dickie scruggs memorandum on quid pro quo

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA

v. NO. 3:09CR002-GHD

RICHARD F. SCRUGGS

PETITIONER’S MEMORANDUM REGARDINGTHE NECESSARY QUANTUM OF PROOF

FOR AN IMPLICIT QUID PRO QUO

Petitioner respectfully submits this memorandum to address the evidentiary threshold for

finding an implicit quid pro quo at the upcoming hearing. Although the Court has approached

the issue in its prior opinion, D.E. 160, additional briefing may be helpful for three reasons.

First, the Government is proceeding on a statute that the Supreme Court has held is facially-

vague, which thus fails on its own terms to delineate the elements of the crime, and neither the

Government nor the Court has specified a particular bribery statute that controls here. Second,

the Government has conceded that this prosecution is unprecedented – never before has there

been a hearing on the question of whether a political endorsement, unaccompanied by an explicit

quid pro quo agreement, could constitute a bribe. Third, in previously addressing some of these

questions in D.E. 160, the Court relied upon many authorities that had not been briefed by the

parties. The Court was thus deprived of the benefits of adversarial testing

Petitioner reasserts and preserves his objection that the First Amendment, in both its free

speech and petition clauses, protects Petitioner’s right to recommend to a United States Senator

that Bobby DeLaughter be considered for federal judicial office, at least as long as there was not

an explicit agreement to exchange one thing for another. Petitioner understands, however, that

this hearing will be controlled by this Court’s ruling that the conviction could be upheld based on

proof of a quid pro quo agreement. D.E. 160. But for the conviction to stand, there must be

Case: 3:09-cr-00002-GHD-SAA Doc #: 183 Filed: 03/21/12 1 of 15 PageID #: 1708

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proof of an unmistakable understanding between the parties on the exchange and on the services

that are to be performed. This memorandum argues that, since the Court is proceeding down this

road, it should do so warily, declining to find such an implicit agreement unless the evidence is

so overwhelming as to leave no juror with any reasonable doubt that a bribe has occurred.

In filing this memorandum, Petitioner does not waive his claim, articulated elsewhere,

that this Court has no jurisdiction to proceed with this hearing. 1

This memorandum proceeds in two parts. First, the parallel conduct of office holders and

their supporters is otherwise constitutionally protected and is just too common for courts to find

implicit bribes when there is anything short of overwhelming evidence. Second, in this case, the

hearing evidence will show that this case is a particularly poor candidate for the first-ever case

where a Court infers circumstantially that a political recommendation was the basis for an

implicit bribe.

I. SINCE PARALLEL POLITICAL CONDUCT IS SO COMMON ANDOTHERWISE PROTECTED BY THE CONSTITUTION, THE COURT MUSTDEMAND OVERWHELMING EVIDENCE OF A QUID PRO QUOAGREEMENT.

Proceeding on the assumption that an implicit quid pro quo agreement would suffice to

uphold this conviction, what sort of evidence of such an agreement would suffice? The

Government has conceded that Petitioner’s conduct is legally protected, unless this Court finds

that there was a quid pro quo agreement between DeLaughter and Petitioner. D.E. 149 at 2

(“Clearly, any citizen has a right to recommend a state judge for appointment to the federal

1 Petitioner also reasserts his other objections, including that this prosecution based on a novel andunforeseen theory of bribery (which the Government previously repudiated) violates his due process rights,and that the facially-vague honest services fraud statute cannot be used to regulate political speech, since it isnot narrowly tailored.


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bench. He may even do so while he has litigation pending before that judge[.]”). Thus, this

Court’s threshold for finding an implicit agreement has Constitutional significance.

In order to make room for a facially vague statute first enacted in 1988, this Court will for

the first time decide whether a political endorsement falls into an unprotected void in the First

Amendment. Unlike a case about animal cruelty videos or pornography, the Court is working at

the very core of First Amendment protections – the ability to petition the government about a

candidate for federal office. “There is practically universal agreement that a major purpose of

that Amendment was to protect the free discussion of governmental affairs of course including

discussions of candidates.” Buckley v. Valeo, 424 U.S. 1, 14 (1976)(internal modifications

omitted).2 In drawing the line between the protected and the unprotected in this first-of-its-kind

prosecution, this Court must therefore utilize an extraordinarily high threshold, one demanding

the clearest, most overwhelming evidence that there was a quid pro quo. Anything short of that

must result in acquittal.

