Paul Minor's appeal hearing in front of the 5th Circuit court Wednesday morning started off with an unexpected surprise. Shortly before the proceedings began, Priscilla Owen, one of the three judges hearing the appeal, announced her recusal.
Owen, whom the New York Times has described as "guided by the hand of Karl Rove," apparently took to heart Minor attorney Hiram Eastland's letter [PDF] asking Owen to recuse herself since Rove is being investigated by Congress and the Justice Department for his possible role in targeting Minor for indictment. Owen was replaced immediately by Judge Fortunato Benavides, a Clinton appointee, adding a measure of balance to the panel, which would've been an all-Republican panel with Owen present.
The appeal hearing lasted just 30 minutes but produced several key indicators that appeared to favor Paul Minor's appeal.
Led by Judge Will Garwood, a Reagan appointee, the panel asked very thoughtful questions and seemed very receptive to the arguments raised by Minor's attorneys and asked repeated, tough questions of the Justice Department attorney Elizabeth Collery. (Given the last minute recusal announcement, Benavides had little time to review the details of the case, but still managed to pose tough questions of the DOJ attorney and seemed to grasp the important 1st Amendment implications of Paul Minor's alleged bribery of judges through campaign contributions.)
The toughest questions came from Judge Catharina Haynes, President Bush's sixth and final nominee to the Fifth Circuit who was confirmed by the Senate last April.
Haynes repeatedly asked Collery, the government attorney, to specifically explain "what is the deal" that the government alleges Paul Minor had with the judges whom he was accused of bribing. Haynes pointed out that, in order to qualify as an explicit quid pro quo bribe, there had to be an agreement between Minor and the judges on a specific result, and also observed that Judge Teel wasn't even a judge yet, he was simply running for the judgeship at the time Minor contributed to his campaign. So how could there be a specific official action offered by Teel to Minor in return when Minor couldn't possibly have had any cases pending before Teel?
Asked again and again to supply a concrete example of what that crucial quid pro quo was, the DOJ attorney seemed to waffle badly, arguing (again, with "vague" charges as the New York Times described this case originally) that Minor's campaign contributions must have been meant as bribes for some "future decisions" in his favor from the Judges. Haynes - clearly understanding the requirement that there must be a specific official act in return for the contribution in order to constitute bribery - asked the DOJ attorney, "Don't you have to be able to articulate the deal?"
Judge Garwood asked excellent questions as well, probing the government's understanding of the Supreme Court decision in McCormick v. United States pertaining to the required quid pro quo for charges involving bribery. The government's case against Minor teeters on the assertion that Minor received a specific, favorable result from the judges which both parties must have agreed upon prior to such a ruling to constitute bribery under federal law.
By all indications, the DOJ failed to prove that today. The tough questioning and apparently skeptical reactions from Judges Garwood and Haynes seemed to indicate that they were not persuaded by the government's arguments.
Minor's attorney Abbe Lowell ended his argument by asking the panel to consider releasing Paul Minor while they deliberate the appeal, a request which Minor's legal team has repeatedly argued is required by law, and which Owen had denied. Aside from the strong legal reasoning for the court to release him pending their decision, it would be morally spot on, allowing Paul the chance to spend time with his wife Sylvia before her imminent death from cancer.
It all rests in the hands of this panel.
Stay tuned for more details in a forthcoming post.