The Sacrificial Bureaucrat

There are two big reasons why I am focusing on the politicization of and abuse of power within the Bush Department of Justice: 1)the current “smoke” of a number of circumstantial-evidence based scandals are indicative of a much more widespread “fire” of corruption and misuse of power and 2)if one party succeeds in harnessing the vast criminal justice power of the DOJ to put down the opposing party and boost their own party, it goes a LONG way to pushing the US into becoming a one-party authoritarian state.

The DOJ has a great deal both of “hard” power which could be misused to arrest and imprison political opponents, and/or bankrupt them with costly and disruptive prosecutions, and the DOJ also has a huge amount of “soft” power to influence elections by the timing of indictments, issuing embarrassing sub poenas right before elections and generally casting a pall of “alleged corruption” on political opponents. If that power becomes harnessed by the partisan political wing of one party, that would have very scary implications IMO. And the “smoke” of these DOJ scandals is suggesting to me that that type of partisan harnessing is exactly what Bush/Rove et al. intended and were attempting.

Right now the big story is the 8 prosecutors who were purged on 12/7/06. But what about the other 85 prosecutors who kept their jobs? There is a lot of circumstantial evidence that the DOJ is misusing its power in other jurisdictions, including New Jersey , Pensylvania and Minnesota .

One of the most compelling stories is from Wisconsin. Professor Volokh provides a link to the appellate opinion on this case. Read the opinion, it’s not super long and its very clear. The opinion was written by US Circuit Court Judge Frank Easterbrook, a Reagan appointee who is very well regarded by the “law and economics” crowd.

Georgia Thompson, a Wisconsin state bureaucrat in the department of procurement was involved in the process to award a contract for travel services for state employees on official business. The state of Wisconsin doesnt just give contracts to the low bidder: they have a complicated scoring system that factors in price, level of service and a presentation by the bidding companies. After the initial review of price and service, the two finalists were Adelman travel (a Wisconsin company whose founder had contributed some money to Gov. Doyle, the Democratic Governor of Wisconson) and Omega travel (an out of state company based on the east coast). Adelman did better than Omega in both price and the assessment of service but worse than Omega in the presentation part of the bidding process. In other words, Adelman put on a poor Power-Point dog and pony show while Omega wowed the other 6 bureaucrats on the committee. Of the 7, Thompson was the only one who gave Adelman higher marks on presentation. After the presentation was added in to the overall score, Omega had a very small lead over Adelman. Thompson then told the other people on the committee that for political reasons their bosses wouldn’t like it if they awarded the contract to Omega. One of the other bureaucrats then suggested they do a “last and best” request to the 2 agencies and see if the state could get a lower bid. Adelman responded by lowering its bid, Omega stood firm. The lower bid brought Adelman’s score up to a statistical tie with Omega (1026.7 compared to 1027.3 on a 1200 point scale) and then according to tie-breaking procedure, Adelman won the contract b/c they had the lower bid.

US Attorney Biskupic, a Bush appointee, then prosecuted Thompson under federal law (not Wisconsin law) alleging she had “misapplied” public money by allowing political considerations to enter into her decision to award the contract. During the prosecution, the US Attorney did not introduce any evidence of any kind of bribe, kickback, or other direct corruption. They did allege that Ms Thompson profited b/c she received a $1,000 raise 3 months after this decision (she went from $66,000 per year to $67,000 per year - I’m not sure a 1.5% percent yearly raise, which is below the rate of inflation, counts as “profit” :0 ). Other than the raise, they introduced no evidence, and didn’t even make the argument, that Ms. Thompson benefitted in any other way. They also didn’t introduce any evidence or make any argument that Ms. Thompson knew Adelman had contributed money to the governor.

This case was going on last summer, where a very contentious governor’s race was underway. The Republican challenger made great use of this case, putting numerous radio commercials on the air accusing Gov. Doyle of corruption. The “Doyle/Thompson corruption case” was a huge talking point on local conservative talk radio in Wisconsin. Doyle won re-election narrowly.