This case will be an important precedent for officeholders and political supporters

everywhere, since parallel political conduct is ubiquitous in American democracy. Governors

veto legislation that their endorsers opposed. Presidents appoint to public office individuals who

supported their campaigns. Senators introduce legislation that their endorsers support.

Congressmen retire and take jobs with companies that benefited from their votes. And, judges

rule in favor of attorneys and litigants who have, or who will in the future, support their

ambitions for higher office. In all these instances there were “quids” (the votes or the offices)

2 This concern is heightened here, where the Government is proceeding on the basis of a relativelyyoung law (enacted in 1988) that the Supreme Court in Skilling held was unconstitutionally vague, evenoutside the First Amendment context. Smith v. California, 361 U.S. 147, 151 (1959) (“[S]tricter standards ofpermissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; aman may the less be required to act at his peril here, because the free dissemination of ideas may be theloser.”).


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and “quos” (the political support). In their absolute discretion, the Government prosecutors say

that they have the power to target any of these officeholders or any of these politically-active

supporters and prosecute them under the facially-vague honest services fraud statute if

prosecutors decide these contexts implicitly involve a “deal.” All that is standing between

freedom or imprisonment is thus a court or jury deciding whether there was an implicit,

unspoken agreement between the officeholder and the supporter.

In United States politics, there has long been a tradition of political supporters also

intending to influence official decisions. In the famous case of Marbury v. Madison, the Court

will recall that on the last night of his term, President John Adams appointed William Marbury to

the position of justice of the peace, one of the infamous “midnight judges.” But one might be

forgiven for forgetting the historical background: prior to that political appointment, Mr.

Marbury had endorsed John Adams for the presidency and had worked tirelessly in Maryland,

where he had political influence, on behalf of Adams’ candidacy. Historian Lawrence Goldstone

writes that,

Despite unstinting efforts … Marbury could not deliver Maryland, but his tirelessand loyal support did not go unrewarded by the outgoing president. He was notsufficiently senior for a circuit court nomination, so, to show his appreciation,Adams named William Marbury as one of the forty-two new justices of the peacefor the District of Columbia.

LAWRENCE GOLDSTONE, THE ACTIVIST 169 (2008) (emphasis added).

Did Mr. Marbury and Mr. Adams have an implicit agreement? One could look at these

circumstances and infer that the answer is yes. We do know that, upon taking office and learning

of these appointments, the new president Thomas Jefferson refused to have the commissions

delivered, thereby creating a Constitutional conflict that was famously resolved in Marbury v.

Madison. Id., at 172. If the current prosecutors for the Northern District of Mississippi had their

say, President Jefferson would have instead arrested both Mr. Marbury and Mr. Adams and


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charged them with fraud, allowing a largely-Republican jury to then decide whether there may

have had an implicit agreement to exchange Mr. Marbury’s political activity for Mr. Adams to

offer the desired nomination.

Likewise, in the 1824 election for the United States Presidency, Andrew Jackson failed

to obtain an outright majority in the Electoral College, so the House of Representatives was

vested with choosing the President. The Speaker of the House was the influential Henry Clay,

and he instead endorsed John Quincy Adams, who was then elected President. Not

coincidentally, Adams then selected Clay to be his Secretary of State, which Clay valued as a

stepping stone to the Presidency. As historian Robert Remini wrote,

Because of all the rumor and talk about a bargain, even before the announcementof Clay's appointment, the news of his selection, when it came, tended to confirmthe fact that an agreement had indeed been reached prior to the election. The"cause" was judged by the "effect," the reality of the appointment proved theexistence of a prior agreement.… And the more Clay denied the corrupt bargaincharge, as he had to do constantly from 1825 onward, the more the peopledisbelieved him and condemned him for his "betrayal."

ROBERT REMINI, HENRY CLAY: STATESMAN FOR THE UNION, 270 (1993).

Under the Government’s approach to this case, the subsequent administration could have

simply arrested both Mr. Clay and Mr. Adams, and tried them for fraud using the circumstantial

evidence of “cause” and “effect” to show that Mr. Clay gave his endorsement to Mr. Adams,

hoping to influence his decision about whom to nominate as secretary of state.3 Yet even while

Mr. Clay’s staunchest critics, such as Andrew Jackson himself, were outraged, they did not even

suppose that the “corrupt bargain” could be criminalized.

These sorts of political interactions are historic, but the everyday interactions of

politicians and their supports are no different. Consider the case of Harrah's Vicksburg Corp. v.

3 Of course, this sort of reasoning would be an instance of the fallacy of post hoc, ergo propter hoc, butthat is in the nature of after-the-fact circumstantial evidence.


