Siegelman Frame-Up Requires Obama Response To Ongoing Outrages

Written by Andrew Kreig
Published on December 29, 2015

 

The return to solitary confinement of former Alabama Gov. Don Siegelman for 57 days this fall underscores President Obama's duty to provide clemency to a victim of America's most disgraceful recent political prosecution.

Barack Obama head shot Aug. 4, 2014At a minimum, Obama (shown in a White House file photo) should commute the remainder of Siegelman's sentence, now scheduled to extend until mid-2017.

Far better, the president should issue a full pardon to the former governor and his co-defendant Richard Scrushy, the founder and former CEO of HealthSouth Inc. Update: High court won't hear appeal from former Alabama governor, Jan. 11, 2016.

Scrushy and Siegelmen were convicted of corruption charges in a 2006 federal trial. Scrushy has completed his sentence but is at least as much of a civil rights victim as Siegelman, Alabama's governor from 1999 to 2003 and its last Democrat in that office.

Scrushy, a Republican, has consistently argued that his company's donation to defray costs of a 1998 state referendum proposal was a routine expense for his billion-dollar company and that he was imprisoned only because he refused to take a prosecutors' plea deal to perjure himself to implicate Siegelman. 

Alabama Attorney Gen. William Pryor, a Republican, began investigating Siegelman immediately upon the Democrat's assumption of office in 1999. Pryor's crusade was joined by the Bush administration after it took office in 2001. Their massive investigation ultimately ended Siegelman's viability as a statewide candidate or potential presidential contender. For nearly a decade, Pryor has been a federal judge on the Atlanta-based appellate court hearing Siegelman and Scrushy appeals.

Beginning immediately after Siegelman's sentencing in June 2007, he has been a repeated victim of solitary confinement for no apparent reason aside from the demonstrated animosity from his presiding trial Don Siegelman with Charles Cloud Dec. 11, 2015 at Oakdale, LAtrial judge Mark Fuller, Bureau of Prisons personnel with unknown motives, and indifference at best by a politically timid Obama White House.

Siegelman is shown in prison Dec. 11 at left with a fellow inmate, Charles Cloud, just after the former governor's release from "The Hole" at Oakdale's federal prison in Louisiana.

Siegelman's family members said they tried unsuccessfully to contact him during that period and could not learn from authorities why he was being held incommunicado as punishment. It is suspected, however, that Siegelman's response to a question on a phone call with radio personality Thom Hartmann triggered the reaction. Siegelman was discussing prison conditions generally in America but Hartmann asked how he was doing.

Last year at this time, Siegelman also was kept in solitary confinement for more than a month and shunted around the prison system, part of a pattern that first occurred when he and Scrushy were hauled away in chains at their 2007 sentencing by order of their judge, then Chief U.S. District Judge Mark Fuller of Montgomery, even though most white collar defendants are granted bond during appeals. 

Vast numbers of legal experts, whistleblowers, journalists and members of the public have denounced the many irregularities of the Siegelman-Scrushy prosecution, as summarized below.

Mark Fuller Mug ShotFuller (shown in his 2013 mug shot after an evening of drinking), had to resign his lifetime appointment to the bench in disgrace this summer.

Although the most public reason was a wife-beating arrest in 2013 not linked to the Siegelman-Scrushy case in obvious ways, little-reported aspects of the judicial scandal involve a longstanding pattern of Fuller's abusive supervision of the court system. That is directly relevant to the trumped up charges and kangaroo court procedures that convicted Siegelman and Scrushy and financially ruined the families of those two other co-defendants, who were falsely charged but acquitted at the trial.

Thousands of columns, including dozens by this editor, have documented prosecution irregularities and illustrated why the prosecution has become a notorious human rights scandal.

A system that mistreats Siegelman so often so badly with only whitewash oversight by the courts, congress and Justice Department underscores the problems facing 2.3 million other American prisoners and their families. The United States has the highest rate of incarceration in the world and one of the largest prison populations. The systems cost taxpayers vast amounts of money for overcrowded facilities and unaccountable procedures that help keep many inmates, especially street criminals, angry and difficult to reform prior to release.

For such reasons, every American who values the Constitution and a rule of law would benefit from presidential leadership in rectifying the injustice in the Siegelman case, as such prominent commentators as George Will of the Washington Post and Jeffrey Toobin of the New Yorker have written, along with many others.

So, the president and his legal advisors face a tainted legacy on human rights grounds, whatever their efforts and political posturing on other rights issues. Below, we examine the facts, including recent developments in Alabama and at the White House.

These include:

On Dec. 18, the White House announced that President Obama had shortened the sentences of 95 federal prisoners, continuing what some critics call a "broken process" of the pardon power the Constitution grants to the president.

We argued in a lengthy reader comment Dec. 26 to the Montgomery daily that Obama should use this power to redress the horrid injustice of the Siegelman case.

Today's column begins with my reader comment Dec. 26. Next, several of the specifics are amplified, including reasons why both Siegelman (shown below in a file photo) and his co-defendant Richard Scrushy should be pardoned, and an overview of how recent presidents have used that power.

We conclude with Siegelman's note to supporters after his release from "The Hole," followed by an appendix of sources and recent treatments elsewhere.

Justice Integrity Project Dec. 26 Response To Prosecutor Stephen Feaga's Montgomery Advertiser Column Dec. 24.

Don SiegelmanStephen Feaga, a former lead federal prosecutor in the Siegelman/Scrushy case, has again embarrassed himself by providing a misleading argument cleverly devised with his lawyer’s skill.

As an overview:

Jurors in the second trial used their common sense to throw out two-thirds of the prosecution’s charges and acquit entirely two of the four co-defendants in the government’s trumped up case. Those two acquittals in prosecutions that financially ruined two Alabama families and wasted taxpayer funds are too often overlooked in these discussions. So is the general standard that prosecutors should never use excessive charges in multiple trials just to ensure that certain defendants are ground down and imprisoned on a selective basis.

The remaining convictions continue to attract nationwide attention from experts as one of the U.S. Justice Department’s most notorious prosecutions in memory from a legal standpoint, thereby blighting the record of Democrats, Republicans, and career personnel alike. Many of the same authorities were involved in the later federal bingo case travesty, which resulted in acquittals in two federal trials in Alabama at tens of millions of dollars of expense to taxpayers.

Regarding Siegelman and Scrushy, never in American history have so many former top law enforcers from so many states urged the Supreme Court to take a new look. The total was 113 former top prosecutors from more than 40 states, with representatives of both parties. Also, large numbers of law professors have similarly petitioned for review, as have other citizens whose calls, letters, petition signatures by now surely totals at least 150,000 protests (more than double the current petition drive) sent to either the Justice Department or White House since several courageous whistleblowers made this case a national scandal beginning in 2007.

Mr. Feaga claims in his recent rebuttal column that the call for clemency relies on “inaccuracies.” That is itself deceptive. He relies heavily on half-truths at best.

A few examples:

He asserts that the main prosecution witness, Nick Bailey, gave credible testimony. But this argument fails to note post-trial investigative reporting that the witness faced heavy charges and threats in a separate case, and that authorities interrogated and coached Bailey up to 70 times without the required (and routine) disclosure to the defense of any prosecution meetings with a witness.

He asserts that U.S. Attorney Leura Canary “recused” from the case but fails to note that the federal government has never complied with repeated defense requests beginning in 2006 seeking the paperwork. Something’s fishy.

He argues (correctly) that several politically prominent individuals have denied wrongdoing. But he fails to note that only one, Karl Rove, has issued denials under cross-examination and that the Rove testimony in 2009 occurred under carefully negotiated rules that thwarted informed preparations and questioning.

He argues (correctly) that many of the prosecution’s claims have been affirmed on appeal. But he fails to note the pro-prosecution realities of the appellate process in a case like this where judicial collegiality makes it unwise and otherwise impractical for the defense to raise forcefully the most powerful arguments regarding a biased judge. The key appellate argument in this case (which this editor attended in Atlanta in 2009) was just a few minutes and a few issues. Much more could have been said, but was not.

He asserts that judges have vindicated the prosecution without disclosing that the trial judge, then-Chief U.S. District Judge Mark Fuller of Montgomery, had many disqualifying conflicts at the time. These included claims and evidence of corruption filed in federal court and at the Justice Department by a lawyer in a separate case in 2003, and kept out of the public docket in an irregular manner. Thus, only federal prosecutors knew of those allegations against the trial judge, but not the defense. Also, the judge had (to put it charitably) a complex relationship with a Siegelman/Scrushy trial court clerk, who later became the judge’s second wife. In 2013, a wife-beating charge against the judge led to a deeper investigation and such a public uproar that the judge resigned his lifetime appointment this past summer. Only a few of the details of that investigation have emerged publicly.

