Wednesday, January 19, 2011

Another hearing for 'poster child' Siegelman

            Yesterday (Jan. 18), Siegelman sent out his second mass e-mail in a week and perhaps the 100th overall asking recipients to contribute to his legal defense fund. Up high in both he describes himself as a victim of a "Karl Rove-inspired prosecution."
            "Your activism made me the 'poster child' of selective political prosecution, shining a spotlight on the egregious wrongdoing and quest for political vengeance that had overtaken the Department of Justice under Attorney General Alberto Gonzalez -- at the behest of Karl Rove," wrote Siegelman in the first letter.
       (For more of the same, including how to give, go to There's more wild entertaining BS on that web-site than the rest of the Internet combined!)

            It is my position, as set out in my book, that Rove had nothing to do with Siegelman's prosecution and that Siegelman knows it. You can use it as a Rorschach Test: Those who believe Jill Simpson's preposterous tales linking Rove to the Siegelman prosecution are either badly misinformed (such as by the New York Times or "60 Minutes") or not playing with a full deck.
            Apparently on firmer territory are Siegelman's own lawyers. This afternoon in Jacksonville, Fla., attorneys for Siegelman and co-defendant Richard Scrushy will for the second time appear before the 11th Circuit U.S. Court of Appeals to ask that their clients' convictions be overturned. (The 11th Circuit is based in Atlanta but sometimes holds court elsewhere, including Jacksonville.)
            Karl Rove does not appear in their appeal briefs, nor, to the best of my knowledge, has he  ever been mentioned in any of the gazillion filings by the two defendants. I write this just hours before the start of oral arguments. If Siegelman's lawyers raise Rove as a reason for the 11th Circuit to overturn his conviction, I'll -- well, I'm not sure what I'll do. I don't wear a hat so I can't eat what I don't have, and I can't offer up a fortune for the same reason. A groveling apology will have to do.
            A long preamble to the business of the day: The reason for this second appearance before the 11th Circuit and why I believe that Siegelman and Scrushy will fair about as well today as they did the last time -- which is to say, not well.
            That first appearance was more than two years ago -- on December 9, 2008. The short version of this very long story (for the longer version, go two blogs down, or hit this link: is that the U.S. Supreme Court chose last year to examine what's called the "honest services" statute. All but one of the charges for which Siegelman was found guilty involved the law; and all of those against Scrushy did.
            Awhile back I did a pretty good review of the honest services situation that can be found here:
            Now that you've done all that reading, my predictions for the outcome of today's hearing:
            1. The easiest one is that we won't know the outcome until the three-judge panel issues its ruling, and that won't be today. It's impossible to know when that will be. A reasonable time frame is two to four months.
            2. The three judges on this panel are the same as considered the first appeal. Their ruling upholding the charges (an exception being two charges removed from Siegelman's ledger) was a powerfully argued defense of the jury's verdict. I simply can't see these judges backtracking on that.
            3. As noted in the previous links, the 11th Circuit is revisiting the case at the direction of the U.S. Supreme Court. In what was, really, a lucky break for Siegelman and Scrushy, the nation's highest court chose last year to take a hard look at the honest services statute. Justice Antonin Scalia, for one, pretty much hates the whole statute.
            Last year was, of course, the same year that Siegelman and Scrushy appealed the 11th Circuit's ruling.
            In June, the Supreme Court whittled away the honest services statute with its ruling on an appeal by former Enron executive Jeff Skilling. However, or so it certainly appears, other uses of the honest services statute remained standing. Among those were cases involving bribery.
            Therein lies the problem for Siegelman and Scrushy. Though the Supreme Court ordered the 11th Circuit to review the Siegelman-Scrushy convictions in light of Skilling, there doesn't appear to be anything in "Skilling" that would merit a reversal. (As a blogger, I have a right to write fast, on the fly, and even be unclear, such as now, with time constraints. apologies to those having difficulty following.)
            Deep breath....
            4. In short, I believe the 11th Circuit will tailor a ruling upholding the charges and providing the U.S. Supreme Court with a finely argued ruling explaining why "Skilling" doesn't or in any event shouldn't apply to the Siegelman case.
            5. The Supreme Court will one supposes  review the 11th Circuit's above predicted finding. I believe that the Supreme Court will in so many words simply state that, hey guys on the 11th Circuit, you did what we asked, argued it well, and you're right.
            If so, that would be game's up for Siegelman and Scrushy.
            6. At some point after that -- sooner than later is my guess -- Siegelman would be resentenced. That will be necessary because in the 11th Circuit did kill off two of the guilty charges against Siegelman that were considered in the initial sentence.
            The federal prosecutors in Montgomery and Washington who worked the Siegelman case are apparently confident that the "bribery" aspects of the honest services statute are much-alive "post-Skilling."
            Evidence of that can be found in the bingo indictment brought in early October. Eleven of the charges cite the honest services law, and at least one of those involves campaign donations. That case, like the Siegelman case, is being prosecuted by the Montgomery-based U.S. Attorneys' Office and the Justice Department's Public Integrity Section.
            It should also be noted that one of the charges against Siegelman -- the "motorcycle" or "cover-up" charge -- does not involve the honest services statute. In their brief, Siegelman's lawyers gamely attempt to convince the 11th Circuit that "Skilling" somehow has relevance to that charge, but, or so it seems to me, the attempt falls flat.

            Siegelman served about nine months of his seven-year sentence before being released on appeal. Scrushy, deemed a flight risk for actions taken prior to sentencing, was not released.
            To show how much I know, here's a prediction from the Epilogue of, "The Governor of Goat Hill." I wrote that Siegelman "will likely return to prison in late spring 2010, probably spend about five or six more years behind bars and get out, in fine health, at about age 68."
            That's already off by a year. I stand by the prediction that the counts against him will be upheld; that he will be resentenced to five or six years (instead of the original seven); get credit for his nine-months, and spend four or five years in prison.
             As for when he that will happen, I'm not even going to venture a guess.

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