Alan Greenblatt is a GOVERNING correspondent.E-mail: email@example.com
Is graft getting worse or are prosecutors out of control?
These are nervous days in Montgomery. Federal prosecutors, investigating corruption in Alabama's two-year college system, have subpoenaed legislators by the dozen -- in some cases delivering papers just outside the statehouse itself. Sue Schmitz, a state representative, was arrested in the bathroom of her home while she was taking an early morning shower. As prosecutors have fostered a climate of fear, numerous legislators have hired lawyers, and some have swept their offices for listening devices. "It's had an effect on the atmosphere," says Pat Lindsey, a state senator, offering what sounds like an understatement. "There's some bitterness there toward the U.S. attorney's office and the Department of Justice."
The tension is even greater because the recent investigation comes in the aftermath of a separate case involving Don Siegelman, the former Democratic governor sent to federal prison last year on corruption charges. Siegelman was released in March by a federal court, pending his appeal. As with the community-college investigation, Democrats have accused Republicans of prosecuting Siegelman as a partisan vendetta, and the case has drawn attention from the national media and Congress. Lawyers for Alabama's legislators have taken to referring to Siegelman's plight as evidence that their own clients are being railroaded for political reasons. "If I were accused of something right now and I were a Democrat, " says William Stewart, a University of Alabama political scientist, "I would say they're after me, just like they were after Siegelman. It's become very standard."
Alabama is far from the only place where indicted public officials accuse prosecutors of targeting them for political purposes, either to destroy an opponent from the other party or simply to advance their own careers. But such accusations have taken on greater currency following the dismissal of nine U.S. attorneys who were insufficiently loyal to an effort in Washington to politicize public corruption cases. That scandal led last August to the resignation of U.S. Attorney General Alberto Gonzales, along with most of the other top officials at the Justice Department. "It gives traction to the claims of partisan political motivation made by indicted officials," says former prosecutor Geoff Moulton, now a law professor at Widener University, "even in cases where there's absolutely no merit to those claims."
There's no disputing that the feds are going after a lot of state and local officeholders these days. Since 2002, both the number of public corruption cases and the number of FBI agents devoted to such cases has increased by more than 50 percent. But is it because there's been a sudden spike of mischief in office? Or is it more an epidemic of prosecutorial zeal and ambition? Those are not easy questions to answer. But they're increasingly important to ask.
What's clear is that we are dealing with a national phenomenon. In the past three years, the FBI's long-running undercover operation in Tennessee (code named "Tennessee Waltz") has led to the conviction of a dozen officials, including several state senators and a state representative, the most recent of them in April. In New Jersey, U.S. Attorney Christopher Christie has prosecuted more than 125 state and local officials, without a single acquittal. In North Carolina, U.S. Attorney George Holding successfully prosecuted House Speaker Jim Black in a corruption scandal, followed this spring by the conviction and expulsion of one of Black's top lieutenants -- the first expulsion of a legislator in that state since 1880. And in Alaska, a major bribery scandal involving an oil services company has already led to seven convictions, including that of former state House Speaker Pete Kott.
Corruption cases always have been, and always will be, part of the public-sector landscape. A prosecutor seeking to press such cases can usually find plenty of work -- and prosecutors have shown they can obtain an indictment from a grand jury without presenting anything close to an airtight case. Given the vast discretion prosecutors maintain in picking their targets, they are subject to regular complaints that they are interfering with the political process and the normal operations of government. Democrats still single out Ken Starr, the special prosecutor who published an X-rated account of President Clinton's love life, in their pantheon of villains. For their part, many Republicans have excoriated Patrick Fitzgerald, the U.S. attorney in Chicago and special counsel in the Valerie Plame investigation, for his successful prosecution of former vice presidential chief of staff I. Lewis "Scooter" Libby.
Public corruption cases may not be the most certain way for a prosecutor to advance his career -- they create plenty of enemies even when, or especially when, they're successful -- but they do guarantee bigger headlines than conducting drug seizures or even sending a series of murderers to death row. That sort of motivation was starkly on display in 2004, when e-mails leaked from the office of Thomas DiBiagio, then the U.S. attorney in Maryland. He demanded that his staff bring no fewer than three "front-page" corruption indictments by Election Day. Given the current climate, it's become the first line of a vigorous defense for public officials to suggest they are the latest victims of politically-motivated investigations.
