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

One of this year’s leading political news stories was the indictment of former State Senator Lowell Barron, shown here before his crippling tractor accident last year, and his former campaign employee Jill Johnson, on charges of violating the Alabama Ethics Act and the Fair Campaign Practices Act. As if on cue, media sources from across Alabama, which have never mentioned the corruption of “Choctaw Bob” Riley or Speaker Mike Hubbard, jumped on the story as an example of “corrupt Democrats.”

The relevant facts of this case are a matter of public record, fully disclosed in Barron’s campaign filings. Jill Johnson was a long-time political employee of Barron, and she is known all across his former district for her campaign and constituent services work. When Shad “Hands Off, He’s My Man!” McGill upset Barron in the 2010 general election, Barron had no further need of a campaign staffer. Like many grateful employers, Barron gave Johnson a well-earned severance bonus. He gave her title to the campaign’s high-mileage, four-year-old Toyota Camry, and two cash payments of $6,000.00 and $50,000.00. The indictment also charges Barron and Johnson for a payment of $2,000.00 during the campaign. I guess Republican Attorney General Luther Strange hasn’t practiced enough real law to know that it’s a crime under § 16 of the Fair Labor Standards Act (29 U.S.C. § 216) not to pay your employees their wages.

In fact, his lack of real legal experience notwithstanding, Strange knows that his indictment of Barron and Johnson is frivolous, perhaps to the point of being unethical conduct on his part as a member of the Alabama Bar. In this post, I am going to look at the Ethics Act charges against Barron and Johnson. In a future post, I will talk about the Fair Campaign Practices Act part of the indictment.

 When Alabama first adopted the Ethics Act in 1973, it was one of the first of its kind in the country. To be sure, over the years, it has provided the means for ridding Alabama politics of a number of unsavory political figures. Republican Governor Guy Hunt comes to mind. Sometimes, it has been criticized as being too strictly applied, as when the Ethics Commission has fined public employees for using the office fax machine for a local personal fax, at no cost to the taxpayers. In balance, though, the law has been beneficial for the state. It is Strange’s blatantly political use of the Act – in the year before an election in which Barron is rumored to be seeking to regain his Senate seat – that is so worthy of condemnation.

The provision of the Ethics Act that Barron and Johnson have been charged with violating is deceptively simple:

Contributions to an office holder, a candidate, or to a public official’s inaugural or transitional fund shall not be converted to personal use. Ala. Code § 36-25-6.

Now, the first thing anyone has to realize is that this part of the Ethics Law only reaches contributions to Barron’s campaign. This case does not involve one penny of taxpayer money. The second is, as noted above, that Barron properly disclosed these payments on his campaign disclosure reports, which are available to anyone online. Finally, according to lawyers involved in the case, Johnson reported receiving these payments on her income tax returns, and paid tax on them. I think we can safely assume that is true, because otherwise she would have been charged with tax evasion.

Let’s unpack the language of the statute. No one is denying that the funds were campaign funds, or, in the words of the statute, “contributions to an office holder [or] a candidate ...” The only question is whether the payments caused contributions to be “converted to personal use.” Now, if Barron had paid these funds to himself, there would be no question that the law had been violated. That is the thing – with inauguration contributions – that got Guy Hunt convicted. But none of the payments in the indictment were to Senator Barron. They were to Johnson. So, Barron and Johnson are only guilty of violating the Ethics Act if payments to her constitute “conversion to personal use.”

Obviously, that phrase “converted to personal use” is the key to these charges. The Ethics Act does not define “personal use.” This leaves no obvious answer to the question, whose “personal use” are we talking about? When it comes to the Alabama Ethics Act, I think it’s safe to say that no one knows more about it than the Alabama Ethics Commission, the independent agency that enforces it. Their staff spends a minimum of 40 hours every week thinking about it, and the Commissioners themselves spend countless hours studying it before and during meetings. In a 2005 opinion to Circuit Judge Joseph Brogden of Escambia County, the Commission had this to say about this statute:

Provided the disposition of excess campaign funds are not converted to the personal use of the candidate, a member of his or her family or a business with which he or she is associated, the disposition of excess campaign funds is controlled [only] by The Fair Campaign Practices Act, found in Title 17 of the Code of Alabama. Alabama Ethics Commission, Advisory Opinion No. 2005-15 to Hon. Joseph Brogden, p. 5 (April 6, 2005)(emphasis added)(approving transfer of surplus campaign funds to church of which officeholder was member, on proviso that he was not an officer or director, and advising that such a transfer was only subject to the FCPA).

In other words, if the transfer is not to the candidate/officeholder, his family member, or his business, Ala. Code § 36-25-6, which is what Barron and Johnson are charged with violating, does not apply to the transfer, and there is no crime. Yes, this Opinion adds words (“a member of his or her family or a business with which he or she is associated”) that are in the statute only by implication, limiting “personal use” to the candidate/officeholder or his family. But when you think about it, no other reading of the law makes sense. 

First, at some point, when campaign contributions are spent on the campaign, they are going to be “converted” to someone’s personal use. When a candidate buys a radio spot, the funds are “converted to the personal use” of the owner of the radio station. Purchase of a newspaper ad means campaign contributions are “converted to the personal use” of the owner of the newspaper. The newspapers that have been condemning Barron without a trial ought to think long and hard about what that interpretation means to their owners. And today, every campaign above the level of dogcatcher has at least one paid staffer. There is no real difference in the legitimate remuneration of a staff member, and the purchase of an ad in the media. If candidates are to exercise their First Amendment right to campaign, contributions to their campaigns have to be “converted to the personal use” of their staff and vendors. “If the First Amendment has any force, it prohibits ... fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 349 (2010). Hiring and paying a campaign staff member is “simply engaging in political speech.”

