BY JEFFREY TOOBIN
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.
Siegelman, a Democrat, served a single term in office, from 1999 to 2003, in the last days before Alabama turned into an overwhelmingly Republican state. He’s spent the subsequent decade dealing with the fallout from the case that landed him in prison—a case that, at its core, is about a single campaign contribution. Siegelman ran for office on a promise to create a state lottery to fund education in Alabama. The issue went to a ballot question, and Richard Scrushy, a prominent health-care executive, donated five hundred thousand dollars to support the pro-lottery campaign. (Voters rejected the lottery.) After Scrushy had given the first half of his contribution, Siegelman reappointed him to Alabama’s Certificate of Need Review Board (the CON Board), which regulates health care in the state. Scrushy had served on the CON Board through the administrations of three different governors. The heart of the case against Siegelman came down to a single conversation that he had with Nick Bailey, a close aide of the Governor’s, about a two-hundred-and-fifty-thousand-dollar check from Scrushy for the lottery campaign. As summarized by the appeals court:
Bailey testified that after the meeting, Siegelman showed him the check, said that it was from Scrushy and that Scrushy was “halfway there.” Bailey asked “what in the world is he going to want for that?” Siegelman replied, “the CON Board.” Bailey then asked, “I wouldn’t think that would be a problem, would it?” Siegelman responded, “I wouldn’t think so.”
In 2006, after a district-court trial before Judge Mark Fuller, Siegelman was convicted of seven counts, including bribery, conspiracy, and fraud. He was acquitted of twenty-two charges and sentenced to seven years in prison. (An appeals court overturned two of the seven convictions and allowed Siegelman out on bail during some of the time his case was on appeal.) Siegelman is currently incarcerated in a federal prison in Oklahoma; his projected release date is in 2017.
Throughout Siegelman’s legal ordeal, the Supreme Court has been in the process of deregulating American politics, most notably in the 2010 Citizens United decision. In that case, the Justices found that money is speech—that contributing to a political campaign amounts to a protected activity under the First Amendment. As the appeals court in Siegelman’s case noted, the charges in his case “impact the First Amendment’s core values—protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities.”
It seems clear that Siegelman was conducting the seedy, but routine, business of contemporary American politics. Scrushy contributed because he wanted something in return, which is why many, if not most, people contribute to political campaigns. (George Will made this point in a column in defense of Siegelman.) Why do “bundlers” become Ambassadors in congenial countries? Why do local contractors support mayoral candidates? Why do real-estate developers give to prospective (and incumbent) governors? Because they want something. Siegelman was convicted because the quid pro quo was too “explicit”—but, beyond the conversation about what Scrushy might want, there was no clear evidence that it was. Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.
Siegelman should be freed, too, because there was a distasteful overlay of politics to his prosecution. According to an affidavit filed by a Republican lawyer in Alabama, senior state Republicans, in the aftermath of the 2002 election, said that Karl Rove, then a top White House aide to President Bush, had promised them a Justice Department investigation of Siegelman—an investigation that then took place. The matter of White House interference in the case is unproved, but Rove certainly proved, later in the Bush Administration, that he was willing to manipulate United States Attorneys for the political advantage of the Republican Party. Given the ubiquity of quid-pro-quo politics in Alabama (and most other states), the case against Siegelman appears selective indeed.
There is another reason to question the harsh sentence dealt to the Governor. The behavior of the judge who imposed it is more than questionable. On August 10, 2014, Judge Fuller was arrested for domestic violence in an Atlanta hotel after his wife called 911. Shortly after his arrest, Fuller accepted a plea deal that would allow him to expunge his criminal record if he stayed out of further trouble. But the standard of contact for federal judges should be a great deal higher than “not exactly a felon.” At the moment, Fuller is not hearing cases, but, inexplicably, the Eleventh Circuit Court of Appeals has failed to remove him formally from his duties, and the House of Representatives has yet not begun impeachment proceedings. The state’s U.S. senators have called on Fuller to resign, but he has refused, and continues drawing a federal paycheck while doing no work. (Yesterday, Siegelman’s lawyers argued before an appellate court that the verdict should be overturned because of the alleged involvement of a lawyer who had been recused.)
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.