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Pennebaker, 812 So.2d 163, 171 (Miss.,2001). The gambling company Harrah’s wanted

Mississippi state governmental cooperation in preventing competing casinos from opening along

the Black River, and to achieve that aim, Harrah’s engaged in a wide campaign of earwigging,

plus even an offer that could be characterized as an implicit quid pro quo:

Huffman brokered an idea between certain state agencies, particularly thoserelated to Civil War battlefields, and the casinos whereby the casinos wouldprovide grants in the amount of $320,000 to the Mississippi Heritage Trust topreserve the historic Civil War sites through a heritage corridor preventing casinodevelopment. It was understood that the money would be paid only if theheritage corridor succeeded in precluding casino development along the BigBlack River. Once the MGC turned down the Big Black site, the casinos' offer toestablish a heritage corridor faded away.

812 So.2d at 167-168. Their would-be competitors sued under various theories. The

Mississippi Supreme Court held that even if the Harrah’s conduct had the purpose of

“undermining the effectiveness of law or policy,” it was protected by the petition clause of the

First Amendment.

Looking forward, suppose that Senator Thad Cochran fell out of favor with the federal

prosecutors. With only a cursory search they would find that Thad Cochran was endorsed by the

National Rifle Association and the National Stone, Sand, and Gravel Association, both of whom

had legislation pending in the Senate during his tenure there.4 Presumably, Senator Cochran

may have valued them to some extent, and multiple uses of the wires or mails were in

furtherance of these endorsements. Thus, the Obama Department of Justice could indict Senator

Cochran, the NRA executives, and the National Stone, Sand, and Gravel executives (or perhaps

just the NRA executives, if that were its political preference), and threaten them with multiple

counts of honest services fraud, each bearing a 20-year prison sentence. Perhaps the defendants

4 See Project VoteSmart, http://www.votesmart.org/candidate/evaluations/53312.


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could persuade a jury that they didn’t give or receive these endorsements with the intent to get

any favorable treatment in return? Perhaps not?5

In the upcoming hearing, the Court may be tempted to turn inward, plumbing Petitioner’s

mind to determine whether he made the political endorsement with the intent – essentially a hope

– that the endorsement would influence Judge DeLaughter to do something in return, and then

use that as the dividing line between protected and unprotected speech. D.E. 160 at 10.

Likewise, in any of the foregoing cases – Marbury, Clay, Harrahs, or Cochran – somebody could

rely on the circumstantial evidence to suppose that one or the other of the parties acted with an

intent to influence the other.

The Supreme Court has repudiated this method. In a case about regulations of political

advertisements, the Court said:

The test to distinguish constitutionally protected political speech from speech that[the state] may proscribe should provide a safe harbor for those who wish toexercise First Amendment rights. The test should also “reflec[t] our ‘profoundnational commitment to the principle that debate on public issues should beuninhibited, robust, and wide-open.’ ” A test turning on the intent of thespeaker does not remotely fit the bill. Far from serving the values the FirstAmendment is meant to protect, an intent-based test would chill core politicalspeech by opening the door to a trial on every [instance of speech] on the theorythat the speaker actually intended to affect an election, no matter how compellingthe indications that the ad concerned a pending legislative or policy issue. Noreasonable speaker would choose to [speak] if its only defense to a criminalprosecution would be that its motives were pure. An intent-based standard“blankets with uncertainty whatever may be said,” and “offers no security for freediscussion.”

5 It is inconceivable that, when he voted on the honest services fraud statute in 1988, Senator ThadCochran intended to give the Department of Justice and 12 jurors this unprecedented power to turn him andhis most vocal supporters into felons on the basis of anything short of overwhelming evidence that there wasan agreement to exchange one thing for the other. In fact, the Government has already conceded that thiswould be an incorrect reading of the honest services fraud statute, which is limited to financial, not political,influence. “Honest-services fraud does not embrace allegations that purely political interests may haveinfluenced a public official's performance of his duty. The core interests that give rise to the divided loyaltiescovered are personal financial interests of the official, his family, or his associates that raise a conflict withofficial duties.” Brief for the United States Government in Weyhrauch v. US., 2009 WL 3495337, 45-6.


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Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 467-68, (2007) (internal

citations omitted, emphasis added). See also City of Columbia v. Omni Outdoor Adver., Inc.,

499 U.S. 365, 380 (1991) (citation omitted) (The Noerr-Pennington doctrine “shields from the

Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”).

