Justice Department Lawyer Has Conflict in SCOTUS Review of Siegelman Case

Cross Posted at Legal Schnauzer

John-Alex Romano is the government lawyer who wrote a brief filed this month that opposes U.S. Supreme Court review of the Don Siegelman prosecution in Alabama.

That, in itself, is not newsworthy. But when you consider that Romano is married to Caroline Gary Romano, chief of staff in the U.S. Department of Interior . . . well, the plot begins to thicken.

It gets real thick when you learn that Caroline Romano, until May 2011, had been deputy commissioner for the Administration for Native Americans (ANA) at the U.S. Department of Health and Human Services. She was appointed to that position in December 2008, just before George W. Bush left the White House. She joined the Department of Interior in May 2004, at the height of the Bush administration.

 ‚¬Ã‚ ¨This information should set off red flags for every citizen who cares about justice. That's because it tells us that Justice Department lawyer John-Alex Romano has a major conflict of interest in the Siegelman case. And it's been going on for quite some time.

Where is the conflict? Consider the following:

* The public record strongly indicates that Siegelman was targeted for a political prosecution in part because he supported an education lottery in Alabama, which was seen as a threat to Native American casinos in neighboring Mississippi. GOP felon Jack Abramoff has confessed to spending $20 million on behalf of the Mississippi Choctaws to defeat Siegelman--and get Republican Bob Riley elected.* Caroline Gary Romano is a graduate of Mercer University and is a member of the State Bar of Georgia. She began her federal service career in 2003 as a Presidential Management Fellow in a program overseen by the Bush Administration and . . . Karl Rove. And Siegelman, of course, has long alleged that Rove instigated his prosecution.

So you have a government lawyer (John-Alex Romano), who is married to a woman (Caroline Gary Romano) who owes her federal career to the Bush Administration, which railroaded Siegelman--and John-Alex Romano is arguing that the U.S. Supreme Court should not review the case. 

By just about any standards of fairness, that smells. And it really stinks when you consider that John-Alex Romano's conflict has been present for quite a while. He wrote a brief in 2009, while Elena Kagan was solicitor general, urging the Supreme Court not to review the Siegelman case.

Romano's latest brief is pretty much a regurgitation of the 2009 brief. You can check out the 2012 brief at the end of this post. But here is how al.com sums it up:

In a case that could redefine the circumstances under which a contribution to a political campaign constitutes bribery, Siegelman has asked the justices to take another look at his 2006 conviction by a Montgomery jury. His lawyers in February told the justices that campaign donations cannot be bribes unless there is a clear agreement between the donor and the politician, and that there was no such agreement in Siegelman's case.

But the U.S. Department of Justice, in its response, disagreed and said jurors are capable of analyzing the evidence about whether a deal was struck, even if it was not put in writing or spoken out loud in concrete terms.

"Under a standard that requires not just a quid pro quo, but one that is verbally spelled out with all the 'i's dotted and 't's crossed, all but the most careless public officials will be able to avoid criminal liability for exchanging official action for campaign contributions," according to the DOJ brief.

John-Alex Romano, in essence, is arguing against the law as it currently stands. That's because the Siegelman case was not governed by the actual pertinent law, which all sides agree is a U.S. Supreme Court case styled  McCormick v. United States, 500 U.S. 257 (1991). As we have explained in previous posts, McCormick holds:

. . . only if "payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal."

Contrary to Romano's claims,McCormickdoes not hold that a quid pro quo must be verbally spelled out "with all the i's dotted and t's crossed." But it does hold that any agreement must be explicit. Mark Fuller, the U.S. District Judge who oversaw the Siegelman prosecution, did not require an explicit agreement in his jury instructions. And there was no evidence at trial of an explicit agreement between Siegelman and co-defendant Richard Scrushy.

That means Siegelman and Scrushy were convicted of a "crime" that doesn't exist, under the law.

Perhaps John-Alex Romano is just being a good soldier, doing what his superiors in the inept Obama Justice Department are telling him to do. After all, Romano answers to Assistant Attorney General Lanny Breuer, the same man who brought us a colossal government failure in the Alabama bingo trials.  Romano's motives, however, are not the issue here; it's his wife's career arc. That indicates he has a conflict of interest--one that never has been revealed during the course of the Siegelman case.

Siegelman--DOJ Reply Brief on Certiorari