The lead prosecutor in the government’s botched case against former Alaska Sen. Ted Stevens has resurfaced in a controversial federal corruption investigation in the Middle District of Alabama.
Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.
The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the bill, which the state Senate passed on March 30.
The state House of Representatives has yet to vote. Alabama Democrats sent a letter to Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the legislation.
Lobbyist Jarrod Massey, who represented a bingo casino owner, alleged in a letter to the department’s Office of Professional Responsibility that he was harassed by federal agents, and Massey requested that Canary’s office be barred from participating in the investigation because of her husband’s political ties to Riley.
At the April 2 meeting in which the probe was disclosed, Morris and Peter Ainsworth, senior deputy chief in the Public Integrity Section, represented the Criminal Division. Canary’s Criminal Chief, Louis Franklin, and Assistant U.S. Attorney Steve Feaga were also present, according to an April 2 letter from C.E. Higginbotham, FBI supervisory senior resident agent, to the Alabama Department of Public Safety.
FBI Special Agent Angela Tobon in Mobile told The Birmingham News last week that the Public Integrity Section was leading the investigation.
The letter is the first sign that Morris has continued investigating corruption since April 2009, when a federal judge appointed a special prosecutor to investigate whether she and five other Justice Department lawyers violated criminal contempt statutes in their handling of evidence in the Stevens case. (That probe, as well as a separate investigation by OPR, has nearly run its course, as Main Justice reported here Friday.)
Morris was principal deputy chief of the Public Integrity Section until September, when she moved to Atlanta for personal reasons. She remains an employee of the Criminal Division — her title is senior litigation counsel — but is based in the U.S. Attorney’s Office for the Northern District of Georgia.
The White House is having trouble finding a replacement for controversial U.S. Attorney Leura Canary in Alabama’s Middle District, having considered and discarded three candidates over the last year, according to Alabama Democrats.
Both Republicans and Democrats have objected to different candidates, and the White House has been unwilling to cross the state’s powerful GOP senators, according to a Democrat who has spoken to administration officials about the matter. The result has been the continued service of Canary, a bête noire of Alabama Democrats for her prosecution of former Alabama Gov. Don Siegelman (D), while the administration now considers a fourth candidate.
Over the summer, the White House eliminated white-collar defense lawyer Joe Van Heest of Montgomery, even though he’d already been fully vetted, the Alabama Democrats said.
Van Heest met objections from Republican Sen. Richard Shelby, the ranking member of the Senate Banking, Housing & Urban Affairs Committee. Shelby had also helped thwart the original candidate for the job, Mobile-based lawyer Michel Nicrosi, the Democrats said. Sen. Jeff Sessions (R-Ala.), the ranking member of the Senate Judiciary Committee, also opposed Nicrosi.
Then, an Assistant U.S. Attorney in the Birmingham-based Northern District briefly emerged as a front-runner, only to be shot down by Alabama Democrats who said her past work on politically controversial prosecutions disqualified her.
Last month, Main Justice provided an accounting of U.S. Attorney nominations. The figures — President Barack Obama has nominated 42 U.S. Attorneys, and 31 have been confirmed — painted a picture of a process beset by political interference and a White House counsel’s office in flux. (The latter problem may be solved, with the arrival of White House counsel Bob Bauer, but only time will tell.)
Alabama’s Middle District provides an interesting case study: Republican and Democratic opposition, combined with a hands-off White House, has so gummed up the process, there have been four U.S. Attorney front-runners since the summer – but zero nominations.
Shelby’s objections to Van Heest, as we reported in July, appeared to be related to his efforts to promote the daughter of a political supporter for the job. Shelby pushed Anna Clark Morris for the prosecutor post, Alabama officials and lawyers told Main Justice over the summer. Morris, an Assistant U.S. Attorney in the Middle District, is the daughter of influential trial lawyer and Shelby supporter Larry Morris. Neither Shelby’s office nor Van Heest returned phone calls seeking comment.
Both Nicrosi and Van Heest enjoyed the support of Rep. Artur Davis, the state’s senior congressional Democrat, and they both reached the interview-at-the-Justice-Department stage of the process before the White House eliminated them. Nicrosi was the first choice of a selection committee formed Davis; Van Heest was the second. Click here and here for a more background on their candidacies.
After Van Heest, according to the Democrat with knowledge of the selection process, several individuals were approached about the job, including two state circuit judges, a former federal magistrate judge, and a former president of the Alabama state bar. All declined to throw in their hats — though it’s not clear why. (An indictment of the current process, perhaps?)
At one point, there was an effort to build some support around Montgomery-based lawyer Ed Parish Jr., the knowledgeable Democrat said. But Davis and others raised objections about Parish’s lack of criminal experience.
In the fall, Assistant U.S. Attorney Tamarra Matthews Johnson, 35, of Alabama’s Northern District, emerged as the new front-runner. It’s not clear who recommended her for the post. The knowledgeable Democrat said she applied directly to the White House. Johnson declined to comment.
In any event Johnson, a former clerk to Justice Sandra Day O’Connor, wasn’t expected encounter opposition from Sessions and Shelby, the knowledgeable Democrat said.
But she could not overcome her work on corruption cases against Democrats, including the prosecution of Siegelman for alleged bid-rigging. The case, which was overseen by Birmingham-based U.S. Attorney Alice Martin, another villian of the Left, was eventually thrown out. (Siegelman was later indicted and convicted in the Montgomery-based Middle District, on Canary’s turf.)
Democrats have long-maintained the Siegelman cases were politically motivated.
Johnson also worked on the Justice Department’s case against Richard Scrushy, the former chief executive of HealthSouth, who was acquitted in 2005 of masterminding a $2.7 billion accounting fraud. But in 2006, Scrushy was convicted in the Middle District of paying $500,000 to Siegelman in return for a seat on the state hospital regulatory board.
Amid a groundswell of Democratic opposition – Johnson was referred to as a “rabid, right-wing Republican” in one anyonmous quote that gained purchase in the blogosphere, though she and her husband are Democratic donors – Davis approached the White House. The congressman warned that her nomination would generate a backlash, the knowledgeable Democrat said.
