By Scott Horton
Special to the Huffington Post
The prosecution had acted in a way that was "demonstrably honorable," and the defense's charges that the case had been marked by political skullduggery rested on "conclusory fantastical allegations" for which it had failed to produce a "shred of evidence" beyond some newspaper accounts. Moreover, the defendant had been found guilty of serious corruption charges, and now he offered "no denials of guilt."
Assistant U.S. Attorney Fred W. Kramer was standing his ground for the honor and reputation of the U.S. Attorney's office in the Southern District of Georgia a few weeks ago, with U.S. Attorney Joseph D. Newman, a Bush-era holdover, sitting by his side. From his remarks, you would hardly guess that the U.S. Attorney heading the case at key points was forced out of office after an internal Justice Department probe concluded that he had, in fact, engaged in a politically motivated prosecution. Nor that the four senior-most officials of the Justice Department in which he served, starting with the attorney general, had been forced to resign in disgrace in connection with a still ongoing investigation of the political manipulation of the Justice Department. Nor that the serious fraud for which the defendant was charged and convicted -- inflating the circulation numbers of his newspaper -- was something that federal prosecutors had almost never before or afterwards charged as a crime. But the prosecutor's deft maneuvering around these issues made for an effective presentation.
The prosecution was mounting its defense, and it insisted on the rights of the accused, including a presumption of innocence.
The argument came during a hearing on a motion to vacate the sentence of the former Georgia Senate majority leader, Charles Walker, Sr., now serving time on his conviction in a multi-count corruption case. Walker, the man behind the effort to remove Confederate images from Georgia's state banner, argues that he was a target for the Bush Justice Department almost from the moment of transition. The hearing, before an attentive and doggedly questioning federal judge, William T. Moore, stretched out through a drowsy early October afternoon in the elegant New Deal era federal courthouse in Savannah. It was an early scuffle on an emerging new battleground: The targets of high-profile political prosecutions by the Bush-era Justice Department are now fighting back, demanding that they be given an opportunity to show that they were the targets of political persecution through law enforcement action.
The issue initially at stake is prosecutorial discretion. Historically, the process by which prosecutors decide to charge cases has been shrouded in protections designed to avoid second-guessing their decisions. The presumption is that prosecutors uphold their oath and apply the law. Courts have generally been extremely reluctant to look behind these presumptions. Prosecutors argue that if they do so, the whole criminal justice process will begin to unravel, and legal proceedings will go on interminably. They also argue that the proceedings will place unfairly tax court resources and will divert prosecutors' attention and energy away from law enforcement.
But these days, another concern is advanced in private conversations, if not in the courthouse: It's to protect the reputation of the Justice Department and the U.S. attorney's offices. Many federal prosecutors candidly acknowledge that their reputation has taken a drubbing through the scandals of the last year. The political prosecution charges, if allowed to advance, could do much more damage.
For the prosecuted politicians, however, the questions revolve around fundamental justice and the integrity of the process. And they have some new weapons: a Congressional report that concludes that their complaints of improper political manipulation are well grounded, and an internal Justice Department report into the firing of the U.S. attorneys that grudgingly concurs.
Nathan Dershowitz, brother of Harvard criminal law professor Alan Dershowitz, argued that in the Walker case, the evidence of improper intent was clear enough and that the court now had a responsibility to examine the prosecutor's motives. After all, the U.S. Attorney had been investigated and found to be involved in politically abusive prosecution by the Justice Department's own team. His office had at the same time been involved in attempts to make a criminal case against the entire Georgia state Democratic leadership -- and his prosecution efforts had dovetailed perfectly with a highly successful Republican effort to wrest control of the statehouse in 2002. The head of the Georgia Republicans had held a press conference in front of Walker's building promising a criminal investigation -- and then the U.S. attorney made good on this promise. Dershowitz took note of press reports suggesting coordination between the prosecution and senior Republican politicians. And finally, he linked the problems in Georgia to a broader phenomenon of political prosecution, relying in the process on the two reports mentioned above.
The prosecutor retorted that this was a "CNN defense," all based on newspaper clippings and designed to reverberate in the media. But it's worth taking a look at some of those "newspaper clippings" that the prosecutor insists the court is duty-bound to ignore.
Throughout this period, Walker was one of Georgia's most prominent black political leaders. Most interestingly, however, a scan of Republican-leaning publications also reveals him to be the Democrat the Republicans most loved to hate. Most of that has to do with images. It might be the image of a black man emerging as a prominent political figure on the Georgia political stage. But more specifically, it has to do with the battle flag of the Confederacy. To some, it represents a romanticized past of prosperity, wealth, honor and a lost agrarian way of life filed with plantation houses and mint juleps. To others, it is a symbol of racism, hatred, oppression, lynch-mob justice and brutality. Appropriately enough, the Confederate flag was fluttering over the trial that convicted Charles Walker.
In 1956, segregationist forces in Georgia sought to respond to the Supreme Court's decision in Brown v. Board of Education by modifying the state's flag to include the Confederate flag. In the late 1990s, Walker led the effort to reverse that decision. Walker made some bitter enemies. In particular, they were the sort of people who loved to sport and display the battle flag of the old Confederacy. Walker's efforts produced a huge backlash in Georgia, and are often credited with a series of major gains for the Republicans in the 2002 elections.
In the course of that election, the Republican Party hurled a consistent accusation at their opponents, namely that they were "corrupt." That effort started with the GOP gubernatorial candidate, Sonny Perdue. In fact, Perdue bore a notorious grudge against Walker -- he had once been edged out for the slot of senate majority leader by Walker. After his defeat, Perdue left the Democratic Party and quickly came to lead the Republicans, securing election as the state's GOP governor in 2002. During Perdue's bid for governor he vowed to create an inspector general's office to investigate corruption and cronyism.
