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As everyone knows, last Thursday, the 11th Circuit Court of Appeals in Atlanta ordered that Don Siegelman be released pending appeal. The 11th Circuit order is of great interest because one issue the court had to consider was whether Siegelman has shown he has decent issues for his appeal. By releasing him, the 11th Circuit ruled that he had reasonable arguments for appeal. Unfortunately, the 11th Circuit order doesn’t go into any detail about what the arguments are, and so I’ve looked elsewhere, specifically in Seigelman’s trial court motion, the government’s response, and the trial court opinion.

To understand the case, you need to know a little about the facts. Here, I’m going to just talk about one of the issues on which Siegelman was convicted: the bribery counts. This post will focus on the legal issues. The next post will discuss the facts relating to the bribery count, followed by a discussion of the obstruction of justice count in a third post. I’ll do some summing-up and draw some conclusions in the last post.

Siegelman was elected on an education finance reform platform. Alabama has a history of trouble related to that, because the Jim Crow era constitution protects certain kinds of corporate property interests (timber lands, for instance) from real property taxation. Siegelman ran for governor arguing that a state lottery was the solution to this problem, and, after he was elected, began campaigning for a statewide referendum authorizing a lottery.

At some point he met with Richard Scrushy, a Birmingham businessman in the health care industry who had largely given money to Republican candidates, and Siegelman asked Scrushy for money for the lottery campaign. Scrushy had earlier served on a state board regulating the hospital industry, appointed by two different Republican governors. At the meeting, Scrushy gave Siegelman $250,000 for the lottery campaign, and promised another $250,000 later. After that meeting, Siegelman appointed Scrushy to the hospital board. The bribery charge against Siegelman and Scrushy is based on the theory that the political contribution was a bribe for the hospital board appointment. Right now, I want to focus on the legal issues; I’ll post more details about the facts in a later post.

Siegelman’s central argument has two parts to it. One is that political contributions are protected by the First Amendment. In striking down legislation regulating spending relating to political campaigns, the U.S. Supreme Court has shown a clear commitment to protecting campaign money as speech. The other part of the argument is that the government’s case should fail because the government should have shown an explicit quid pro quo (that’s law Latin for “a thing for a thing”) for a bribery conviction. Siegelman’s argument is that timing alone — that the political contribution preceded action by Siegelman as a government agent — does not show a quid pro quo.

What does “an explicit quid pro quo” mean? Siegelman relies on a case that was a prosecution under a federal extortion statute, McCormick v. U.S., 500 U.S. 257 (1991). McCormick was a congressman being prosecuted for extortion. The accusation was that McCormick had taken money that he did not treat as a campaign contribution by foreign-educated doctors who wanted him to continue to act on legislation allowing them to practice in the United States. He was convicted of extortion because of later work on that legislation. The U.S. Supreme Court held that under the extortion statute, there had to be an explicit quid pro quo for a conviction. To prove extortion, the government had to show that the payments were made in return for an explicit promise or undertaking by McCormick to perform or not to perform an official act.

McCormick was not brought under the bribery statute, and is not a First Amendment case. It’s about how that federal extortion statute works. Siegelman’s brief argues that the case has been applied to have First Amendment consequences. What the courts have really said was that, where there is an explicit quid pro quo, there’s not a First Amendment problem with the prosecution. That is not to say there is no First Amendment issue. Seigelman is arguing that the First Amendment requires a more exacting standard for the government where political speech is involved, and the requirement of an explicit quid pro quo would accomplish that.

Here’s an interesting post from several years ago on the White Collar Crime Prof Blog on McCormick and the federal bribery statute and the Abramoff prosecutions.

Siegelman’s brief tries to do two things beyond making that argument– first, it tries to set the prosecution in the context of what he argues is a national wave of political prosecutions by the federal government. He makes a great deal out of the reversal by the Seventh Circuit in Georgia Thompson’s case, in which the court was so bothered by the prosecution they ruled for the defendant from the bench during oral argument. (The great line from that opinion: “Post hoc ergo propter hoc is the name of a logical error, not a reason to infer causation.” Well, anyhow, it’s great if you like a certain kind of legal writing. I promise). Second, Siegelman seems to be casting his First Amendment / political contribution argument toward the conservative judges on the US Supreme Court who have consistently held that such contributions are political speech.

Here’s Siegelman’s motion/brief.

When the Siegelman motion for release pending appeal was filed in the trial court, Judge Fuller essentially blew it off; twice after he denied relief, the 11th Circuit sent the case back, saying “Give us a meaningful explanation of what you are doing here.” The third time, Judge Fuller wrote an opinion that re-framed Siegelman’s argument, saying that it was really an argument about whether there was enough evidence to convict and not about the legal standard. Arguments about whether there was enough evidence to convict — “sufficiency of the evidence” arguments — are weak issues on appeal because the presumption is that the jury got it right. The defendant has to show that the facts did not justify the jury’s verdict, which is a hard burden to meet.

Judge Fuller’s rephrasing of Siegelman’s argument really does not honestly answer the argument Siegelman raised. In arguing there had to be an explicit quid pro quo, he is raising an argument about the legal standard. Judge Fuller also said that Siegelman’s cases do not say what he argues they say, and Judge Fuller says that this is all explained in the government’s response to Siegelman. That’s not exactly so; Siegelman is taking logic from cases and trying to extend it. The cases pretty much say what he suggests they say. The question is whether the appeals court will take the next step and make a quid pro quo requirement for bribery. You can read the Siegleman Government Response here.

As noted, this is the first of three posts. Part 2 will talk about the facts in the record that the government claims amount to bribery. Part 3 will talk about the obstruction of justice claim against Siegelman. I’ll also have a post that links the three and summarizes and draws some conclusions.

Update: Paragraph describing future posts was edited to describe them as they were written and posted.