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Fieger Acquitted of all Charges

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As several of you have pointed out, Geoffrey Fieger and his law partner, Ven Johnson, were acquitted yesterday of all charges against them. While there was no question that Fieger and Johnson had reimbursed their employees for donations to John Edwards in 2004, the government did not prove that Fieger and Johnson intended to evade campaign finance laws, and therefore did not prove that they had broken the law.

I think the government lost this case for a number of reasons. First, Fieger’s team made a reasonable argument that the law in question doesn’t explicitly forbid reimbursement of employees; it only forbids giving in another person’s name. This made Fieger’s claim that he had researched the law and determined he could do what he did–reimburse employees–without believing he was evading the law.

Just as importantly, the government repeatedly put witnesses on the stand that severely damaged its case. For example, it put Jeffrey Danzig on the stand only to have him testify about how common reimbursed donations are in the legal community.

“I’ve done exactly what I’ve done at the Fieger firm that’s the subject of this litigation on numerous occasions through my legal career at another firm,” Jeffrey Danzig testified on direct examination.

Fieger and partner Vernon (Ven) Johnson are charged with breaking campaign finance laws. Money was collected from employees, friends, relatives and other for the 2004 John Edwards presidential bid and the donations were then reimbursed by law firm checks.

The times he’d done the same thing while at the Lopatin-Miller law office were “too many to count,” Danzing said in later cross-examination.

Danzig also discredited the government’s key witness, Jay Humphrey.

Finally, though he’s a blowhard, Fieger did not botch his own testimony, and apparently convincingly argued that he would never do anything that might ruin his career. Which seems to be why the jurors voted not to convict.

“I think it was the lack of evidence that got us to our decision,” said juror Krista First 24, an accountant from Adrian.

Juror Maria Kruger, 42, a college student from Clinton Township, said there was no logical explanation for why Fieger and Johnson would commit career suicide over political contributions.

“I can’t imagine you would intentionally destroy your lives and the lives of the people around you,” she said.

Scott Horton reminds us that this is one of many cases that raised questions about selective prosecution. Read more →

Fieger Judge: Prosecution “Unusual;” Government Must Explain Recusal

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In what may be a significant victory for efforts to show that the Bush Administration has selectively targeted political opponents, the Judge in the Geoffrey Fieger case, Paul Borman, just ruled that this case is sufficiently unusual that the government must provide the evidence that Fieger’s team would need to argue Fieger was vindictively prosecuted.

A key to Borman’s thinking is the quote–and emphasis–he gives to support the threshold for a vindictive prosecution claim.

Judge David Nelson’s opinion discussed the constitutional underpinning for a claim of vindictive prosecution:

[A] prosecution which would not have been initiated but for governmental “vindictiveness” – a prosecution that is, which has an “actual retaliatory motivation” – is constitutionally impermissible. Blackledge v. Perry, 94 S.Ct. 2098, 2102 (1974).

Id. at 1145 (emphasis added).

Borman stresses the centrality of the way a case is initiated. Not surprisingly, then, several of the factors that Borman describes as making this case unusual have to do with the start of the case. In particular, he focuses on Detroit’s failure to consult with Public Integrity at DOJ before they initiated their investigation of Fieger.

Thus, the DOJ Manual permits local federal investigations of vote fraud and patronage crimes without prior consultation with the DOJ’s Integrity Section. The [Federal Prosecution of Election Offenses] Manual treats campaign finance investigations differently: prior to beginning any such investigation, the local AUSA must first consult with and be cleared by the DOJ Public Integrity section. The Manual’s mandated prior consultation with the DOJ Public Integrity Section by the Detroit U.S. Attorney’s office did not occur in the instant case. [emphasis Borman’s]

Because they didn’t coordinate from the start of the investigation, Borman suggests (reflecting claims Fieger’s team have made), the government prevented FEC from getting involved in the investigation, and doing what FEC normally does in such cases, imposing civil penalties in lieu of criminal prosecution.

The local AUSA’s failure to preliminarily contact the DOJ Public Integrity Section before beginning an investigation, removed the option of the DOJ initially consulting with the FEC prior to the investigation, and coordinating enforcement from the beginning between FEC and DOJ.

But these aren’t the only reasons Borman finds this case unusual. He gives an extensive list of other reasons.

  • [I]t is the first such prosecution ever brought by the Detroit office. Read more →

Stupid DOJ Tricks: Don’t Watch this Bush Ad

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I have to admit. I find this ad totally unappealing. While Bush comes off as the same kind of mob-inciting thug as George Allen did in Macaca, Geoffrey Fieger’s smug delivery doesn’t make me want to have him represent me in any lawsuits. Still, it’s marginally more subtle than most trial lawyer advertisements. And who can fault a guy for trying to make a buck off of being attacked by the astoundingly unpopular Bush?

Still, a pretty harmless ad.

Except that DOJ appears to be preparing to argue that it threatens their ability to try Fieger for crimes relating to campaign finance. They have subpoenaed the firm that made the ad, asking for: Read more →

Fieger Update

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I am really overdue to give you all an update on the Geoffrey Fieger case, where the government mobilized 80 FBI agents (presumably pulling them off terrorism investigations) to go sniff into Trial Lawyer Geoffrey Fieger’s donations to John Edwards. The government has been trying to convince the judge in the case that there was nothing improper about their investigation in a series of ex parte meetings. But when Fieger’s team pointed out how, um, unusual all these secret meetings were, the government decided to take it all back, and ask the judge to pretend he never saw any of the explanations the government had already offered.

I’ll come back and update you on that in the next few days (particularly if my trip to Philly continues to be postponed). In the meantime, let me confess that I was really remiss in that I didn’t go to the hearing in Detroit on Friday. Which looks like a damn shame, because every time the government shows up at a hearing, they dig the hole they’re in deeper and deeper. In particular, they keep changing their story about whether this case was started when an ex-Fieger employee waltzed into the FBI a year and a half after the fact and complained about being pressured to donate to John Edwards, or whether the case started from somewhere else. From this report on Friday’s hearing, it sounds like they changed their story again on Friday, to say they simultaneously started investigations in Detroit and in the Noel Hillman led Public Integrity section. (Btw, if Noel Hillman received a subpoena in the woods and nobody heard it, would he really have received a subponea?)

Assistant U.S. Attorney Lynn Helland said Friday he made a mistake by not consulting with U.S. Department of Justice headquarters before opening the investigation, as required by departmental rules.

Helland acknowledged he was unaware of the guideline. But he said the mistake was inconsequential because the Justice Department‘s public integrity section was independently opening its own investigation.

Borman also expressed concerns after Helland confirmed claims by Fieger’s lawyers that witnesses called before the grand jury for the case were asked for whom they voted in certain elections, the newspaper reported.

"That again seems to be a highly invasive probing by the government" Borman said. Read more →