The Law Is What The King Says It Is…
September 2nd, 2009
Connecting the Dots
by Glynn Wilson
After spending a good part of the day Tuesday studying the U.S. attorneys response to the motion for a new trial filed in federal court by former Alabama Governor Don Siegelman and HealthSouth founder Richard Scrushy, I re-watched The Other Boleyn Girl film on Encore last night.
As many long-time readers will remember, we spent a good bit of time and space back during the Bush years showing parallels between American democracy then and European monarchy in the days of Henry VIII as well as King George III.
So what’s the lesson for today?
There is a great and telling line in the film that should help readers understand where we are today in American law.
Elizabeth Boleyn, the mother of Mary and Ann Boleyn, is arguing with her husband Thomas about sending Ann off to exile in the French court, while offering up Mary as a mistress to King Henry. She is trying to convince her husband that the family’s rise to wealth and power by courting the king will end badly, but he is too greedy to listen.
When Thomas downplays her assertion that the head of the previous resident of their new palace is now resting on the end of a stake, he counters by saying yes, but “he committed treason.”
“What is treason,” Elizabeth asks, “but whatever the king and his lawyers say it is?”
Back in June, when Siegelman decided not to appear at the National Press Club at an event set up mainly for him, to instead head back to Birmingham and work with his attorneys on the motion for a new trial, the document that resulted from that meeting is summarized in this story: Siegelman Files Motion Asking for New Trial.
The heart of the claim is this. Siegelman’s lawyers accused the federal prosecutors of blatant misconduct, including the manipulation of testimony from key witness Nick Bailey, improper contact with jurors and failure to disclose key documents to the defense, thus denying Siegelman and Scrushy a fair trial under the Fifth and Sixth Amendments to the U.S. Constitution. The motion demands an immediate evidentiary hearing to explore improper communications between the prosecutors and the jury and between prosecutors and the judge not disclosed to the defense team.
For the average observer of these proceedings who knows anything about law and the courts, there appears to be a good bit of legal merit to these arguments. But in American politics and law now, just as in the days of European monarchy, the interpretation of the law is in the eye of whoever is in power.
In their response to the motion, prosecutors debunk the claims made by Siegelman and Scrushy based largely on deadline and legal rule technicalities, and they argue that neither Siegelman or Scrushy deserve a hearing or a new trial.
And I must say that after considering all the legal and political factors at work here, and after consulting with legal experts myself, I suspect Chief U.S. District Judge Mark E. Fuller will most likely deny the motion for a new trial and adopt much of the language from the prosecution brief — in spite of the evidence provided for prosecutor and juror misconduct by whistle-blower Tamarah Grimes, who witnessed the behavior first-hand while working as a paralegal in the office of U.S. Attorney Leura Canary.
In an e-mail response to me this week, Ms. Grimes says she had been advised that the response filed by the government “relies heavily on my alleged lack of credibility. From my perspective, this is nothing more than the latest attempt in a series failed attempts by the government to impugn my integrity, beginning with the unsuccessful attempts to prosecute me in March and May 2008,” she said. “I challenge the government to make those allegations against my integrity under oath and to provide legally admissible evidence to support its allegations. I will do the same. I am certain of what I saw and heard. I will gladly provide testimony under oath to the appropriate oversight authorities.”
In the summary to their response, the Montgomery prosecution team says the defendants “have failed to show that they are entitled to discovery because they have not supported their requests with evidentiary basis. Rather, their allegations have the sandy foundation of speculation, innuendo, factual misstatements, unsubstantiated hearsay allegations, and hunches…. In sum, defendants’ request for discovery, like their motions for a new trial, should be denied.”
Considering that Fuller was given a lifetime appointment to the federal bench as a Republican by President George W. Bush, and considering the history of his own political vendetta against Siegelman and his treatment of the defendants on the night of their sentencing in June 2007, there is little doubt that he will adopt the language in the prosecution’s brief and deny the motion for a new trial.
Why? Because he can.
If this case was political from the outset, as Siegelman has claimed all along, it is political now. The case will not be won in the courtroom, and that most likely includes the halls of the U.S. Supreme Court.
In a system of justice dependent on political appointees, there is no justice for true believers in the law. Only the power of the press and the people can change the outcome in cases like this. One of the biggest problems all along in this case has been that the press in Alabama had been on the side of Republicans, not law or justice.
Congress and the Obama administration still have a chance to make a difference here. We will be watching the ongoing investigation by the House Judiciary Committee, and to see if Attorney General Eric Holder can be persuaded to drop the charges against Siegelman and Scrushy like he did Alaska Senator Ted Stevens. We suspect the final outcome will not be known until after the U.S. Supreme Court rules on whether it will hear the appeal or not.