Also last summer, co-defendant Richard Scrushy described in lectures at the National Whistleblowers Summit on Capitol Hill and at the National Press Club how his company’s routine $250,000 donation is still being misinterpreted. Details are here.

Scrushy, a Republican torn away from his wife and nine children to serve a long prison sentence on trumped up charges, generously agreed to share his views in the nation’s capital. The sensible course for him, particularly after what he and his family have gone through, would have been simply to keep quiet forever upon release for fear of the government’s obvious and unrelenting power.

Yet Scrushy’s powerful words and example inspired his two audiences in the nation's capital, as clearly evident to observers. Some men can be beaten but not silenced.

In that spirit, here’s a challenge to Mr. Feaga or any other defender of this prosecution from the Obama or Bush administrations: Let’s square off for a point-by-point debate/discussion of the facts in front a civic, church or professional group in Montgomery -- and get to the bottom of this case once and for all.

This editor is game, as doubtless would be many experts from Alabama. In the meantime, President Obama should, in the words of the Advertiser’s columnist, “End the embarrassment and pardon Don Siegelman.”

Andrew Kreig
Editor, Justice Integrity Project
Washington, DC

Siegelman-Scrushy Prosecution Recap

The gist of the joint federal-state prosecution of Siegelman in his second federal trial were claims that he acted corruptly in various ways.

However, the jury in effect reached a compromise verdict and threw out two thirds of the federal charges. The convictions were in essence that Siegelman reappointed Scrushy to an unpaid state board position in return for large donations to defray the cost of an unsuccessful referendum campaign in 1998 to enact a state lottery to pay for improved K-12 education. Also, Siegelman was convicted of backdating a check reimbursing a lobbyist who had been showering state officials with gifts for years without sanction, but whom authorities called to account for a motorcycle gift to Siegelman.

Air Force OneYears later, the basic facts of the case are still under dispute despite many appeals and mostly affirmations of the prosecution by appellate judges.

Vast evidence has emerged also of hidden motives and other foul play tarnishing authorities in ways far beyond normal litigation and extending to the highest levels of the Justice Department, courts, White House and private sector titans, particularly those in the war industries.

The trial judge Fuller, for example, secretly controlled with up to 44 percent of shares of Doss Aviation, which received some $300 million in Bush defense contracts between 2006 and 2009 for such tasks as training U.S. Air Force and Saudi pilots, and refueling Air Force planes, including the presidential Air Force One (shown in a file photo).

We have often reported those details on this site, as elsewhere. But only the alternative media typically report details regarding allegations of gross legal misconduct at the executive level. Top level decisions, unlike police shootings or beatings, are made in private and can always be cloaked with public interest rhetoric, no matter what the true objectives.

Coming one day soon will be our additional reporting on the hidden motives of the authorities who created such an epic disgrace for the justice system. In the meantime, an appendix of sources below provides excerpts and hotlinks to relevant materials now known.

Background: A President's Pardon Power

The U.S. Constitution empowers a president to issue pardons to convicted criminals, thereby nullifying both underlying crimes and punishments. Judges, scholars and other authorities have long regarded the power to commute sentences (removing punishments without nullifying convictions) as as implied power for the White House under the pardon power.

Siegelman's prosecution and continued imprisonment typify a number of other politicized distortions of the justice system. For one thing, neither Siegelman nor his co-defendant Scrushy are likely to be eligible for a "pardon," anytime soon, as we reported in a 2012 column Presidential Clemency System Broken, Experts Say.

There, we reported that the president does not ordinarily seriously consider granting a pardon until five years after completion of a sentence. The specifics are described on the Justice Department's website instructions for pardon applicants:  

Under the Department's rules governing petitions for executive clemency, 28 C.F.R. §§ 1.1 et seq., an applicant must satisfy a minimum waiting period of five years before he becomes eligible to apply for a presidential pardon of his federal conviction.

However, the instructions suggest that pardons may be made before five years in exceptional circumstances. Both Siegelman and Scrushy should qualify for that.

Gregory CraigThe experts, however, described how presidents and the nation's governors are becoming too timid to risk political heat for perceived leniency to convicts even though the pardon power has been regarded for much of the nation's previous history as an essential part of the justice process. The founders recognized, as currently leaders rarely do, that the justice system can err on the side of harshness.

Details are in the above cited 2012 column Presidential Clemency System Broken. It includes explanations by a retired University of Chicago Law School criminal law expert Albert Alschular, a former faculty colleague of Obama's, and by Obama's first White House Counsel Gregory Craig, who is also pro bono counsel for Siegelman on recent federal court appeals. Craig is shown at left in a file photo.

In sum, it would be politically and logistically difficult for Obama to issue pardons but he and the Justice Department should do so in this case nonetheless.

As an interim step or fallback, the president Obama should commute the remainder of Siegelman's sentence as part of presidential "clemency" powers implied under the pardon power. Also, he should initiate other steps through the Justice Department and its Bureau of Prisons to reduce the political harassment that has been occurring against Siegelman, and others so situated. Prisoners should get the harsh punishment they deserve but not random acts of arbitrary cruelty.

For additional context, ABC News published in 2007 Commutation? Clemency? Pardon? Sorting Out Legalese in Libby Case, a description of presidential pardon powers relevant to a federal prosecution of Vice President Dick Cheney's former chief of staff Lewis "Scooter" Libby, shown in a file photo below at right.

That prosecution arose from a federal grand jury investigation of the administration's illegal revelation in 2003 to syndicated columnist Robert Novak that Valerie Plame Wilson, ostensibly an import-export executive for a Boston-based company called Brewster Jennings and Associates, was a covert CIA intelligence officer working on highly sensitive matters involving the Middle East.

The disclosure endangered both her and her family, described as "fair game" [later the title of her memoir, shown at left] and also her network of CIA informants overseas.

After Novak's column informants could no longer pretend that their past dealings with her were simply business. This was potentially a life and death crime, unlike the Siegelman-Scrushy case.

Valerie Plame WilsonThe leak to Novak has been attributed to diplomat Richard Armitage but congruent with a related plan coordinated by Libby suspected as retribution against her diplomat husband Joseph Wilson, a former ambassador. Wilson had declined to support those in the Bush administration who wanted him to vouch for what he regarded as false intelligence to help build a case to invade Iraq in 2003 because, supposedly, Iraq was developing "Weapons of Mass Destruction" endangering American interests.

Nonetheless, the United States organized a coalition to invade, causing more than a millions deaths in Iraq alone, plus trillions of dollars of U.S. taxpayer spending for Middle East and North African wars of choice that continue to this day.

In retrospect, retired Army Colonel Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell, told Telesur's Abby Martin this month that the rush to war in the Middle East on fraudulent claims has caused historic calamity to the nation.

Wilkerson, a veteran of more than a thousand combat missions in Vietnam, described what he called a seemingly un-fixable corruption inside the American foreign policy establishment, as amplified in: Bush Military Official: The Empire's Ship is Sinking. 

But nearly a decade ago, the long prosecution investigation into the White House leak targeting Plame and her husband was delayed by, among other matters, the refusal of New York Times reporter Judith Miller to testify regarding sources.

She was jailed for contempt of court, prompting massive sympathy ginned up for her by other members of the media. Libby wrote to remind the jailed writer in 2005 that they were joined at the roots, just like aspens -- an apparent reference to their time together at VIP sessions at the Aspen Institute gala events in Colorado.

The full meaning of the letter prompted speculation later since Miller and Libby did not know each other especially well. So, Libby's reference may have been a reminder to her of their larger, mutually supportive network of shared foreign policy goals and career support.

"The Aspen Strategy Group was and is a veritable who’s who of the Washington foreign policy–media establishment," wrote Salon pundit Tim Grieve. "Its co-chairmen are Brent Scowcroft, the national security advisor for George H.W. Bush, and Joe Nye, who served in the State Department under Jimmy Carter and in the Defense Department under Bill Clinton. In August 2003, its members included Sen. Dianne Feinstein, Rep. Jane Harman, former Defense Secretary Bill Perry, former CIA Director James Woolsey, Times reporter David Sanger, a slew of think tank and foundation types — and Miller herself."

A federal jury convicted Libby of perjury, false statements, and obstruction of justice. Many Washington insiders believe his indictment scapegoated him with a short straw, thereby insulating as best as possible such other powerful players as his boss Cheney and Bush senior advisor Karl Rove.
 