The White House, which thus far has been loath to mix it up with Republicans over U.S. Attorney nominations, tread at least as carefully with Democrats, and Johnson’s candidacy dissolved.
The new front-runner, the official said, is George Beck Jr., 68, a white-collar defense lawyer at Capell & Howard and former state prosecutor. Davis recently passed his named to the White House, the official said, but it appears his candidacy will be anything but tidy.
Even if he satisfies the state’s Republican senators, he’ll have to assuage Democrats. Like Johnson, he also was involved in the Siegelman case as a lawyer for government witness Nick Bailey, an ex-aide to the governor who was sentenced to 18 months in prison on bribery-related charges. Bailey, one of the government’s star witnesses, testified in three trials and submitted to more than 40 interviews with federal investigators.
Beck, others noted, also defended Guy Hunt, the first Republican governor of Alabama since Reconstruction, who was convicted of illegaly diverting and spending money raised for his 1987 inauguration.
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For the first time in this administration, Senate-confirmed U.S. Attorneys nominated by President Barack Obama outnumber Senate-confirmed U.S. Attorneys nominated by former President George W. Bush.
As of the end of November, more than 10 months into Obama’s presidency, the score was 24 Obama U.S. Attorneys to 21 Bush U.S. Attorneys, according to a review of Justice Department and congressional records. And of the 48 acting and interim U.S. Attorneys, just seven were appointed during the Bush administration.
The figures represent a watershed for the Obama administration, which has made halting progress filling the nation’s 93 U.S. Attorneys positions amid political resistance and a crowded legislative agenda.
On Monday, the U.S. Attorney nominee for Colorado, Stephanie Villafuerte, pulled her name from consideration, offering a public view of one of several nomination battles unfolding in districts across the country. Villafuerte, the first Obama U.S. Attorney nominee to withdraw, faced questions from Republicans over whether she accessed a restricted federal database for political purposes.
Meanwhile, in Mississippi’s Northern District, Oxford-based criminal defense lawyer Christi McCoy’s candidacy has foundered. People in Mississippi legal circles said Republicans raised questions about her affiliation with a private investigator under investigation for allegedly padding his bills and submitting false claims. (McCoy, like many other defense lawyers in Mississippi, used the P.I. in her practice.)
McCoy was recommended for the U.S. Attorney post by Mississippi Reps. Bennie Thompson and Travis Childers, both Democrats.
And in Alabama, Montgomery criminal defense lawyer Joe Van Heest appears to be out of the running for Middle District U.S. Attorney after objections from Sen. Richard Shelby (R-Ala.), one person familiar with the situation said. Van Heest, who was recommended by Rep. Artur Davis (D-Ala.), had been fully vetted by the White House months ago. But the administration never went forward with a nomination.
As a result, a controversial Bush-holder U.S. Attorney, Leura Canary, remains in charge of the Montgomery-based office. Democrats have criticized Canary for prosecuting former Gov. Don Siegelman (D) on public corruption charges. The Justice Department opposes Siegelman’s Supreme Court appeal of his 2006 conviction.
The White House has shown little appetite for these and other feuds, preferring to reservoir political capital for legislative goals such as health-care reform.
Attorney General Eric Holder has said the Obama administration is treading cautiously in nominating U.S. Attorneys, in part because of lingering sensitivities to politicization in the Justice Department. In an October interview with National Public Radio, Holder said he hoped the offices would be filled by the first part of 2010, but that appears unlikely, with fewer than one-third of the U.S. Attorneys confirmed heading into the New Year.
One administration official said Holder is frustrated with the pace of the nominations, which thus far has been set by the White House. And several Justice officials are now privately questioning the wisdom of leaving Bush-appointed U.S. Attorneys in place until their successors are confirmed, a tack Obama took to preserve continuity and avoid political pitfalls after the scandal over prosecutor firings.
More than twice as many Senate-confirmed U.S. Attorneys were in place by this time in the first year of the previous two administrations. In the Bush administration, the Senate had confirmed 58 U.S. Attorneys by the end of November 2001, congressional records show. President Bill Clinton, by comparison, had moved 57 U.S. Attorneys through the confirmation process by the end of November 1993.
Nominations, too, have been slow in coming, reinforcing the notion that the top rather than the bottom of the process is knotted. Obama has sent 34 U.S. Attorney nominations to the Senate to date. Bush had nominated more than 60 U.S. Attorneys and Clinton more than 70 U.S. Attorneys by this time in their first terms.
A Justice Department spokeswoman declined to comment on the figures, referring a reporter to Holder’s previous statements on U.S. Attorney nominations.
Below are lists of Senate-confirmed U.S. Attorneys.