On the other hand, there are safeguards. To carry off a partisan prosecutorial vendetta really does require something of a conspiracy, with a U.S. attorney having to bring on board his or her own career staff, FBI agents and other investigators, the media, a judge and a jury. It's such a tough trick to pull off that even David Iglesias, a U.S. attorney who was told to speed up prosecutions of Democrats and ultimately was fired by Gonzales, is skeptical about the existence of organized partisan scalp-hunting. Iglesias, who just published a book about his experience, concedes there was an "attempt to politicize the Justice Department both in Washington and out in the field," but argues that it failed. In his biggest case, which led to the conviction of two New Mexico state treasurers, Iglesias says that "our referral wasn't from the Republican Party, it was from a state employee caught copying U.S. currency on an office photocopier."
There is always a risk that prosecutors will want to score points by aiming at the ripe target of elected leadership. Yet in the vast majority of cases, government officials who are formally charged with crimes end up either entering into a plea bargain or being convicted. Even critics of the system concede that it remains a necessary corrective to the temptations of exploiting public office. And when politicians do get caught, they normally have themselves, much more than the prosecutors, to blame. "People in public office, particularly legislators, ought to know they are in somebody's gun sights," says Alan Rosenthal, an expert on legislatures at Rutgers University. "If it's not an opponent or a newspaper, it's the prosecuting attorney."
Lately, though, there's one politician whose claims about a partisan vendetta have gained a good deal of traction. Siegelman, the former Alabama governor, says he was sent to federal prison at the behest of Republicans in his state and of national GOP operatives, up to and including Karl Rove, who is now fighting a congressional subpoena ordering him to testify about his role in the case. "I think this will make Watergate look like child's play," Siegelman recently told the Anniston Star.
More than 50 former state attorneys general petitioned Congress to look into the case and have written a brief seeking to have it dismissed. In April, the U.S. House Judiciary Committee issued a report stating that "there is extensive evidence that the prosecution of [Siegelman] was directed or promoted by Washington officials, likely including [Rove]." In March, the federal appellate court that released Siegelman found that he had raised "substantial questions of fact and law."
Siegelman has yet to prove the existence of a wide-ranging Republican conspiracy against him. He admits he has no hard proof and, indeed, the whole story rests entirely on the testimony of a lawyer who has changed her story more than once. Much has been made of the fact that a Rove crony is married to a U.S. attorney in Alabama, but far less attention has been given to another fact -- that one of the lead prosecutors in Siegelman's case was a Democrat who had successfully prosecuted Alabama's former Republican governor, Guy Hunt.
But even absent proof of nationwide collusion, it does appear that the Siegelman prosecution, which dragged on for more than five years, took on a highly personal quality. The former governor was convicted of doing something that would sound to many people like part of his job description -- he gave a seat on a state board to a campaign contributor. Siegelman's allies claim that the prosecution went so far as to criminalize normal political activity. Whatever the reality may be, Siegelman's conspiracy claims have taken on broad currency because they speak to the worst fears about centralized power and prosecutors using courts and pliant juries as political weapons.
That's exactly the argument that defense lawyers for many of Alabama's legislators are trying to make on behalf of their clients in the probe of the state's two-year colleges. The two-year college system was set up by Democratic Governor George C. Wallace in the 1960s, in part as a patronage scheme. Some state officials and federal prosecutors, led by U.S. Attorney Alice Martin, argue that it has remained that way. Nearly one-third of the state's legislators have financial ties to the system, either as employees or through their families. Some, like Schmitz, have been accused of profiting from no-show jobs. She is awaiting trial on charges that she accepted more than $175,000 in college salary for work she didn't perform. Roy Johnson, the former chancellor of the system and an ex-legislator himself, has pleaded guilty to an $18-million bribery and kickback scheme. E.B. McClain, a Democratic state senator, was indicted in May on charges that he had received $300,000 directly out of grants he had earmarked for a nonprofit group. He denies any wrongdoing.
Defense attorneys for several legislators have filed complaints alleging that they were targeted for selective prosecution, specifically citing the Siegelman case and the U.S. House Judiciary Committee findings as evidence. One argued that his client's prosecution was "part of a larger plan to rid the legislature of Democrats." In the words of Buck Watson, Schmitz's attorney, "Everyone has suspicions."
