Career Prosecutors Opposed Siegelman Case

by Scott Horton

From the first emergence of allegations that the Siegelman prosecution was politically motivated, the Bush Administration has rested its defense on a single straw: that the case was brought and carried forward by career prosecutors.

 

That contention has now been dealt a fatal blow by the man who raised it.

 

Throughout the history of the Siegelman investigation and prosecution, the Birmingham News and its cross-state sister, the Mobile Press-Register, both papers tightly aligned with the state’s Republican Party and with Governor Bob Riley, steadily had the inside story on what was happening. In a series of articles, they reported on the status of the investigations, on the appearance of witnesses before federal grand juries, and on the evidence the prosecution believed it had. Nothing in the prosecution’s portfolio ever seems to have been a secret from these two papers. And their extraordinary and cosy relationship with the prosecution continued through Sunday, as prosecutor Louis Franklin gave the Birmingham News a lengthy interview, freely responding to questions which–from the mouths of other reporters–he had consistently refused to discuss.

The interview is clearly designed to plug the holes that have sprung in the account that Franklin and his colleagues provided before. But it does just the opposite. The handful of leaks have turned into a gushing breach in the dam. Prosecutor Louis V. Franklin admits (1) that the most experienced career prosecutor working with him on the case concluded that the Siegelman case should not have been brought; and (2) that he handled the case hand-in-glove with Noel Hillman, the head of Justice’s Public Integrity Section in Washington, and a man now repeatedly and directly linked to Karl Rove in connection with the prosecution of the case.

 

But beyond this, Franklin contradicted a series of statements he previously made, doing damage to his credibility. In fact this interview presents Franklin’s third account of what happened, irreconcilable with either of two prior accounts. The first account is the one he put to the Court in the three months before the Siegelman case went to trial. The second account is the one he offered up in two amazingly sloppy and contradictory press releases he put out as the Simpson allegations surfaced. And the third is this Birmingham News account.

But the most important fact is that Franklin has contradicted two statements he made to the Court under oath on February 27, 2006 and April 14, 2006. That badly damages his credibility going forward.

Franklin’s bumbling inconsistencies and efforts to cover up what actually transpired are so weak, it makes me wonder whether he isn’t working like Jaroslav Hašek’s good soldier Švejk, trying to sabotage his own prosecution efforts and help Siegelman come out on top. It’s hard to imagine him doing anything more damaging than what he did in this interview. Let’s take a deeper look at the story under the surface.

For the last several months, I have received accounts that a number of the most experienced and senior career prosecutors involved on the case strongly opposed continuing the prosecution against Siegelman. The case was pushed through, as one Justice Department person has suggested to me, “with blunt political force” over their opposition. Today, we learn the identity of one of the career prosecutors who said the case was inappropriate, and he happens to be “the most experienced prosecutor on the team:”

John W. Scott, a senior Justice Department trial lawyer who had been helping with the case at the request of Montgomery prosecutors, disagreed with the move to extend the investigation, Franklin said. “We had to make a decision about whether or not a grand jury would help us in putting the case together, investigating further. It was not a popular decision, but I made it,” Franklin said. “John didn’t want to do that, so when he left Montgomery he didn’t come back…”

The investigation lingered for many months in 2002 and 2003 because Scott, who was juggling other prosecutions across the country, was not able to commit full-time to the case, Franklin said.

So Franklin tries to explain Scott’s disappearance from the case by saying that he had committments outside of Alabama and left. That’s a plausible looking story. However, it’s untrue. In fact, John W. Scott stayed in Alabama and continued to work for Public Integrity on cases in Alabama. As the Siegelman case went to trial, in fact, he was playing a key role in the Gadsden bribery prosecution, according to a Justice Department press release from August 29, 2006. He was off the Siegelman case for another reason: he had concluded, along with several other career prosecutors, that there was no reasonable basis to proceed to prosecution on the case. The Siegelman case was a political stinker.

Note how Franklin’s story changes every few days. First it was lock-step. The career prosecutors wanted to bring the case. Now it’s acknowledged: the most senior prosecutor thought the case was manure. And “it wasn’t a popular decision,” says Franklin. He’s inviting us to think that John W. Scott was not alone in this process, that others in the U.S. Attorney’s office shared his view. Which is precisely what I have been led to understand by Justice Department employees, including attorneys in the Montgomery U.S. Attorney’s office, since I first started looking at this case.

My sources have consistently expressed the view that Leura Canary was from the beginning and continued after her very dubious “recusal” to be the person calling the shots at the Montgomery level. This was done by putting persons with her confidence in control, at one point her close personal friend Julia Jordan Weller, and later her senior prosecutor Louis V. Franklin. My sources have repeatedly told me that other senior prosecutors working on the case, in addition to Scott, felt strongly that it was wrong to pursue the case. “This was the consensus view of the professional staff,” said one, “we could feel that Canary was fighting it, and later Franklin.”

