The criminally-prohibited situations, said the Court, are those in which there is an “explicit promise or undertaking” by the official to act in exchange for the contribution, in which “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.” Id., 500 S.Ct. at 273, 111 S.Ct. at 1816. To rise to the level of a crime, there must be a communication by the official, amounting to an overt promise or undertaking.
So there you have it. The Siegelman brief repeatedly cites McCormick and states, correctly, that the agreement must be "explicit." And the 11th Circuit takes one throwaway use of the word "express" and misstates the Siegelman argument entirely.
How to explain this curious reading by the 11th Circuit? I can only think of two explanations:
* One of the judges on the panel (James C. Hill) is 84 years old. Another (Gerald Bard Tjoflat) is 79. The whipper snapper of the group is 61-year-old J.L. Edmondson. Perhaps Hill and Tjoflat have lost their ability to read simple, clear language, and Edmondson was "out to lunch" on this opinion. Thus, we are talking about incompetence.
* The judges intentionally misstated the Siegelman argument as a way to get the result they wanted. Thus, we are talking about corruption.
As we will see in a moment, the "explicit vs. express" argument really didn't matter. That's because trial judge Mark Fuller's jury instruction didn't use either word.
In other words, Fuller's jury instruction did not cite the correct law--no matter how you slice it.
And the 11th Circuit is letting him get away with it.
(To be continued)
Previously . . .
Here's How An Appellate Court Cheated Don Siegelman (introduction)
The Cheating of Don Siegelman, Part I (statute of limitations)
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