Whatever the suspicions might be, neither Watson nor anyone else has offered proof that the two-year college investigation was politically motivated. It didn't even start in Martin's office; it grew out of a Pulitzer Prize-winning series by reporter Brett Blackledge of the Birmingham News. In May, a federal judge dismissed defense claims of prosecutorial misconduct as "unsubstantiated allegations" and "conjecture," and said the complaint appeared to be "based on little more than Ms. Schmitz's self-serving expressions of disbelief and incredulity that she has been indicted."
A federal judge reached the same conclusion in March in response to a similar claim filed by former New Jersey state Senator Wayne Bryant, who was convicted of taking three state jobs in which he did "little to no work" in order to pad his pension. But the New Jersey court did concede Bryant's point that prosecutors issued subpoenas with language designed to intimidate witnesses from talking to his lawyers.
Bryant's conviction was just one among a long streak of unbroken wins by U.S. Attorney Christopher Christie. The list of Christie's victims seems to grow almost daily. Of course, he may simply be working in a target-rich environment. One of 11 officials from Monmouth County charged with bribery, fraud and extortion was caught on tape summing up the prevailing legal and political culture in New Jersey: "Nobody watches, nobody hears, nobody sees." Christie has proven him wrong. Now that mayor, along with nine of the other officials, is serving time in jail. The 11th awaits trial in the fall.
One of the sad side effects of political corruption cases is that they do little or nothing to restore public trust. If anything, the opposite is true. Voters might want to see crooked legislators sent to jail, but when such prosecutions actually happen, they merely confirm the worst suspicions about government. Sixty percent of New Jersey residents polled this year by Monmouth University said that the state has a lot of public corruption, up from 34 percent four years ago. "The numbers indicate that the more attention is paid to this, it's exposed the wound rather than healing it," says Monmouth pollster Patrick Murray. "People see this as scratching the surface, that there's no end in sight for this corruption and that anything our state legislature tries to do is just a Band-Aid."
Republican state Senate leader Tom Kean Jr. argues that Christie's 100 percent conviction rate speaks for itself. "That's against Republicans and Democrats alike, which shows that there's no political motivation," Kean insists. But Christie has come under criticism lately for having awarded a no-bid, multimillion-dollar contract to his old boss, former U.S. Attorney General John Ashcroft, to monitor a corporate fraud settlement. "New Jersey is a place where there's a reputation for misusing government in your own favor," says Rutgers political scientist Ingrid Reed. "Christie awarding the contract to Ashcroft in a non-competitive bidding situation has made people wonder if he's any different from the others. If he runs for office, that could hurt him in a campaign."
The fact that Christie is widely reputed to have his eye on the governor's office speaks to concerns that federal prosecutors view public corruption cases as a way of furthering their own ambitions. But federal prosecutors insist that their state and local counterparts are greater political animals than they are. Most are elected officials themselves, after all. The feds argue that, to the extent that political motivation is a factor in public corruption cases, it shows itself most often when state and local prosecutors fail to pursue them. "They're almost without exception elected, district or state's attorneys," says Penn State University political scientist James Eisenstein, "so they have their party ties and that can inhibit them from prosecuting corruption in their own party -- and probably often does."
There are other reasons why U.S. attorneys, rather than state or local prosecutors, pursue most public corruption cases. District attorneys and state attorneys general are generally not equipped with the resources needed for a political undercover investigation. They're expected to spend much of their effort on street crime, and they often are hampered by state laws that are less expansive than federal ones. States might have shorter statutes of limitation than the feds, for example, or milder penalties for perjury. But Daniel Richman, a Columbia University law professor and former federal prosecutor, believes the argument that states and counties lack the resources to police their own can become self-fulfilling. "There's a good case to be made that the federal government has made it too easy for state AGs or police to leave this field," he says. "Maybe we ought to do more to beef up statewide corruption efforts, which is an underdeveloped field in most states."
