tv [untitled] CSPAN June 27, 2009 12:00am-12:30am EDT
documentary called "the prosecutions of karl rove." in fact, his organization is one where you have to think -- you have to think for cooperating for putting together this program. some others restore justice -- also the alliance for justice, and the project: a save justice is our other major sponsor. . .
professor at hofstra university, and he is a columnist for "harper's," perhaps the leading scholar of the critic of the u.s. justice department's misconduct in various ways and rigorous recording, applying it to these cases. scott, you came a long way to be with us. what is it you would like to share? >> thank you. [applause] >> thank you for that introduction, andrew. i would like to bring the focus of our talk today a little bit more narrowly down to the question of prosecutorial misconduct. and your note to vary collectively -- very correctly
that prosecutors wield enormous power in our system. i think that is something that few people other than those who are directly engaged in it really appreciate. to a certain extent, that is a good thing because the prosecutor should be there protecting us and dealing with criminal elements. but, power also presents a great risk of abuse. unless this power is held in check, and really enforced by the justice department itself, abuse follows. i want to note that at the outset, are really remarkable speech that was given by robert h. jackson, who was our greatest attorney general, and this might be his most important speech. it is called "the federal prosecutor."
he gave it one week after he was appointed. he assembled career prosecutors in the auditorium at the justice department and here is a key passage from the speech he gave. "the most dangerous power of the prosecutor is that he will pick people that he thinks he should get rather than pick cases that need to be prosecuted. with the law books filled with a great assortment of crimes, a prosecutor stands a clear chance of finding a least a technical violation on the part of almost anyone. in such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it. it is a question of picking the man and then searching the law books or putting investigators to work to pin the offense on him. it is in this realm of the but
the prosecutor picks some person whom he dislikes or desires to embarrass or selects some group of on popular persons and looks for an offense that the greatest danger of abuse of prosecutorial power lies." extremely important consideration. i think he puts the emphasis just where it needs to be. prosecution that focuses on individuals, that goes after people, rather than crimes, is inherently abusive. it presents a great threat to the integrity of the criminal justice system, a grave threat to the integrity of the department of justice itself. over the last eight years, we have always had a problem with
prosecutorial overreaching, with prosecutors who use their power and authority to go after people they see as their enemies are their adversaries in political setting. i think this part of the human condition. it is something that will never be entirely dispelled. what we have seen in the last eight years is a truly extraordinary and unprecedented level for this problem. the level is so severe that it, to me, suggests not cases of individual abuse, it reflects, rather, a systematic pattern and direction of the use of prosecutorial power at the highest level for partisan, political purposes. i want to note that the last --
and i would say least awful attorney general of the bush years, my former partner, michael mukasey, gave one speech in which he addressed the question of prosecutorial abuse. it occurred in march of 2008. he gave the speech in san francisco. he started out quoting teddy roosevelt. he went on to cite how the department was engaged with the issue of politically abusive conduct. a junket had been arranged, taking members of congress to play golf at st. andrews. it was arranged by a man and he said this had been fully investigated. i subsequently discovered that my friend mr. mukasey did not know that one of the participants in this golf junkets that he cited was his predecessor, john ashcroft.
