u.s. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

June 3, 2010

The Honorable John Conyers, Jr.Chairman

Committee on the JudiciaryU. S. House of RepresentativesWashington, D.C. 20515

Dear Mr. Chairman:

This follows up on our previous responses to your letter, dated April 17, 2008, regardingyour request that the Office of the Inspector General (OIG) and the Office of ProfessionalResponsibility (OPR) open an investigation of allegations of "selective, politically-motivatedprosecutions" by the Department of Justice in several criminal prosecutions, including theprosecution of former Alabama Governor Donald Eugene Siegelman.

On May 5, 2008, OPR informed you that it had a pending investigation involvingallegations of selective prosecution relating to the prosecution of former Governor Siegelman.OPR has completed its investigation into allegations of political motivation and selectiveprosecution in the investigations and prosecutions of Donald Siegelman. We want to advise youabout the results of that investigation, as set forth below. While our public disclosure of thisinformation might otherwise be prohibited by the Privacy Act, we are providing it to theCommittee in response to your oversight request and consistent with 5 U.S.C. 552a(b )(9). Also,due to the privacy implications of this information, we are sending this response only to theCommittee, rather than to each of the Members who joined in your letter to us.

On June 29, 2006, Donald Siegelman was convicted by a jury in the U.S. District Courtfor the Middle District of Alabama on seven counts: bribery; conspiring to commit honestservices fraud; honest services mail fraud (four counts); and obstructing justice. The charges ofwhich he was convicted largely related to his soliciting and accepting money from HealthSouthChief Executive Officer Richard Scrushy in exchange for placing Mr. Scrushy on the stateCertificate-of-Need Review Board (CON Board), a board that regulated medical services. TheU.S. Court of Appeals for the Eleventh Circuit affirmed Siegelman's convictions on five of theseven counts against him. Although Mr. Siegelman had long claimed in public that prosecutorswere politically motivated, his appeal did not allege selective or politically motivatedprosecution.

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In June 2007, articles appeared in the media reporting on allegations made by Mr.Siegelman that his prosecution was politically motivated. The articles cited an affidavit executedby an Alabama attorney named Dana Jill Simpson, who claimed to have connections toRepublican Bob Riley's 2002 gubernatorial campaign against Mr. Siegelman in Alabama.Governor Riley won the election in a close race and Mr. Siegelman demanded a recount. Ms.Simpson claimed that during a November 18,2002, telephone conference call with Bob Riley'sson and others, she heard William Canary, whom she described as a Republican lobbyist, statethat they did not need to worry about Siegelman in the future because Canary had spoken to KarlRove, who had contacted the Justice Department, which was already pursuing Siegelman.Simpson also claimed that during the conference call Bill Canary stated that "his girls" would"take care of' Mr. Siegelman. Ms. Simpson said she understood Mr. Canary's reference to "hisgirls" to mean his wife, Leura Canary, who served as the U.S. Attorney for the Middle District ofAlabama, and Alice Martin, the U.S. Attorney for the Northern District of Alabama.

Your April 17thletter requested that OIG and OPR conduct "a thorough investigation andreport on the troubling allegations of selective, politically motivated prosecution in recent yearsby the Department of Justice." You also enclosed a copy of a Committee report (HJC StaffReport or Report) entitled "Allegations of Selective Prosecution in Our Federal Criminal JusticeSystem." One of the cases addressed in the HJC Staff Report was the Siegelman prosecution.The Report asserted that "politics may have played a role in the investigation and prosecution ofDon Siegelman." The Executive Summary of the HJC Staff Report highlighted the followingallegations among their concerns:

* the prosecution of Siegelman was "directed or promoted byWashington officials" including Karl Rove;

* a "Republican attorney" [Simpson] said that the Republicangovernor's son [Rob Riley] told her Karl Rove pressured DOJ tobring charges; and

* DOJ investigated leads on Siegelman, but did not investigatesimilar leads on Republican politicians.

In developing information for the Report, Committee staff took testimony from Ms.Simpson and other witnesses, and received sworn affidavits from several witnesses who deniedMs. Simpson's claims. During her testimony, Ms. Simpson expanded on her earlier claims byalleging that she was told by Rob Riley (who heard from Bill Canary) that Mr. Rove had spokenwith the Department's Public Integrity Section (PIN), Criminal Division, about the MiddleDistrict of Alabama bringing a second case against Mr. Siegelman, because an earlierprosecution ofMr. Siegelman in the Northern District of Alabama had been unsuccessful.

