getting hot under the collar about a story that refuses to go away, but that members of the current administration might also be feeling the heat, so much so that they’re willing to dredge up years old dormant situations and rip up well-worn household fixtures to throw at those who would continue to ask questions.

Even if we don’t know exactly where Rove has been, or what Bill Canary’s been up to lately, it’s hard to ignore the implications of the kitchen sink.

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?

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.

About a week ago, DOJ’s Middle District of Alabama released a remarkable memorandum that refutes various allegations made by Siegelman and his supporters, and reported by the press. The document is both odd and amazing for at least a couple of reasons. First, the prosecutors of the Middle District of Alabama investigated a case, secured a conviction, and have successfully sent two of the four defendants to prison. So with this successful prosecution in mind, why would the Middle District of Alabama care about what anyone says about the case, either from the lips of the defendant, from the coverage of the local press or the reporting of the national press. It is difficult to recall another successful prosecution where the prosecuting agency felt a need to defend themselves after the defendant was sent off to prison. And second, the document appears to come from Leura Canary, the US Attorney from the Middle District of Alabama, or at least generically from her DOJ office, which means that she is publicly commenting on a case in which she has recused herself from, and is supposed to be disconnected from, in any official capacity. It is possible that Canary was not responsible for the document, but if it came from Louis Franklin, the acting US Attorney in this case, then captioning the document as coming from the Middle District of Alabama is a misnomer. And both points add to the remarkable and odd nature of a document that seems to be coming from an agency that believes it must explain its actions to the people

The Middle District’s Response makes nine points. Below is a list of these issues followed by some brief comments. At no point do these notes suggest or claim that either side is right or wrong, but only that enough obfuscation has taken place that a thorough and air-cleaning investigation is warranted.

[The Middle District of Alabama’s points are listed below, in italics.]

1. That the career prosecutors (i.e. not political appointees) handling the investigation and case after US Attorney Leura Canary’s recusal have issued statements unequivocally denying that Karl Rove or anyone from the Justice Department pushed them to bring charges or pursue them to conviction.

From the beginning of immeasurable time and in practically every conspiracy ever hatched, underlings have carried out the wishes of people above them. It is not only unlikely but rather unthinkable that if Karl Rove wanted to influence a criminal prosecution in Alabama, of if George Bush did, or if anyone in the administration wanted to, that they would directly involve themselves with the prosecuting attorneys, the people at the end of the chain. This is not to say that Rove or Bush or anyone in particular was behind the prosecutions, but it is to say that this opening nonsensical statement establishes a pattern for the Middle District of Alabama’s memorandum in that it spews out commentary which at best, doesn’t mean anything, and at the worst, is purely hypocritical nonsense.

The Middle District needs only to look as far as the Northern District to find an example where the government’s own theory had underlings carrying out fraud supposedly under the direction of a Mastermind they had no direct contact with. Yes, this would be the case of Richard Scrushy vs. The United States of America.

And as for their supposed “unequivocal” denials, it is not likely that these people would admit to such a thing and continue the prosecution at the same time. Without an investigation or any kind of meaningful inquiry, the statements of denial are worth no more or no less than the statements of Jill Simpson or the probing questions of Don Siegelman.

2. That the purported telephone conversation has been denied by all alleged participants but Ms Simpson and, indeed, even Mr. Siegelman denies those portions of Ms Simpson’s affidavit that related to him and explain Ms Simpson’s version of the basis for Mr. Siegelman dropping his 2002 re-election protest.

Without any kind of official inquiry, statements are just statements. One side says one thing and the other side says something else. If the version of events reported by Simpson actually happened, then the ramifications of admitting to the truth of her version would have serious consequences, both in the state of Alabama and on a nationwide scale. But without any sort of inquiry or investigation, the parties have complete government-sanctioned deniability and have no reason not to deny Simpson’s allegations, regardless of what the truth might be. Any criminal is free to deny any crime as long as they know no investigation will take place.

Once again, this is not to say or even suggest that the denials should be summarily dismissed, but the people behind the Middle District’s memorandum have to know that this is an empty statement and simply carries no weight.

3. That Mr. Siegelman was already under investigation more than 10 months before the alleged conference call took place, and the investigation had been widely reported;

The Jill Simpson allegations are not specifically time-stamped, and indeed, they report on something that took place in the past. Canary and Rove were associates years before the investigation began, and long before Siegelman was elected governor, so to date the allegations from the moment of the phone conversation is disingenuous.

The Middle District’s document likes to point out real or imagined omissions in statements made by Siegelman and his supporters, but they have conveniently substituted—in several places—omissions of their own.