Secondly, the interpretation of the Ethics Commission makes even more sense when you think about the obvious purpose of this section. Both the Ethics Act and the Criminal Code have bribery provisions. This provision is just a backstop to them. If it weren’t there, a candidate or officeholder could evade a bribery charge by just having the bribing party make a contribution to his campaign, then disburse the funds to himself, rather than directly pocketing a bribe. That’s obviously not an issue when the money goes to a staffer who is not a candidate’s family member.

Finally, the Federal Election Campaign Act of 1971 has a very similar prohibition stating that a “contribution or donation described in subsection (a) of this section shall not be converted by any person to personal use.” 2 U.S.C.A. § 439a(b)(2). The Federal Election Commission has interpreted that statute to prohibit only transfers to the candidate or his family, and even then, allows such payments if the payment to a family member for campaign work is not “in excess of the fair market value of the services provided.” 11 C.F.R. § 113.1(g)(1)(H). Ms. Johnson, it goes without saying, is not a member of Senator Barron’s family.

In short, Senator Barron’s payment of compensation to his staffer, for work done, is not a violation of the Alabama Ethics Act. Attorney General Strange and his assistants know this, and should never have charged Senator Barron or Ms. Johnson. In fact, this law is so clear, that Attorney General Strange has probably violated Rule 3.8 of the Rules of Professional Conduct of the Alabama Bar, which states that a “prosecutor in a criminal case shall ... refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” A criminal defense lawyer I know recently pointed out to me that there have been many cases where both trial and appellate courts have thrown out convictions of even clearly guilty murderers because of intentional prosecutorial misconduct. He went on to tell me that he had searched the back issues of The Alabama Lawyer, in which all disbarments, suspensions, and reprimands of lawyers are published, and had never found a single case in which a prosecutor had been given a sanction for prosecutorial misconduct. (I welcome any correction to that observation in the Comments.) Not even when that misconduct was in a death penalty case. Perhaps this will be the case that changes that.

North Carolina disbarred Mike Nifong, the district attorney who brought bogus rape charges against members of the Duke University lacrosse team in 2006. At least Nifong had a witness who claimed to have been a victim of an actual crime. Perhaps someone with skin in the game will file a complaint with the Alabama Bar when these charges are disposed, and we can do as well as North Carolina.

There is another rule – this one a rule of common sense, involving glass houses and stones – that Attorney General Strange seems to have violated. Meet Jessica Medeiros Garrison. The photo below shows the petite Ms. Garrison next to the 6’9”, former college basketball player, Mr. Strange.

Like Ms. Johnson, Ms. Garrison spent 2010 working for a

candidate. In her case, the candidate was her fellow Mountain Brook resident, Luther Strange. She also owns a corporation, MDM27 Holdings, Inc., which tells the Secretary of State that its purpose is to provide “political marketing services.” As Strange’s 2010 campaign expenditure disclosures show, one of MDM27 Holding’s clients was his campaign. As calculated by the blog Legal Schnauzer, based on these compiled expenditure disclosures, Ms. Garrison and her corporation “converted to [her] personal use,” by Strange’s definition, some $227,727.99 of the campaign contributions to the Strange campaign - over three times what Senator Barron paid Ms. Johnson. You can review these reports, and a compilation of the sums paid Ms. Garrison, and check Legal Schnauzer’s math, here:

Luther Strange Campaign Expenditures 2010-12 by PubliusIX

Ms. Garrison was paid for all this “work” while, as these reports show, Strange had different firms and consultants handling most of the parts of his campaign, such as media, polling, direct mail, and so forth. During part of the time in which she was getting these payments, she had joined the payroll of a white-shoe Birmingham law firm, Balch and Bingham, and couldn’t have been working full time for Strange. Nice work if you can get it.

Now, since the Attorney General is doing the exact same thing for which he indicted Senator Barron and Ms. Johnson, may we presume he will demand that he and Ms. Garrison be indicted, as well? That would, of course, be the honorable thing. And surely, the Attorney General is an honorable man. His fellow Republicans – Governor Bentley and Speaker Hubbard included – allowed contributions to their campaigns to be “converted to personal use” by their staffs.

Will Mr. Strange see to it they are indicted? That would be the honorable thing, and surely the Attorney General is an honorable man. So are they all, all honorable men.

I would ask that the readers of this post, and the coming post on the Fair Campaign Practices Act, do a service for their State, but more importantly, for Senator Barron and Ms. Johnson. Attorney General Strange has played this case for maximum political effect. His investigator arrested Ms. Johnson, and coordinated her arrival at the DeKalb County Jail with the news media. The major media in this state, especially our three largest newspapers and their joint website, have relied almost exclusively on the Attorney General’s office for the “facts” and “law” of this case, and have accurately reported neither as a result. What I want you to do, reader, is bookmark this post, and the coming Part II, in your browser. Keep your eyes on both the TV and newspaper coverage of this case as it proceeds. If you see a story about the case that does not point out the identical behavior of Mr. Strange and Ms. Garrison, or fails to point out the interpretation of the law by the Ethics Commission means there was no violation, get the reporter’s email, and send them a link to this post and/or Part II. Tell them you expect them to do better, since the information about the Attorney General and his “consultant” is also a matter of public record. Tell them you expect them to accurately report the law, as these posts set out, and attorneys for Senator Barron and Ms. Johnson will doubtless do in court. Send letters to the editor. 

This is not a criminal prosecution, because there has not been a crime. As a result, these charges will not stand up, regardless of what the media report. But if we can keep the media honest, not only will Senator Barron and Ms. Johnson walk away vindicated, the real criminal in this case – Luther Strange – will limp back to Montgomery with his dream of riding Barron and Johnson into the Governor’s Mansion in tatters. We can control the headlines with pressure on the media.

Before I close this Part I, let’s return to the cute, petite, pixyish Ms. Garrison. What on earth would Ms. Garrison do with that kind of money “converted to [her] personal use?” Well, it costs a lot to raise a proper Mountain Brook kid these days. Meet Michael Garrison, who just turned six in March, sitting next to Mommy, and, as you can see with your own eyes, already reaching her ears. Isn’t he a cute, tall six-year-old, growing like a weed on triple-13?