Nominated by Obama:
- Timothy Heaphy (Western District of Virginia)
- Karen Loeffler (District of Alaska)
- Brendan Johnson (District of South Dakota)
- Paul Fishman (District of New Jersey)
- Kenyen Brown (Southern District of Alabama)
- Stephanie Rose (Northern District of Iowa)
- Nick Klinefeldt (Southern District of Iowa)
- Benjamin Wagner (Eastern District of California)
- Ed Tarver (Southern District of Georgia)
- Carmen Ortiz (District of Massachusetts)
- Joyce Vance (Northern District of Alabama)
- B. Todd Jones (District of Minnesota)
- John Kacavas (District of New Hampshire)
- Preet Bharara (Southern District of New York)
- Tristram Coffin (District of Vermont)
- Dennis Burke (District of Arizona)
- Daniel Bogden (District of Nevada)
- Steve Dettelbach (Northern District of Ohio)
- Carter Stewart (Southern District of Ohio)
- Peter Neronha (District of Rhode Island)
- Neil MacBride (Eastern District of Virginia)
- Florence Nakakuni (District of Hawaii)
- Deborah Gilg (District of Nebraska)
- Jenny Durkan (Western District of Washington)
Nominated by Bush:
- Leura Canary (Middle District of Alabama)
- Joseph Russoniello (Northern District of California)
- A. Brian Albritton (Middle District of Florida)
- Leonardo Rapadas (Guam & Northern Mariana Islands)
- Thomas Moss (District of Idaho)
- Patrick Fitzgerald (Northern District of Illinois)
- Jim Letten (Eastern District of Louisiana)
- David Dugas (Middle District of Louisiana)
- Donald Washington (Western District of Louisiana)
- Rod Rosenstein (District of Maryland)
- Jim Greenlee (Northern District of Mississippi)
- William Mercer (District of Montana)
- George E.B. Holding (Eastern District of North Carolina)
- Anna Mills S. Wagner (Middle District of North Carolina)
- Sheldon Sperling (District of Oklahoma)
- William Walter Wilkins III (District of South Carolina)
- James Dedrick (Eastern District of Tennessee)
- Edward Meachan Yardbrough (Middle District of Tennessee)
- Brett Tolman (District of Utah)
- James McDevit (Eastern District of Washington)
- Kelly Rankin (District of Wyoming)
And here’s a list of Obama nominees who have not been confirmed:
- Christopher Crofts (District of Wyoming)
- Thomas Walker (Eastern District of North Carolina)
- James Santelle (Eastern District of Wisconsin)
- Barbara McQuade (Eastern District of Michigan)
- Mary Elizabeth Phillips (Western District of Missouri)
- Sanford Coats (Western District of Oklahoma)
- Michael Cotter (District of Montana)
- Richard Callahan (Eastern District of Missouri)
- Michael Moore (Middle District of Georgia)
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The Justice Department opposes an appeal from former Alabama Democratic Gov.Don Siegelman for the Supreme Court to reconsider his 2006 conviction on corruption charges, the Associated Press reported yesterday.
Siegelman, who is out on bond pending his appeal, is asking the Supreme Court to review an earlier decision by a federal court in Alabama that let most of his conviction stand. Siegelman, who served as governor from 1999-2003, was sentenced in 2006 to seven years in a federal prison on bribery and mail fraud charges brought by Middle District of Alabama U.S. Attorney Leura Canary. Canary still serves in that post, as a holdover from the Bush administration, while the Obama administration works on getting its own nominee in place. Her then-counterpart in the Northern District of Alabama, Bush U.S. Attorney Alice Martin, also pursued charges against Siegelman, but was unsuccessful.
Members of Congress and 44 former state attorneys general have questioned the conviction, which many critics have claimed was the politically motivated work of then-Bush aide Karl Rove and other Republican officials. We reported last month that the Justice Department Office of Special Counsel found no evidence to support a whistleblower’s claims that the U.S. Attorney’s office for the Middle District of Alabama acted inappropriately in the prosecution of the former governor and his co-defendant, former HealthSouth Corp. CEO Richard Scrushy, who is serving a sentence of almost seven years arising from the 2006 conviction.
Siegelman and Scrushy have maintained their innocence. Their attorneys have argued that donations the health care business executive made to the then-governor’s lottery fund and Scrushy’s later appointment to the Alabama health board wasn’t criminal, just ordinary politics.
DOJ recommended that the Supreme Court not hear the appeal, court papers filed Friday night said, according to the AP.
“Under a standard that requires not just a quid pro quo, but one that is verbally spelled out with all ‘i’s dotted and ‘t’s crossed, all but the most careless public officials will be able to avoid criminal liability for exchanging official action for campaign contributions,” the DOJ argued, according to the AP.
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More than eight months after President Barack Obama took office, one third of the country’s U.S. Attorney offices are still run by prosecutors appointed during the administration of Republican George W. Bush, according to a review of data by Main Justice.
At this point in October 2001 — after Bush succeeded Democrat Bill Clinton – less than 9 percent of the slots were occupied by Clinton holdovers.
The data from the Department of Justice and the U.S. Senate show that Obama is moving relatively slowly to replace Bush-era prosecutors.
Of the 93 U.S. Attorney posts nationwide, 23 are occupied by Senate-confirmed U.S. Attorneys appointed by Bush. Another eight U.S. Attorneys who were appointed during the Bush administration, but not confirmed by the Senate, are also serving. That makes a total of 31 Bush-era appointees who are still running the top federal prosecuting offices around the country.
(Click here to see our chart of the eight Clinton holdovers who were still serving in October 2001. Click here for our interactive chart tracking Obama’s progress in filling the 93 U.S. Attorney offices.)
The issue of Bush-holdovers has attracted notice because of the intense partisan battles over Justice Department personnel and actions that took place during the Bush administration. And some of the Bush-era U.S. Attorneys still serving today were at the center of those controversies.
But the bad economy and law firm recession also may explain why so many U.S. Attorneys are lingering in office. Indeed, some are waiting until the last minute to exit.
This week, three Senate-confirmed Bush-era U.S. Attorneys – Gregory Brower in Nevada, Edward Kubo Jr. in Hawaii and Joe Stecher in Nebraska – left office as their Obama-appointed successors were sworn in. Stecher indicated in an interview with Main Justice he hadn’t lined up a new job yet.
Other of the Bush-era U.S. Attorneys who are still in office were among those accused of targeting Democrats for prosecution, or who were involved in the 2006 U.S. Attorney firings that led to congressional investigations, an appointment of a special prosecutor, and the resignation of Attorney General Alberto Gonzales. While U.S. Attorneys are political appointees, they are expected to carry out the law enforcement duties of their office without regard to partisan politics.
The uproar over the apparent politicization of the Justice Department helped energize Obama’s liberal base in the 2008 presidential election.
But as president, Obama has moved cautiously to replace U.S. Attorneys. While Bill Clinton asked for the resignation of all U.S. Attorneys after taking office in 1993 — a move that was criticized at the time as disruptive — the Obama White House has consulted closely with Republican senators. At times, the White House has delayed moving forward when GOP senators objected to an intended nominee. At the same time, some Democratic senators and House members have been slow in forwarding their recommendations for U.S. Attorneys to the White House, c0ntributing to delays, say people familiar with the process.