the week he gave that speech, the single most prominent report in the american press of corruption related to the united states department of justice. it was a no bid consultancy contract, multimillion-dollar consulting contract awarded by the u.s. attorney in new jersey, then preparing his candidacy to be governor, to the same john ashcroft. never investigated or addressed internally by the department of justice. in the speech, i think, judge mukasey went on to say, "let me be clear. politics has no world in the investigation or prosecution of political corruption or any other criminal offense. i have seen absolutely no evidence of any such impropriety during my time at the department nor would i tolerate
it." he went on to say that "a politically motivated prosecution is nothing but corruption by another name." absolutely correct. i think as we proceed today, i would like you all to ask yourself how credible this claim is that he never saw any evidence of politically motivated prosecution at the apartment while he was heading it. >> good morning. our organization is more local. i am going to make a statement and i will ask you questions. the judiciary is clearly broken and i think that you know that this has been going on for quite some time. this is no surprise. it is horrible to here, but it is actually no surprise. what i want to ask you is, one, what is
what is the oversight committee prepared to do? tee, both -- and he has the house. i understand that, and he's not on the senate side, but what is he prepared to do to correct these abuses, and, again, it's also on the local level, and i want to talk with you about that, and, two, why should you have confidence in the department of justice? i mean, what are you guys going to do about making sure that this is a new administration, that is committed to curing these abuses? because they're clearly just out of line with our constitution, and that's an embarrassment nationally, internationally, and this needs to stop. >> well, with respect to your concerns, with respect to the judiciary, the judges, we do
have responsibility with respect to the federal judiciary, as i was indicating before, we have found two cases where it's been necessary to, in one case, impeach, and the other case, begin impeachment proceedings with respect to a federal judge, and we take those responsibilities very, very seriously. chairman conyers does. i'm happy to say that work is preceding on a very bipartisan basis. mr. shippe and goodlatt are heading the impeachment task force that continues to work, and we will continue to do that kind of oversight with respect to the federal judiciary. with respect to the justice department i tried to list ten areas where we've seen some very serious problems and i hope i didn't underestimate just how serious they are and i frankly haven't talked about everything, because there's more, but our view is that there has been improvement. no, not everyone may share this. but we do believe there has been
improvement since january 20th, 2009. we believe the attorney general has made a commitment that has been carried out in some respects, some respects, to make a new day dawn in the justice department, but you are absolutely right that vigilance and oversight is critical. >> [ inaudible ] -- committee prepared to do -- >> well the answer is we have to see what happens. i mean, we hope, for example, that this administration won't necessitate subpoenas the way the last one did. we became quite accustomed to issuing subpoenas for documents, some of which were successful. we got about i with a woo say 95% of the justice department documents we asked for in the u.s. attorney scandal were turned over to us including as scott knows some very internal doj documents. we hope that this administration will not require subpoenas on issues, that we'll be able to voluntarily arrange to get the
documents and interview what's happening. we've already had oversight hearings. we had attorney general holder and fbi director robert mueller not too long ago and there were quite serious questions on all of the issues raised here and many others that were asked by members and we will continue to follow up on the issue. it's hard to tell me in abstract what we'll do because we have to see what happens, but our strong hope is that this justice department will be willing to cooperate with congressional oversight and we will continue to push it, as need be. yes? >> i'm afraid we have to end this part of the program, but elliott is available, and can you be here for another minute or two in. >> well, not much longer. unfortunately, i need to get back for an oversight meeting, and in a few minutes on capitol hill, but i'll try to be here for at least a few minutes off to the side. >> thank you very much for an enlightening presentation, and
we look forward to our next speaker. thank you so much, elliott. [ applause ] >> that was fantastic. thank you so much, elliott, and nan. without much further adieu, i could talk a lot about this, but in the interests of time i'm just going to say i'm totally thrilled to have, be able to present the former chief judge of the northern district of alabama, u.w. clemmen. a little bit of background, i wrote a quite lengthy article about the siegelman case in "the huffington post" eric holder error, the attorney
general, had written it just before my article came out. i had nothing to do with it. the attorney general had asked the chief judges and recent chief judges to help guide him on what he should know about the administration of justice in the country and judge clemens stepped forward to offer his views after 30 years on the bench. he had been invited to speak to the judiciary committee, but he felt that as a judge, he should not do it. he is now in private practice in birmingham. i am just thrilled by this opportunity to present nearly three decades of top-level judicial experience for this audience here and thanks to c- span nationwide. please, help me welcome judge uw
amendment rights, and actually, i wasn't invited by the judiciary committee to come. i invited thoem to subpoena me but without them doing that i couldn't come without violating some of the ethical constraints. earlier on in my life i was an eyewitness to the sometimes tragic results of unwarranted prosecuti prosecutions. then the prosecutions arose out of police brutality cases in the birmingham area.
outlaws in blue uniforms would often cloak their lawlessness in charges of disorderly conduct and resisting arrest. it was out of this milieu that led me to law school, and my first legal career as a civil rights lawyer, often defending victims in unwarranted prosecutions. so i came to the federal bench in 1980, fully aware of and reflective of my background. i believe, with every fiber in my body that, when the awesome power of the greatest nation on god's green earth is, by indictment, brought to bear against an individual citizen or group of citizens there ought to
be ample grounds for their prosecution. now i'm pleased to say that, in most of the criminal cases where i sat as a trial judge, the government satisfied me that such grounds existed. i came to respect the government for its professional prosecutions, the way the assistant united states attorney handled their cases, until the beginning of this new century. up to that time whether the united states attorney was a republican or a democrat, whether the evidence was strong or weak, and if it fell into the latter category, it didn't get to the jury.