Stay tuned, friends, for Part II. And would someone get General Strange something to drink? He is not looking at all well over there.

I Do Not Want to Hear One Word of Complaint About Dr. Joe Reed. Not One.

Last Saturday, I attended the meeting of the State Democratic Executive Committee, of which I am not a member.

 

Which is more than 174 of the 285 members of that Committee did.
 
This was not a trivial or routine meeting. The office of Chairman - or “Chair,” as the amendment to the Bylaws adopted at that meeting now calls it - has been vacant since the resignation of Judge Mark Kennedy. That in itself was enough reason for any member to set aside any but the most pressing personal reasons to attend. Our Party has no one who can speak with the full authority of the office on any issue that presents itself to the public attention. There is no one in place to be making the long-term plans that are vital to any success we hope to have in 2014. Perhaps most importantly, there is not a permanent Chair in place to address the dire financial situation of the Party. As Acting Chair Nancy Worley noted, the Party’s balance sheet reflects insolvency. Outstanding debts exceed $500,000.00, and cash on hand is barely sufficient to pay the rent, phone, and power bills at the Party headquarters for another month or two. Unless this financial situation improves - and it will not so long as there is no permanent Chair - 2014 will resemble nothing so much as the surrender of the CSS Shenandoah. 

This meeting cannot be understood without accounting for the role in Party affairs of Dr. Joe Reed, head of the Alabama Democratic Conference and Vice Chair for Minority Affairs of the SDEC for far longer than the lifespans of the Millennials who make up the bulk of the Obama rank and file. Through fair means or foul, Reed controls the largest single bloc of votes on the SDEC. Of the numerous questions on which division of the house was called at Saturday’s meeting, every one went Reed’s way by a roughly 95-15 vote. Even if you assume, as I do, that Reed had almost all of his firm supporters present at the Embassy Suites, a bloc of 95 votes on a 285-member Committee is significant.

Reed has one thing in common with Justin Bieber: everyone seems either to hate him, or to love him. The dedication of his supporters is evident from the uniformity of the votes at Saturday’s meeting. On the other hand, it doesn’t tax Google’s servers to find withering criticism of his positions on issues, or his leadership style.

It is not my intention, in this post, either to bury Cæsar, or to praise him. Reed and I have been on the same side of many fights, and fought like rutting bucks on some issues. The important thing for consideration here is Reed’s role in the disgraceful attendance at Saturday’s meeting, even if it was not, strictly speaking, his direct fault.

As everyone following intraparty Democratic politics in Alabama knows, Judge Kennedy’s resignation as Chair was prompted by a dispute with Reed over Party management issues. Most notably, Kennedy had dismissed a Party staffer who was a Reed apparatchik, and opened an SDEC field office in Birmingham, which Reed opposed. After his resignation, Kennedy formed the Alabama Democratic Majority, a group with no legal ties to the Party, which says it wants to do grassroots work to rebuild the Party. Unkind public words have flown between Kennedy and his supporters on one hand, and Reed and Worley on the other.

Try as I might, I cannot blame the embarrassing number of empty seats at Saturday’s meeting on anything other than these hard feelings. Reed’s opponents on the Committee, perhaps persuaded they could not outvote him, simply stayed home by the score. Looking at the most current roster of the SDEC, I can easily count “scores” of members who generally oppose Reed’s positions on the Committee, who were not there.

To Dr. Reed and his supporters, I tip my hat. Had I been a member of the Committee, I probably would have voted against you on some issues that came before the Committee at that meeting. But you took your responsibility as holders of an elective office seriously, and showed up to fulfill your duty as holders of that office.

To the 15 or so Reed opponents who attended, and who taxed, almost to its limit, Acting Chair Worley’s encyclopedic knowledge of Robert’s Rules of Order,  I likewise raise my glass. Quixotic though your efforts may have been, you have earned the right to cuss Joe Reed to your heart’s content.

To the Reed opponents who were elsewhere Saturday - a large fraction of the 174 absentees - I direct your attention to the title of this post.

In a touchy-feely sense, the SDEC is not “the Party.” The Party consists of the hundreds of thousands of working Alabamians who share our belief in public education, equality, and the value of human dignity over corporate profits. But in the eyes of the Democratic National Committee, and in the view of the Code of Alabama, the SDEC is “the Party.” However valuable the contributions of the ADM, the Young Democrats, the College Democrats, the High School Democrats, the Alabama Federation of Democratic Women, the House and Senate caucuses, or, for that matter, Reed’s ADC, they are not the governing body of the Party. They will not be called on by the DNC to select Alabama’s representatives to it, or delegates to the 2016 Democratic National Convention. They are not charged by law with conducting the primary, or adjudicating election contests. (The Alabama Supreme Court has held that, “in hearing election contests, party committees sit as courts of special or limited jurisdiction.” Perloff v. Edington, 293 Ala. 277, 280, 302 So.2d 92, 95 (1974)(emphasis added).)

With that thought in mind,  can you imagine the outrage if a judge stayed home because he didn’t like what was on his court calendar that day? Or what would be said if a member

of the Legislature or a city council boycotted a session because they weren’t going to get their way - or simply because they had “other things” they wanted to do? To be a member of the SDEC is to hold an elected public office, and if you’re going to revel in your recognition as “our State Committeewoman” at the local Party club meeting, you need to respect that office, and its duties, as much as you would a seat on the city council or county commission.

I acknowledge that notices for this meeting were late getting out, and in a limited number of cases may not have reached the Committee members. That has to improve. Still, virtually everyone got their notice by the day before, and that was plenty of time to make arrangements to be there. As a member of that broader touchy-feely version of “the Party,” I am insulted if you thought the beach, or the golf course, or even (only one of several) of your child’s soccer games were more important. If you don’t want to do your duty as an elected official, step down and help us find someone from your district who will. I don’t blame the handful of absent members who were too ill to travel Saturday, or even those who might have been put to substantial expense to change flight or travel plans to make the meeting. But there is no way more than a handful of the 174 absentees had excuses that valid.