4. That the investigation was actually spurred by evidence uncovered by an investigative reporter for the Mobile Press-Register and a series of articles written by him;

This point is one of a couple of their bullets that reach the high-water mark of hypocrisy and illogical commentary. To first preface these comments, this commentary has nothing to do with the integrity or honor of Eddie Curran who undeniably did good work in bringing out some valid issues about the Siegelman administration. But there are several problems. First, it is absolutely scary to think that the DOJ is allowing a newspaper to write its indictments, especially when there was evidence that the newspaper was—at least for some of its material—being fed information from someone who was close to the investigation. There is a breakdown in our system when widely publicized newspaper headlines are brought to a grand jury, where they are transformed from issues into “evidence,” before a tabloid-style indictment is cobbled together. But that’s not the best part about this point. The Middle District of Alabama spends the second half of their document talking about the errors and erroneous reporting of the press. Amazing. And it is true, the press has a certain agenda: Eddie Curran did, the New York Times and Harper’s do, but that is part of journalism, and it is the exact reason that journalism should not be a substitute for real and thorough investigations.

So is the Middle District of Alabama saying that they know for sure that the Mobile Press-Register had it perfect while these other publications have it wrong? Once again, this is not to say that Curran and the Press-Register were wrong or that these other publications were somehow more accurate, but it is only to point out the fallacy and you-can’t-have-it-both-ways nature of the question. Without investigating the claims of both sides, and moving away from journalistic agendas, we’ll never be able to know what the truth is.

5. That Ms Canary had already voluntarily removed herself from the case more than six months before Mr. Canary allegedly assured everyone that his “girl” Ms Canary would take care of Mr. Siegelman.

In another rather glaring and obvious omission, Simpson didn’t use the singular “girl,” but rather, she said “girls,” indicating both Alice Martin and Leura Canary. The recusal was voluntary in that she was not removed from the case by a judge, but it was not done until Siegelman’s lawyers pointed out the conflict, and then she “voluntarily” recused herself. In the years that have gone by since the recusal, the documentation and paperwork about why this action was necessary has never been released in spite of FOIA requests that have been approved as falling within the guidelines of information that should be publicly available. (The request was originally denied but the denial was overturned on appeal, but the documents have still not been released.) It is this kind of stealth activity that ensures that the questions will linger. If the Middle District really wants to set the record straight, to stop the persistent questions and the harping by the press, instead of issuing documents like this memorandum, they need to open themselves up, provide some real answers, and quit sneaking around like their guilty.

Once again, the length of the Rove association with the Canary’s negates the supposed six month time-window discrepancy. We don’t know the answer to this one, but they have still provided no information that it could not have been set in motion years before.

6. That Ms Simpson’s affidavit may have been motivated by her relationship with a disappointed bidder who lost out on a $7.1 million state contract by Governor Riley to a competitor with a lower bid – Ms Simpson wrote letters on his behalf and gave a companion affidavit asserting that Ms Simpson also told him about the alleged phone call;

This one is a spiritual twin of point #4, the one about the press, in the nature of its arrogance and hypocrisy. As an answer to the point being made, we can say, “Yes, absolutely,” Ms Simpson may have had an ulterior motive for making the claims that she did. But wouldn’t this just be speculative conjecture? Wouldn’t it just be putting together some coincidences and calling the results conclusory? Kind of like the coincidence of Leura Canary being married to Bill Canary, who happened to be a one-time close associate of Karl Rove and was a paid consultant to the guy who was investigating Siegelman. Like that? Or what about the newspaper that Claire Austin—also an associate of the guy who was investigating Siegelman—put a call into? In yet another coincidence, some of the things that this paper reported turned up in the indictment. Or even the coincidence of Bill Pryor getting a Federal Judgeship months after the election of 2002.

Rebutting Siegelman’s speculative claims by making speculative claims of their own is again disingenuous.

7. That Ms Simpson first told Mr. Scrushy’s lawyers of the alleged incidents made the basis of her affidavit in February 2007, and she prepared the affidavit at their urging, meeting with Scrushy and his lawyers on several occasions during the months before she signed her affidavit on May 21, 2007; yet, the reporters are not exploring her relationship with Scrushy and Siegelman and their role in the affidavit;

The government is not exactly exploring the relationship between Rove and the Canary’s or Bill Pryor and the Canary’s, or Alice Martin and Bill Canary. Once again, the government may have a valid point in that certain connections should be evaluated in order to establish the truth. But aren’t they asking for one side to be investigated while they expect the press and the public to rely on denials from the side that refuses to be investigated?

8. That Ms Simpson affidavit was never filed by Siegelman or his co-defendants in the actual court case, all allegations of selective prosecution having been raised by Mr. Siegelman solely in the media and never in the actual court case, where an evidentiary hearing to explore the truth of the allegations could have been conducted;

Absolutely amazing. The government successfully filed and was granted motions that prevented Siegelman from raising any issues about the political or selective nature of the prosecution, during the trial. By the government’s own actions, it would have been impossible for Siegelman to raise these issues during the trial. It may have been preferable to everyone if the allegations were subject to the rigorous standards of courtroom protocol, but with this avenue completely cut off, the only remaining outlet was the media.

Via this document, the government likes to look at tenuous timestamps. The Simpson affidavit came out months after the trial, so even if Siegelman wasn’t prevented from introducing it to the trial, there was no court case in which to file the document. The timing could be an issue. It is easy to think of three or four reasons why Simpson came forward at the time that she did, and easy to think of three or four government responses to why the ti