I. Lewis "Scooter" LibbyTo help the fall guy Libby with as soft a landing as possible, influential members of the Washington neoconservative national security and political establishment, including Democrats, rallied to Libby's support with several score signatures on a petition to the judge seeking leniency. The judge imposed a 30-month prison sentence along with fines and other penalties.
 
President George W. Bush then commuted Libby's 30-month prison sentence. Libby spent no time in prison, in other words. Bush cited Libby's years of public service as the reason to excuse him from normal penalties.

But Bush failed to erase the conviction with a full pardon. The Bush decision created howls of protest from the pro-Libby network involving top-level White House, media, the justice system and contractor-funded "think tanks" -- nearly all silent (except for a few writers, including Scott Horton at Harper's and Adam Cohen at the New York Times) regarding the far greater abuses heaped upon Siegelman and Scrushy and the far greater level of public protest on their behalf.

The contrast is worth exploring in additional ways. The major media rallied to Miller's defense as a freedom of the press issue since she was, in effect, protecting her White House sources, although she ultimately relented. Yet she was protecting them from accountability for what appeared to be vicious criminal acts thwarting truth-telling in the bureaucracy about war preparations.

By contrast, Siegelman whistleblowers and alternative journalists covering them were largely ignored by the major media with a few exceptions (including 2008 shows on CBS "60 Minutes" and NBC's "Court TV" with Dan Abrams) even though the whistleblowers particularly suffered harsh retribution for trying to voice evidence of corrupt practices.

As for the defendants, Scrushy was sentenced to prison entirely for arranging for his company to make a charitable donation helping defray costs of a campaign to help improve education. The same for Siegelman, aside from the motorcycle -- which was small potatoes even by Alabama standards and certainly the more so compared to the legalized corruption that is rarely investigated even when it might involve tens or hundreds of millions of improper transactions. 

Richard Scrushy: Sentenced But Not Silenced

Many whistleblowers and other critics have documented irregularities of the federal Siegelman-Scrushy prosecution.

In 2008, CBS “60 Minutes” presented Republican lawyer Dana Jill Simpson, shown below left. She said Scrushy, a Republican, was a fall guy targeted in a political plot to end the career of Siegelman, Alabama’s state’s most popular Democrat.

Jill Simpson

Richard Scrushy, having finished his sentence, is now the president/CEO of the consulting company 7venth Power and last year published, When Building A Billion Dollar Company” – Here Are A Few Things To Think About. As indicated by his company website and book, his focus remains on business and positive motivational stories.

These are drawn from his life story of entrepreneurial efforts arising from his modest origins. He was born in 1952 to working parents in Selma, Alabama, one of the birthplaces of the 1960s civil rights movement.

However, Scrushy has generously revisited on request the nightmare of his federal prosecution and imprisonment, which inflicted collateral damage not simply on the co-defendants (some of whom were acquitted) but also upon many families, including those of whistle blowers who stepped forward only to be crushed by government reprisal taking several forms.

In 2009, for example, the Obama Justice Department fired Tamarah Grimes, its top paralegal working on the Siegelman-Scrushy case after she complained of irregularities on the case.

Scrushy, as reported by Roger Shuler and Peter B. Collins in Feds Promised To Release Scrushy From Prosecution If He Provided False Testimony Against Siegelman, claimed that he turned down plea offers that would have won him leniency if he perjured himself.

The still-imprisoned former Jefferson County Commissioner Gary White, another Republican, separately has asserted the same thing. He is serving a 10-year sentence. His wife, Judy White, has often often written about oppressive actions by Bureau of Prisons personnel that she believes constitute extra-legal punishment for her husband's failure to perjure himself to help authorities. 

Under the Bush and Obama administrations, the Justice Department has denied irregularities and vigorously fought all defendant appeals. President Obama’s first Solicitor General Elena Kagan, now a Supreme Court justice, signed briefs in 2009 opposing one major appeal.

The two administrations used as a smokescreen an internal investigation led by Connecticut prosecutor Nora Dannehy to review claims of political prosecutions regarding the U.S. attorney firing scandal in 2007. But neither she nor congressional investigators ever examined in depth allegations regarding the Siegelman-Scrushy case. For example, Dannehy failed to examine key personnel under oath so far as publicly known before delivering a whitewash report in 2010 focusing almost entirely on the federal system's New Mexico office, as we reported for Harvard's Neiman Watchdog. In addition, the government has withheld many records normally made available to defendants.

The reasons for the cover-up are the topic of continuing investigation by the Justice Integrity Project and others.

Siegelman's Christmas Message To Supporters

In the spirit of the season, we close with Siegelman's latest attempt to draw positives from the situation in two messages to his supporters, distributed the past two days on the "Free Don Facebook" site.

First, he was able to get a message to a supporter Dec. 27 as follows for posting, with his friend Charlie Cloud included:

Belated Christmas

My first day of “freedom’ after having spent 57 days in “THE HOLE” or Solitary Confinement or as the Federal Bureau of Prisons terms it, in its “Special” Housing Unit (The SHU, pronounced shoe), no matter how one says it, it is the way death row inmates spend their time. It’s the worst of the worst.

Enough! I have received inspirational holiday messages -- here are some I’d like to share:

  • “Sending good thoughts and light to you. Elizabeth”
  • “I believe God only gives His most trusted children the biggest jobs…He must trust you a lot, In Light and Peace, Candace”
  • “Please take comfort in knowing that you have touched my soul in a place which both hurts and rejoices. Marilyn”
  • “You’re fighting the good fight. We have your back, Dakota”
  • “One day we’ll take back the Country for Liberty – AND the Rule of Law! Brian”
  • A belated though heartfelt wish for my friends and family to have a joyful and spirit-filled Holiday Season and the best for love, peace and new Light in the New Year

The struggle for freedom and justice continues – Thank you so much for all each of you have done for me!

– Don

‪Then, on Monday, Dec. 28, supporter Sharron Williams from Birmingham, Alabama wrote on the Facebook site:

Gov. Siegelman is grateful for all the comments to his 'Belated Christmas' message." He asked to let you all know that he would be EVER SO GRATEFUL if you would all contact the White House, call, email, write asking the President to FREE DON SIEGELMAN.

All contact to the White House counts. And at the end of yet another year without President Obama doing right by Gov. Siegelman, let's all contact him again this week and let him know we know he can pardon Don Siegelman anytime...anytime...and he must do it now.

Contact details [from https://www.whitehouse.gov/contact/write-or-call]

Call the President: Comments: 202-456-1111; Switchboard: 202-456-1414

  
 
 
 
 
Contact the author This email address is being protected from spambots. You need JavaScript enabled to view it.
 
 

Recent Alabama News Commentaries On Siegelman Case, Pardon

(Materials in chronological order)

Washington Post, As McDonnell awaits Supreme Court, another governor watches from prison, Robert Barnes, April 25, 2016. Along with the state officials and law professors who are happy that the Supreme Court this week is reviewing the corruption conviction of former Virginia governor Robert F. McDonnell, add inmate No. 24775-001 at the federal prison in Oakdale, La.

He is otherwise known as Don E. Siegelman, the former governor of Alabama, whom many of those same people supported when the justices decided — twice — that his conviction did not warrant an extended review.

“I’m not the slightest bit bitter about that at all,” Siegelman said last week in a telephone interview from prison. “I’m delighted that the court has taken the McDonnell case, and I’m hopeful the court will clarify what constitutes political quid pro quo bribery.”

Bob McDonnell and Maureen McDonnell flickrMost convicted politicians who ask the Supreme Court for relief — former Illinois governor Rod Blagojevich and former congressman William Jefferson of Louisiana being just recent examples — meet fates similar to Siegelman’s.

While the Supreme Court never accepted Siegelman’s case for full briefing, McDonnell (shown in a file photo with his wife and co-defendant Maureen) grabbed the brass ring twice.

Not only is the court reviewing his 2014 conviction in its last oral argument of the term Wednesday, but the justices intervened at the final hour last fall to keep McDonnell from having to report to prison while the legal drama played out. That was something the court had never done before, Solicitor General Donald B. Verrilli Jr. told the justices before they acted.

But McDonnell and his supporters said the circumstances of his conviction — he, his wife and family received $177,000 in luxury items, vacations and loans from businessman Jonnie R. Williams Sr., although there was no direct evidence McDonnell ordered state officials to take actions that Williams wanted — demanded high-court review.