And if your absence was occasioned by your dislike of Joe Reed, and you expressed that dislike by sitting at home, I am even more upset. If our Party is worth supporting, it is worth fighting to put it back on a winning trajectory. Other than myself, and Dr. Reed, very few of the people present on Saturday have personal memories of the fight for control of the SDEC in 1974. Ironically, the “bad guy” in that fight was Governor George Wallace, the father-in-law of Judge Kennedy. Wallace sought to detach the Alabama Democratic Party from the national Party, and perhaps capture the Democratic presidential line on the ballot instead of the national nominee in the 1976 presidential election, as he had done in

1968. He was opposed in that effort by Judge Robert S. Vance, Sr., father of our 2012 Chief Justice nominee and the then-incumbent Chair, and his “loyalist” (as in “loyal” to the national Party) caucus. As a young lawyer, Vance was active on the right side of the early civil rights movement. His tenure as Chair saw the Party doing the right things in terms of minority representation on the SDEC, and holding a monopoly on statewide elected offices. In short, he was the best Chair the SDEC has ever had. (Coincidentally, the 1974 fight was one of those many instances where Reed and I were in agreement.)

Judge Vance, Sr., did not win that fight against Wallace in 1974 by sitting home on his backside, or by idly deprecating Wallace over beers at the lake. He did it by recruiting loyalist candidates for the SDEC in the 1974 primary, and organizing and turning them out for the organizational meeting at Birmingham’s unlamented late Parliament House Hotel like a well-oiled machine. To those who say “there’s no point in fighting Reed, so I’m not driving to Montgomery to try,” I point you to Judge Vance’s example. Reed had almost all of his troops present Saturday, and still only produced 90-95 votes on the typical issue. There is every chance that he can be outvoted if 200 or more members (including the Reed group) grace us with their presence, and engage in the slightest degree of organization and planning. Futility is no more valid an excuse for your absence than one of a dozen soccer games in your child’s season.

Has Joe Reed, like a certain British monarch, tragically stayed too long in his post, to the detriment of the realm? That is a topic far beyond the scope of this blog post. I will tell both sides of that fight, that we cannot beat the Republicans without the votes Joe Reed and his supporters represent. Neither can we beat them if we cannot reach beyond those voters. What I can say here, is that if antipathy - or even just apathy - have reached the stage where only 38% of the SDEC can be bothered to attend a critical meeting, we are in trouble. If that does not change, the Democratic Party in Alabama will soon be no more relevant than it is in Wyoming or Utah. The Bylaws of the SDEC (warning: Saturday’s amendments are not yet reflected in this link) make provision for removal of those who skip three successive meetings without excuse. It

is my hope that we do not have to enforce that rule to save the Party. I leave those who were on the golf course or lakefront Saturday to consider these thoughts. For me and mine, we will continue to remember the words of our 2000 standard bearer, which I echoed with the crowd in Legislative Plaza in Nashville on Election Night 2000, and “stay and fight.”


                                                                                                  


On a sadder note, I would be remiss if I did not note one SDEC member who was absent Saturday, as she passed away in a Tuscaloosa hospital that day. Barbara Bobo served for decades on the SDEC, served several terms as Mayor of Millport, and was perhaps best known as the unbashful and opinionated publisher of The West Alabama Gazette. Her frequent appearances as a panelist on Alabama Public Television’s For the Record were never pleasant for Republican guests, and never to be missed.  Requiescat in pace, serva bona et fidelem.

The Case for Impeaching Federal Judge Mark Fuller

Suppose that you were having to sue someone. A car wreck, perhaps; or maybe you needed them evicted from the house you were renting them. You know you’re in the right, and you go to the courthouse on the day of the trial, confident that, with the facts and the law both on your side, the judge will render a proper judgment in your favor.

Then, when you lose the case, you are dumbfounded. You file an appeal, but you can’t figure out how you could have lost.

Only after the trial, while the appeals court is considering your case, do you find out that the judge who ruled against you has extensive business dealings with the party you were suing in front of him. Not only that, your opponent’s lawyer also represents your opponent in his business dealings with the judge.

If you picture yourself being outraged, then you have a pretty good idea how former Governor Don Siegelman felt about his 2006 kangaroo-court conviction before George W. Bush-appointed U.S. District Court Judge Mark Fuller.


At every turn of Siegelman’s trial, Fuller improperly ruled against Siegelman and co-defendant Richard Scrushy, and for the prosecution. He failed to take action when the Government failed to disclose evidence favorable to Siegelman, as he should have done under the rule of Brady v. Maryland, 373 U.S. 83 (1963). He silenced Siegelman’s

attorneys from making relevant and legal arguments to the jury. He let charges go to the jury which were later ruled improper by the U.S. Supreme Court. Not only that, Fuller failed to notify defense attorneys that a female juror, by the name of Katie Langer, had been passing notes through Judge Fuller’s bailiff, asking if the FBI agent sitting at the prosecution table was single. I can’t imagine how her not wanting Mr. Potential FBI Dream Date to be angry about an acquittal could have influenced her vote on the jury. (“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial  is ... deemed presumptively prejudicial,” United States v. Khanani, 502 F.3d 1281, 1291 (11th Cir. 2007)).


Fuller’s conduct in the trial (I have only named a handful of his pro-Government rulings) gave Siegelman’s attorneys lots of ammunition in his partially-successful appeal, and is doubtless going to provide them more fodder in the “§ 2255 proceeding” that is likely going to be filed, now that the direct appeals are playing out.