U.S. attorneys, by contrast, command large staffs and, in addition, can call on the services of postal inspectors, FBI and IRS agents -- as well as state police, who are permitted to investigate federal crimes. The resources devoted to such cases rises and falls with the precedence of other law-enforcement issues -- terrorism or drug cases, for example -- but currently, Washington's interest in public corruption is clearly cresting. The FBI has 600 agents working this particular beat, up from 358 six years ago. The bureau has more than 2,500 investigations pending, an increase of more than 50 percent. Over the past two years alone, there have been 1,800 convictions of public officials at all levels of government.
Many of the federal laws used to convict state and local officials are so vague as to allow prosecutors enormous leeway. To secure a federal mail fraud conviction, the prosecutor merely has to convince a jury that the defendant deprived the public of its right to "honest services." No specific state or local crime needs to be alleged, and no precise definition of "honest services" needs to be provided. In 1987, the U.S. Supreme Court ruled that this was illegally broad. The following year, however, Congress restored it. Despite the Supreme Court's recent general sensitivity to federalism issues, the justices have shown no inclination in the past decade to curb federal prosecutors from hounding officials at lower levels of government. In a 2004 ruling, for example, the court unanimously upheld a statute that makes any bribery a federal crime within jurisdictions that receive federal money, even when no federal money or programs are involved. "Congress does not have to accept the risk of getting poor performance for its money, owing to local and state administrators' improbity," Justice David Souter wrote.
In the end, it may in fact be more effective to have a federal prosecutor come in from outside to clean up Juneau or Raleigh than to leave the job to local law enforcement. (Nelson P. Cohen, the U.S. attorney in Alaska, moved there from Pittsburgh and still owns his home in Pennsylvania.) But what may be more important is what happens after the scandal and the prosecution. In the wake of embarrassing corruption cases, do states beef up their own civil enforcement and regulation of ethics, contracting and campaign finance? There is some evidence that the answer is yes.
During the 1980s, for example, Michael Carey, then the U.S. attorney in West Virginia, convicted more than 50 public officials, including the governor and two presidents of the state Senate. The next governor made passage of an ethics law and creation of an ethics commission his first order of business. In Rhode Island, the convictions of a state senator and the House majority leader for taking financial payments from drug and health companies led in 2004 to passage of new disclosure requirements for outside entities offering anything of value to legislators. And Connecticut has passed a flurry of reform laws and regulations in the wake of the bribery conviction and imprisonment of former Governor John G. Rowland in 2005. "If it were not for the federal investigations," says Andy Sauer, state executive director of the reform lobby Common Cause, "the changes in law that were done to clean up the state would have not happened. Rowland would still be governor."
In Alaska, the FBI installed a pinhole camera that captured all the action in a Juneau hotel suite where Bill Allen, CEO of the oil services company Veco, bribed legislators during a 2006 special session to set tax rates on oil in the state. Allen had hundred-dollar bills in his front pocket and had to shush Pete Kott, then the House speaker. "Let me count first here," Allen said.
Kott bragged about being able to block a tax bill opposed by the oil industry. "I had to cheat, steal, beg, borrow and lie," he said. "Exxon's happy. BP's happy. I'll sell my soul to the devil." Federal investigators later found $32,000 neatly stacked in the closet of his condo.
Last November, Alaska legislators raised the low oil tax rate that the bribes had bought, bringing in an estimated $1.5 billion more for the state per year. A sometimes-reluctant legislature has tightened state ethics laws and "overturned everything we'd done to weaken laws and underfund the ethics commission," says state Senator Bill Wielechowski. His legislation to create a public campaign finance system gained no traction in the legislature, but will appear as an initiative on a ballot in August.
Even after an embarrassing scandal, passing meaningful reform laws can be tough. A year after Rhode Island enacted its new disclosure requirements, both houses of the legislature passed an enormous loophole that would have rendered them meaningless, although they backed down in the face of public pressure and a veto threat. In Alabama, legislators have sought to overturn new regulations that in 2010 will ban them from simultaneously holding on to their college jobs while serving in the House or Senate.
No legislator wants to set a trap that he might later find himself caught in. But in the long run, it may be better for the future of democracy if states set tough, enforceable ethics laws to regulate their own politicians and government workers, rather than wait for ambitious federal prosecutors to swoop in after the fact. "There still are legislators who didn't want to change anything," Wielechowski says, "but the public as a whole demanded, really, that we pass new ethics laws and clean things up."
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