In a normal recusal, another U.S. Attorney would run the case and it would move out of her shop. Not this time. In any event, I am told by persons in a position to know in Justice in Washington, that the decision not to turnover documents to Congress was reached because of Canary’s strident opposition. It seems likely that the roughly 600 pages of relevant documents which the House Judiciary Committee requested, would cast clear light on the political shenanigans which were clearly going on inside of the Montgomery U.S. Attorney’s office.

In sum: Franklin’s claim was once that the career prosecutors favored going after Siegelman. Now he’s admitting that this was not true. Moreover, in Justice Department prosecutions of this sort marked by the mass migration of career prosecutors who “drop off,” “transfer to other offices,” or “have other things to do,” it is often the case that the prosecutors believe the case should not have been prosecuted. The case was being pressed forward with brute political force, and those behind it were flailing about trying to find loyal troopers who would shut up and do what is expected of them: a category into which Franklin and his deputy Feaga plainly fell.

The new posture taken by the increasingly implausible defense of the Siegelman prosecution is simple. Louis Franklin called all the shots. And Franklin insists that Karl Rove had no dealings with him and thus no influence on the case.

But these claims simply cannot be squared with the record, and with repeated statements that Franklin himself made to the court. But maybe we should start just with the accounts published previously by the Birmingham News itself, such as its March 26, 2006 report on the Siegelman case in which it offers its signature Franklin exclusive:

On February 29, 2006, Franklin filed a sworn affidavit, in which he discussed the decision making process:

We informed defense counsel that the investigation was a joint effort involving the USAO-MDAL [Montgomery U.S. Attorney’s office], DOJ Public Integrity Section and theAlabama Attorney General’s Office and each entity would participate in all decision-making processes.

Franklin goes on to describe a negotiation session with Scrushy’s counsel in which, even by his account, Noel Hillman played the leading role. In para. 18 of the same affidavit, Franklin states that he is uncertain about a new indictment because whether charges can be brought requires the approval of the Criminal Division in Washington, and they have not yet informed him of their decision.

On April 14, 2006, Louis Franklin filed a motion to block Governor Siegelman from arguing or presenting evidence that the prosecution was politically motivated—and won. Here’s what Franklin told Judge Fuller:

In this case, the only person associated with the prosecutors who is accused of discriminatory motive is U.S. Attorney Leura Canary…

Former Attorney General, and now United States Circuit Judge Bill Pryor publicly announced the joint state and federal investigation of Defendant Siegelman’s administration in June 2001—months before Ms. Canary was appointed U.S. Attorney. The federal grand jury did not convene in connection with this investigation until June 2004 — well after Ms. Canary’s recusal from the case. . .

Louis Franklin, the acting U.S. Attorney in the case, and career employee from the Middle District of Alabama’s U.S. Attorney’s Office, the Public Integrity Division of the United States Department of Justice in Washington, D.C., and the Alabama Attorney General’s Office have jointly made all of the substantive decisions in the case since Ms. Canary’s recusal, including the decisions to convene a special grand jury in 2004 and to present charges to that grand jury. None of these individuals have been accused of political motivations by the defendants, either in the case or in the press. Moreover, any claims regarding Ms. Canary’s political motivations cannot be imputed to them.

Government’s Motion in Limine, pp. 9-10. So, under oath, Franklin tells the court that all decisions are joint decisions between Hillman, Pryor and himself, and among these three he makes very clear that he must give deference to his superiors–Hillman and the Criminal Division in Washington. And he says this principally to avoid any imputation to himself of the severe conflict with which his boss, Leura Canary, is tainted.

Leura Canary is married to “Billy Canary,” who is Alabama’s most important G.O.P. campaign advisor, and who is, at the time of these proceedings, the unseen hand behind the campaign for the re-election of Alabama Governor Bob Riley. According to a letter that Siegelman’s now deceased attorney sent to the Justice Department seeking Leura Canary’s removal from the case, the incessant flow of leaks, at least some of which probably violated the grand jury secrecy rule and were thus criminal conduct, were suspected of coming out of the office of “Billy” Canary.

So we have two completely irreconcilable Franklin accounts: the sworn statements that Franklin has made to the court, and the unsworn interview given to the Birmingham News. Only one of them (if that) is correct. And clearly the sworn statements to the court are more credible. They are consistent with established practice of the Department of Justice, and the way prosecutions actually operate. The claims articulated in his press releases and in his News interviews are of a different character. They are political grandstanding.