But what do those violations of Siegelman’s rights have to do with the hypothetical case I described in the first paragraphs? To understand that, you have to know a little something about Judge Fuller. Even while serving as a district attorney for several years before being appointed a federal judge, Fuller found time to be a full-time businessman. His extensive business activity did not miss a beat when he took the presumably full-time job of federal judge.


Fuller was for years, including during the Siegelman trial, a principal of Doss Aviation, Inc.; some reports made him a 43% owner.¹ He was listed on corporate reports as the company’s CEO, even after becoming a federal judge. Doss Aviation’s 2002 Annual Report on file with the Alabama Secretary of State² shows Fuller as the corporate president, with his office listed as 1 Church Street in Montgomery. That just happens to be the United States Courthouse, where Fuller’s court sits.³ In his 2010 financial disclosure form as a federal judge, Fuller valued his interest in Doss at between $5,000,000.00 and $25,000,000.00; with an additional $500,000.00 t0 $1,000,000.00 in the affiliated Doss of Alabama, Inc. That’s enough coin to get even Mitt Romney’s attention.

So what does Doss Aviation do? I will let the homepage of its website speak to that: 

Founded in 1970, Doss Aviation, Inc. enjoys over 40 years [sic] experience in supporting the U.S. Government in flight training, aircraft maintenance, maintenance training, into-plane aircraft fuels and bulk fuels management, transient aircraft support services, air traffic control, and other airfield management/logistics services. The company built an enviable reputation in over 50 contracts performing a variety of services for the U.S. Army, U.S. Navy, U.S. Air Force, Defense Logistics Agency - Energy (DLA-E), NASA, FBI, and Department of Homeland Security.

In other words, Doss Aviation is extremely, if not exclusively, dependent on government contracts, many of them no-bid, that can disappear if the Air Force - or the administration in power - decides it isn’t happy with, say, the rulings of a leading shareholder. (Remember, at the time of the Siegelman trial, the administration was Republican.) The conflict of interest is obvious to even a layman. Despite this, Fuller has, throughout his career as a federal judge, regularly decided cases involving the Air Force.  A summary of the reported cases follows:

• Webster v. Wynne, 2010 WL 5394752 (M.D. Ala. 2010). Civil employee of the Air Force alleged employment discrimination against the Air Force. Summary judgment granted to Air Force. 
• United States v. 22.58 Acres of Land, 2010 WL 431254 (M.D. Ala. 2010). Action seeking condemnation of certain real property located in Montgomery County at the request of the Air Force. Landowner’s motion to dismiss denied.
• OSI, Inc. v. United States, 510 F.Supp.2d 531 (M.D. Ala. 2007). Owner of property adjoining Air Force base sued United States government and officials, stemming from alleged dumping of Air Force hazardous wastes into landfill on property. Summary judgment granted to Air Force.
• Waid v. United States, 2006 WL 1766808 (M.D. Ala. 2006). Driver of automobile injured in accident with Air Force vehicle sued for injuries. Claim against Air Force dismissed.
• Keel v. U.S. Dept. of Air Force, 256 F.Supp.2d 1269 (M.D. Ala. 2003). Plaintiff, a white male, claimed that defendants terminated him on the basis of his race and sex in violation of Title VII, and retaliated against him by barring his access to Air Force base. Summary judgment entered for Air Force.

In another questionable case where the Air Force was not a party, Houston v. Army Fleet Services, L.L.C., 509 F.Supp.2d 1033 (M.D. Ala. 2007), Fuller denied summary judgment to an employment discrimination defendant - which is a competitor of Fuller’s company. I did not find one reported opinion in which Fuller was the judge, in which the Air Force lost the case.

The legal standard for a judge to recuse himself is simple, straightforward, and clearly reaches Fuller:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). 

What person wouldn’t reasonably question the impartiality of a judge whose (at least) $5,000,000.00 investment could become worthless overnight if one of the parties is unhappy with his rulings? Yet, even after Siegelman’s and Scrushy’s attorneys learned of the Doss Aviation link (after the trial), Fuller repeatedly refused to recuse himself.

You don’t have to take my word that there was a clear ethical mandate for recusal. Judicial ethics expert, and Georgetown University Law Center Professor, David Luban had this to say:

This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.

So, we have established that Mark Fuller is an unethical

sleaze who flaunts his legal duty to recuse himself. Sadly, it doesn’t end there. In Don Siegelman’s case, there is an added Doss Aviation issue. One of the prosecutors at the table in the Siegelman trial was Assistant U.S. Attorney Stephen Feaga. Feaga’s smiling face may be seen in the photograph to the right. What’s that, you say? Feaga doesn’t look like a federal prosecutor? He looks like some sort of Air Force officer?? Well, that’s because he was an Air Force officer (he retired in 2011) - of the weekend warrior reserve variety. But not just of any sort; he was a Colonel in the Judge Advocate General Corps - the Air Force’s legal arm. And at the time of the Siegelman trial, he was in a unit that reviewed, and had to approve, Doss Aviation contracts.⁴

In the words of a Great American, “Whoa, Nellie!” 

Put aside the fact that Mark Fuller was appointed as a judge because of his Republican activism, and a Siegelman conviction was a Republican political priority. As Fuller presided over Siegelman’s trial, he knew that the George W. Bush administration could wipe out $5,000,000.00 (or more) of his personal wealth if it was unhappy with his rulings. But he also knew that one of the prosecuting attorneys probably could, too. Only “Choctaw Bob” Riley or Dick Cheney would deny that Fuller’s “impartiality might reasonably be questioned.”