Montgomery Advertiser, End the Embarrassment and Pardon Don Siegelman, Josh Moon, Dec. 16, 2015. It doesn’t matter why Don Siegelman is in solitary confinement at a Louisiana federal prison. It doesn’t Don Siegelmanmatter because Don Siegelman shouldn’t be in prison at all. Why this absolute travesty has been allowed to continue – and make no mistake, it is both Democrats and Republicans who have allowed it – is a mystery to me and to a number of attorneys and legal scholars from across the country. It is an embarrassment to the justice system. It is an embarrassment to the state. And it should be an embarrassment to every citizen. See also, Al.com, Here's why President Obama should pardon Don Siegelman, John Farmer, Dec. 24, 2014.

Greene County Democrat (Alabama), Obama vows to defeat ISIS, grants 95 pardons and 2 commutations; Don Siegelman not on the list, Wire and staff reports, Dec. 22, 2015. At what is likely to be President Obama's last news conference of the year before leaving for a family Christmas vacation, he announced plans to grant Christmastime clemency to 95 federal prisoners Friday, trimming their sentences under what USA Today reported as “an initiative to free prisoners sentenced under mandatory minimum prison terms. He also issued pardons to two others.”

Former Alabama Governor Don Siegelman, who is serving a seven-year sentence in an Oakdale, Louisiana Federal prison for questionable charges of corruption brought by Republican prosecutors, was not on the list of those pardoned. Hundreds of Alabama citizens have written and petitioned President Obama for Siegelman’s early release, but so far to no avail.

It was the largest single-day grant of clemency of Obama’s presidency. He has now commuted the prison sentences of 184 people, more than any president since Lyndon Johnson (226) and surpassing the combined number granted by presidents Carter, Reagan, George H.W. Bush, Clinton, and George W. Bush (117). Most of the commutations to shorter sentences dealt with drug offenses, but also included 15 gun crimes — usually while committing a drug offense — and one armed bank robbery. The two pardons involved counterfeiting and bank fraud. Friday’s list included 40 people serving life sentences. Most will be released in April.

Montgomery Advertiser, Siegelman column riddled with 'inaccuracies,' Stephen Feaga, Dec. 24, 2015. As a lead prosecutor in United States v. Don Siegelman I took some interest in the recent opinion piece penned by Montgomery Advertiser columnist Josh Moon, "End the embarrassment and pardon Don Siegelman." Mr. Moon is entitled to his opinion, but almost every “fact” he cites in the Dec. 16 column as a basis for his opinion is incorrect. From past experience, I know the Advertiser values its reputation for publishing facts. Mr. Moon’s column contained so many inaccuracies that I can’t address them all in a letter to the editor. But I will point to just a few.

Legal Schnauzer, Prosecutor Steve Feaga reportedly once pushed for false testimony in the Siegelman case, and now he tries to convince public that convictions were legitimate, Roger Shuler (shown in family photo), Dec. 28, 2015.
Roger ShulerA lead prosecutor in the Don Siegelman trial, who reportedly pushed for false or coerced testimony behind the scenes during the investigation, now is perpetuating falsehoods about the case in a public forum. Stephen Feaga, a former federal prosecutor who now is listed by the Alabama State Bar as working for the Alabama Securities Commission, made a number of dubious statements in an op-ed piece for the Montgomery Advertiser, dated December 24, 2015, and titled "Siegelman column riddled with inaccuracies." Feaga was responding to a December 18 Josh Moon piece titled "End the embarrassment and pardon Don Siegelman."

It's little wonder the Moon piece caused consternation for Feaga. Moon might be the first mainstream Alabama journalist to look critically at the prosecution's handling of the Siegelman case. Moon might be the first member of the state's MSM (mainstream media) to question the prosecution's version of the facts -- and Judge Mark Fuller's application of the law. Moon probably is the first Alabama MSMer to flatly state that Siegelman -- and by extension, codefendant Richard Scrushy -- were guilty of no crimes. Moon's column starts with forceful directness and never lets up; this is one columnist who is not into pulling punches.

Why would Jose Moon reject the story Steve Feaga has been selling for almost a decade? There are plenty of reasons, but this might be the most important: In a letter to Attorney General Eric Holder, Montgomery-based Justice Department whistleblower Tamarah Grimes outlined egregious misconduct by key members of the prosecution team - -including U.S. Attorney Leura Canary, Acting U.S. Attorney Louis Franklin, and Feaga. From the Grimes letter to Holder: "Mr. Feaga instructed the investigators how to approach the cooperating witnesses on a particular subject and specified what he needed the witness to say in order to support his prosecutorial theory."

The process became so absurd -- and so blatantly unlawful -- that some members of the prosecution could only joke about it. Writes Grimes: "I recall one of the investigators, FBI agent Keith Baker, commented on the conduct by saying, "There is truth, there are facts, and then there are "Feaga facts."

With his December 24 op-ed piece in the Montgomery Advertiser, we know that Steve Feaga still is pushing "Feaga facts." Instead of trying to shove "Feaga facts" down the throats of investigators who reported to him, Feaga now is pushing them on the public.

Should the public buy it? Absolutely not. And we will show you why in an upcoming post.

AP via WFSA-TV, High court won't hear appeal from former Alabama governor, Staff report, Jan. 11, 2016. The Supreme Court won't hear an appeal from former Alabama Gov. Don Siegelman over his prison sentence for bribery and obstruction of justice. The justices had no comment Monday on their order letting stand a lower court ruling that rejected his request for a new sentencing hearing. Siegelman argued that a judge wrongly factored in accusations that the jury didn't convict him of when handing down a 6½ year prison sentence. He was convicted in an influence-peddling scheme with HealthSouth Corp. founder and former CEO Richard Scrushy, who already has finished his sentence. The 11th US Circuit Court of Appeals upheld Siegelman's sentence, which included an enhancement for "systematic and pervasive corruption." Siegelman is projected to get out of prison in 2017.

WSFA-TV (Birmingham), President rejects Siegelman pardon request, Jan. 18, 2017. The attorneys for former Alabama Governor Don Siegelman say his application for a pardon has been denied by President Barack Obama. Siegelman was sentenced to more than six years in prison following his corruption conviction. After initial time spent in a federal facility, the 11th U.S. Circuit Court of Appeals approved his release from prison in 2008 pending his appeal of the conviction. He was returned to finish his sentence in September 2012 as his appeal options dwindled.

Siegelman's attorneys shared the letter from the White House with us. Read it below:

The application for pardon of your client, Mr. Don Eugene Siegelman, was carefully considered in this Department and the White House, and the decision was reached that favorable action is not warranted. Your client’s application was therefore denied by the President on January 18, 2017.  Please advise your client accordingly.

Under the Constitution, there is no appeal from this decision. As a matter of well-established policy, we do not disclose the reasons for the decision in a pardon matter. In addition, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act. If your client wishes to reapply for pardon, your client will become eligible to do so five years after the date of the release of the petitioner from confinement. Generally, a pardon petition should not be submitted by a person who is currently incarcerated, on probation, parole, or supervised release.

However, you may submit a petition for commutation of sentence any time after one year from the date of the President’s denial of the most recent request. To reapply for a pardon or commutation, a person must complete and submit a new application form that contains current information in response to all questions. Resubmitting the prior application form that was previously denied is not an acceptable form of reapplication.

In a court case in which the Office of the Pardon Attorney (OPA) defended its long-standing practice of declining to release lists of names of persons whose clemency applications have been denied, the federal courts of the District of Columbia rejected OPA’s arguments and ruled that lists of the names of persons who have been denied executive clemency by the President are not protected from public disclosure under the Freedom of Information Act (FOIA). See Lardner v. Department of Justice, 638 F.Supp.2d 14 (D.D.C. 2009), affirmed, Lardner v. United States Department of Justice, No. 09-5337, 2010 WL 4366062 (D.C. Cir. Oct. 28, 2010) (unpublished). Accordingly, your client should be aware that as a result of the Lardner decision, OPA now is obliged to release existing lists of the names of persons who have been denied executive clemency by the President to anyone who requests such records pursuant to the FOIA.

President Obama's 2015 Pardons and Sentence Commutations

(Materials in reverse chronological order)

Washington Spectator, The Case for a Presidential Pardon for Don Siegelman, Scott Horton, March 8, 2016. If Siegelman’s guilty, then so, too, are most of the politicians in Washington. President Barack Obama has promised one of the most sweeping criminal justice reforms in recent years and has built a strong bipartisan coalition to support it. However, while the Constitution gives him the direct authority to immediately reverse glaring injustices — through the use of the power of pardon and clemency — Obama has been extraordinarily cautious about acting.