Sources say in the interim that Siegelman has already begun pursuing a pardon from President Barack Obama in the event all of his appeals are denied. A pardon for Siegelman, however, would leave Scrushy in prison, which hardly seems like a just outcome if indeed his donation to Sielman’s education lottery campaign was no legal quid pro quo.
As Martin Luther King, Jr. once said, “Injustice anywhere is a threat to justice everywhere.”
But as any follower of Shakespeare knows, mercy is easier to come by than justice — especially in a rigged system.
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September 2nd, 2009 at 2:07 pm
Good stuff, Glynn. The Mark Fullers of the world, of course, fly in the face of that quaint notion that we are a “nation of laws, not of men.”
Isn’t it ironic that Canary’s prosecutors attack the Siegelman/Scrushy motion on grounds of technicalities and time limits when they missed the statute of limitations themselves by almost a year in bringing the criminal case?
And they missed it, even though Doug Jones, Siegelman’s attorney at the time, convinced the former governor to agree to a tolling document that gave the feds more time to build a case they clearly didn’t have.
Would love to know what Siegelman thinks of Doug Jones’ performance in “defending” him. At the time Siegelman agreed to the tolling agreement, I wonder if he knew that Jones was involved in a lawsuit against Richard Scrushy, Siegelman’s codefendant.
It’s possible the feds were going to get Siegelman regardless, but Jones didn’t help matters any with such boneheaded strategy and apparent conflicts of interest.
September 2nd, 2009 at 2:15 pm
I just made my upmteenth phone call to the Obama White House and asked for three things. (Believe me, the list could have been a lot looooonger.)
1) Break up the monopolies, thereby supporting the little people as opposed to enabling the mega-corporations.
2) Get us out of Afghanistan.
3) Free Don Siegelman!
As I started to spell Don’s last name, the volunteer on the phone said, “I know. He’s the governor of Georgia.” She was close enough. I was grateful that she knows of him, and she wasn’t that far off. Maybe she just got some of the Bush political prisoners mixed up with each other.
I want for Don and the others to have the brand of justice I learned about when I went to public school in the 1950s and ’60s. The kind that William O. Douglas and Thurgood Marshall administered. Not this twisted, anal, corporate fascism. Not in my country. Not now. Not ever.
September 2nd, 2009 at 2:33 pm
I’m with you on breaking up the monopolies, but the Obama Justice Department has not signaled anything on that front. They are just now getting around to appointing a special prosecutor to investigate torture, and fixing the Civil Rights Division.
Maybe they will get around to the Siegelman case and others down the road, although as you know, a certain member of Congress who wants to be governor is standing in the way here…
Meanwhile, see the news page for the story about how the labor and environmental groups are now going after Wal-mart.
Next step: At some point we are going to have to begin dealing with the Federal Communications Commission and the telecom and cable giants. It is truly too bad that our Congressman, and Obama, both voted for the Bush FISA bill and for retroactive immunity from lawsuits for the telecoms. They did it because they thought they needed it out of the way in the election to beat McCain-Palin, but in retrospect, they could have won that election anyway — without selling out our jury rights and our Fourth Amendment rights.
September 2nd, 2009 at 3:07 pm
Clever: “as any follower of Shakespeare knows, mercy is easier to come by than justice.” You hit the nail on the head. The problem is that it would be political suicide for Obama to pardon Scrushy. By the time Obama gets out of office, both guys will probably be back home.
September 2nd, 2009 at 6:45 pm
I am glad you had the intestinal fortitude to read the whole thing. I did not get past the first two pages. What a commentary on our legal system..it is perfectly ok to imprison someone because of technicalities established by precedent even though it is compellingly obvious that illegal acts by the prosecution before and during the trial put that person there. Clearly justice is not the concern here. I wonder how many innocent people are in prison today because of similar circumstances.
September 3rd, 2009 at 8:27 am
For a longer-range perspective on where politics are leading us – and I say this with all seriousness – read either the “Foundation” trilogy of Asimov or the “Dune” series by Herbert, or all of them.
Oddly, or perhaps not, many science fiction writers have a superb perspective on history and its trends. Maybe that’s because, in the case of far-flung epics set in the future, they have to invent hundreds or thousands of years of history and the cultures to go along with it. Hence, they become fastidious students of real history.
Where is politics leading us, in fact? My own view, borne both from studying real history and the fictional variety found in science fiction, is that we’re not headed to a good place. There are all kinds of parallels to the early days of the Roman Empire, and to other periods where relative freedom was abandoned in favor of an authoritarian regime.
I have often described Washington politics as “Byzantine,” referring to the latter centuries of the old Eastern Roman Empire, which ended when the Turks took Constantinople (now Istanbul) in 1452. The later Eastern Empire featured many of the same problems we have now: a bloated bureaucracy, endless intrigue and wrangling at the top of the political class, lack of morals and ethics in the ruling class, and so forth.