If any member of Congress needs further reason to impeach Fuller, the hapless part-time judge is more than willing to provide it. It seems that, if the United States Congress and the Judicial Council of the Eleventh Circuit haven’t had enough of Mark Fuller, his wife, Lisa Boyd Fuller, has. In April, she filed for divorce after 30 years of marriage. While Mark Fuller’s lawyers promptly got the divorce file sealed, what emerged before then was serious enough to merit the investigation of any federal judge. Discovery requests served on Mark Fuller covered such judicially unbecoming topics as prescription drug addiction, driving under the influence, an extramarital affair with a Court employee whom he supervises, and domestic violence. Normally, such accusations are best viewed with a gimlet eye in a divorce case. But Ms. Fuller’s lawyers have listed the pharmacies whose records they want to subpoena, and the very number of different pharmacies sends up Limbaugh-like addiction warnings. There’s every reason to believe Ms. Fuller will settle the divorce case for a large chunk of Mark Fuller’s wealth before lots of judicial mud is made public, and it’s hard to blame her. But that doesn’t mean she can’t - or shouldn’t - be interviewed, and subpoenaed if necessary, by Congressional investigators.

As regular readers of my posts know, I always strive to provide them with some positive action to take. In this case, that action involves getting Congressional investigators talking to Lisa Fuller, and otherwise looking into Mark Fuller, and the Siegelman case generally. If this is going to happen, we are going to have to be the squeaky wheel that demands its grease. His Majesty, Barack the Appeaser I, has shown that his administration has its collective head inserted all the way to its collective hepatic flexure on any matter of interest to the Alabama Democratic Party. What I propose is that we do what we can to garner the attention of Democratic members of Congress who might be willing to do the right thing. I urge Alabama Democrats to contact the following members of Congress by the means indicated:

• Congressman John Conyers (D-Michigan). Conyers is the ranking Democrat on the House Judiciary Committee, which would have jurisdiction over any impeachment or investigative proceedings regarding Fuller or the Siegelman case. You can leave a message on his office website here.
• Congressman  Steve Cohen (D-Tennessee). Our neighbor from Memphis, Cohen is a lawyer, and has never worried about stepping on GOP toes. He is also on the House Judiciary Committee. You can leave a message on his website here.
• Senator Pat Leahy (D-Vermont). Leahy is the chair of the Senate Judiciary Committee, which has the corresponding jurisdiction in the Senate. He is a former prosecutor, so he’ll get his head around the issues in a heartbeat. You can leave a message on his Senate website here.
• Senator Amy Klobuchar (D-Minnesota). She is not only on the Senate Judiciary Committee, she chairs the Subcommittee on Administrative Oversight and the Courts, which would have primary jurisdiction at the subcommittee level. You can reach Senator Klobuchar on her office website here.
• Senator Bernie Sanders (I-Vermont). Although an independent, Sanders caucuses with the Democrats. He is also the most willing member of the Senate to call out Republicans on issues of greed, injustice, and corruption. Because of his state relationship with Leahy, his support could be invaluable. You can message Senator Sanders on his office website here.
• Senator Al Franken (D-Minnesota). We all know how courageous and outspoken Franken is. He is one of the few non-lawyers on the Senate Judiciary Committee. You can leave a message on his Senate website here.
• Congresswoman Terri Sewell (D-Alabama). Sewell is a lawyer who understands both the legal and political issues involved. She’s also the only Alabama Democrat in either house of Congress, thanks to the Obama Administration allowing Fuller to judicially defame the Alabama Democratic Party. I haven’t been thrilled with her silence on these issues to this point, but maybe if she realizes they are important enough to us, that will change. You can contact her Washington office at 202-225-2665, fax it at 202-226-9567, or write it at 1133 Longworth HOB, Washington, DC 20515. Or if you prefer to contact her online, she will take your message here.

Please include a link to this blog post in your message to these members of Congress. That will save you the effort of having to write in great detail about the underlying facts.

There is much at stake here. If Fuller isn’t stopped and discredited, and the Alabama Democratic Party allowed to start rebuilding, Alabama minorities will continue to suffer from political irrelevance they haven’t known since the days of Jim Crow. From a purely political angle, bringing Fuller’s sordid record to light will help remind Democratic and independent voters nationwide this fall how important it is to keep judicial selection out of GOP hands. And I wouldn’t be myself if I didn’t put on my Machiavellian hat and say to each of these members of Congress: Fuller is so dirty, that whoever comes after him first is going to look like a cross between Mother Freaking Teresa and Clarence Darrow. Happy hunting, and post a comment below or email me here if you need further help; I’ll get back in touch.

¹ Doss Aviation was acquired in December 2011 by J.F. Lehman and Company. It is unclear whether Fuller received cash, or Lehman securities, for his shares in Doss Aviation. Lehman is itself a defense contractor, so if Fuller is now a shareholder of it, the conflict of interest issues remain.

² For some mysterious reason, Doss Aviation’s Annual Reports for subsequent years - including those during which Fuller presided over the Siegelman case - are no longer available online on the website of Secretary of State Beth Chapman, a heavyweight Republican partisan. Since the company is still in good standing, it has obviously been filing those reports. I personally had previously viewed those reports online, and noted that they showed the registered office for service of process on Doss Aviation as c/o Mark Fuller, at his Courthouse address of 1 Church Street in Montgomery.

³ “Misuse of federal funds and equipment and the time of federal employees may be grounds for criminal convictions.” United States v. Wilson, 636 F.2d 225, 227 (8th Cir. 1980). Another basis for Fuller’s removal from office.

⁴ Besides not reporting the Katie Langer jury tampering to defense counsel, Feaga also failed to turn over conflicting statements of former Siegelman aide Nick Bailey, the Government’s sole witness who claimed that he witnessed Siegelman make the “deal” that was the basis of the Government’s case. Had Siegelman’s lawyers had those statements, Bailey’s credibility would have been destroyed. Alabama Rule of Professional Conduct 3.8 states that a prosecutor shall “not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” Despite the fact his actions were well-documented, widely reported in the media, and not disputed by the Government, Feaga has not been publicly disciplined for this violation. After his partisan Republican protector, former U.S. Attorney Leura Canary, was finally replaced by the dilatory Obama administration, Feaga left the U.S. Attorney’s office for a staff job at the Alabama Securities Commission in February 2012.