So why has Louis Franklin changed his story 180 degrees from the time he filed these papers with the Court (under oath) to the time he gave an interview (not under oath) to the Riley family’s in-house newspaper? The answer to that question is obvious.

There are three relationships that are key to understanding the exercise of prosecutorial discretion in this case:

• Franklin’s relationship with his boss, Leura Canary. Remember, Franklin is a senior prosecutor working for Canary. She continues to cut his paycheck, completes his performance evaluations and decides on his promotion or career advancement, including when he will retire. Note the way he scrambles to protect Leura Canary in his submissions, and in all those submissions, he continues to call himself the head of the criminal division in the Montgomery office under Leura Canary. The pattern is very clear.

• Franklin’s relationship with Alabama Attorney General William Pryor, subsequently replaced by Troy King. The charges against Siegelman start with Pryor. According to several accounts, Pryor, a loyal Republican operative, is obsessed with taking down Siegelman and is frantically looking for a way to do it. Pryor’s campaign manager is William Canary, Leura Canary’s husband. Leura herself has very close relations with Pryor.

• Franklin’s relationship with Noel Hillman, then the head of the Public Integrity Section (“PIN”), the branch of the Justice Department responsible for oversight of prosecutions of political office holders. In theory PIN’s functions include insuring that uniform national standards are applied for the prosecution of public corruption cases, and that local federal prosecutors don’t use the system abusively to take out local political opponents. I should stress the words “in theory,” because under Noel Hillman, those postures were reversed.

So why would Franklin do this 180 degree turn? The answer is simple: Karl Rove. No matter where we turn, the surfaces have been dusted and are found to be covered with Karl Rove’s fingerprints.

In fact, there is only one person who was not closely linked to Karl Rove. Hence the answer. There was no option. The line they had to throw up was to say that Louis Franklin did everything all by his lonesome and no one else was involved. It’s not a contention that would pass the ha-ha test. But it was the only retelling of the facts that could protect those most implicated in the scandal.

But note that Franklin’s latest account is riddled with internal inconsistencies. He says he’s making all the calls at one point, and then later on he puts it differently:

“I am equal partners with Public Integrity. So if I say we’re going to do it, Public Integrity says, ‘Well, we’re not going to be a part of it.’ I can say, ‘Well, you can take your ball and go home and we’ll continue to play down here,’” Franklin said.

Of course, career prosecutors who went off to play their own game disregarding the directions of the political supervisors in Washington had a routine habit of being replaced or fired in the Bush Justice Department. And Louis Franklin knew that very well. That means he could be “independent” and “make the call”—as long as he agreed with the position Noel Hillman staked out. And that’s precisely what Franklin did.

 

Note that he does not deny that the prosecution of the case was a matter of continuous interaction with Hillman: he is acknowledging, as we have seen all along, that Hillman was the driving force behind the litigation. Indeed, when a senior political appointee in Washington takes a direct position in a pending case, it can’t be any other way. Career prosecutors who have a different view have one option: take a hike. And that helps explain the torrent of departures from the case, an astonishing record of departures that Franklin acknowledges and scrambles to explain–very unconvincingly. Note that in the March 26, 2006 News article, Franklin states that the delay was caused by personnel departures:

One reason was personnel changes, Franklin said, because three of the attorneys originally assigned to the case retired or changed duties.

His current statement helps put this in context. The departures, or at least some of them, were caused by career personnel who believed the Siegelman prosecution was unjustified.

So here’s the reality check. Franklin’s claim to have made all the decisions is not credible; it is contradicted by his own sworn statements, by the statements of defense counsel, by the public record, and by established Department of Justice policy. Correctly viewed, Franklin may have been one of three decision-makers, and if so, he was the decidedly most junior of the three, and under the thumb of his boss, Leura Canary, throughout.

 

And as usual, something else is very strange in the Franklin account. He tells us the path of who at the Montgomery U.S. Attorney’s office was in charge of the Siegelman case. I have been studying this very carefully, as have Adam Zagorin and a number of other national reporters. And we all know that Franklin’s account doesn’t stack up. He’s missing several names–prosecutors who exercised principal decision-making over the case before he came on the scene and who disappeared under very murky circumstances.

 

Note how there are no follow up questions in the Birmingham News probing about any of this. The News interview is designed to give Franklin a forum to convey a prescripted message, not to probe for the truth. In any event, however, the suspicion is clear, and it is readily fueled by other career prosecutors in Montgomery: the earlier prosecutors concluded that there was no case against Siegelman, that this was a political vendetta. And the decision was therefore taken to remove them from the case. There are three figures I am looking at right now.