the united states attorney almost allways had at least some evidence to support the charges in the indictment. the case that i'm here to talk about this morning, united states versus philip kelly "bobo" don eugene siegelman and paul michael henry, is a glaring exception to the general rule. that case was handed down by a grand jury in may of 2004. by which time a fairly new united states attorney was in her third year. the case just didn't, just didn't spring up. like a phoenix rising from the
ashes, it had an earlier existence. two years earlier, the united states attorney had prosecuted and convicted tuscaloosa dr. philip vogel, medicaid fraud. he was a friend of governor siegelman, who, in the same year, 2002, had been narrowly defeated in his re-election bid. by 2004, ex-governor siegelman was leading in the polls for the next gubernatorial race, and that's for both potential democratic and republican candidates. dr. vogel had a number of
contracts with medicaid to provide medical care in the western area of alabama's -- it was alleged he had violated the state's competitive bid laws and committed other acts of fraud in connection with those contracts. he was tried, convicted. the case went to the 11th circuit court of appeals, and the circuit reversed the convictions. remarkable in itself, because the 11th circuit is no bastian of liberality. the circuit found that the indictment was defective, that the competitive bid law was not applicable, because contracts for professional services are exempted from that law, and more importantly, the circuit
seriously questioned whether the evidence presented was sufficient to support convictions. now, one would have thought that the 11th circuit's decision would have ended the case. one would have had another thought coming. dr. bobo was reindicted, and according to the assistant united states attorney in charge of the case, the only difference between the substantive counts of the first and second indictments was that mr. siegelman and his legislative aide, paul henry, had been egged in a conspiracy count. and in that second case, the
united states attorney embarked on a spree of shopping for a republican judge. that spree had actually started a few months before the bobo/siegelman case, when the united states attorney asked a clinton-appointed judge johnson to disqualify herself, first time in the history of the northern district of alabama, that the united states ever questioned the recusal of a judge in a criminal case. judge johnson indulged the united states attorney and removed herself not only from that case, but all other government cases until a decent "cooling off period is passed," she said. she wrote that the government and its agencies that are represented by the united states attorney shouldn't be forced to
try cases before a judge who has been slandered by the united states attorney. that left two active judges appointed by democratic presidents in the criminal draw for the northern district. the case was initially assigned to a senior bush appointed judge. well, actually, junior bush appointed judge, who promptly recused herself without opinion. then the case was randomly assigned to clinton-appointed judge linwood smith. the united states attorney in a sybiotic relationship with "the
birmingham news" insisted that judge smith disqualified himself based on the fact that his second cousinmbiotic relationshe birmingham news" insisted that judge smith disqualified himself based on the fact that his second cousin was a republican governor, bob riley, who had defeated mr. siegelman who two-years earlier. mr. siegelman, the one who would have been expected to make the outcry, had no problem with the judge sitting, but in view of the supprepress reports and the conference with the united states attorney, judge smith found in reason to disqualify himself, but he did so in his words, to promote confidence in the institutional integrity of the judicial branch. the shopping spree continued,
with the case next being assigned to a junior bush appointed judge from tuscaloosa. the government was rather satisfied with that bargain, and it declined mr. siegelman's invitation to join in the disqualification motion. apparently dr. bobo was comfortable with the assignment, and for good reason. he was a doctor for the children. he had heavily contributed to the judge's campaign for circuit judge. several of the anticipated witnesses in the case were known by the judge and had made political contributions to him. and so when the judge did not voluntarily disqualify himself, mr. siegelman filed a
disqualification motion, which was quite appropriately granted. the fickle finger of fate of the court's random selection system then fell on me, and apparently, unmindful of my background as one who faced as a college student, bear bryant as a civil rights lawyer, george wallace as a state senator, "birmingham news" embarked on a series of articles, editorials and op-eds
on why i should disof why myself from the case. mr. siegelman and i were old political cronies from my days in the senate, said the news. my daughter's law firm was hired by then governor siegelman to represent him in the case that was filed at least eight years before he became governor, a job discrimination case against the state. i was prejudiced against the government because my sister had been prosecuted in the central district of california on some fraud charges. ten years earlier. i found the characterization of the government of my relationship with mr. siegelman rather interesting because when i was in the then all democratic alabama state senate, mr. siegelman was in one section of the democratic party,
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