Supreme Court ruling may not help Democrats targeted by Bush US Attorneys

Decision might apply if cases are taken up by the Supreme Court on appeal; lawyers have mixed reactions

A unanimous Supreme Court ruling last Thursday, which set aside the conviction of former Enron CEO Jeffrey Skilling on a charge of honest-services wire fraud, may not help the cause of either former Alabama Governor Don Siegelman or Mississippi attorney Paul Minor, who were convicted on similar charges.

Siegelman and Minor have been the subject of an exploring political prosecution in the southern United States.

The honest services fraud statute has routinely been used against public officials or corporate executives accused of using their positions to benefit themselves at the expense of the public or stockholders. The charge of theft of services has been widely regarded as too vaguely defined to constitute a crime, and the case involving Skilling had been closely watched for that reason.

Last week's decision, however, was more narrowly drawn than some had anticipated, allowing the statute to stand in cases where bribery or kickbacks are involved. Only three of the justices -- Antonin Scalia, Clarence Thomas, and Anthony Kennedy -- argued for it to be overturned in all cases. As a result, the charges against Siegelman and Minor might still stand.

Paul Minor, a trial attorney and major Democratic donor in Mississippi, was convicted in 2007, along with judges Wes Teel and John Whitfield, on bribery and honest services fraud charges. The three men were prosecuted, starting in 2003, by a Bush-appointed US Attorney, and many Minor supporters have described his case as one of political prosecution by a highly politicized Bush administration Department of Justice. In 2008, the Justice Department even opposed Minor's request to be released from prison long enough to visit his dying wife.

The case of former Alabama Governor Don Siegelman, which could also be affected by the Supreme Court ruling, has been viewed as another prosecution possibly instigated by political motives. Raw Story’s award-nominated series, The Permanent Republican Majority (see links below), investigated Siegelman's case along with that of Minor, Whitfield and Teel.

Last December, the 5th US Circuit Court of Appeals overturned the bribery charges against Minor, leaving only the honest services fraud charges. The ruling initially gave Minor and his supporters hope that the remaining charges of honest services fraud would be vacated as well, given the Supreme Court's already documented issues with the statute.

The legitimacy of the bribery charges, which were based on loans Minor had made to the two judges and were not backed up by any demonstrable quid pro quo, had been widely questioned. The prosecution was initially unable to prove bribery, but at a second trial the jury was instructed by Republican-appointed judge Henry Wingate that a bribery verdict could be reached even without establishing any quid pro quo.

The appeals court that overturned the bribery charges last fall, however, did so only on narrow technical grounds related to the particular statute that had been used to incorporate them into the federal case. For that reason, the honest services statute might still apply to Minor and the judges, as well as Siegelman, and Thursday's ruling has elicited mixed reactions from the Siegelman and Minor camps.

Paul Minor's attorney, former Bush administration Solicitor General Ted Olson, issued a cautious statement last Thursday.

"The decisions today in the Skilling and Black cases reflect the Court's well-founded concerns about the vague and overbroad language of the honest services statute," Olson said. "I am pleased that the Court took this opportunity to narrow the scope of the virtually limitless statutory language. Mr. Minor's case will afford the Court another opportunity to impose meaningful limits on the honest services statute and to ensure that the statute is not used to punish political speech fully protected by the First Amendment."

Former Mississippi Supreme Court Justice Oliver Diaz Jr., however, told Raw Story during a Friday phone call that the ruling does not seem to help either Minor or Siegelman or even address either case.

"The recent Supreme Court ruling, it does not address the situation of Minor, Siegelman and their cases," said Diaz, who himself was a co-defendent in the Minor case but was eventually acquitted of all charges.

"The court said the honest services statute can apply to cases of bribery and kickbacks, but it has not clarified how the vague wording of the statute applies to honest services cases," Diaz continued. "Now the court will have the opportunity to specifically apply the honest services statute to cases where bribery is alleged, if they agree to hear the Minor and Siegelman cases."

Both Minor and Siegelman have filed to have their cases heard by the Supreme Court in a final bid to have their convictions overturned. The court has not yet decided if it will hear either case, but it will have to decide on the Siegelman petition by Monday, the last day of the current term. Minor will have to wait until October to learn if the court has agreed to hear his case.

Diaz feels that if the Supreme Court does agree to hear either or both cases, the dissent by issued Scalia, Thomas, and Kennedy will be pivotal.

"When [the court] reviews Minor and Siegelman cases," he stated, "they will find that the honest services statute is unworkable, even in cases where bribery and kickback is alleged, because of the vague wording of the statute as set forth in Scalia's dissent."

The Siegelman camp was, in contrast, very optimistic. Don Siegelman's attorney, Vince Kilborn, told Raw Story Sunday that he felt the Supreme Court's ruling was a good sign for his client and that the court's review of the honest services statute was a good thing in general.

"The Skilling [case] indicates that our Supreme Court is taking a hard look at the Honest Services statute," Kilbourn stated. "Siegelman's case also involves important First Amendment issues, which should heighten the Court's concern about statutes which criminalize seemingly protected activity, such as contributing to causes one believes in -- like in this case, the Alabama Education Lottery which was an important issue in Alabama at that time."

When the bribery charges against Minor were overturned by the Court of Appeals last December, law professor Scott Horton told Raw Story that "on Monday the Supreme Court heard argument on whether the honest-services fraud statute is constitutional. And tallying up the comments made by the justices at the argument, it's clear that a solid majority of the justices think the honest-services fraud statute is unconstitutional. ... It will take a few months for this to work its way out, but it's clear that Minor and his co-defendants are on their way home."

At this point, however, it appears that Horton's optimism may have been premature.

Related stories:

Part One – The Political Prisoner

Part Two – Exclusive interview with jailed governor’s daughter, Dana Siegelman

Part Three – Running Elections from the White House

Interview with Dana Jill Simpson and alleged Rove smear campaign

Part Four – How Bush pick helped prosecute top Democrat-backed judge

Part Five – Mississippi Justice: Bush US Attorney targeted my wife, supporters and friends

Part Six - Break-ins plague targets of US Attorneys

Justice Department investigating two US Attorneys for political prosecution

Part Seven - Justice for Sale: How Big Tobacco and the GOP teamed up to crush Democrats in the South

Government opposes appeal by imprisoned attorney to visit dying wife

Democrat claiming political prosecution appeals decision to prohibit visit to dying wife

Judge who ruled on appeal of prosecuted Democrat was Karl Rove protege