Commitment Issues

Yes, commitment is a wonderful thing.

Alabama Primary 2012 has come and gone. The financial boon enjoyed by broadcasters, hoteliers and restaurateurs catering to the media, and attention-seeking middle-level Republican leaders being solicited for endorsements has passed, not to be repeated until 2016. Because Alabama will be deemed one of the least competitive states in this November’s election, the attention paid to our politics will enjoy a similar slumber. The national media’s terminal case of ADHD will compel it to focus on Illinois, until it’s some other unfortunate state’s turn.

The inability of the national media to analyze the results in any state for more than a couple of hours on its primary night often leads it to miss critically important facts about what happened on the ground that day. Even the pampered caucus-goers of Iowa don’t get any meaningful post-caucus analysis, and it would be foolhardy for Alabama to expect any better. When you combine these facts with the media’s obsession with the Republican Kill-Thy-Neighbor primary, it’s not surprising that something amazing in the Democratic primary could be overlooked.

I am referring to the relatively high number of Alabama Democrats who declined to vote for President Obama in our primary, and instead cast a vote for “uncommitted.” While total results are not available on the Secretary of State’s website, in those counties currently reporting, 16.8% of Democratic primary voters declined to vote for Obama, and voted “uncommitted.” Among those reporting counties, “uncommitted” actually beat Obama in at least seven counties.

Once upon a time - before the presidential campaigns of George Wallace - uncommitted delegates were quite common in Alabama presidential primaries. Sending uncommitted delegates to a convention gave the state bargaining leverage. A number of loyalist Democrats continued the tradition into the Wallace era, providing Wallace foes a voting option in the primary. Since the election of Jimmy Carter, however, the phenomenon has faded into disuse, although remaining a legal option. Until now.

Obviously, a significant number of Alabama Democrats felt compelled to register unwillingness to support the President. One caveat is in order about the 16.8% figure: as the map shows, a number of the counties not yet reporting in the Secretary of State’s system are in the Black Belt. Those counties will undoubtedly lower the 16.8% figure when full results are officially canvassed. But the figure will still be significant; those counties don’t account for enough of the state’s vote to lower it much. And the fact remains that “uncommitted” carried a number of counties.

Several explanations offer themselves for this phenomenon. The most obvious is that of race. Many of the counties carried by “uncommitted” are overwhelmingly white, and were carried by Hillary Clinton in the 2008 presidential primary. Obama got a mere 10% of the white vote in the 2008 general election. But there is at least one county where race isn’t such an easy explanation, and that is Washington County. Washington County is 26.2% black. Common sense tells us that the Democratic primary electorate is going to have a much larger percentage of black voters than that. Compounding the complexity of analyzing Washington returns is the fact that white voters have not, for the most part, abandoned the Democratic primary for the Republican. Only 16% of the total votes cast for President in the Washington County primary were cast in the GOP contest. The Democratic primary is still, apparently, a white-majority affair. Even so, in picking through the precinct results for Washington County, I noted at least a couple of precincts where Obama’s total fell below the black percentage of the population reported by the Census. In sum, race may be the explanation, but the data isn’t good enough to draw any conclusions. If only the media had exit-polled the Democratic primary.

The alternative explanation - and the two can coexist - is residual discontent among Democrats with the incompetent messaging of the Obama administration, which, as I have noted, has had disastrous effects on the Alabama Democratic Party. More serious are continuing concerns - which I also previously noted - that Obama’s team made a conscious decision to allow the Alabama GOP to torpedo the Democratic Party by leaving corrupt Bush U.S. Attorney Leura Canary in place in Montgomery, where her politically-motivated sham indictments contributed greatly to 2010 GOP gains. (Please sue me for defamation, Leura. I’d love to have subpoena power to take depositions and unearth bank records. You’d love Tallahassee. And congratulations to Milton McGregor, the other victims, and their legal teams.)

A look at the map above, and a passing familiarity with the 2010 Democratic casualty list, reveals that several of the “uncommitted” counties were represented in the Legislature by Democrats who lost their seats, or their leadership positions. Those Party leaders certainly weren’t motivated to support Obama in the primary, and it would take a very short leap of the imagination to see them, and their supporters, exacting a measure of revenge.

Yet another fact that should be considered is that many of the “uncommitted” counties still have Democratic courthouses. Voters must vote in the Democratic primary to have a meaningful voice in the election of their local officials. Among the “uncommitted” counties, for example, Jackson had contested races for probate judge, circuit clerk, superintendent of education, and commission president. Neighboring DeKalb, which Obama carried, had only a single local race for superintendent to draw voters. A larger primary cohort could well have brought in voters more likely to express racial bias in their votes.

Those counties carried by “uncommitted” are, for the most part, the foundation of the historic Democratic base in Alabama. A problem in those counties, whatever its etiology, signals a problem the Obama campaign badly needs to address. While solving the problem might not make Alabama competitive in November, Obama has “reach” states in the South - Virginia, North Carolina, and maybe Georgia - where every vote will count. In those states, Obama can’t afford to leave base Democrats off the bus.

Having entered the White House like the fortunate prince of whom Machiavelli said, “Coloro e’ quali solamente per fortuna diventano di privati principi, con poca fatica diventono, ma con assai si mantengono; e non hanno alcuna difficultà fra via, perché vi volano: ma tutte le difficultà nascono quando e’ sono posti,” Obama had better hope that the sage was wrong in noting that “E chi crede che ne’ personaggi grandi e’ benifizi nuovi faccino sdimenticare le iniurie vecchie, s’inganna.” (Il Principe, Chapter VII. The quotes are the first and the penultimate sentences of the chapter. )

The Battle for the Republican Soul ... and Other Oxymorons

This Tuesday is the occasion for the Alabama 2012 primary, moved to its early date in the 2011 legislative session in an effort to make Alabama more relevant to the presidential nominating process. In a further effort to save money (it does cost a lot to run an election), the Legislature also moved the primary for downballot races to the March date.