This view of corruption was very peculiar. In the Perdue view, corruption was the province of the political opposition, and especially of those who but a few years ago only gained admission to country clubs as caddies and hired help. And to reinforce that point, Sunny Perdue not only traveled to Senator Walker's hometown of Augusta to introduce this initiative, he actually held a press conference in front of one of Senator Walker's businesses. For the Georgia GOP, Charles Walker, a successful black entrepreneur who was a political threat, and who attacked their most sacred image -- the rebel flag -- was an irresistible "poster child." He summed up everything they despised.
In fulfillment of Perdue's promise, then-U.S. Attorney Richard S. Thompson began investigations targeting a large part of the state's Democratic leadership. His targets reportedly included Speaker of the House Terry Coleman, Special Prosecutor Peter Skandalakis, Senator Van Streat, former Governor Roy Barnes -- and Senate Majority Leader Charles Walker.
Thompson's political vendetta got so obvious that it drew numerous complaints. In 2002, an Office of Professional Responsibility (OPR) investigation within the Department of Justice was begun following the issuance by U.S. Attorney Thompson of a campaign-season press release which launched wild attacks on then-governor Barnes, Special Prosecutor Skandalakis, and Senator Van Streat. The Justice Department's internal review found that Thompson was guilty of a great number of politically motivated ethics lapses, including violations of his duty to (1) to refrain from making public comment on an ongoing investigation, (2) refrain from participating in a matter that directly affected the interests of a personal friend and political ally, and (3) refrain from taking action that would interfere with or affect an election. The investigation concluded that Thompson "abused his authority and violated the public trust . . . for the purpose of benefiting a personal and political ally." (Letter from H. Marshall Jarrett, U.S. Department of Justice, Office of Professional Responsibility to Craig A. Gillen, Attorney of Senator Van Streat, Feb. 13, 2004.)
The Republican-controlled Congress, aware of these serious charges, took no action against Thompson. To the contrary, the Georgia Republican delegation has been tightly linked to the scheme. Senator Walker's attorneys claim that records will show that Republican Congressmen Charlie Norwood and Jack Kingston flew Thompson to Washington and pleaded with him not to resign, but rather to keep his criminal investigations against Democrats running. Thompson did resign his office as U.S. Attorney, but he reportedly promised the Georgia Republican congressmen that his staff would press ahead with its political prosecutions notwithstanding his resignation. Thompson was then appointed an Administrative Law Judge by the man who had most aggressively pressed for the criminal prosecution of prominent Democrats, Governor Sonny Perdue.
The investigations of former Governor Barnes and several other officials were dropped following the OPR investigation. However, as promised, Thompson's successor, Lisa Godbey Wood continued the investigation against Senator Walker. This investigation resulted in the indictment filed against Walker on 142 counts of mail fraud, tax fraud and conspiracy, including numerous counts related directly to his service as a member of the General Assembly. He was accused of "theft of honest services," which is a standard prosecutorial approach to bringing federal charges against state officials accused of corruption. Following the usual pattern, the indictment was handed down at the beginning of the 2004 election season and was loudly trumpeted to the Georgia press. Walker's daughter was also indicted, and pleaded guilty to failing to report $700 in income.
These are the facts that Walker and his counsel now seek to muster to get a new trial. But from the perspective of the Justice Department, all of these facts are outside the record and not things that can or should be accepted as proof in a courtroom.
Judge Moore followed the argument with care, making clear that he viewed the motion and the issues very seriously. The judge's willingness to accept that prosecutors sometime brought cases for improper political reasons came in his first aside. "You mean, as when Thomas Jefferson instructed his attorney general to open a prosecution of Aaron Burr?" he asked, pointing to a prominent example of politically directed prosecution from the early days of the Republic. Still, the judge made clear in a series of questions put to the lawyers that his major concern was whether Walker had offered evidence that directly showed this his case had been politically directed. The issue in his mind appeared to be one of a threshold: When were the accusations enough to open the door and allow the defense to put the prosecution on trial? In the past, the Justice Department has fended off such efforts by arguing that it is capable of policing its own, and judicial intervention is not necessary. On this point, however, the Justice Department faces mounting incredulity. One academic observer recently termed its internal probes the "roach motel,"as in "the cases go in, but nothing ever comes out." House Judiciary Committee chair John Conyers and other committee members wrote Attorney General Holder on September 25, expressing continuing concern about the Justice Department's inability to properly investigate cases in which political prosecution had been alleged.
The issue Judge Moore is now deliberating is likely to arise in a number of other cases around the country. It is being briefed and argued by former Alabama Governor Don Siegelman, for instance, who has attracted 91 former attorneys general from around the country as amici joining him. It sits in the background of the case of Paul Minor in Mississippi. Officials in the Justice Department are eager to push back and maintain the curtain around prosecutorial discretion. The skirmish in Savannah could have repercussions across the country.
About Scott Horton
Scott Horton is a contributing editor at Harper's Magazine, where he writes on law and national security issues, an adjunct professor at Columbia Law School, where he teaches international private law and the law of armed conflict, and a frequent contributor to the Huffington Post. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee. Scott recently led a number of studies of issues associated with the conduct of the war on terror, including the introduction of highly coercive interrogation techniques and the program of extraordinary renditions for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also an associate of the Harriman Institute at Columbia University, a member of the board of the National Institute of Military Justice, Center on Law and Security of NYU Law School, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He co-authored a recent study on legal accountability for private military contractors, Private Security Contractors at War. He appeared at an expert witness for the House Judiciary Committee three times in the past two years testifying on the legal status of private military contractors and the program of extraordinary renditions and also testified as an expert on renditions issue before an investigatory commission of the European Parliament.