Strikingly, the Government has already admitted that this strategy is unworkable. As

the Supreme Court in Wisconsin Right to Life explained,

The FEC does not disagree. In its brief filed in the first appeal in this litigation, itargued that a “constitutional standard that turned on the subjective sincerity of aspeaker's message would likely be incapable of workable application; at aminimum, it would invite costly, fact-dependent litigation.” Brief for Appellee inWRTL I, O.T.2005, No. 04–1581, p. 39. … “[U]nder well-accepted FirstAmendment doctrine, a speaker's motivation is entirely irrelevant to thequestion of constitutional protection”. “First Amendment freedoms needbreathing space to survive.” An intent test provides none. … Such a test “‘putsthe speaker ... wholly at the mercy of the varied understanding of his hearers.’” Itwould also typically lead to a burdensome, expert-driven inquiry, with anindeterminate result. Litigation on such a standard may or may not accuratelypredict electoral effects, but it will unquestionably chill a substantial amount ofpolitical speech.”

Id., at 468-69 (internal citations omitted, emphasis added). The Government and the Supreme

Court have thereby already repudiated the theory that merely giving a political endorsement with

intent to influence can be the basis for upholding this prosecution.

The Supreme Court has said that, “the First Amendment requires us to err on the side of

protecting political speech rather than suppressing it.” Wisconsin Right To Life, Inc., 551 U.S. at

457. The Government thus needs a good deal more than mere parallel political conduct,

something more than speculation about Petitioner’s subjective intent. If the Court is going to

permit circumstantial evidence of an “implicit agreement” to suffice for bribery, the Court should

nonetheless grant Petitioner’s Petition unless it finds clear and compelling evidence that there

was a quid pro quo agreement in this case that would satisfy a jury beyond any reasonable

doubt..


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II. THE EVIDENCE IN THIS CASE WILL FAIL TO PROVIDEOVERWHELMING EVIDENCE OF A QUID PRO QUO AGREEMENT.

As in all cases of this sort, in this case the Government can point to some evidence that

supports its theory and speculations. Indeed, what is striking about bringing the criminal law

into the difficult world of politics is that there will almost always be some evidence that

improper motives were at play. As well captured by the Supreme Court, “[O]ur tradition of

political pluralism is partly predicated on the expectation that voters will pursue their individual

good through the political process, and that the summation of these individual pursuits will

further the collective welfare.” Brown v. Hartlage, 456 U.S. 45, 56 (1982). For that reason, said

the Court, “We have never insisted that the franchise be exercised without taint of individual

benefit . . .” Id. In the ambiguous world of politics, there will always be circumstantial evidence

of quids and quos – parallel political conduct – from which one could infer that there was an

implicit agreement. And the Government has an overwhelming power to pressure witnesses, to

give whatever favorable testimony it desires.6

Unlike most cases of deducing the existence of an agreement from readily observable

objective facts, this will be a case where any evidence about the existence of an implicit

agreement will be based not on circumstantial deductions from meetings, direct communications,

or the back and forth of reciprocal favors. Rather, the Government's case turns at most on the

five-year old memories of incentivized witnesses, who falsely claim knowledge of the content of

meetings they did not attend. Despite the multiple plea or immunity negotiations by all parties to

the underlying events in Wilson v. Scruggs, not a single participant ever admitted being party to a

6 For example, Tim Balducci has already admitted that the Government’s threats were a motivatingforce for him, and that he in fact testified falsely in support of the Government’s case in the grand juryinvestigating the Judge Lackey affair. As the Fifth Circuit has said, “there exists a danger that the informantsought to implicate another in order to curry the favor of the police and perhaps gain immunity for himself ...mak[ing] the statement less reliable.” United States v. Martin, 615 F.2d 318, 326 (5th Cir.1980).


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scheme of bribery, and indeed, all participants strongly resisted strenuous government efforts to

admit to that. While the events at issue led to prison sentences, loss of professional licenses, and

admissions of guilt by all non-immunized participants, all of the participants insisted even at the

plea allocutions that they were not parties to any quid pro quo bribed exchange with then Judge

DeLaughter.

For the five reasons that follow, this case makes a very bad candidate to be the first-ever

prosecution of a political endorsement as if it were a bribe. The lack of a “smoking gun” tape

recording, the lack of direct evidence by one of the parties to the alleged agreement, the

Government’s concessions that Delaughter’s decisions complied with the law, and the

Government’s concession that Petitioner’s speech was otherwise protected -- will altogether

leave too much doubt about whether there was in fact an implicit agreement here.

