Most Convictions Against Siegelman Upheld

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Three Republican-appointed judges have upheld most of the convictions of Governor Don Siegelman–while throwing out two counts of Mail Fraud.

The opinion starts by invoking the controversy surrounding the case–then nods to deference to the jury in retaining the convictions.

This is an extraordinary case. It involves allegations of corruption at the highest levels of Alabama state government. Its resolution has strained the
resources of both Alabama and the federal government.

But it has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama are asked to sit through long days of often tedious and obscure testimony and pour over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942).

Furthermore, to the extent that the jury’s verdict rests upon their evaluations of the credibility of individual witnesses, and the reasonable inferences to be
drawn from that testimony, we owe deference to those decisions.

It’s the jurors, fault, you see, even though several issues mentioned in the appeal pertain to problems with the jury. 

You can read through the rest and see what you make of the Courts issue by issue treatment of Siegelman’s appeal. But note, in particular, the centrality of Nick Bailey’s testimony in the Court’s decision to uphold most of the convictions. 

That’s important because–as 60 Minutes reported on its piece on Siegelman–there are allegations Prosecutors coached Bailey’s testimony and then did not turn over notes from that coaching to Siegelman’s defense team to use to impeach Bailey. Here’s Scott Horton explaining what happened (and Mukasey’s non-denial denial of the problem).

Back on February 24, CBS News’s Sixty Minutes aired a story on the prosecution of the Siegelman case that contained two bombshells. CBS interviewed Nick Bailey, the former Siegelman aide whose testimony literally sent Siegelman to prison. Read more →

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Elena Kagan Confirms Her Vacuity and Farce

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Yesterday’s Judiciary Committee consideration of Obama Solicitor General nominee Elena Kagan proved that confirmation hearings are not totally useless. We knew that the selection to be the nation’s lead advocate to the Supreme Court had never in fact appeared before the Supreme Court, had shockingly little experience in front of significant courts of any kind, thought Bush apologist and cover artist Jack Goldsmith was a boffo hire to make at Harvard Law, thought the same of the Constitutionally malleable shill Cass Sunstein, and thinks it is just fine to detain people indefinitely without due process as "enemy combatants".

That is what we knew; yesterday we learned something new about Kagan before the SJC. She was for honest and open answers to Senator’s questions at confirmation hearings before she was against it. This oh so shocking revelation is documented courtesy of the Washington Post:

She once wrote that nominees should answer questions from senators.

And in no uncertain terms, either. Reviewing Stephen Carter’s book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

She thought that executive branch nominees, "for whom ‘independence’ is no virtue," really deserved to be grilled.

Those statements apparently are no longer operative.
…
Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I [previously] suggested."

Isn’t that convenient. And a good thing to know about a woman roundly considered to be at the very top of Obama’s list of choices for future appointment to the Supreme Court. Now Kagan ducked and dodged on the ground that, as a nominee to be the Administration’s advocate, her opinions were not germane:

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

There is some merit to that position on the surface, but the problem I have is we have no ability whatsoever to gauge Kagan’s ability to dissect and understand difficult Read more →

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The HJC Agreement with Rove and Miers

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Here’s the written agreement between HJC and the Bush Administration for Rove and Miers’ testimony. Some highlights:

The House Judiciary Committee (the “Committee”) will interview Karl Rove and Harriet Miers, but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this]). 

On this, I wonder whether there isn’t someone else in the White House who was the real fulcrum of the effort? Rove’s denials have always been couched to say he didn’t talk to DOJ, but leaving open the possibility that someone else did (at least on these issues). I wonder if they’ve included this requirement to protect that person?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee’s first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel’s office; or (ii) Ms. Miers and members of the White House Counsel’s office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

I’ve asked whether bullet (1) includes the alleged attempt to fire Pat Fitz–will let you know if I hear.

As to the rest–they’ve clearly carved out the White House Counsel Office, presumably to protect Attorney-Client privilege. Bill Clinton and his blow job, of course, enjoyed no such privilege.

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

Regarding the David Iglesias firing, of course, there are allegations that Bush intervened directly to give the order to fire him. Read more →

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Breaking: Turdblossom and Harriet to Testify

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And, just as importantly, the notion of Absolute Immunity dies a well-deserved death (via email).

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

Chairman Conyers issued the following statement:

"I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom."

You think maybe Rove’s lost his 5 time’s a charge charm with perjury?

Update on timing: The Committee is going to get the documents it had requested and read them before they do the interviews with Harriet and Karl. And the interviews will be done by staffers, with the option of doing a public hearing with questions from Congresspersons if that seems useful. So the timing for the moment seems to be driven by how quickly they get documents. 

Update: Pelosi does a victory dance for the authority of Article I (via email):

The agreement for Karl Rove and Harriet Miers to testify upholds a fundamental principle: no one is above the law and Congressional subpoenas must be complied with.

As public officials, we take an oath of office to uphold the Constitution. It is the institutional duty of Congress — as an independent branch — to Read more →

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Roland Burris, the Sequel

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So Roland Burris has a son, Roland II. A son who–at a time when Burris I was already leveraging to get Obama’s seat in the Senate–got hired by a state agency to do stuff that he was probably not the best candidate to do.