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In order to determine whether the Siegelman investigations and prosecutions wereselective and politically motivated, OPR initiated an investigation into the circumstances givingrise to the investigations and prosecutions involving Mr. Siegelman. Mr. Siegelman was indictedin the Northern District of Alabama in May 2004 for federal program fraud for his alleged role ina bid-rigging scheme connected with the award of Medicaid contracts. OPR also investigatedallegations pertaining to Mr. Siegelman's prosecution and conviction in the Middle District,including charges that U.S. Attorney Leura Canary did not honor her recusal from the Siegelmanprosecution.

During the course of its investigation, OPR interviewed more than 60 individuals, somemore than once. These included Department of Justice officials in Washington D.C., includingofficials in the Criminal Division Front Office; attorneys at the Public Integrity Section of theCriminal Division; attorneys at the United States Attorney's Offices for the Northern and MiddleDistricts of Alabama; agents of the Federal Bureau oflnvestigation (FBI); agents of the UnitedStates Postal Inspection Service; deputies with the United States Marshals Service; and attorneysand investigators of the Alabama Attorney General's Office. OPR interviewed additionalindividuals with information relevant to the investigation, including Alabama Governor BobRiley, Alabama Attorney General Troy King, U.S. District Court Judge Noel Hillman, and formerWhite House Deputy Chief-of-StaffKarl Rove. Ms. Simpson declined OPR's request for aninterview. Mr. Canary and Mr. Riley also declined to be interviewed, stating that the affidavitsthey provided to Congress responded fully to Ms. Simpson's allegations.

Based on the results of its investigation, OPR concluded that the evidence did not showthat the investigations and prosecution of Mr. Siegelman in the Northern District of Alabama werepursued for political reasons. OPR considered whether the involvement of a specific AssistantU.S. Attorney (AUSA) in investigations and one prosecution ofMr. Siegehpan suggested apolitical motivation on his part. In the course of its investigation, OPR learned that the AUSAsent an e-mail in December of 2002 to Rob Riley in which the AUSA identified himself as afederal prosecutor who handled public corruption cases, stated that he had started an investigation"into the Siegelman administration" that had been "thwarted," and asserted that it had been"frustrating for me and a small group of like minded conservative prosecutors" to "fight the tide inorder to do the job we are sworn to do." OPR determined that the AUSA should not have sent thee-mail to Rob Riley, and that the fact he did so raised serious questions about his judgment,especially given his supervisory authority over public corruption cases. OPR concluded, however,that the evidence did not establish that political motivation played a role in the investigations orprosecution of Mr. Siegelman.

OPR also examined whether the decision to indict Mr. Siegelman in the Northern Districtof Alabama was consistent with the Department's Principles of Federal Prosecution, which set

The Honorable John Conyers, Jr.Page Four

forth the standards that govern charging decisions by federal prosecutors. OPR determined that,although the evidence against Mr. Siegelman was weak, the decision to prosecute him did notviolate the Principles of Federal Prosecution. The draft indictment was reviewed and approved bymany experienced, career prosecutors, none of whom expressed reservations about goingforward with the case. As it is in many cases, the evidence against Mr. Siegelman wascircumstantial, but OPR concluded that the prosecutors had a reasonable basis to believe that theadmissible evidence would probably be sufficient to obtain and sustain a conviction.

OPR also concluded further that there was no evidence that Karl Rove or anyone else fromoutside the Justice Department influenced the decision to investigate and prosecute Mr. Siegelmanin the Middle District of Alabama. OPR developed no evidence that Mr. Rove had any contactwith the Department regarding Mr. Siegelman. The decision on whether and what charges tobring in the Middle District was made by career attorneys in the U.S. Attorney's Office and in thePublic Integrity Section of the Criminal Division, and they were not pressured or influenced bypolitically appointed Department officials or any other person.

Furthermore, OPR found that the evidence did not support Ms. Simpson's claim thatduring a November 18, 2002, telephone conference call, Bill Canary said he had spoken with KarlRove and that "his girls" would ensure that Siegelman would not run for office again. AlthoughMs. Simpson produced a telephone record indicating that she placed a telephone call to RobRiley's office on November 18,2002, OPR found no evidence to support her allegations that shespoke with any of the persons she identified, or that any of the statements she claimed to haveheard during that conversation actually occurred. Furthermore, even if Mr. Canary made thecomments ascribed to him by Ms. Simpson, OPR found no evidence that Mr. Rove spoke withany Justice Department official about Mr. Siegelman, and found no evidence that U.S. AttorneyMartin or U.S. Attorney Canary were pressured by anyone to "take care of' Siegelman.