For today, I’ll focus on just one of the three figures who mysteriously disappears in Franklin’s account. It’s First Assistant Julia Jordan Weller, now an Alabama administrative law judge working for Attorney General Troy King. Weller handled the case at a key moment when the testimony from Lanny Young came in—that is the evidence that proved critical for their decision to go forward, and today is at the center of controversy.

 

As Time magazine’s Adam Zagorin has taught us, Young’s evidence linked Attorney General Pryor and Senator Jefferson Sessions to money laundering and potential bribery, and included altogether minor and petty accusations against Siegelman. But guess what? For the Montgomery U.S. Attorney’s office, only the claims concerning Siegelman were of any interest.

According to several of my colleagues, both Leura Canary and Louis Franklin were asked point blank about Julia Weller’s role in this process, and both responded with false answers, claiming that she was uninvolved. In fact, Julia Weller was in charge of the case at this point, taking a leading role in negotiating and concluding the plea agreement with Lanny Young.

 

This is in fact disclosed in a press release issued by the Justice Department on June 24, 2003, in which the Nick Bailey and Lanny Young plea bargains are heralded, and Weller is described as the person running the case.

 

And as we have now established, Weller was placed in charge of the case by Leura Canary. Weller is a dyed-in-the-wool Republican activist and the wife of Montgomery attorney Chris Weller. He was William Pryor’s attorney and close confidant. He is called Pryor’s “dark side.”

 

Weller was deeply involved in both the Pryor and Sessions campaigns, and is known as a lifelong Siegelman hater. The Wellers and the Canarys are described by several sources as socializing together with one another with some frequency.

Is there anything strange about Pryor’s lawyer’s wife being placed in charge of negotiating a plea bargain with a witness offering highly incriminating evidence against Pryor? Of course not. This is standard operating procedure for the Montgomery U.S. Attorney’s office. Leura Canary’s view appears to be that all Republican officials who are clients of Billy Canary have comprehensive immunity, so there is no technical conflict.

But Weller was also running the case against Siegelman. So Canary’s initial pick to run the prosecution was another political prosecutor with a tight personal relationship with her. This selection is extremely revealing of the internal character of the Siegelman probe on several fronts: first, that it was viewed as a political hit, and therefore was entrusted to someone whose political loyalty was without question, and second, that Leura Canary wanted to run the case from behind the scenes, and consistently made personnel choices which would allow her to do that.

Incidentally, Franklin not only omits any mention of Weller from his account, he also forgot to tell Judge Fuller about her role in the case, which means he made material misstatements by omission in his Motion in Limine sent to Judge Fuller. It wouldn’t be the only misstatement. We now know that when a motion for recusal of Judge Fuller was filed, he materially misstated facts and suppressed vital if not incendiary facts in his possession which would have mandated recusal.

And while we’re wading through this extremely sordid story of prosecutorial abuse, let’s not forget that none of this could have been pulled off without a cooperating judge. It’s alleged that the U.S. Attorney’s office schemed to get the Siegelman case before Judge Mark Fuller. The sworn testimony is that Governor Riley’s son knew even before the case was brought that Fuller would be shoehorned in to hear it, and that Fuller was picked because of his grudge against Siegelman—a grudge which in the meantime is well documented. Fuller failed to disclose his grudge, failed to recuse himself, and denied a motion for recusal. Hillman’s PIN vehemently opposed the recusal effort, using it as an opportunity to level heavy, but unfounded accusations at the defense, questioning their motives in bringing the motion. Rob Riley has prepared an affidavit denying that he had any knowledge of the Fuller selection, but in the meantime further evidence is surfacing which I suspect is going to eviscerate the Riley affidavit. More on that in the coming week.

And now we have learned, through the Paul Benton Weeks affidavit, that PIN had and should have been investigating a series of extremely serious criminal complaints against Fuller at the time its case was brought. When we go back and look over the case and remember how Fuller leaned over to give PIN what it wanted at every stage, took no steps to pull back on prosecutorial overreaching, and took no steps to look at powerful evidence of jury tampering, a very sinister cloud descends over this entire trial–which in fact was more a theatrical farce than a trial.

Justice’s Public Integrity Section is supposed to be a watchdog for ethics in government. But its conduct in the Siegelman case is scandalous and highly unethical. PIN’s conduct in this case raises the specter of gross impropriety, and leaves the case smelling as sweet as an open sewer on the hottest day in August. A real Montgomery sewer. This story still has a long way to go, and only a small part of the carefully buried facts are now working their way to the surface. Hang on. It’s going to be a long, rough ride. But in the end, Truth is going to prevail. It’s been covered up too long.
 

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