The son of embattled Sen. Roland Burris is a federal tax deadbeat who landed a $75,000-a-year state job under former Gov. Rod Blagojevich five months ago, the Chicago Sun-Times has learned.

Blagojevich’s administration hired Roland W. Burris II as a senior counsel for the state’s housing authority Sept. 10 — about six weeks after the Internal Revenue Service slapped a $34,163 tax lien on Burris II and three weeks after a mortgage company filed a foreclosure suit on his South Side house.

[snip]

Burris II had resolved two federal tax liens in 2005 before being hit with the $34,163 lien in July. That lien against his property seeks unpaid taxes for 2004, 2005 and 2007.

A month after the IRS filed the lien, Burris II’s lender filed its foreclosure suit. Since Burris II and his wife got the $372,000 mortgage on July 18, 2006, they’ve paid less than $3,000 on it, the suit alleges. The balance due is $406,685, including interest and penalties.

I’m particularly interested in the foreclosure problems Roland II had on his house, given the fact that he only paid Mayor Daley a dollar for the land he built the house on.

Burris II built his home in the booming Bronzeville neighborhood on land he bought from the City of Chicago in 2000. City records show he paid $1 for the lot as part of an effort to clean up his once-blighted block.

I still have a gut feel that Burris II got a job in exchange for the job that Patti Blago got from the charity that Burris I’s partner sits on the board of which was making development scams possible for Mayor Daley. But I also suspect we won’t get to that part of the story until Burris Blago, Part 10.

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The Guy Who Refused to Wiretap Illegally Is Off to Jail

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The full 10th Circuit just decided to send Joseph Nacchio off to jail after reinstating his insider trading conviction.

A federal appeals court reinstated the insider trading conviction of former Qwest CEO Joe Nacchio on Wednesday and said he could be ordered to begin serving a 6-year prison sentence.

A three-judge panel of the 10th U.S. Circuit Court of Appeals had overturned the conviction last year, ruling that the trial judge improperly barred testimony from a defense witness.

But on a 5-4 vote, the full 10th Circuit said Wednesday the trial court was ”well within its discretion” to keep the witness off the stand.

Now, it’s likely that Nacchio will appeal to SCOTUS. Which means the Roberts Court will probably be refusing cert for Nacchio at about the time they overrule Vaughn Walker’s impending decision that retroactive immunity for telecoms–you know, the guys who broke the law when they cooperated with Dick Cheney’s illegal wiretap program?–is illegal. 

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Roland Burris’ Bad PR Strategy

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As Burris’ allies (and the Politico) would have it, the source of Burris’ current problems is his crappy PR strategy.

Here’s his former media relations guy, Bud Jackson, disclaiming any responsibility for his recent woes (Jackson worked with Burris until he became Senator).

As many of you may recall I actively helped my former client, Roland Burris, during his run-up to being successfully seated in the United States Senate.

Since that time, well … his team’s public relations efforts have been less than stellar. Turns out that, because my business is political communication, I need to let folks know that I have not been involved in the decisions that have led to the public relations fiasco over the past week. In fact, I actively counseled his team to take very different actions, to no avail…

I know based on my own private conversations and experience that Senator Roland Burris has been the victim of bad advice and, when set-up to fail, he certainly shall we say, has had less than adeqaute attempts to better and more clearly inform the public at a press conference, or two. It has ben painful to watch. Regardless, the senator has more than 30 years of public service and his integrity has never been questioned. [empahsis original]

And here’s the Politico’s "news" story explaining that Burris’ problems all stem from bad media strategy.

The crisis now threatening Sen. Roland Burris’ political career started with revelations about his entanglements with disgraced former Illinois Gov. Rod Blagojevich. 

But it was the way the situation was handled by Burris and his advisers — trapped between competing political and legal demands — that has made the problem much worse and has pushed him to the brink of losing his seat. In multiple interviews, several Senate aides and Burris confidants say the senator was unprepared from a public relations and political perspective to deal with the national media frenzy and ethics problems he now confronts.

[snip]

Absent an aggressive communications strategy, the press and the public have formed their own opinions that the senator got his new job on false pretenses. As his support crumbled, Burris made a calculated decision not to rile up his backers — many of whom are black — for fear that it would create a vicious racial debate. But this decision has made him appear completely isolated politically, with virtually nobody in Illinois or Washington speaking up for him.

Read more →

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CREW: Obama and Greg Craig Stand with the Dead-Enders

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This morning, I noted that the January 21 filing supporting Bush’s crazy notions about email might well be the work of Dead-Enders. We know Dead-Enders submitted a brief in another suit naming the President as defendant during the week of the inauguration. And DOJ has added a new lawyer to the team, suggesting it intends to continue the litigation. 

From CREW, one of the plaintiffs in the email suit, we’ve got confirmation that the Obama White House intends to continue the litigation. 