“The U.S. Attorney vetting and nomination process is continuing at a steady pace,” DOJ spokesperson Melissa Schwartz wrote in an e-mail to Main Justice.
Meanwhile, several prosecutors most closely identified with the Bush-era controversies remain in office. They include:
- Mary Beth Buchanan, Western Pennsylvania. Buchanan held multiple Bush Justice Department leadership positions in Washington, D.C., while simultaneously serving as the U.S. Attorney in Pittsburgh since 2001. She headed the Executive Office of United States Attorneys from 2004 to 2005, drawing her into the House Judiciary Committee investigation of the U.S. Attorney firings. A member of the conservative Federalist Society, she is overseeing a sensitive corruption investigation into a group of lobbyists who were close to Democratic Rep. John Murtha. Buchanan told local reporters last November she would not voluntarily step down, according to The Washington Post. In July, former Attorney General Richard Thornburgh asked Attorney General Eric Holder to discipline Buchanan for “vindictively” suggesting at a news conference that a high-profile Democratic defendant was guilty. Her office dismissed all charges against former Allegheny County medical examiner Cyril Wecht after a federal judge threw out evidence that was ruled improperly obtained. Wecht was indicted on fraud and theft charges in January 2006.
- Leura Canary, Middle District of Alabama. Canary, who has been U.S. Attorney since 2001, successfully prosecuted former Alabama Gov. Don Siegelman (D) on corruption charges, in a case that Democrats have alleged was political. Canary is married to GOP activist Bill Canary, who reportedly had close ties to Rove. Canary recused herself from the Siegelman case, which was prosecuted by Assistant U.S. Attorney Louis Franklin. But Siegelman and congressional Democrats have said evidence provided by a whistle-blower in the office shows that Canary stayed involved in the case after her recusal. A Montgomery criminal defense lawyer, Joe Van Heest, has been vetted to replace Canary. But his nomination has been held up by objections from Sen. Richard Shelby (R-Ala.), who supports a daughter of a political supporter and friend for the job.
- Bill Mercer, District of Montana Mercer, who has been U.S. Attorney since 2001, came under fire for simultaneously serving as Montana U.S. Attorney and as the Justice Department’s Principal Associate Deputy Attorney General and Associate Attorney General in Washington for almost two years. Emails obtained by congressional investigators showed he was involved in the internal Bush administration deliberations that led up to the 2006 U.S. Attorney firings. Obama last week nominated Helena lawyer Michael Cotter to replace Mercer.
Also, George E. B. Holding in North Carolina’s Eastern District remains in office while he oversees cases against two prominent Democrats, former presidential candidate John Edwards and former Gov. Mike Easley. The potential political repercussions of removing the Republican prosecutor from the Edwards and Easley probes has complicated moves to name a successor. Read our previous report on Holding here.
In New Mexico, Gregory J. Fouratt, who was named interim U.S. Attorney a year after the Bush DOJ fired U.S. Attorney David Iglesias, remains at the helm. Fouratt was not confirmed by the Senate, but he has been criticized for his handling of a pay-to-play political corruption probe of Gov. Bill Richardson (D).
In an August letter to defense attorneys announcing the government would not bring charges in the investigation, Fouratt wrote that “pressure from the governor’s office resulted in the corruption of the procurement process” and said that his letter “should not be interpreted as exoneration of any party’s conduct in that matter.” Joseph diGenova, U.S. Attorney for the District of Columbia during the Reagan administration, told The Associated Press the letter was “stupid” and the New Mexico prosecutor “should be fired” for writing it.
In Alabama’s Northern District, U.S. Attorney Alice Martin stepped down in June after the second of two “courtesy calls” she said she received from officials at Justice Department headquarters in Washington informing her of the progress in nominating and confirming her successor, Joyce Vance. Martin’s critics have accused her of targeting Democrats during her almost eight year tenure – an allegation she has denied.
Martin had moved Vance, a veteran prosecutor in the Birmingham office who colleagues said loved the court room, into a less high-profile job as chief of the district’s appellate section. Observers of the office have told us Martin’s move appeared intended to sideline Vance. Instead, it put Vance in regular contact with appellate judges, who later became influential voices of support when Vance was being vetted by the White House for the job.
Vance took over an interim U.S. Attorney on June 19 and was confirmed by the Senate on Aug. 7. Attorney General Eric Holder attended her swearing-in ceremony. Martin resigned without another job lined up and said she looked forward to spending time with her children.
In addition to Mercer in Montana, other Bush U.S. Attorneys could be out of their jobs soon. Obama has nominated Des Moines lawyer Nick Klinefeldt to succeed Matthew G. Whitaker in the Southern District of Iowa and Stephanie Rose to succeed Matt Dummermuth in the Northern District of Iowa.
Dummermuth took office in January 2007, at the age of 33, under a controversial provision of the Patriot Act — since rescinded — that effectively allowed the White House to install a U.S. Attorney without going through the Senate confirmation process. Bush sent Dummermuth’s formal nomination to the Senate in December 2007, but he didn’t answer questions to the satisfaction of Judiciary Committee Democrats and failed to win confirmation.
It appears likely that at least two Bush appointees will continue to serve in the Obama administration. Northern District of Illinois U.S. Attorney Patrick Fitzgerald — who is prosecuting former Illinois Gov. Rod Blagojevich (D) for corruption — is backed by Illinois Sen. Dick Durbin (D). In Louisiana, Democratic Sen. Mary Landrieu said she wants Jim Letten in the Eastern District to stay. Maryland U.S. Attorney Rod Rosenstein also has the support of Democrats in his state.