OPR determined that the allegation that Mr. Siegelman was the subject of selectiveprosecution, that is, that prosecutors pursued a criminal investigation of Mr. Siegelman because hewas a Democrat, while ignoring leads based on similar evidence that implicated Republicanpoliticians, was not supported by the evidence. The evidence established that a cooperator namedLanny Young claimed that he made conduit contributions to the Siegelman campaign and to thecampaigns of prominent Republicans and two Democratic state senators. The evidence furthershowed that the investigators and prosecutors in Alabama did not pursue any of the conduitcontributions allegations, in part because of concerns about Mr. Young's credibility, and in partbecause of lack of resources. An attorney from the Public Integrity Section later re-interviewedMr. Young concerning the alleged conduit contributions to the Republican campaigns, anddetermined that the allegations lacked merit and were probably time-barred at the time Mr. Youngraised them.

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In investigating whether the Siegelman prosecution in the Middle District of Alabama waspolitically motivated, OPR examined the process within the Department for determining whetherand what charges should be brought. The evidence showed that the proposed charges wereapproved after careful review by experienced, career attorneys in the Public Integrity Section andthe Organized Crime and Racketeering Section of the Criminal Division. Furthermore, thecharges comported with federal prosecution guidelines. The evidence relied on by theprosecutors, as well as the trial transcript, revealed that the prosecutors had a reasonable basis tobelieve that the admissible evidence against Mr. Siegelman was probably sufficient to obtain andsustain a conviction, and that Mr. Siegelman would be found guilty by an unbiased trier of fact.OPR found no evidence that political motivations played any role in the decision to prosecute Mr.Siegelman.

OPR also concluded that the evidence did not support the CBS "60 Minutes" allegationthat Nicholas Bailey met with prosecutors to prepare for his testimony in the Middle District trialmore than 70 times, or that he produced written versions of proposed testimony. OPR concludedfurther that the prosecution team in the Middle District of Alabama did not have any improper exparte contact with the court regarding purported e-mails allegedly exchanged between jurorsduring the Siegelman trial. Finally, OPR found no professional misconduct or poor judgement inconnection with allegations raised by defense counsel in a letter to OPR, dated May I, 2009,concerning: a speaking objection by Acting U.S. Attorney Louis Franklin; verbal exchangesbetween Louis Franklin and defense counsel during trial; an alleged statement by an AUSA duringa bench conference; and a statement allegedly made by Mr. Franklin to the press after the defenserested.

OPR found no evidence to support allegations that PIN Chief Noel Hillman wasnominated for a federal judgeship because of his involvement in the successful Siegelmanprosecution. Similarly, the evidence did not support allegations that Mr. Hillman's name waswithdrawn from consideration for a seat on the U.S. Court of Appeals for the Third Circuit toavoid inquiries from Congress about the Siegelman prosecution during the confirmation process.Also, OPR concluded that a PIN trial attorney did not commit professional misconduct or exercisepoor judgment when he provided potentially misleading information in response to a questionfrom Mr. Scrushy's defense counsel as to whether a charging decision had been made, and thatActing U.S. Attorney Louis Franklin made a mistake when answering a similar question.

Nonetheless, OPR criticized the conduct of several current and former Departmentattorneys involved in the Siegelman cases. OPR concluded that U.S. Attorney Alice Martinexercised poor judgment by failing to comply with Department guidelines requiring that sheprovide timely notice to the Department of the impending indictment in the Siegelman case.OPR also concluded that an AUSA exercised poor judgment when he sent an e-mail to Rob Rileyin December of 2002, in which he stated that he had "started an investigation" into the Siegelmanadministration that had been "thwarted."

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OPR also concluded that U.S. Attorney Canary did not commit professional misconduct orexercise poor judgment in connection with her recusal from the Siegelman case, although OPRconcluded that she should not have forwarded an unsolicited Siegelman campaign letter shereceived via e-mail to the trial team with a comment about it possibly providing a basis for a gagorder. OPR also concluded that an AUSA exercised poor judgment by failing to identify and alerther supervisors to potential conflicts or appearance issues stemming from her husband'sconnections to, and activities for, Republican politicians.

U.S. Attorney Alice Martin and the two AUSAs found to have exercised poor judgmentwere given an opportunity to appeal OPR's findings to the Office of the Deputy Attorney General.They did so, but Associate Deputy Attorney General David Margolis affirmed all ofOPR'sfindings.

We hope that this information is helpful. Please do not hesitate to contact us if we mayprovide additional assistance with this or any other matter.

Sincerely,

2JVt ~Ronald Weich

Assistant Attorney General

cc: The Honorable Lamar SmithRanking Minority Member