First, notably, this case does not involve an audiotape or some incriminating document

memorializing a corrupt agreement. There is no “smoking gun.” We do not have any language

on the record from Petitioner or from Bobby DeLaughter in which they dangle corrupt offers to

each other, skating right up to the line of an explicit agreement but stopping short. That,

arguably, would be the paradigm case for the first-ever bribery prosecution based on a political

endorsement with an inexplicit agreement. Instead, this will be a case where any evidence about

the existence of an implicit agreement will be based on five-year old memories of incentivized

witnesses.

Second, this is also not a case where one of the parties to the alleged agreement admits

that it existed. The Government concedes that “in fairness, Bobby DeLaughter would testify

there was no quid pro quo.” D.E. 135 at 3. Even with the overwhelming weight of Government

pressure , Mr. DeLaughter insisted upon his innocence on this point, and eventually the


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Government gave in, dismissing all bribery-related charges against him.7 Likewise, the

Government negotiated with Petitioner to eliminate any bribery allegations from the Information

to which he pled guilty. When it comes to the parties to the alleged agreement, the Government

is proceeding empty-handed.

Third, the alleged intermediary, Ed Peters, has repudiated the idea that there was any quid

pro quo agreement, despite the Government’s inexplicable grant of immunity to him. D.E. 157.

So both parties to the alleged agreement, and the intermediary, disabuse the Government’s

theory of quid pro quo.

Thus, for the foregoing three reasons, we have already departed the realm where there

would have been direct evidence of an implicit agreement to exchange one thing for another.

We are now looking for circumstantial evidence, evidence on which this Court must make

inferences upon inferences to decide whether there may have been a quid pro quo. We are in

that ambiguous realm where any officeholder and any political supporter must fear prosecutorial

adventurism.

Fourth, consider the quid. What did Petitioner allegedly agree to provide to Mr.

DeLaughter? This Court has assumed that it was “recommending DeLaughter to the Senator and

having the Senator contact DeLaughter regarding consideration for a judgeship.” D.E. 160 at

11.8 This Court held that such a recommendation and call could be a “thing of value,” for the

purposes of whatever bribery statutes are incorporated implicitly into the honest services fraud

7 This concession speaks volumes, in light of the United States Department of Justice's stated policy to"charge and pursue the most serious, readily provable offense or offenses that are supported by the facts ofthe case." Policy Memo. of the Attorney General, Sept. 22, 2003. The Government has thus already admitted,through its actions, that Mr. DeLaughter was not party to a bribe.

8 In fact, the Government itself has never even specified exactly it alleges what was exchanged.Petitioner reasserts his due process objection that he is now called upon to rebut charges that have neverbeen asserted with particularity.


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statute. Id. Still, now the question is whether that particular alleged quid supports the inference

that there was an implicit pro. There are two reasons that it does not.

Importantly, this is not like a case where somebody stuck $50,000 into the judge’s coat

jacket, where the giving of the quid is itself suggestive that there must have been a corrupt

agreement. Instead, in this case, the Government has conceded that “clearly, any citizen has a

right to recommend a state judge for appointment to the federal bench. He may even do so while

he has litigation pending before that judge[.]” D.E. 149 at 2. Thus, even assuming a mere

recommendation to a Senator can be a “thing of value,” Petitioner’s giving of the “thing of

value” is not itself indicative that there must be an illicit agreement.

Moreover, this particular quid is an extremely attenuated basis for a bribe. The

deposition testimony from Senator Lott has revealed that it was literally just a “courtesy call”

that any candidate would have received anyway. Further, there are so many contingencies that

would have to happen before this endorsement would actually generate an appointment that it’s

difficult to believe the state judge could have been motivated to make any quid pro quo deal in

return for a mere endorsement of this sort. If Bobby DeLaughter had already been a finalist for

the position and a mere nudge were all it took to deliver the office, or if DeLaughter

inexplicably actually received the nomination – any of these would be a stronger quid that might

support the inference that DeLaughter agreed to provide something in return. But DeLaughter

had been informed, both by Lott on the fateful phone call and by others prior to his talk with

Lott, that he would also need Senator Cochran’s blessing. Indeed, when Lott and DeLaughter

spoke on the phone, DeLaughter had already sent a resume to Senator Lott based on advice

provided by another of Lott’s former staff persons and sent through the offices of an ardent

political supporter of the then-Senator, lawyer John Corlew. Assuming for argument’s sake that


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Lott would do whatever Scruggs told him to do (something that Lott expressly denies), Lott’s

support would not be enough and DeLaughter knew that. Instead, we are left with the weakest of

reeds, which fail to support the inference that DeLaughter would make an implicit, corrupt

agreement on this basis. For DeLaughter, the quid would be just too small to make himself into

a federal felon.