Here is a list of the Senate-confirmed Bush U.S. Attorneys who are still in office:
-Leura Canary (Middle District of Alabama)
-Joseph Russonello (Northern District of California)
-A. Brian Albritton (Middle District of Florida)
-Leonardo Rapados (Guam and Northern Mariana Islands)
-Thomas Moss (Idaho)
-Patrick Fitzgerald (Northern District of Illinois)
-Matthew G. Whitaker (Southern District of Iowa)
-Jim Letten (Eastern District of Louisiana)
-David Dugas (Middle District of Louisiana)
-Donald Washington (Western District of Louisiana)
-Rod Rosenstein (Maryland)
-Jim Greenlee (Northern District of Mississippi)
-Bill Mercer (Montana)
-George E.B. Holding (Eastern District of North Carolina)
-Anna Mills Wagoner (Middle District of North Carolina)
-Sheldon Sperling (Eastern District of Oklahoma)
-Mary Beth Buchanan (Western District of Pennsylvania)
-William Walters Wilkins III (South Carolina)
-James Dedrick (Eastern District of Tennessee)
-Edward Yarbrough (Middle District of Tennessee)
-James McDevitt (Eastern District of Washington)
-Sharon Potter (Northern District of West Virginia)
-Kelly Rankin (Wyoming)
And here is a list of non-Senate confirmed attorneys appointed during the Bush administration who are still in office:
-Thomas F. Kirwin (Northern District of Florida)
-Matt Dummermuth (Northern District of Iowa)
-Paula Silsby (Maine)
-Rosa Emilia Rodriguez-Valez (Puerto Rico)
-Charles T. Miller (Southern District of West Virginia)
-A. Courtney Cox (Southern District of Illinois)
-James Zerhusen (Eastern District of Kentucky)
-Gregory Fouratt (New Mexico)
Mary Jacoby contributed to this report.
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The office of Northern District of Alabama U.S. Attorney Joyce Vance rejected allegations that some of its prosecutors failed to disclose exculpatory information about a government contractor, according to a motion filed today.
The U.S. Attorney’s office urged the U.S. District Court for the Northern District of Alabama to deny a motion for criminal sanctions against former U.S. Attorney Alice Martin and government employees involved with the investigation and prosecution of Defense Department contractor Alex Latifi.
Lawyers for Latifi said Martin and two Assistant U.S. Attorneys should be held in contempt of court for allegedly violating their Brady obligations by withholding information from the defense. Read our previous report about the defense team’s motion here.
“[The defense team's] accusations are serious because the penalties for criminal contempt— fines, imprisonment, or both — are serious,” Vance wrote in a court filing today. “But those penalties are not warranted just because [they] have requested them.”
Latifi, CEO of military parts manufacturer Axion Corp., was acquitted in October 2007 of charges he violated the Arms Export Control Act. Prosecutors alleged that Latifi falsified a report to the Defense Department and sent a drawing of a Black Hawk helicopter part to China.
The Latifi legal team of Henry Frohsin, James Barger Jr. and J. Elliott Walthall from Frohsin & Barger said they have “explicit, unequivocal evidence” that Assistant U.S. Attorneys David Estes and Angela Debro and Army investigators David Balwinski and Marcus Mills allegedly conspired with trial witness James Oglesby to conceal evidence and defraud the court.
Latifi’s lawyers said a series of e-mails between the prosecution and a lawyer for Oglesby’s employer, metal manufacturer Allegheny Technologies Incorporated, purportedly contradict Oglesby’s testimony and allegedly show a conspiracy by the government. Oglesby was a plant manager for the Tungsten Products unit of Allegheny Technologies Incorporated, which did business with Latifi.
Oglesby’s testimony was central to the false report charge, the defense team said. The e-mails — which include Tungsten Products records previously unknown to the defense — were obtained last month through a related lawsuit.
“The … e-mails demonstrate that the government was well aware of the import of these documents and was desperate to have them explained before the trial,” the defense motion said. “Yet, upon receiving whatever explanation was forthcoming, the Government elected to bury this evidence. Instead, the government called Oglesby not once, but twice, to offer misleading half-truths as well as outright lies.”
Vance wrote in her court filing today that the defense team’s claims were “little more than speculation.” Martin told Main Justice earlier this month that the motion from Latifi’s lawyers was “baseless.”
DOJ’s Office of Professional Responsibility is already investigating a complaint from Latifi that prosecutors mishandled the case. Vance wrote in the filing that OPR was “an appropriate forum” for reviewing allegations of prosecutorial misconduct.
Some Alabama lawyers have raised questions about whether politics motivated the prosecution against the Iranian-born Latifi, who has donated money to Democrats.
Martin’s critics have accused her of targeting Democrats, including ex-Gov. Don Siegelman (D) in a bid-rigging case. Her office dropped the case after a judge barred crucial evidence. Middle District of Alabama U.S. Attorney Leura Canary, however, later successfully prosecuted Siegelman on corruption charges. The former governor is attempting to appeal his conviction, alleging prosecutorial misconduct.
Martin, who served as Northern District of Alabama U.S. Attorney from 2001 to June 2009, has denied the allegations.
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Northern District of Alabama prosecutors failed to disclose exculpatory information about a government contractor who stood trial in 2007 on arms control charges, defense lawyers said in a court filing last week, citing newly disclosed emails.
Lawyers for Alex Latifi wrote in a motion filed Sept. 14 in the U.S. District Court for the Northern District of Alabama that former U.S. Attorney Alice Martin and two Assistant U.S. Attorneys violated their Brady obligations by withholding information from the defense. Latifi was acquitted in October 2007 of charges that he violated the Arms Export Control Act.
Prosecutors alleged that Latifi falsified a report to the Defense Department and sent a drawing of a Black Hawk helicopter part to China. He is CEO of Axion Corp., which manufactured military equipment, including Humvee machine-gun mounts. Axion has struggled to secure contracts since the case was brought.
The defense team of Henry Frohsin, James Barger Jr. and J. Elliott Walthall from Frohsin & Barger said they have “explicit, unequivocal evidence” that Assistant U.S. Attorneys David Estes and Angela Debro and Army investigators David Balwinski and Marcus Mills allegedly conspired with trial witness James Oglesby to conceal evidence and defraud the court.
“All of these individuals sought to present false evidence to the court with the hope of convicting defendants of a crime they knew defendants had not committed,” the defense filing says.
