JB: Your recent piece The President Paints Himself Into An Ethical Corner By Voicing Outrage Over Evolving Scandal At The IRS is pretty scathing. What's got you so upset?
RS: In early January 2009, just a few days before he took office, President-Elect Obama said he intended to "look forward, as opposed to looking backwards" on apparent crimes under the Bush administration. As president, Obama seems to have followed through on that pledge because his Justice Department has failed to review political prosecutions such as the one involving former Governor Don Siegelman in Alabama, where I live.
Political prosecutions, of course, were just of one of many improper acts on the justice front during the Bush years--torture, warrantless wiretapping, firings of U.S. attorneys were among the others. In essence, Obama issued a decree that no one would be held accountable for those acts.
Obama's "look forward" statement made no sense at the time, and it makes even less sense now, coming after he expressed outrage the other day over disclosures about the IRS targeting conservative groups for political reasons. Obama said in a news conference that he would not "tolerate" such actions, that wrongdoers must be held "accountable," and the problem must be "fixed."
But his inaction toward the DOJ shows that he will tolerate the targeting of political opponents, that he will not hold individuals accountable for such actions, and he will not take steps to fix the problem. Obama was uttering empty words at his press conference about the IRS. Many of us expect that from a Republican chief executive; we should demand better from a Democrat.
JB: For readers unfamiliar with the Siegelman case, Roger, can you give us a brief overview of what happened and why anyone outside of Alabama should care? It didn't happen under Obama's watch so how can he be blamed?
RS: Don Siegelman was a Democratic governor in a deep-red state, a state where Karl Rove has a strong power base. Siegelman accepted a campaign donation from a businessman named Richard Scrushy, and then appointed Scrushy to a health-care regulatory board--a board on which Scrushy had served under three previous governors.
The standard for a bribery conviction in the campaign-donation context is that the prosecution must prove an "explicit agreement" in a something-for-something deal (known in legalese as a "quid pro quo.") No evidence at trial pointed to such an unlawful deal, and the federal judge presiding over the case (a George W. Bush appointee named Mark Fuller) gave incorrect jury instructions that did not include the "explicit agreement" requirement. He allowed the jury to infer that such a deal took place, and that is contrary to established law under U.S. Supreme Court precedent in a case styled McCormick v. U.S.
Largely because of the bogus jury instructions, Siegelman and Scrushy were convicted of a "crime" that does not even exist under the law. Also, the bribery charges were brought almost one full year after the five-year statute of limitations had expired. So even if Siegelman and Scrushy had committed gross acts of bribery--which they did not--the case, by law, could not even lawfully go to a jury. When you add apparent misconduct involving the judge, prosecutors, and jurors . . . well, you can see why many of us call the Siegelman case the most notorious political prosecution in American history.
Obama deserves blame for several reasons: (1) His solicitor general (current SCOTUS Justice Elena Kagan) argued against Supreme Court review in the Siegelman case; (2) Obama's attorney general, Eric Holder, has done little or nothing to investigate abuses under the Bush DOJ, which include dozens of cases like Siegelman's, where Democrats were targeted on weak or nonexistent evidence; (3) The president has almost absolute power to issue pardons, and he has done nothing so far in the Siegelman case. The former governor has been in a federal prison at Oakdale, LA, since last Sept. 11.
JB: The president isn't expected to be on top of every case, is he? Has anyone taken up Siegelman's cause?
RS: I don't think anyone expects the president personally to be involved in such matters. But his justice department certainly has the duty to ensure that our courts operate under the law, that we don't deprive innocent people of liberty--and that was the No. 1 concern U.S. Rep. Steve Cohen (D-TN) voiced in his questioning Wednesday of Eric Holder.
Many people have taken up the Siegelman cause, in one form or another. More than 100 former state attorneys general have stated that the case was a grave injustice. Dana Siegelman, the former governor's daughter, is the driving force behind a Web site (free-don.org) that is pressing for a presidential pardon.