Thursday, 25 December 2014 00:00

Obama refuses to pardon Siegelman for acts less egregious than the president's: opinion

Written by John Farmer |

Consider the following: A high-ranking elected official is aided greatly, in his campaign for office, by rich donors who contribute or raise millions of dollars for his campaign. Once he is in office, he rewards those contributors by appointing them to high-profile and much-sought-after positions. What, if anything, should the Justice Department do in response?

To anyone who has followed the case against former Alabama Gov. Don Siegelman, the answer is obvious:  The elected official must be prosecuted to the fullest extent of the law. After all, Siegelman was indicted and convicted for far less egregious conduct. True, Siegelman did reappoint a business executive to an unpaid state health board. Siegelman did so, moreover, the government alleged, to reward the executive for his financial support.

But that financial support did not go directly to the governor's campaign; in fact, the executive had supported Siegelman's opponent. Nor did the financial support benefit Siegelman personally, or any of his family members. The contribution was made to a political action committee formed to promote the use of state lottery proceeds to finance public education. Nor was the appointment to the unpaid health board a new appointment. Prior governors, whose candidacies had been supported by the executive, had appointed him to the board without question, let alone indictment. 

For this conduct, Siegelman is serving the fifth year of a draconian seven-and-a-half-year sentence; people have received lighter sentences for manslaughter. His latest indignity - a court appearance on Dec. 15 in a red prison jumpsuit and shackles - resulted in a denial of his motion to be released on bail pending his motion for a new trial, which was filed two years ago and will be heard by the 11th circuit court of appeals in 2015. 

So clearly, then, in any system honoring the rule of law, the elected official in question must be prosecuted.

Well, don't bet on it, for the elected official in question is President Obama, or any of his predecessors who have appointed contributors to ambassadorships, U.S. Attorney's offices, and other high-profile positions. In recent days, for instance, legitimate questions were raised about the qualifications of President Obama's nominations to the ambassadorships of nations such as Norway, Hungary and Argentina. 

This fact was treated by the Washington establishment with, if anything, bemused indifference. In making such appointments, after all, President Obama has acted like every one of his predecessors in rewarding his biggest political contributors. Even Sen. John McCain acknowledged, in opposing the nominations on the Senate floor, that "rewarding supporters to cushy jobs in the Caribbean is something both parties do." Fine.

But if this time-honored tradition of appointing ambassadors and other officials based largely on political support is so obviously permissible, the question that should trouble the president's conscience is why, if he is willing to make such appointments, he is also content to leave people like Don Siegelman in prison. 

A bipartisan and nonpartisan group of over 100 former state attorneys general - myself among them - participated as friends of the court in an unsuccessful effort to persuade the federal appeals court and U.S. Supreme Court to reverse Siegelman's conviction. More recently, as Dean of the Rutgers School of Law, I worked with law students from the Constitutional Litigation Clinic to look at every federal official corruption prosecution over the prior decade. The students looked not just at reported cases but at indictments, press releases, arrests. The students' conclusion, as stated nearly two years ago in a Jan. 7, 2013, letter to Obama and the pardon attorney seeking a commutation of Siegelman's sentence, was stark:  "the Siegelman conviction is readily distinguishable from every other contemporaneous corruption prosecution ... .  'No charges have been brought against a politician where the quid pro quo is as far attenuated as in the present case.'" 

Where is the line between Siegelman's appointment of the executive to the unpaid health board and the normal political process, in which ambassadorships are awarded routinely to campaign contributors? Isn't that practice more corrupt? President Lincoln, according to Doris Kearns Goodwin, appointed Brooklyn Democrat Moses Odell to "the lucrative post of navy agent in New York" after the congressman changed his vote and supported the constitutional amendment to abolish slavery. Should he have been impeached? 

The response Rutgers Law School received from the pardon attorney was that, as Siegelman's appeal process had not been exhausted, our efforts were premature. In fact, the pardon attorney's response was nonsense. The president's power is plenary; it may be exercised at any stage of the criminal process, even, as in the case of President Nixon, prior to indictment. 

Nearly two years later, that appeal remains pending, and the court's opinion denying Siegelman bail casts doubt on the likelihood of the appeal's success; the best that can be hoped now, given the president's reticence, is that Siegelman's motion for a new trial will be granted, and that the government will decide not to pursue it. 

The president should honor justice and the overwhelming sentiment of Alabama voters, as reflected in the poll, and commute Siegelman's sentence. The issue has been before him since 2012. In the meantime, the president has issued pardons to others presumably deemed more deserving, most recently to Mac and Cheese, two turkeys spared the Thanksgiving axe; the Senate has confirmed the ambassadorial appointments of million-dollar bundlers Bell and Mamet; and Don Siegelman has lost another two years of his life to prison. 

 Link to original article from AL.Com

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