The testimony of Oglesby, a plant manager for the Tungsten Products unit of metal manufacturer Allegheny Technologies Incorporated, was central to the false report charge, the defense team said. Oglesby told the Army investigators that Axion did not receive parts from Tungsten Products until January 2004, and that if Latifi said otherwise he was “lying,” according to court documents.
The defense lawyers said a series of e-mails about the purportedly false report contradict Oglesby’s testimony and allegedly show of a conspiracy by the government. The e-mails were obtained last month through a related lawsuit.
The government did not disclose to the defense that there were Tungsten Products records endorsed by Oglesby that contradicted his testimony, the motion said. The defense said it was not made aware of alleged conversations between Debro and Oglesby about the records before the trial began, according to the motion, which cited emails between the prosecution and a lawyer for Allegheny Technologies Incorporated.
“The … e-mails demonstrate that the government was well aware of the import of these documents and was desperate to have them explained before the trial,” the motion said. “Yet, upon receiving whatever explanation was forthcoming, the Government elected to bury this evidence. Instead, the government called Oglesby not once, but twice, to offer misleading half-truths as well as outright lies.”
Frohsin told Main Justice that the actions allegedly perpetrated by the government in his client’s case “cannot be condoned in our society.”
“We think that the pending charges are extremely serious,” Frohsin said.
Martin’s successor, Joyce Vance, has been ordered by the court to respond to the motion by Sept. 28.
Vance’s office emailed the following statement to Main Justice:
This office recently learned that defense counsel for former defense contractor Alexander Latifi and his company, Axion Corporation, intended to file accusations against former U.S. Attorney Alice Martin and two current assistant U.S. attorneys, as well as two U.S. Army criminal investigators and a prosecution witness, U.S. Attorney Joyce White Vance said.
Latifi and Axion were indicted and subsequently acquitted in a 2007 trial.
This filing by defense counsel is, of course, an advocate’s point of view, Vance said. The United States will file its response, as ordered by the court, within 14 days, explaining why we disagree with defense counsel’s interpretation of events, she said.
Martin told Main Justice the motion is “baseless” and that she will file a written response with the court. The former U.S. Attorney added in a brief interview that she has no regrets about the case.
The DOJ’s Office of Professional Responsibility is currently reviewing an earlier complaint from defense lawyers regarding a meeting Martin attended in which AUSA Estes allegedly said: ”We don’t care if Latifi is innocent. Our goal is to put him out of business,” according to an ABA Journal report.
Some Alabama lawyers have raised questions about whether politics motivated the prosecution against Latifi.
The Internal Revenue Service investigated Latifi for a donation he made in 2005 to an an Iranian charity for medical evacuation helicopters. Latifi, a naturalized American citizen who was born in Iran, pledged the money because he had a nephew who was unable to make it to a hospital in time, the ABA Journal reported.
Jerome Gabig, Latifi’s business lawyer, told the ABA Journal in an October 2008 interview that the “check rang warning bells with Dave Estes at exactly the wrong moment.” There were heightened concerns about national security in the wake of the 9/11 attacks and the U.S. invasion of Iraq.
Barger also told the ABA Journal last year that the first entry in the lead investigator’s official notebook identified Latifi’s political affiliation and said that he “gave $30,000 to a Democratic politician’s charity for abused children.”
Martin’s critics have accused her of targeting Democrats. Matin, who served as Northern District of Alabama U.S. Attorney from 2001 to June 2009, has denied the allegations.
One controversy involved her attempt to prosecute ex-Gov. Don Siegelman (D) in a bid-rigging case, which her office dropped after a judge barred crucial evidence. Middle District of Alabama U.S. Attorney Leura Canary, however, later successfully prosecuted Siegelman on corruption charges. The former governor is attempting to appeal his conviction, alleging prosecutorial misconduct.
Vance became the interim U.S. Attorney for the Northern District of Alabama in June, two months before she was confirmed by the Senate. Martin told Main Justice in June that the Obama administration did not force her out early, and that she recommended Vance to be her successor. Vance was an Assistant U.S. Attorney and head of the appellate section in the Birmingham office.
Attorney General Eric Holder made a special trip to attend Vance’s swearing in ceremony last month and kissed her on the cheek at the event.
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President Obama’s intended nominee for the Montgomery-based Middle District of Alabama is all vetted and ready to go. But you didn’t see white collar criminal defense lawyer Joe Van Heest on the list of new nominees released by the White House Friday.
The reason: Objections from Republican Sen. Richard Shelby (Ala.), two Democrats close to the nominating process recently told me.
As a result, controversial U.S. Attorney Leura Canary, whose office prosecuted former Gov. Don Siegelman (D) on political corruption charges, will likely cling to office a bit longer while the Shelby spat gets sorted out.
Shelby’s office didn’t return phone calls seeking comment. A White House spokesman, Ben LaBolt, declined to comment. Van Heest, who practices in Montgomery, did not respond to a request for comment.
As far as we can tell, Shelby’s goal isn’t to prolong the tenure of Canary, who hasn’t taken the hint and resigned yet. Canary, of course, is accused of helping send the popular Siegelman to prison on bogus charges so he couldn’t run for office again. Canary is married to GOP political operative Bill Canary, who was reportedly close to Karl Rove.
Rather, Shelby’s objections appear to be related to his campaign to promote the daughter of a political supporter for the job, Alabama Democrats say.
Shelby has backed Anna Clark Morris for the position, Alabama officials and lawyers have told me. Morris is an Assistant U.S. Attorney in the Middle District office and the daughter of influential trial lawyer Larry Morris, the Shelby supporter.
Morris, of Morris, Haynes & Hornsby in Birmingham, also has built good relations with both Democrats and Republicans. And Shelby, of course, is himself is a former Democrat and a trial lawyer.
A local Democratic patronage committee had recommended Anna Clark Morris for the job, but according to a high-ranking Democratic official with knowledge of the process, she hasn’t been vetted by the White House and won’t be nominated.
Another name floated for the position is Montgomery Presiding Circuit Court Judge Charles Price. Price is African American and would add diversity (Van Heest is white). But Price isn’t a contender, Democrats close to the process tell me, despite Price’s recent quotes in this piece in the Montgomery Independent suggesting he’s interested.