One case among the thousands now before Obama cries out for consideration. That is the 2006 conviction of Alabama Governor Don E. Siegelman on corruption charges stemming from his acceptance of a $500,000 donation as he sought to pass a state lottery to fund public education. The donation was made by a health care executive, whom Siegelman reappointed to an uncompensated state hospital oversight board. As more than 100 of the nation’s current and former attorneys general have pointed out, this prosecution was extraordinary. If such conduct is corrupt, then there is hardly a senior political figure in the country who could escape prison — including Presidents George W. Bush and Barack Obama, who both gave dozens of diplomatic and other government appointments to individuals who contributed or aggregated six- or seven-figure sums to their own campaigns.

In fact, Siegelman’s Republican successor proceeded to appoint one of his major campaign donors to the same hospital oversight board. This case bares all the hallmarks of politically motivated prosecution. After Siegelman’s conviction, a series of newspaper and broadcast exposés established that he had been the victim of a political vendetta orchestrated by Texas-based consultant Karl Rove and a number of senior Alabama Republicans. CBS’s “60 Minutes” got wind of the case and provided coverage on the essentially undisputed political shenanigans behind the case. Newspapers around the country called for Siegelman’s release.

Then the story got even stranger. The judge who handled it, and whose bias against Siegelman was apparent to most observers but was hastily covered up by his colleagues in black robes, has since been forced to resign in disgrace.

The rank injustice of this case screams out for direct action by the White House, and for bypassing the Justice Department, whose conflict of interest make it an unreliable adviser to the president in such circumstances.

 

President Obama and Loretta Lynch April 27, 2015

President Obama and meets Loretta Lynch, nominee for Attorney General, on April 27, 2015 (White House photo)

U.S. Department of Justice, Pardons Granted by President Barack Obama (2009-2015).

The New Yorker, It’s Time for Obama to Go Big on Pardons, Jeffrey Toobin, Dec. 22, 2015. President Obama has made modest actions to reform mass incarceration, but he could be using his Presidential pardon power more aggressively. The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons. The President is a consummate rationalist, a believer in systems and order. Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy—three words that seem almost guaranteed to offend this President, singularly or especially aligned together.

But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.) Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons. In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents. (George W. Bush granted a hundred and eighty-nine pardons, and eleven commutations; for Bill Clinton, the numbers were three hundred and ninety-six pardons and sixty-one commutations.) Obama is moving in the right direction, but he has a long way to go. There are roughly two hundred thousand people in federal prison in the United States. Do they all belong there? Should only a few dozen have their sentences shortened?

Those questions answer themselves, as Obama himself knows. He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that. Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered. The President can pardon everyone, and anyone, he chooses.

Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale. One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made. In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation—and sunshine. Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons. In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison. All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)

This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection. Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace. If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.

Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far. Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule—that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible.

It’s true that a President alone can’t end mass incarceration. There are roughly 1.4 million people in state prisons and seven hundred thousand in local jails, and Obama lacks the power to free them by executive action. But just because he can’t do everything does not that mean he has to do nothing. A President can always lead by example—and so can a governor, as New York Governor Andrew Cuomo did this week. He announced a bold plan to erase the criminal records of juvenile offenders who were convicted of nonviolent felonies or misdemeanors when they were sixteen or seventeen and have spent at least ten years since without any additional convictions. Cuomo’s action could affect the lives of as many as ten thousand people, who may, for example, have had a harder time finding jobs because of their criminal records.

Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes. He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons. These are worthy, modest goals. But the pardon power, with its roots in the monarchy, allows a President to go big – and that’s exactly how Obama should go.

New York Times, In ‘Fairness,’ Obama Commutes Sentences for 95, Mostly Drug Offenders, Julie Hirschfeld Davis and Peter Baker, Dec. 18, 2015.

USA Today, Obama grants 95 Christmastime pardons and commutations, Gregory Korte, Dec. 19, 2015. President Obama's decision to shorten the sentences of 95 federal prisoners Friday continued a continuing trend toward Christmastime clemency that's being criticized as part of "a broken process." Obama said the clemency grants — the largest single-day use of his pardon power in his presidency to date — "another step forward in upholding our fundamental ideals of justice and fairness." He also gave complete pardons to two people involved in counterfeiting and bank fraud, the White House announced.

Most of the commutations to shorter sentences dealt with drug offenders given long mandatory minimum sentences, but also included 15 gun crimes — usually while committing a drug offense — and one armed bank robbery.

Obama has now commuted the prison sentences of 184 people, more than any president since Lyndon Johnson (226) and surpassing the combined number granted by presidents Carter, Reagan, George H.W. Bush, Clinton and George W. Bush (117).

Legal scholars who study clemency say the regular use of the pardon power is a healthy check and balance to long and expensive prison sentences. But they question why so many of Obama's grants have come in the weeks before Christmas.

MSNBC, Up w/ Chris Hayes, The President's chance to offer mercy: Don Siegelman and Clarence Aaron Cases, Chris Hayes, Dec. 22, 2012 (Video).

 

Presidential Clemency System 'Broken,' Experts Say: Justice Integrity Project Column December 11, 2012

Justice Integrity Project, Presidential Clemency System Broken, Experts Say, Andrew Kreig, Dec. 11, 2012. The system of presidential clemency practiced for nearly two centuries no longer functions in practice in the federal system and in most states. The system of presidential clemency practiced for nearly two centuries no longer functions in practice in the federal system and in most states. That is the dire conclusion of a bipartisan, expert panel convened Dec. 10 by the Heritage Foundation in Washington, DC.

"President Obama has found only one prisoner worthy of release" in the first four years of his administration said longtime law professor Albert Alschuler, left. He presented statistics showing that previous presidents used their Constitution-based commutation powers far more often until recent years.

Alschuler, a colleague of Obama when the future president was a senior lecturer at the University of Chicago Law School in the 1990s, said the president has denied 3,793 requests for reduction of sentence (a total recalculated shortly after his remarks). The sole grant, the professor said, was to a mother serving a long term on drug charges and suffering from a terminal disease. "Congressional action in 1984," he continued, "left the U.S. for the first time in its history with no functioning mechanism for the release of prisoners prior to the expiration of their sentences."

Concurring with him on the scope of the problem were former Obama White House Counsel Gregory Craig, Republican former Maryland Gov. Robert Erhlich, right, and former Justice Department Pardon Attorney Margaret Love, who held the post from 1990 to 1997 with overall responsibility for managing the department's clemency program.

The Heritage program was moderated by Paul Rosenzweig, a Heritage visiting fellow who has served in important congressional and Department of Homeland Security legal posts, and who authored a recent study of the historical roots of clemency powers. The  panel provided a thorough overview of government disfunction that now fosters wasted taxpayer dollars and ruined lives. The Heritage website provides a 75-minute video of the session.

Craig, below left, said, "Everyone who looks at this must agree that the system is badly broken." Craig was White House counsel for a year beginning in 2009. He said, "There is no political constituency for reform. So people must do it for all the right reasons." He is a prominent litigator at Skadden Arps, who recently has been advising the family of Siegelman, whom he has known for more than three decades.

Erhlich, Maryland's governor from 2003 to 2007 and the first Republican to hold the post in 36 years, described clemency as a civic responsibility that brings heavy criticism because of the popular view that convicts must be punished harshly and relentlessly.

Nonetheless, Erhlich said he assigned his office's five counsel to spend half of their time on reviewing applications. He said a governor must exercise the oversight traditional in state and federal systems. Erhlich, currently practicing at the prominent firm King and Spaulding, said his commitment arose out of his experience in the law and marriage to a lawyer who has been both a public defender and prosecutor.

Love practices law in Washington, D.C., specializing in executive clemency and restoration of rights, and sentencing and corrections policy. She is active in bar groups in the field. She said Erhlich was virtually the only recent chief elected official in the official in the nation "to take his responsibilities seriously" for clemency, aside from the president portrayed in the televised series, "West Wing."

Alschuler, now retired and living in Maine, provided a primer on the different categories of clemency and implementation in the federal system. He had been my professor in criminal procedure at Chicago, and so it felt familiar to me to take notes struggling to keep up on his content-rich analysis:

He corrected a common misunderstanding: that a "pardon" can be sought by a prisoner to reduce a sentence being served. Under Justice Department rules, a pardon is available to a prisoner only after completion of a sentence and five years of blameless living afterward. In a few high-profile political cases, pardons have been used to prevent prosecution, he explained. One example was President Ford's pardon for former President Nixon for Watergate crimes in advance of any indictment.

