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