Why Lowell Barron Will Walk Away a Free Man, or, Why Luther Strange Will Never Be Governor - Part II

In the early 1930’s, an Attorney General of Alabama prostituted his office to the cause of injustice, in an effort to propel himself to the Governor’s Mansion. Thomas E. Knight, Jr., of Greensboro personally took charge of the appeals, and the subsequent rounds of trials, of the Scottsboro Boys. Knight is one of the more execrable characters in Alabama’s history. As Attorney General, he secured affirmances of the convictions of the Scottsboro Boys, with the first round of opinions written by Alabama Supreme Court Justice Thomas E. Knight, Sr. Weems v. State, 224 Ala. 524, 141 So. 215, rev’d sub nom. Powell v. Alabama, 287 U.S. 45 (1932). Arguing against the audacity of the suggestion that blacks should be allowed to serve on Alabama juries, he declared that it was “an attack on the sovereignty” of Alabama, presaging the states’ rights rhetoric of the current incumbent. When asked by defense counsel to address the defendants as “Mr.,” as he had done for white witnesses, rather than by their first names, he stated that “I am not in the habit of doing that.” He became so invested in the prosecution that, after being elected Lieutenant Governor in 1934, he secured appointment as a special prosecutor to continue working on the case. In one of the stronger arguments for the existence of karma, he died at the age of 38 in 1937, without ever attaining the governorship he so badly coveted.
 

While the office of Attorney General has subsequently been ably filled with such forward-looking Generals as Bill Baxley and Don Siegelman, the present holder of that office is a full-bore regression to the disgraceful conduct of Knight. Once again, Scottsboro, which lies in the Eighth State Senate District, is involved. Luther Strange is just the sort of fellow the late, great Judge (and Senator) Howell Heflin had in mind when he coined the acid phrase, “the Grey Poupon Mountain Brook crowd, the Gucci-poochie-coochie shoe-wearing, Mercedes-driving, Rolex-wearing, polo-playing, Jacuzzi-soaking, Perrier-drinking, Aspen-skiing, ritzy rich, high-society Republicans who eat broccoli” to describe his 1990 opponent, Strange’s fellow Mountain Brookie, Bill Cabaniss. Like his predecessor Knight, Strange has stooped to prosecutorial misconduct by securing an unethical, fraudulent indictment of former State Senator Lowell Barron of DeKalb County, and Barron’s former campaign staffer, Jill Johnson, for political gain. The charges against Barron and Johnson are so weak that, despite the adage that a prosecutor can get a grand jury to “indict a ham sandwich,” Strange could not – despite repeated efforts – secure an indictment in Jackson County. He had to shop the case to a grand jury in more-Republican DeKalb to get the indictment, and even that took several months. In a previous post, I explained why it is not a violation of the Alabama Ethics Act to pay a worker in your political campaign. In this post, I will show that it is also clearly not a crime under the Fair Campaign Practices Act (“FCPA”) to pay a campaign employee.

The Ethics Act provision made the subject of some counts of the Barron-Johnson indictment is relatively simple. By contrast, the FCPA provision charged in that indictment is anything but simple. The often-convoluted language is as follows:

(a) A candidate, public official, or principal campaign committee as defined in this chapter, may only use campaign contributions, and any proceeds from investing the contributions that are in excess of any amount necessary to defray expenditures of the candidate, public official, or principal campaign committee, for the following purposes:

(1) Necessary and ordinary expenditures of the campaign.

(2) Expenditures that are reasonably related to performing the duties of the office held. For purposes of this section, expenditures that are reasonably related to performing the duties of the office held do not include personal and legislative living expenses, as defined in this chapter.

(3) Donations to the State General Fund, the Education Trust Fund, or equivalent county or municipal funds. Donations to an organization to which a federal income tax deduction is permitted under subparagraph (A) of paragraph (1) of subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended, or any other charitable, educational, or eleemosynary cause of Section 501 of Title 26 of the U. S. Code.

(4) Inaugural or transitional expenses. Ala. Code § 17-5-7(a).

Put into simpler English, this code provision says that money contributed to a campaign can only be used for “necessary and ordinary expenditures of the campaign,” expenses of the inauguration or office, or donated to a government or charity. These uses of the money are permitted; any other use of the money is a criminal offense.

Obviously, the most relevant of these legal alternatives is “necessary and ordinary expenditures of the campaign.” If the payments to Ms. Johnson fit that peg, the game is over and there is no crime. If Strange’s assistants try to argue to the Court that Ms. Johnson did not work for the campaign, which would make payments to her some sort of “expenditures of the campaign,” they will find themselves in contempt, and sanctioned by the Alabama Bar, in short order. As far as the statute goes, the only question is whether the payments were “necessary and ordinary.”

Granted, $58,000.00 and even a used, high mileage campaign car, are generous compensation. (The Kelley Blue Book value of a 2007 Toyota Camry, which is the car named in the indictment, in fair condition, is $5,945.00. I understand this was a high-mileage campaign vehicle.) At first blush, Strange might argue that this compensation was not “necessary and ordinary.” If one follows the letter of the statute, and presumes that payments this large were not “necessary and ordinary,” you could argue that the statute was violated, and a crime committed. But the first thing you have to look at here is that the $50,000.00 payment was made after Barron lost the 2010 election, and this looks like nothing so much as a proper severance payment to a loyal staffer who had worked for Barron for years; running campaigns, coordinating community events, and handling constituent matters; and who was about to be unemployed.