Van Heest was the second choice for the Middle District put forward by Rep. Artur Davis (D-Ala.), who as the state’s senior congressional Democrat has been making recommendations to the White House. Davis’s first choice for the job was former federal prosecutor Michel Nicrosi, now in the corporate compliance and white collar defense section of Jones Walker in Mobile. But both Shelby and Alabama’s other Republican senator, Jeff Sessions, objected to Nicrosi, and the White House eliminated her from contention weeks ago. Read our previous report on Nicrosi here.
The odd thing about the Van Heest nomination is how defential the White House is apparently being to Shelby. We know the White House doesn’t want any controversy (ie: no senatorial “blue slips” filed against their nominees.) But in Van Heest, the administration has a guy who’s ready to go – and who would replace one of the bête noires of the Left. The George W. Bush White House would have just rolled any Democrats who tried to object to their nominees – and they didn’t have a 60-vote supermajority in 2001.
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Department of Justice whistle-blower Tamarah Grimes, who accused federal prosecutors of misconduct in the prosecution of former Alabama Gov. Don Siegelman (D), has been fired, and claims in a press release that the firing came as a direct result of her efforts to expose prosecutorial misconduct, reports Scott Horton.
The DOJ denies that Grimes was terminated because of her whistleblowing. “The Department takes seriously its obligation under the whistleblower law and did not violate it with regards to the termination of this employee. For privacy reasons, it would be inappropriate to comment any further on this personnel matter at this time,” said department spokeswoman Tracy Schmaler.
Grimes also alleges that she wasn’t the first whistleblower in the U.S. Attorney’s Office for the Middle District of Alabama to be fired:
I am the second employee to be terminated from the Us. Attorney’s Office for the Middle District of Alabama for opposing unlawful conduct in the workplace. A third employee awaits her fate after seeking relief from violence in the workplace. The message to those left behind is clear: The price for opposition at any level, is at a minimum, termination.
Grimes, whose firing has been confirmed by the Department, says that she received a notice of immediate termination from Deputy Director and Chief of Staff of the Executive Office for U.S. Attorneys Terry Derden on June 9, exactly one month ago. The release, written in the third person, also notes that:
Ironically, her termination came just one week after two significant events. First, attorneys for Richard Scrushy requested permission to interview Ms. Grimes under federal regulation 28 CFR § 16.21 relating to allegations of prosecutorial misconduct during the Siegelman/Scrushy prosecution. Second, Ms. Grimes submitted a letter to Attorney General Holder on June 1, 2009 providing details of the misconduct on the part of the prosecutors in the Siegelman/Scrushy trial.
The press release explains that:
In a letter sent to Ms. Grimes’s attorney on June 9, 2009, the agency stated that the whistleblower disclosures were unrelated to her termination.
Here’s Derden’s explanation (as characterized by Grimes’s press release):
Mr. Derden alleges that Ms. Grimes’s termination arose from a management decision made after- hours meeting in the lobby bar at the Embassy Suites Hotel in Montgomery, Alabama during an active mediation more than 3 months after the agency learned of Ms. Grimes’s whistleblower disclosures.
Horton says that, according to the Justice Department, Grimes was terminated because she presented “an unreasonable risk to operational security.”
You may remember that Grimes provided internal prosecution e-mails to Congress and the Justice Department, which were also obtained by TIME Magazine, allegedly showing evidence of juror misconduct, and that U.S. Attorney for the Middle District of Alabama Leura Canary had not fully recused herself from the Siegelman case as promised.
We reported back in May on Siegelman’s attempts to get the Department of Justice to review the prosecution, which relies heavily on information revealed by Grimes. You can read our latest report on Siegelman’s attempt at getting a new trial here, and our latest report on Scrushy’s efforts here.
The Justice Department’s investigatation into these accusations concluded that Alabama prosecutors had not “violated any law, rule or regulation,” in this October 2008 report. The report went so far as to say that the evidence “strongly supports” the positions taken by the prosecutors. But then, three days after then-Sen. Barack Obama’s victory in the presidential election, House Judiciary Committee Chairman John Conyers (D-Mich.) responded with a letter to then-Attorney General Michael Mukasey criticizing the DOJ report as “one-sided” and urging him to revisit the allegations made by Grimes:
[W]e have recently learned that this issue and others raised by Ms. Grimes was referred by the Office of Special Counsel to your office for evaluation. In response, an initial report has been prepared by two Assistant United States Attorneys which essentially concludes that, despite the plain statement to the contrary in this email chain, no messages were actually sent by any members of the jury to the prosecution through the US Marshals.
We are troubled, however, that the investigators appear to have reached this conclusion without interviewing the US Marshals who supervised the Siegelman jury and who are described in the email as having been the conduit for jury messages to the prosecution. Nor do the investigators appear to have interviewed any member of the jury.
It’s also worth noting that Conyers ended the letter by giving Grimes a huge thank you, and throwing in a footnote reminding Mukasey that you can’t just fire whistle-blowers:
We appreciate Ms. Grimes providing this information, which she apparently has previously presented to several executive branch offices. It is no easy thing to speak up in these circumstances, but we in Congress and all Americans depend on whistleblowers like Mr. Grimes taking action when they learn of troubling facts like those described above.
Any employee who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority– take or fail to take … a personnel action with respect to any employee … because of any disclosure of information … which the employee … reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement… an abuse of authority…
But apparently that’s what ended up happening anyway. Grimes concluded her letter with a plea to Attorney General Eric Holder:
My hope remains with the Attorney General of the United States. I remain confident that Mr. Holder will provide assistance to the employees of the United States Attorney’s Office for the Middle District of Alabama, to wrongfully terminated former employees of the U.S. Attorney’s Office, and to citizens of the United States within the Middle District of Alabama whose interests have not been well served under the Canary administration.
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Of the three U.S. Attorney nominees who’ve been reported out of the Senate Judiciary Committee, one – Joyce Vance in the Northern District of Alabama – didn’t wait for Senate confirmation to get started.