Recognizing the incoming Obama administration may not have had an opportunity to fully evaluate the merits of the motion to dismiss, even though it was filed on behalf of the Executive Office of the President, one of the named defendants, on January 21, we waited several weeks before reaching out to the White House to suggest they consider withdrawing their motion. The response from the White House, on the afternoon of February 20 (the day our brief was due) was that we should go ahead and file. Thus, at least at this point, the new administration has indicated quite clearly it plans to continue litigating this issue.  

The lack of confirmed appointees at the Justice Department does not suggest this is an interim position, given that the White House is the defendant here with a fully-staffed White House Counsel’s Office. As for the change in DOJ counsel, it is simply the result of the trial attorney previously assigned to the case departing DOJ for a detail (in the White House Counsel’s Office). 

The CREW argument that this is not an interim position doesn’t hold much weight, given the al-Haramain example (the President is also the defendant in that suit and their stance has changed since the January 22 filing). 

But, for the moment, it does say that Greg Craig is not only continuing Bush’s legislation, but he’s hiring one of the DOJ Dead-Enders that got us to this point. We’re not going to get very far if Greg Craig sees fit to hire the Dead-Enders into the White House.

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Monday, 9AM, Roland Burris Is Still Senator

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I’ve lost my touch.

It used to be I’d go away for a week and Karl Rove or Alberto Gonzales would resign. Here we are, Monday morning after I’ve been gone a week (thanks to bmaz for really superb work last week!), and Roland Burris is still Senator.

Maybe if I do a recap of Burris’ week, though, and point out the looming holes in his story, then it’ll hasten his departure.

Fitz Joins the Fun

Remember how, in his press conference trying to explain how he forgot to mention his talks with RobBlago and John Harris, Burris couldn’t decide whether he had or had not been contacted by Fitz’ people regarding his negotiations on buying a Senate seat?

That question has now been solved, as Burris spent some time with federal investigators on Saturday.

U.S. Sen. Roland Burris was interviewed by federal authorities for several hours Saturday as part of the ongoing corruption investigation into charges that former Gov. Rod Blagojevich tried to sell a Senate seat for personal or political profit, sources familiar with the talks said.

Burris’ interview, which had been delayed for weeks, took place at his attorney’s offices in downtown Chicago. He has been informed he is not a target of the probe, the sources said.

Several details of this are interesting: what was responsible for the "weeks" delay in Burris’ testimony? Did he have to straighten out his story to the legislature first (though he did not do that with the State Supreme Court), so as to attempt to prevent perjury charges? Or did Fitz just want to make sure they had a complete catalog of the times Burris spoke to Blago’s people–including the multiple phone calls to John Harris that Burris still hasn’t ‘fessed to? Perhaps, too, Fitz wanted to wait until after the FBI started collecting information on Patti Blago’s tenure at the Chicago Christian Industrial League, since that was one way (through Burris’ partner Fred Lebed, who is on the board of the charity) that Burris could have influenced Blago in ways other than fundraising directly. Or, maybe, Burris was negotiating the terms on which he would be very forthcoming to Fitz?

Note that Burris’ secret sources (otherwise known as his attorney, I’m guessing) have gone to the Robert Luskin school of prosecutor-talk. Burris "has been informed he is not a target" of the probe. But did anyone mention anything about him being a subject?

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Inauguration Week Was a Busy Week for Dead-Enders

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A number of you have pointed to this story describing the "Obama" Administration support for the Bush Administration refusal to reconstruct Dick Cheney’s emails.

The Obama administration, siding with former President George W. Bush, is trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.

That claim is based on a January 21 motion to dismiss much of the National Security Archive suit against the Bush Administration, basically arguing that the only thing an NGO–and the Courts–can do is order the Administration to start restoring emails; they don’t have the grounds to force them to actually restore all the emails.

Check the date on that filing carefully.

January 21, of course, was Obama’s first full day in office, well before Eric Holder was sworn in as Attorney General. Heck, it was well before Obama’s team even got the email working at the White House themselves. And even, in a supreme bit of irony, it was the very same day when Obama signed an Executive Order saying incumbent Presidents, and not former ones, get to control the Presidential records of that former President.

January 21 was also just one day before the "Obama" Administration submitted a filing in the al-Haramain case that completely supported Bush’s unitary executive claims. Curiously, though, when the Obama Administration submitted another al-Haramain filing later in February, it adopted a significantly different strategy than they had in that January 22 filing. In other words, we know that the January 22 al-Haramain filing was indeed Dead-Enders submitting Bush’s strategy under Obama’s name; that strategy has since been changed.

We don’t–yet–have proof that the January 21 email filing was another case of a Dead-Ender submitting legal briefs in Obama’s name.  But there are two interesting details that suggest this might be the case. First, the ubiquitous Michael Hertz was–as he was on the al-Haramain case and just about everything else we’ve hated "Obama’s DOJ" doing–the senior official listed on the January 21 filing.

More interestingly, DOJ submitted a notice of appearance for Carlotta Poter Wells, a new lawyer to the government’s email team, about a week after this filing (though still before Holder was sworn in on Ferbuary 3). Read more →

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