The main avenue for post-sentence adjustments has traditionally been a federal parole system. But Congress abolished this system two decades ago as a part of a get-tough policy. Also, Congress imposed a system of mandatory minimum terms that remove much of the discretion federal judges previously held to rectify any prosecutorial judgments.

Thus, the Justice Department's recommendations to the president for commutation of sentence is virtually the only avenue of relief for those in vast federal prison population. The Justice Integrity Project has extensively covered a petition drive to obtain such relief for former Alabama Gov. Don Siegelman, who resumed a seven-year sentence on corruption charges in September. 

Alschuler's statistics indicated that presidents acted favorably on 49 percent of clemency petitions approved by the Justice Department between 1860 and 1900. But the number dwindled after the Carter administration to just 12 percent during the Reagan-era. Clinton approved just 9 percent, President George W. Bush 1.7 percent, and President Obama less than half of one percent.

Craig said that it's now "a fraud on the public to say there is a system of clemency" because the petitions are such a low priority. He said common sense suggests that there must be more than one federal prisoner who deserve a sentence reduction. There are out of some 219,000 behind bars.

Rosenzweig provided statistics in his introduction about the larger universe of defendants, including those who received post-sentence pardons: "While President Obama has, at least so far, granted clemency only 22 times, other presidents, both Democrat and Republican, have been far more generous. President George W. Bush, for example, pardoned, commuted or rescinded the convictions of 200 people, and President Bill Clinton did the same for 459 people. President Jimmy Carter granted clemency 566 times during his one term in office, although that is far from the record, a distinction which belongs to President Franklin Roosevelt who granted clemency 3,687 times. The Christmas season, a traditional time for presidential forgiveness, is a good time to re-examine how well the clemency process is working."

For reform, panelists suggested that a bipartisan, "blue-ribbon" panel be appointed to take the process out of the current partisan environment whereby chief executives are frightened to use the power for fear of criticism. Craig suggested that recommendations come  from an independent government body whose leader has cabinet status. "It's a conflict," he said, "to put it [clemency] in the Justice Department, where the whole function is to put people in jail, not to get them out."

Love, with two decades at the department, disagreed. She said the function could remain within the department if other reforms are undertaken. Rosenzweig underscored the bipartisan philosophy that all the experts agreed necessary for reform. He said conservative philosophy, like liberal philosophy, promotes the concepts of justice and mercy. 

Heritage Foundation Video Presentation: Clemency: Old Problems and New Solutions

Heritage Foundation, Clemency: Old Problems and New Solutions, Albert Alschuler, Gregory Craig, Robert "Bob" Ehrlich, Jr., Margaret Love, Dec. 10, 2012 (video, 1 hour). Albert Alschuler, Julius Kreeger Professor Emeritus of Law and Criminology, University of Chicago; Gregory Craig, Former White House Counsel for President Barack Obama and Special Counsel for President Bill Clinton; The Honorable Robert "Bob" Ehrlich, Jr. 60th Governor of Maryland and Senior Counsel, King & Spalding LLP; Margaret Love, Former U.S. Pardon Attorney; Member, NACDL Task Force on Restoration of Rights and Status; and Paul Rosenzweig, Heritage Foundation (moderator). A distinguished panel of bipartisan experts explores whether and how the clemency process has deviated from its proper, traditional function. Panelists consider how to make pardons, as Chief Justice John Marshall said, “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” 

President Bush's 2007 Pardon Of White House Aide Lewis 'Scooter' Libby

ABC News, Commutation? Clemency? Pardon? Sorting Out Legalese in Libby Case, Staff report, 2007. President Bush spared former White House aide I. Lewis "Scooter" Libby from a 30-month prison term in the CIA leak investigation, calling the sentence too harsh. The president announced his decision hours after a federal appeals panel ruled that Libby could not delay his prison term, meaning Libby was likely to have to report to jail soon. The president has broad discretion to exercise presidential power to pardon convicted felons. In this case, the president did not pardon Libby; rather, he waived his prison term. What are the president's powers and how exactly were they used in the Libby case? ABC News consulted experts to sort out the legalese.

What Are the President's Clemency Powers?

Michael Waldman, executive director of the Brennan Center for Justice at the NYU School of Law: The president has the power to commute the sentence or pardon the crime. It is not reviewable and the president doesn't have to give a reason.

Christopher Schroeder, Duke University law and public policy professor: Commutations have always been a lesser included authority under president's power to pardon. Section II of Article II of the Constitution says the president has the power to grant reprieves and pardons for offenses against the United States. It does not mention commutations specifically, but they come under the pardon power.

What Is the Difference Between Commutation and a Pardon?

Randy Barnett, Carmack Waterhouse professor of legal theory at Georgetown University Law Center: Pardon is an "executive forgiveness of crime"; commutation is an "executive lowering of the penalty."

Waldman: A "pardon wipes out the conviction while a commutation leaves the conviction intact but wipes out the punishment."

Barnett: Commutation is a form of clemency, used often by governors. A famous example is Illinois Gov. Ryan commuting the death sentences of everyone on death row. By commuting the sentence, Bush was saying, "The crime wasn't forgiven, but the penalty has been reduced." In other words, Bush is saying the "punishment here does not fit the crime." On the other hand, a pardon is granted for a number of reasons: because the punishment doesn't fit the crime, the person is innocent or the prosecutors abused their discretion.

Schroeder: A pardon would have exonerated [Libby] from the crime and all its disabilities. Under a pardon he would have been able to practice law.

Beth Nolan, former Clinton White House counsel: The president's pardon power is either to pardon or commute. To commute he's saying, "I'm not pardoning the crime."

What Does It Mean for the Judicial System?

Berman: It's outrageous that Bush mentions the harm to his family when his own Justice Department goes into federal court every day and tells judges to disregard those kind of family considerations when deciding what kinds of sentences to impose. Will defendants in federal courts be able to use Bush's statement of reason for commuting Libby's sentence to bolster their own arguments for a less offense? In the last few years the Bush administration has continued this "let's stay tough on crime" and now today we have the president deciding that the standards are too tough for his friend. Only his friends get the benefit.

Margaret Love: Justice Department pardon attorney, 1990-1997; now in private practice: To a large extent the meaning of this has to be drawn from the president's intent. Ordinarily there aren't many reasons given. You have to take Bush at his word. This statement does say implicitly that [Libby] will lose his license. But it depends on the court rules in the jurisdiction where he holds his law license. If this means he will start pardoning people more generally then it is good news. I feel like he should use pardons more liberally. He is on track to becoming the most parsimonious president in history regarding pardons.

What Libby Had to Say about Pardons

In 2001, when Congress was looking into the controversy over former President Clinton's pardon of financier Marc Rich, Libby testified about it in front of Congress. He had served as a lawyer for Rich but had recused himself of anything regarding Rich's pardon. He said:

Sir, I never studied the pardon power, never looked at cases referring to the pardon power. I'm not a student of how it has actually been employed. My general position would be that the Constitution leaves the power of the pardon unfettered, virtually unfettered by the president, and I would be loath to sit here and second-guess the Founding Fathers.

 

Related News Coverage of the Siegelman/Scrushy Case

 

Background


Who's Who? Chart Prepared by Siegelman Supporters

Siegelman Case Relationship Chart

Selected Justice Integrity Project Coverage

(Materials in reverse chronological order)

Justice Integrity Project, Businessman, Siegelman Co-Defendant, DOJ Victim Richard Scrushy To Provide Litigation Lessons In DC July 29, Andrew Kreig, July 24, 2015. Richard Scrushy, the founder and former Richard Scrushy Book CoverCEO of HealthSouth, Inc. and co-defendant in one of the most widely condemned federal prosecutions in recent U.S. history, will share his hard-won insights July 29 on Capitol Hill and at a National Press Club dinner. Scrushy, still an entrepreneur and now also an author and motivational speaker, speaks on the opening day of the annual Whistle Blowers Summit to advise others on coping with the legal hardships that many whistleblowers must endure. Later, he talks to the National Press Club’s McClendon Group.

Along with advice, Scrushy provides his take on the long prison terms he and Siegelman have endured. They were from  corruption charges stemming from 1999 actions despite gross courtroom irregularities and unprecedented nationwide protests by legal experts. Siegelman is scheduled for release in mid-2017. Scrushy was convicted solely for what he describes as a $250,000 HealthSouth donation much like that of several other big Alabama companies. It was to defray the costs of a failed 1998 referendum to increase state funding for K-12 schools with state lottery proceeds. He says prosecutors won their case by exaggerating the donation’s size, source, destination, and purpose – and pressuring their star witness into a false testimony motivated by the serious charges he faced in another case. Scrushy received a 78-month term from federal trial judge Mark Fuller, who has since become so scandal-ridden that he resigns his lifetime post Aug. 1.