Fifth, consider the quo. In U.S. v. Whitfield, the Fifth Circuit held that the quid pro quo

requirement “was satisfied by the portion of the jury charge requiring the Government to prove

that … the judges' rulings were based upon ‘a corrupt purpose’ rather than an ‘honest belief in

the law and facts.’” 590 F.3d 325, 353 (5th Cir. 2009). If, in this case, the Government could

show that Petitioner’s influence caused Judge DeLaugther to decide the case in some way that

was patently contrary to the law, that would be strong evidence that DeLaugther had been unduly

influenced by a corrupt agreement with Petitioner. But the Government has already conceded

the contrary. See Exh. A., 2/21/2008 Hearing Tr., at 18 (“Petitioner made “no effort to get

Bobby DeLaughter to break the law [or] to rule in violation of the law.”). See also id. at 21

(“There is every reason to believe that the Scruggs Law Firm probably would have prevailed” in

the Wilson case even without exercising influence.); see also Exh. B, Plea Tr. at 25 (Petitioner

sought only a “fair trial” in the Wilson case.) The Government’s witnesses have given similar

testimony. See D.E. 141 at 18 (quoting Ed Peters).

Since the Government has already conceded that the ultimate outcome of the Wilson case

was perfectly consistent with an “honest belief in the law and facts,” the outcome of the case

therefore is not evidence that the parties made an implicit quid pro quo agreement. This too

undermines any inference that there may have been a bribe. People generally do not bribe other

people to do precisely what they law requires them to do anyway.


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Putting the last two points together, we have a case where Petitioner did precisely what

the Government concedes that any lawyer can do, what the ABA and the Mississippi Code of

Ethics permit any lawyer to do, and where DeLaugther did precisely what the Government

concedes that it was proper for him to do (rule in accordance with the law). If this is a bribe, it is

a rather strange bribe. Petitioner respectfully suggests that as this Honorable Court enters the

hearing on March 26, it should do so with deep skepticism of any testimony that purports to

contradict the foregoing five points, and ultimately conclude that reasonable doubt exists as to

whether Petitioner and DeLaughter made an implicit quid pro quo agreement.

III. CONCLUSION

Petitioner understands that this Court will proceed on a theory that there may have been

an implicit quid pro quo, and that such an implicit agreement would revoke the First Amendment

protection for Petitioner’s political endorsement of Bobby DeLaughter. The next step, however,

is a decision as to whether this case should be the very first one in United States history where a

Court finds that the standard is met.

Petitioner respectfully submits that the law requires more than what exists here to support

a conviction. Indeed, the prosecution of persons for the making of political endorsements

requires something much more clear than exists in this case. Before Skilling, amorphous ethical

violations, however ill-defined, were considered criminal acts. Skilling said “no” to the ever-

expanding reach of the prosecutorial imagination, concluding that the Constitution requires more

than ethics violations to support criminal convictions. Even if one concedes for argument’s

sake that an explicit quid pro quo in which an endorsement is the quid loses its First Amendment

protection, it does not follow that those Constitutional protections are also breached when the

evidence is this tenuous.


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Respectfully submitted, this 21st of March, 2012.

/s/Edward D. Robertson, Jr.Edward D. Robertson (pro hac vice)Michael C. Rader, MB#100205BARTIMUS FRICKLETON ROBERTSON & GORNY715 Swifts HighwayJefferson City, Missouri 65109573-659-4454573-659-4460 (fax)[email protected]

Bartimus, Frickleton, Robertson & Gorny, P.C.11150 Overbrook Road, Suite 200Leawood, KS 66211913-266-2300Email: [email protected]@bflawfirm.com

Mike Moore, MB#3452MIKE MOORE LAW FIRM, LLC10 Canebrake Blvd., Suite 150Flowood, MS [email protected]

Samuel Issacharoff, Admitted Pro Hac Vice40 Washington Square SouthNew York, N.Y. [email protected]

CERTIFICATE OF SERVICE

I, Edward D. Robertson, Jr., hereby certify that on March 21, 2012, I served copies of this

Memorandum on the Office of the United States Attorney for the Northern District of

Mississippi by way of the Electronic Court Filing (ECF) system.

s/ Edward D. Robertson, Jr.


mailto:[email protected]




dickie scruggs memorandum on quid pro quo

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