Even more significant, as I pointed out in Part I of this post, is that Strange is nothing if not a blithering hypocrite. As I related there, in the 2010 election cycle, Strange paid Jessica Medeiros Garrison, a fellow Mountain Brook resident, and her corporation, MDM27 Holdings, Inc., the vastly princelier sum of $227,727.99. This sum seems even more extravagant when you consider that Strange’s expenditure disclosures reveal that he had specialist firms – media, polling, and so

forth – doing most of the heavy work of his campaign. If what Lowell Barron did was a crime, then the only proper thing for Luther Strange to do is turn himself in immediately at the nearest police station that has an orange jumpsuit to accommodate his 6’9” frame.

At this point, it’s pretty clear that the FCPA was not violated by Senator Barron’s payments to Ms. Johnson. Pretty clear, but a really biased Republican would still say that there is enough of a chance that a motion to dismiss the indictment should not be summarily granted; that there is enough of a remote chance that a jury might find that the payments to Ms. Johnson, being as large as they are, were not “necessary and ordinary” expenditures of the Barron campaign, so as to allow the case to go to trial. Sorry, Republican partisan, that argument fails. It fails because a court not only has to look at the statute in a criminal case, it has to determine whether that statute, as applied to the defendant, violates the Alabama and U.S. Constitutions. One of the best known parts of the U.S. Constitution is that part that makes it possible for bloggers like me to tell the truth about a corrupt, unethical Attorney General: the free speech clause of the First Amendment.

The Federal Election Campaign Act of 1971, Pub. L. 92-225, § 104, 86 Stat. 3, 5 (1972), placed dollar limits on the amounts candidates for federal office could spend on advertising and broadcast media. In the course of striking down those expenditure limits, the United States Supreme Court stated:

The First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign. Buckley v. Valeo, 424 U.S. 1, 57 (1976).

This language has been construed to be “a broad holding that government does not have the right to pass judgment on how or why a person expends campaign resources.” Homans v. City of Albuquerque, 366 F.3d 900, 915 (10th Cir. 2004).

Game over. The chickens have hatched and can be counted. The fat lady has sung. As long as campaign contributions are expended on the campaign, the First Amendment absolutely prohibits regulation of how they are spent, or how much is spent. Government may not prohibit political speech expenditures simply because they are “wasteful, excessive, or unwise;” neither may it require, as the FCPA purports to

dictate, that they be “necessary and ordinary.” If Senator Barron had chosen to spend his entire campaign fund to hire Hooters Girls at $10,000.00 apiece for the day, to wave his signs at voters at polling places on Election Day, he would have been guilty of questionable taste. He might have even become as big a joke as Shad McGill. (It being Alabama, I will refrain from speculating about whether Barron might thus have beaten him.) But as long as the Hooters Girls stayed 30 feet from the front door of the polling place, there would have been no crime. As with the Ethics Act charges, the FCPA counts of the indictment are also due to be dismissed.

The Barron and Johnson cases are in front of DeKalb County Circuit Judge Randall Cole. Cole, a Democrat, is the most senior circuit judge in the state, and was re-elected to his final term in 2012. (He will be ineligible for further terms due to age limits.) For years, Cole was selected by his fellow circuit judges to sit on the Judicial Inquiry Commission, which investigates ethics charges against judges. For much of his time on that panel, he was selected by its members to be its Chairman. Cole’s assignment to the case is fortuitous for Barron and Johnson. Cole need fear no political blowback from (properly) dismissing the charges before trial, even if such pedestrian concerns ever influenced his rulings. While Strange could appeal a dismissal to the Court of Criminal Appeals, that Court would be more reluctant to reverse such an eminent trial judge. Even more troubling to “the Criminals” is that they are themselves all

elected judges, and should be disinclined to issue a ruling that subjected them to potential indictment. Presiding Judge Mary Windom (left, front in the photo), for example, paid her campaign operative Bill Goolsby $17,500.00 in her 2008 campaign. Was that salary criminally “converted to [his] personal use” under the Ethics Act? She also paid Auburn Network, Inc., and the affiliated Network Creative Media some $107,700.40, and we all know to whose “personal use” that got “converted.” Were those “necessary and ordinary expenditures” of her campaign? Reversing a dismissal would create a precedent that could get these Republicans indicted.

This brings us back to the way Strange is channeling the ghost of Thomas Knight, Jr. This indictment is pure, dirty politics. At least some political pundits view Strange as a potential primary challenger to Governor Bentley in 2014.

Note Strange’s less-than-supportive posture and visage during Bentley’s 2013 State of the State Address, while others are shown applauding. Strange’s fraudulent indictment of Barron and Johnson is nothing more than an effort to throw red meat to the Republican base. An additional Republican political motive comes from rumors that Barron is contemplating either an effort to regain his Senate seat, or perhaps the Lieutenant Governor’s chair, in 2014. While Strange knows that these charges are fraudulent and won’t stick, he doesn’t care. To the low-information voter, “Barron” and “indictment” now have a subconscious association. To combat this, we Democrats have to put on our A-game after the charges are tossed, to keep the spotlight on Strange’s unethical behavior. From comments on al.com to letters to the editor to statements by Party leaders, the drumbeat of Strange’s impropriety has to be maintained. Not only to make him suffer the consequence of his wrongdoing, but to undo the unjustified damage to the reputations of Senator Barron, Ms. Johnson, and the Party as a whole.

Before I close this Part II, I have to return for a moment to the petite, lavishly-paid Jessica Garrison, and her incredibly tall six-year-old son Michael. According to statistics maintained by the Centers for Disease Control, fewer than 5% of all boys are four feet tall at age six, and he’s obviously well past that.

He’s going to make the basketball coach at Mountain Brook High School happy someday. Why, at this rate, he will grow up to be as tall as ... Goliath. Where did you think I was going with that, anyway??