Justice Integrity Project, Siegelman Hearing Scheduled Jan. 13 As 'Solitary' Continues, Andrew Kreig, Jan. 12, 2015. A federal appeals court in Atlanta hears on Jan. 13 the latest appeal of former Alabama Gov. Don Siegelman, one of the nation’s leading political prisoners.

Justice Integrity Project, Shackled Siegelman Typifies White House ‘Human Rights’ Charade, Andrew Kreig, Dec. 29, 2014. Federal authorities continued this month their remarkably harsh, unjust treatment of the nation’s most famous political prisoner. The U.S. legal jihad against former Alabama Gov. Don Siegelman continued even as the Obama administration separately cited “human rights” as the rationale for new U.S. sanctions and other interventions overseas. Authorities shackled Siegelman during his Dec. 15 court appearance in the state capital of Montgomery, denied his request for Don Siegelmanrelease on bond during appeal, and reportedly are keeping him in solitary confinement over the holidays so far in a county jail while he awaits an appellate hearing next month.  The Obama administration’s hypocrisy is thus displayed as it continues Bush-Clinton policies of citing “human rights” abuses elsewhere around the world as an excuse to foment revolutions, covert paramilitary actions, and propaganda campaigns on multiple continents, including secret operations to influence United States voters

Justice Integrity Project, Supreme Court Denies Siegelman, Scrushy Appeals, Andrew Kreig, June 4, 2012. True to recent form, the U.S. Supreme Court denied relief June 4 to former Alabama Gov. Don Siegelman on corruption charges. This sets the stage for Siegelman's reimprisonment in the most notorious federal political prosecution and frame-up of the decade. The court denied without comment the certiorari petition of Siegelman and co-defendant Richard Scrushy, former CEO of HealthSouth, Inc.

Justice Integrity Project, Inside Story on DoD's $35 Billion Boeing Air Force Tanker Deal, Andrew Kreig, Feb. 25, 2011. The Department of Defense Thursday announced its choice of Boeing for a $35 billion contract to build the Air Force’s next generation of mid-air refueling tankers. Boeing’s selection, subject to any challenge by the losing bidder EADS, could end a decade-long, scandal-ridden process that became one of the controversial and important in modern U.S. procurement history. The Justice Integrity Project has tracked the proceeding closely for a year and a half after learning from reliable sources details about industrial espionage and skullduggery in the contract battle. This went far beyond even the scandals showcased in Senate oversight hearings led by Sen. John McCain (R-AZ). Those scandals sent a Boeing executive and former Air Force procurement officer to prison on bribery charges and led to DoD revocation in 2005 of the initial award to Boeing.

Justice Integrity Project, Supreme Court Denies Siegelman, Scrushy Appeals, Andrew Kreig, June 4, 2012. True to recent form, the U.S. Supreme Court denied relief June 4 to former Alabama Gov. Don Siegelman on corruption charges. This sets the stage for Siegelman's reimprisonment in the most notorious federal political prosecution and frame-up of the decade. The court denied without comment the certiorari petition of Siegelman and co-defendant Richard Scrushy, former CEO of HealthSouth, Inc. In 2007, U.S. District Judge Mark Fuller sentenced them to seven-year prison terms on multiple charges from Siegelman's solicitation of donations from Scrushy in 1999 for the non-profit Alabama Education Foundation. Siegelman supported the foundation's initiatives to increase school funding with a state lottery over the opposition of a Republican-orchestrated coalition.

 

Eric HolderJustice Integrity Project, Media Helped Eric Holder Polish His Image...."Bloody Sunday" Selma March Next Month Provides Another Stage, Andrew Kreig, Feb. 21, 2015. The media fail to report rampant abuses at the U.S. Justice Department:  An overview of how a craven and compromised Big Media protect a Puppet President, his team, and the masters they all serve. Attorney Gen. Eric Holder polished his legacy Feb. 17 with a National Press Club speech that illustrated the sharp limits of political accountability and media curiosity in the nation’s capital. Holder (shown in an official photo) received for the most part the standard deferential treatment accorded to high officials. Moderators screened audience questions, as commonly the case, thereby keeping discussion focused within comfortable parameters.

Justice Integrity Project, Court Ruling Against Siegelman Compels New Strategies, Andrew Kreig, May 24, 2015. A federal appeals court last week rejected former Alabama Gov. Don Siegelman’s latest appeal, thus inflicting a devastating defeat upon those who seek a rule of law in the United States. The misguided but unanimous ruling by three Atlanta-based judges requires new and more aggressive political priorities by justice seekers nationwide who have long been appalled by one of America’s worst human rights abuses.

We need to recognize more publicly that the vaunted U.S. system can inflict injustice repeatedly with utter ruthlessness and impunity in selective political prosecutions and cover-ups. The naïve believe that such judicial and prosecutorial misconduct occurs only overseas or in isolated and corrupt U.S. localities. Instead, certain prosecutions authorized at top federal levels are designed to ruin political enemies like Siegelman — his state’s most prominent Democrat during his 1999 to 2003 term and in the years shortly thereafter — and/or to protect the reputations of important institutions, as in the cover-up that has thwarted him and many other victims around the nation. 

Justice Integrity Project, Wife-Beating Siegelman Judge Resigns, Ends Horrid Career With Civic Lesson, Andrew Kreig. June 4, 2015.  A notorious federal judge has resigned under the threat of impeachment — and thus provided a harsh but useful lesson for civic activists everywhere. According to a federal court order June 1, fellow judges within the Atlanta-based Eleventh U.S. Circuit Court of Appeals recommended to the national Judicial Council that Alabama U.S. District Judge Mark E. Fuller be impeached as a first step for removal from his lifetime appointment. Fuller, a federal judge since 2002, announced through his attorneys his resignation effective Aug. 1. The resignation provides important civic lessons in the career of a judge whose disgraceful conduct we have been documenting for six years. But the system has protected him until an Atlanta policeman arrested him last August in Atlanta on a misdemeanor charge of battery against his then-wife, Kelli Gregg Fuller. He is shown in a jail mugshot the morning of his arrest. A close study here and elsewhere of Fuller’s record has shown that his legally dubious decision-making has:

•    Benefited his political allies and other cronies;
•    Inflicted great suffering on political and personal targets appearing in his court;
•    Become involved in repeated personal scandals; and
•    Received until now minimal correction from timid oversight systems in the courts, Executive Branch and congress.

Justice Integrity Project, Part I: Senate Must Grill Tainted Alabama DOJ Nominee, Andrew Kreig, April 5, 2011. Part I of a four-part series on the Obama administration's nominee George Beck to become U.S. Attorney for the Middle District of Alabama, succeeding Leura Canary.

Grimes Huffington Post, As Rove Testifies About Firings At Justice, Why Did DoJ Fire Whistleblower? July 8, 2009. New questions are surfacing about political intrigue at the U.S. Justice Department after former White House political strategist Karl Rove provided his long-awaited responses to House Judiciary Committee staff Tuesday about allegations that he pressured prosecutors to target Democrats nationally. Few details have emerged about Rove's questioning on such topics as the 2006 dismissal of nine U.S. attorneys for political reasons. By remarkable coincidence, however, the Justice Department separately confirmed Tuesday that it has fired Alabama whistleblower Tamarah Grimes.

She was the top in-house paralegal for the prosecution team that won corruption convictions in 2006 against former Alabama Gov. Don Siegelman, a Democrat, and HealthSouth CEO Richard Scrushy. Grimes later provided her Justice Department superiors and Congress with evidence that the rights of the defendants were violated. Siegelman and Scrushy cited her revelations heavily in their motions since June 26 for a new trial based on new evidence.

In an interview today for this article, Grimes alleged a bone-chilling conspiracy to frame the defendants for political gain. She says her experiences opened her eyes to parallels outside Alabama and to the ruinous consequences for federal government employees of protesting injustice. "No one helps you," says Grimes, who adds that she was browbeaten with threats of false criminal charges by her superiors and investigators alike. She says Congress needs to enhance protections for whistleblowers to prevent wrongdoing by government officials. Justice Department spokesman Tracy Schmaler responded, "The Department takes seriously its obligation under the whistleblower law, and did not violate it with regards to the termination of this employee. For privacy reasons, it would be inappropriate to comment any further on this personnel matter at this time."

