Hats off the legal defense team for the former Alabama Governor and a hat tip to the White Collar Crime Prof blog for pointing out the significance of the argument on quid pro quo – the basis for USA v Scruggs and a key factor in USA v Moutrie as well.
The first argument in the brief is powerful and unique. It takes the quid pro quo requirement used in the Supreme Court’s McCormick case, a Hobbs Act case involving campaign contributions, and applies it to the “honest services” aspect of the mail fraud, conspiracy to commit, and bribery portions of the charges here.
And it makes sense that it should apply as the charges are “based on an alleged connection between official action and a campaign contribution.” In McCormick, the Court recognized that campaign contributions operate differently and one can’t assume criminality for a contribution unless there is a showing of a quid pro quo demonstrated that is tied to that contribution.
With a “honest services” statute, that has been criticized by many as allowing for enormous prosecutorial discretion in the charging process, it seems important that a quid pro quo should be mandated so that politicians know what is legal and what is illegal for purposes of violating the “honest services” statute. It’s especially important in this case as Siegelman personally received nothing of value. The brief ties in the First and Fifth Amendments here and reminds the court of the importance of the Rule of Lenity in criminal cases.
The brief’s first argument is not the only one attracting interest – and the next to last argument has even broader appeal as it deals with one of our most fundamental rights, free speech.
The District Court plainly did this: it applied a Guidelines upward departure, on the prosecution’s motion, based on taking ‘judicial notice’ of out-of-court statements by Governor Siegelman to the effect that his prosecution was improperly motivated…No such specific statement was cited, much less quoted… In summary, Governor Siegelman received a longer sentence than he would otherwise received because he made certain unknown, unquoted and unspecified out-of-court statements questioning the motives and actions of the Executive branch of the United States Government.
Legal writing is not always an interesting read – we know that all too well – and while Siegelman’s appeal certainly isn’t a beach book, it’s definitely worth a look as is this report on the Congressional inquiry on the related actions of the Justice Department in Atlanta Journal Constitution.
Most media outlets are focusing on the subpoena issued to Karl Rove, the former Bush advisor, by the House committee. But the Justice Department letter may be more important, an indication that Attorney General Michael Mukasey is taking seriously the allegations surrounding the Siegelman case.
In June 2006, the former Alabama governor, a Democrat, was convicted by a federal jury of taking $500,000 from Richard Scrushy, former chief executive of HealthSouth Corp. The trade-off alleged by prosecutors was an appointment for Scrushy to the Alabama hospital licensing board.
The money was to retire a debt from Siegelman’s campaign for a state lottery to pay for schools. Siegelman’s lawyers have characterized the cash as a routine political contribution, and point out Scrushy had served on the same board under three previous governors.
The plea agreements in USA v Scruggs mean there will be no appeal although Judge Lackey himself has testified under oath there was no quid pro quo and money only entered the picture when he asked to be paid – and what impact the quid pro quo charges in USA v Moultie have on the outcome of that case won’t be known until August.
Nonetheless, Siegelman’s appeal ensures there will be no shortage of discussions about quid pro quo between now and the dog days of August.