Vance on June 19 replaced the controversial Alice Martin, who came under scrutiny during the Bush administration for what critics called a pattern of politicized prosecutions. Vance is now interim U.S. Attorney, but her formal Senate confirmation could come this week.
In the meantime, we wanted to know: Did Martin’s departure mean the ultra-cautious Obama administration was finally ready to play a little bit of hardball? Did it push out one of those Bush-era U.S. Attorneys clinging to their jobs, even though they’re reviled by the Left? Martin’s office in 2004 dropped a bid-rigging case against Alabama Gov. Don Siegelman (D) after a judge barred crucial evidence. But the office of Martin’s colleague, Middle District of Alabama U.S. Attorney Leura Canary, successfully prosecuted Siegelman on the corruption charges that have caused such an uproar, prompting the imprisoned Siegelman last week to ask for a new trial, alleging prosecutorial misconduct.
We phoned Martin at her home in Florence, Ala., last week to ask. Her answer: absolutely not. She was not pushed out. In fact, Martin said she personally recommended that Vance, a veteran prosecutor in the office who was most recently chief of the appellate section, get started early.
Both Vance and the Department of Justice public affairs office in Washington declined to comment, so we only have Martin’s side of the story.
Here it is:
Martin said she received a “courtesy call” in March from an official at Main Justice whom she declined to identify telling her Vance would be nominated. “At that time I said I will tender my resignation,” Martin told me. “They said no. They asked me if I would please stay until they had her [Vance] in line and out committee.”
Then in June, shortly before the Senate Judiciary Committee approved Vance and two other U.S. Attorney nominees, Martin said she received another “courtesy call” from an official at Main Justice. “They didn’t need to tell me to go. I knew it was time.”
Martin said she immediately drafted a resignation letter effective June 19 – the day after the committee was slated to vote on Vance – and then personally called H. Marshall Jarrett, the new head of the Executive Office of U.S. Attorneys, to inform him of her decision. Martin said she doesn’t have a new job yet and is taking the summer off to spend time with her children.
We also asked Martin about the rumor circulating that she had refused to hang the official portraits of President Obama and Attorney General Eric Holder in the Northern District’s offices. “That’s not true,” she told me. “Those pictures are sent out by the administration when they have them. Ours were sent out, and we sent them out to be framed. They don’t send them to you framed. That’s what’s so infuriating about people.”
She said Vance had gone to Washington for her U.S. Attorney interview and apparently “made the comment that we didn’t have any [portraits] in. She came back from Washington with two framed portraits. They had a different matting than we normally use. … I’m pleased as punch she didn’t know what was going on, but that’s not uncommon for someone who is not the U.S. Attorney.”
Martin called the rumors she’d refused to hang Obama and Holder’s portraits “insulting.” She added: “I’m personally the one who removed George Bush’s picture. I certainly did. We had a new president. He [Bush] was no longer the president. I thought it was appropriate.”
Martin also took issue with the characterization of her as “controversial.” She said the 130 public corruption convictions won during her tenure were split evenly between Democrats and Republicans – in a state where local Democratic office holders outnumber Republicans.
However, the DOJ’s Office of Professional Responsibility is apparently still investigating Martin’s prosecution of a company called Axion Corp., which was acquitted in October 2007 of violating the Arms Export Control Act. Axion attorney Henry Frohsin of Frohsin and Barger LLC in Birmingham, who filed the complaint, told me Monday it remains pending. Frohsin has said he believes the company was targeted during the “Axis of Evil” era because its owner is Iranian-American. You can read Scott Horton’s piece in The American Lawyer about the Axion case here.
Vance, meanwhile, is a highly regarded prosecutor who worked at the white-shoe Bradley Arant Rose & White firm in Birmingham. A native of California, she is married to Robert Vance Jr., the son of judge Robert Smith Vance of the U.S. Court of Appeals for the 11th Circuit, who was murdered in 1989 after he opened a package mailed to his home containing a nail bomb.
Walter Leroy “Roy” Moody Jr. was charged with the murder of Vance and a Georgia civil rights attorney who was killed in another explosion. Moody was also charged with mailing bombs to the 11th Circuit’s headquarters and to an office of the NAACP. In 1990, the federal courthouse in Birmingham was named the Robert S. Vance Federal Building.
After Martin was confirmed in 2001 as the Northern District U.S. Attorney, she put Vance in charge of the office’s appellate section in what appeared to be an attempt to sideline her as a prosecutor, several people with knowledge of the office told me. But it backfired, the people said: Vance became well known and respected among 11th Circuit judges, whose opinion can make or break a U.S. Attorney nominee.
Here is the text of the email Martin sent to her staff announcing her departure:
It is with a smile on my face but sadness in my heart that I announce I will resign as United States Attorney effective this Friday, June 19th at close of business.
The smile comes from knowing each of you and the confidence that you will continue to do outstanding and impactful work for the people of this district and nation (and the knowledge that I am taking the summer off to spend with my girls before my eldest starts college in the Fall)! The sadness comes from knowing each of you – and knowing that I will not have the level of contact which has made the past almost 8 years so meaningful for me. Wow, I can’t believe it has been almost 8 years since I joined your ranks – you have had far more time with me than you deserved! So, as we learned in leadership classes, change can be good – just know that one thing will not change and that is my following your careers and successes. You are an important part of my life.
I have advised the Department of my decision to spend the summer playing and not prosecuting, and my recommendation that Joyce be designated Acting U.S. Attorney pending her Senate confirmation. Her nomination is on this week’s Senate Judiciary Executive Business Meeting, and I trust the process will be swift to her confirmation!
I am in Huntsville today, and Birmingham the remainder of the week. I will be coming by each office to wish you well, but know if we miss, I trust we’ll see each other at a party which is planned for July 16th to celebrate our successes since September 2001. They are many because of your dedication to the mission!
Thanks for your individual leadership and professionalism. There is no better U. S. Attorney’s Office in the country and I am proud to have served with you!
Warmest wishes for your every success,