C-SPAN, Prosecutorial Misconduct Forum At National Press Club, June 26, 2009 (3 hours, 4 minutes).

Huffington Post, Siegelman's First Trial Judge Blasts U.S. Prosecutors, Seeks Probe of 'Unfounded' Charges, May 21, 2009, Andrew Kreig, One of the most experienced federal judges in recent Alabama history is denouncing the U.S. Justice Department prosecution of former Alabama Gov. Don Siegelman. Retired Chief U.S. District Judge U.W. Clemon of Birmingham calls for a probe of misconduct by federal prosecutors ─ including their alleged "judge-shopping," jury-pool "poisoning" and "unfounded" criminal charges in an effort to imprison Siegelman.

Mark Fuller Phil FlemingThe rarely photographed U.S. District Judge Mark E. Fuller of Montgomery is shown at left in chambers in a portrait by freelancer Phil Fleming, used here with permission. The photo was minutes after the Siegelman-Scrushy jury verdict in June 2006. The convictions followed a nearly hung jury in what was a second trial for each defendant. Fleming told the Justice Integrity Project that he suggested to the judge that he "cut the Cheshire cat look" because looking too happy after a conviction seemed undignified for a portrait.

Huffington Post, Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company, Andrew Kreig, May 15, 2009. The Alabama federal judge who presided over the 2006 corruption trial of the state's former governor holds a grudge against the defendant for helping to expose the judge's own alleged corruption six years ago. Former Gov. Don Siegelman therefore deserves a new trial with an unbiased judge ─ not one whose privately owned company, Doss Aviation, has been enriched by the Bush administration's award of $300 million in contracts since 2006, making the judge millions in non-judicial income. These are the opinions of Missouri attorney Paul B. Weeks, who is speaking out publicly for the first time since his effort in 2003 to obtain the impeachment of U.S. District Judge Mark E. Fuller of Montgomery on Doss Aviation-related allegations.  

Related News Coverage

(Materials in reverse chronological order)

Legal Schnauzer, Order released today by Eleventh Circuit shows that Fuller was staring down the barrel at impeachment, Roger Shuler, June 1, 2015. A judicial panel today issued an order saying the conduct of Alabama federal judge Mark Fuller might "constitute one or more grounds for impeachment." That means Fuller was facing serious consequences when he announced his resignation last Friday, in the wake of his arrest last summer on domestic-abuse charges. U.S. Circuit Judge Gerald Tjoflat acted as chief judge in the Fuller matter. Ironically, Tjoflat also served on a three-judge panel that denied initial appeals in the Don Siegelman case. Fuller is best known for overseeing the Siegelman trial, which has come to be seen by many legal experts as perhaps the most notorious political prosecution in U.S. history. From an article by Alyson Palmer at the Atlanta-based Daily Report: When U.S. District Judge Mark Fuller of Alabama tendered his resignation on Friday, his fellow judges apparently were preparing to send his case to a national judicial body for consideration of possible impeachment by Congress.

AL.com, Federal judge Mark Fuller resigns, Edward T. Bowser and Kyle Whitmire, May 29, 2015. United States District Court Judge Mark Fuller has given his resignation to the president and will step down from the bench Aug. 1.

OpEdNews, Yes, I'm back at Oakdale Prison after 49 days of travel, Don Siegelman, Jan. 23, 2015. Former Alabama Gov. Don Siegelman, shown in prison garb, is serving a much-disputed 78-month federal Don Siegelman Oakdale sentence on corruption charges. His report follows to supporters after being kept largely in solitary confinement and travel the past 49 days. Yes, I'm back at Oakdale Prison after 49 days of travel. What might have otherwise been a seven-hour car trip to court was 49 days of travel, five buses, five vans and three airplanes, over 70 US Marshals and countless numbers of jail and prison correctional officers to shackle, handcuff, chain, "box" and lock me before and after each trip and for court.

New Yorker, Why Obama Should Pardon Don Siegelman, Jeffrey Toobin, Jan. 14, 2015. Through six years in office, President Obama has been especially stingy in granting pardons and commutations. But the power to grant clemency is an important one; it should be wielded with care, but it should be used. Our prisons are nearly full. Not everyone who is there belongs there. Don Seigelman is one person who should not be incarcerated anymore, and the President can and should make sure that he is freed. Since the midterm elections, President Barack Obama has been acting as if he feels liberated from parochial political concerns. After taking action on immigration, Cuba, and climate change, he should take on another risky, if less well-known, challenge by commuting the prison sentence of Don Siegelman, the former governor of Alabama.

New York Times, Lawyers for Don Siegelman, Ex-Governor of Alabama, Again Seek His Release From Prison, Alan Blinder, Jan. 13, 2015. For the second time in less than a month, lawyers for former Gov. Don E. Siegelman of Alabama on Tuesday took his corruption case into a federal courtroom in an attempt to speed his eventual release from prison. During arguments before the United States Court of Appeals for the 11th Circuit, a lawyer for Mr. Siegelman, Clifford M. Sloan, said allegations of misconduct by a prosecutor merited further exploration. He also said the judge who presided over the former governor’s 2006 trial had erred in applying federal sentencing guidelines. The questions raised in the appeal “go to the very heart and core of the fairness of the prosecution and imprisonment of Mr. Siegelman,” Mr. Sloan, who until recently was the Obama administration’s special envoy for the closing of the prison at Guantánamo Bay, told the three-judge panel here. But a Justice Department lawyer, John-Alex Romano, insisted that Judge Mark E. Fuller had imposed an appropriate prison sentence — 78 months — and that the United States attorney at the beginning of the inquiry, Leura Canary, had sufficiently honored her pledge to recuse herself from the case.

Anniston Star (AL), Editorial: A gross injustice in sentencing, Editorial board, Jan. 7, 2015. Robert F. McDonnell, the man who served as Virginia’s governor from 2010 until 2014, was sentenced to 24 months in federal prison Tuesday. To say McDonnell was convicted of corruption is to tell only a fraction of the story surrounding his dealings while in office. Don Siegelman, former governor of Alabama, is serving a 78-month sentence in federal prison. Siegelman was convicted of trading a $500,000 contribution to the governor’s pro-statewide lottery campaign for a seat on a state board, a position the contributor, former HealthSouth CEO Richard Scrushy, had previously held. That is essentially the reason many U.S. ambassadors/presidential contributors hold their posts. Same for how every governor fills out state boards Peter B. Collinsacross the United States. Yet, somehow Siegelman is the one serving more than seven years in prison. His term is scheduled to end in August 2017. McDonnell’s two-year sentence should conclude in February 2017, six months ahead of Siegelman’s release date. Smells like a gross injustice against Don Siegelman.

Peter B. Collins, Exclusive: Richard Scrushy Breaks Silence on His Conviction with Gov. Siegelman in Bogus Bribery Case Linked to Karl Rove, interview by Peter B. Collins (shown above right in file photo), April 4, 2013. Richard Scrushy, former HealthSouth CEO who was convicted of bribing former Alabama Governor Don Siegelman and served about 6 years in federal prison, gives some new dimensions to the sordid story we’ve covered for many years in this exclusive interview, co-anchored with Roger Shuler of Legal Schnauzer.Scrushy’s rags-to-riches story includes founding and being CEO of HealthSouth, which he built into a giant in its field. In this in-depth interview, he offers his view of the controversial case that sent him and former Democratic Governor Don Siegelman to federal prison. This is the first media interview Scrushy since being released last summer.

HuffPost Live, Richard Scrushy Breaks Silence On Siegelman Case, Alyona Minkovski, May 7, 2013. (34:52 min.) Richard Scrushy provides his first on-camera interview since serving six years in prison for allegedly Alyona Minkovskibribing Gov Don Siegelman. We'll learn why Scrushy believes Siegelman is innocent and the victim of a political prosecution motivated by Karl Rove.

Legal Schnauzer, Feds Promised To Release Scrushy From Prosecution If He Provided False Testimony Against Siegelman, Roger Shuler, April 9, 2013. Federal prosecutors offered to let Richard Scrushy out of the Don Siegelman case if he agreed to testify in a way that would "give" them the former Alabama governor. Scrushy, the former CEO of Birmingham-based HealthSouth Corporation, said prosecutors gave him several examples of testimony that would help ensure a bribery conviction against Siegelman. None of the proposed statements was truthful, Scrushy said, so he refused the offer. He wound up being convicted and was released from federal prison last July after serving a six-year sentence. Siegelman was released from custody for several years to pursue appeals, but returned to prison last September after the U.S. Supreme Court refused to hear the case.

 

 

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