In both cases – the authoritarian coups of the first two Caesars, Julius and Octavian – that ended the Roman Republic – and the last centuries of the Eastern Empire over a millenium later – original principles and ethics were sacrificed for what was perceived to be security and safety. As it turned out, the Romans, and later the Greeks and other peoples of the Eastern Mediterranean, got neither. What they ended up with was despotism, antecedents to a long Dark Ages in Europe featuring nearly endless warfare that continued pretty much until the 20th century.
That’s somewhere between 15 and 20 centuries of mayhem and madness, with an occasional respite, and untold millions of innocent deaths, as well nearly continuous repression of human freedom.
Is there a better way? I believe so. The better way would be to restructure “politics” so that it ceases to be factional interest group warfare into something I call “concentrics” or governance by consensus along the lines envisioned in the constitution of the Iroquoian Confederacy of the mid-1700s. There are also other adjustments that would help, but that’s the main paradigm shift needed.
Otherwise, we could time travel to 100 years from now and the same interest group warfare will still be in progress, if we haven’t in fact had a new authoritarianism take over, a la the latter-day aristocrats of the Dune novels or the charismatic “Mule” of the Foundation trilogy.
September 3rd, 2009 at 10:18 am
The point here is that politics should be removed from the law and justice as far as possible. The U.S. Constitution provides for that. But during the Bush rein, we slid back toward monarchy, thanks in part to the Machiavellian political philosophy of Karl Rove — who had tremendous influence on Bush as well as political races in Alabama.
In such a diverse country, fighting among factions is inevitable. The only way to end that i know of would be a totalitarian dictatorship, which is not acceptable and we should never tolerate it here, although we came close under Bush. The only institution that saved us, barely, during his eight long years in office was the U.S. Senate.
We used to be able to count on the federal courts for impartiality and to step into a breech when politicians were too afraid for their hides. Thanks to Bush, and the politicization of the DoJ and the courts, we can no longer count on the courts. It will take two Obama terms and more to reverse that and replace all the so-called “conservative” judges, who came onto the bench with the litmus test not to be “activist judges” or “legislate from the bench.”
Both of those Karl Rove terms re-framed the debate about the role of the courts in this country. Behind that re-framing was the mega-corporate interest in getting the courts and juries out of their affairs so run amok corporate capitalism could completely takeover and turn this county into an oligopoly, not the social democracy and egalitarian society envisioned at the time the Constitution was written.
We don’t necessarily need a massive re-thinking of how to re-structure our political system, although there is nothing wrong with thinking and writing about that. We just need to find a way to get back on track with the original mission.
September 3rd, 2009 at 4:01 pm
In his farewell address, George Washington specifically warned against factionalism – political parties and interest groups competing for power. Like Rousseau, he believed that this would negate the full potential benefits possible with a republic.
If fighting among factions is inevitable, then something is amiss since it is possible to figure out the best things for government to do, and not do, in any given situation, given that (a) adherence to certain basic principles is desired and (b) the common good, and not just the good of particular interest groups, is the underlying principle.
A central problem with American democracy today is that we think the fighting between interest groups is a good thing because it shows we have a “healthy political process.” Actually, it shows we cannot come to agreement even on matters which actually do affect everyone. That’s an odd defintion for healthy process.
Our original mission as a nation, according to the Declaration of Independence, was to guarantee “life, liberty and the pursuit of happiness” to all. While the specifics of that are open to interpretation, the generalities are fairly clear. The problem comes in when a partisan, as opposed to consensus-based, process is used to arrive at policy decisions.
When policy is partisan-driven, the common good goes out the window because, by definition, partisans present their own policy ideas as the best approximation of the common good. Rational analysis of most policies proposed by the left or right today would demonstrate they serve not the common or general good, as government is intended to do by the U.S. Constitution, but the private benefit of a specified subset of the population.
Can we have social safety net programs, such as something like universal health care, that abide by this principle of the common good and at very least hurt no one? I believe it is possible, but not possible if it is born through a “warfare” process of partisanship. In the latter event, it will bear the marks, and have the quality, of the process that gave it birth.
And that is the very problem at the root of most government activity today, the very process by which it creates and implements policy, is itself flawed. It can produce nothing other than continued “warfare” as it agitates and exacerbates special interest group interest differences continually.
September 7th, 2009 at 3:49 pm
Every president comes into office in Washington with the “dream” to do politics differently, to have more bipartisanship, blah, blah…
That is not possible with guys like Glenn Beck alive and ranting on TeeVee in the world…
So the first step in your revolution would have to begin with putting Fox News out of business, which is not likely to happen because it is funded by Corporate and Christian America … and after eight years of Bush, they have ALL the money!