The media, as it is wont to do, has put a laserlike focus on the presidential primary. This is not wholly irrational. Alabama will indeed be the focus of the nation’s attention Tuesday night, especially as Newt Gingrich and Rick Santorum (I am not going where his tie choice leads!) try furtively to push each other out of the Republican race. As only one example of this focus, The Washington Post offers this catchy graphic showing the race’s importance. Mitt Romney, in an effort to secure a win in the Deep South that would contribute substantially to his “inevitable” theme, has expressed a newfound affection for grits and other Southern culture, that is certainly as genuine and sincere as his commitment to freedom of reproductive choice and universal health insurance. The Alabama GOP presidential primary is worth watching, and it will be worthwhile to pick over the numbers starting Wednesday.

I say this because of the adage in Sun Tzu’s widely-read classic The Art of War, that “if you know your enemies and know yourself, you can win a hundred battles without a single loss.” But if we really want to know our enemy, the GOP presidential race may not be the place to look. That contest has become an exercise in pathological syncretism, as the three non-Paul contenders have devoted their full energies into seeing which can most totally pander to the Tea Party wing of the GOP. (Much to the justified delight of President Obama’s campaign staff.) Because of this, the Republican presidential results are going to tell us little more than which of the three was most effective at deploying this strategy.

The more perceptive analyst will be looking at downballot GOP races, in particular at those for Chief Justice and President of the Public Service Commission.

The race for Chief Justice features incumbent Charles Malone of Tuscaloosa, appointed last year by Governor Bentley; Mobile County Circuit Judge Charlie Graddick, and former Chief Justice Roy Moore. Many write off the latter two as contestants for the Shorty Price Award for Futile Candidacies. Graddick burst on the state political scene in 1978 as the candidate for attorney general whose “fry ‘em til their eyes pop out” TV ads (the posted clip is the only remnant I could find online) brought him to the head of a crowded field in the Democratic primary. After two terms as AG, he ran for governor in 1986, and won the Democratic runoff against Bill Baxley. He was properly, if inartfully, stripped of the nomination by the SDEC for encouraging illegal crossover GOP votes in the runoff. After another unsuccessful statewide run - this as the GOP nominee for lieutenant governor against Don Siegelman in 1994 - he settled into a circuit judgeship in Mobile County, where he had started as district attorney in the 1970’s.

Judge Roy Moore, of course, is widely perceived as a caricatured religious fanatic, whose insistence on placing the Ten Commandments in the Heflin-Torbert Building led to his ouster as chief justice. While Moore’s views on the First Amendment need work, his brief tenure on the Court was somewhat more complex. His fixation on the Ten Commandments, for example, includes the radical concept that “Thou Shalt Not Steal” applies to banks and insurance companies, and “Thou Shalt Not Kill” applies to Fortune 500 companies that knowingly sell dangerous products to consumers. This, more than any tactical retreat in the face of public opinion, explains why the state GOP stood silently by while he was ousted from the Supreme Court. (The Judicial Inquiry Commission that prosecuted him was then chaired by a Democratic stalwart, Circuit Judge Randall Cole of DeKalb County.)

Chief Justice Malone is not only a political protégé of Governor Bentley, he is a fellow Tuscaloosan. Like Bentley as governor, he has disappointed as chief justice in not standing up to Business Council interests, but both have had to look over their shoulders at GOP primary races, and both have doubtless not wanted to become the primary target of Business Council wrath. Whether either can, or will, do better after those primaries remains to be seen, but our corporate masters have to have some residual anxiety about that prospect.

Thus, the race for chief justice gives us a pretty good picture of three competing power centers in the GOP. Moore’s vote will give us a clear picture of the strength - or weakness - of those Republicans for whom the New Testament is the shibboleth. (Pardon the mixed biblical metaphor.) Malone, like Bentley, represents that part of the GOP that would like to see the party appeal to a broader constituency than the Mountain Brook Country Club or the First Baptist Church of Gardendale. (For that reason, this element may be the most dangerous to a Democratic renaissance in Alabama.) Graddick probably represents the quiet wishes of the Business Council element of the party. Although The Birmingham News reports that “Malone has the backing of the state’s business establishment,” take that with a grain of salt. Malone’s support from the business community represents more of a hedge, and a prudent support of a chief justice who will, regardless of the primary outcome, be in office until next January. A careful review of Graddick’s financial disclosures will reveal substantial business support, if only viewed through the prism of the actual weakness of the GOP’s much-ballyhooed PAC-to-PAC transfer ban.

The race for the right to face Lucy Baxley for PSC president this fall provides a sharper picture of the BCA-Tea struggle within the GOP. Associate Commissioner Twinkle Andress Cavanaugh is the consummate Business Council puppet. She is so close to BCA lapdog Bob Riley, that she could avoid conception by giving the former governor her Yaz. Her support is clearly centered on that wing of the GOP.

Her principal opponent in the race is Kathy Peterson of Shelby County.
Peterson is the wife of unsuccessful 2010 agriculture commissioner candidate Dale Peterson, whose YouTube ad continues to bring ironic chuckles. (If only people knew that Dale and Kathy’s “farming” business is based on raising show llamas!) Peterson’s vote is going to give us a good feel for the continuing vitality of the Tea wing of the Republican Party. Her husband’s support of the brief bubble of presidential candidate Herman Cain has been repaid by the salesman of mediocre pizza’s campaigning in Alabama on her behalf.

In many respects, these GOP contests are not between light and darkness, but between darker shades of pitch. We should be as careful of rooting for a “moderate” in these races, as we would be of rooting for a “less extreme” mullah in an Iranian “election.” While I will be watching the presidential returns closely, in the long run, I will be picking apart the returns in these two statewide races more closely. They will tell us much more in the long run about the beast we need to slay. Or, at least, cage.