After she was convicted, Thomspon immediately appealed, arguing that the US Attorney’s interpretation of the law was far too broad and that mere “misapplication” of funds for “political purposes” without any evidence of actual bribery, kickbacks, or corruption was just not illegal. Despite the fact that her legal argument sounds pretty strong to me, the trial judge denied her bail and ordered her to go to prison immediately, while her appeal was pending.

After 4 months in prison, her case was heard by the US Appeals Court, 7th Circuit. At oral argument (I emphasize this because this kind of ruling “from the bench” is practically unheard of), the Justices were extremely critical of the US Attorney’s theory, calling it “beyond thin”. They took the unusual step of immediately (ie that day, without waiting to issue a written opinion) remanding the case for an order of aquittal and ordering the release of Ms. Thompson at once. Then a couple weeks later, they issued the written opinion, linked above. In that opinion, Judge Easterbrook calls the prosecution’s theory “preposterous”.

Bottom line: this mid-level bureaucrat, was prosecuted, jailed, forced to spend $300K on legal fees (she sold her house), and spent 4 months in jail, because of a US Attorney pushing a “preposterous” legal theory.

There’s more here (US Attorney Biskupic was originally on the “purge list” to get fired but then taken off of it shortly after winning the Thompson case at trial) but that stuff is speculative.

What’s NOT speculative is that this is a powerful example of how a rogue prosecutor can stomp all over someone and it is VERY hard to reign them in. Just as in the Duke Lacrosse case, prosecutorial discretion is very broad and powerful: misuse of the power of prosecution is a very serious problem.

This is an example of why I am so troubled by the “smoke” in the DOJ scandals. If the underlying “fire” is in fact an organized effort by partisan Republicans to abuse the power of prosecution to perpetuate their politcal power, it is a grave attack on the institutions of the USA.

Edited - hopefully the link is fixed now.

If the case was so preposterous, how did she get convicted in the first place? Is there no jury in cases like this?

I’m honestly curious, not trying to attack one side or the other.

Maybe he figured it was per se illegal to manipulate the outcome of a bid?

No one has to prove that the corporations benefit or the public is harmed in a price fixing case (in fact, in the MIT v Gov’t price fixing case, MIT proved the public would benefit and still lost!), and perhaps the prosecutor figured that similar mechanics are at work with bid manipulation.

http://www.ca7.uscourts.gov/tmp/2H1FEVGB.pdf

Woot, I called it. Page five and six go into the case enough to show that the prosecutor called it per se illegal after linking pay raise and bid alteration, and the defendant did not dispute her raise being linked to the bid, and there is no apparent disagreement that A) she did influence the bid and B) she received a pay raise as a result.

I’m not saying that the result was the correct one, but it did pass a jury trial, and the Appellate Court* blamed the ambiguity of the laws, rather than the overzealousness of the prosecutor.

I’m of the opinion that the jury (or even the judge) was at fault, not the prosecutor. It seems that he acted in good faith in an attempt to eliminate corruption (albeit on flimsy charges). The judge could have thrown out the case, the jury could have found her innocent, yet neither of these things happened. QED, there was probable cause of wrongdoing.

*Your Appellate Opinion link is broken, but I found it by checking the website you linked earlier.

edit: Thought of an example of illegal vote swapping: The 2002 Winter Olympics, when there was that whole scandal over the figure skating competition.

I don’t agree that merely because one possible interpretation of the law (an interpretation which the appellate referred to as “beyond thin” and “preposterous”) would allow a prosecution that means the prosecution is in good faith.

Keep in mind the key element in this whole prosecuting attorney scandal: prosecutorial discretion. That simple phrase packs a huge punch. It means that the prosecutor has discretion as to whether to pursue a case. For example, if you have an allegation of rape as in the Duke case but routine investigation calls the allegation into serious question, then the prosecutor has the discretion not to go forward on the allegation. Discretion is not just on/off either: the prosecutor has a range of choices from going for trial, opening or expanding an investigation, keeping a case open but inactive in case new evidence turns up, to just closing the case and saying “nothing illegal enough for me to care happened”. That’s what got the Duke prosecutor in trouble (and may end up getting him disbarred) - he stormed ahead on very weak allegations, disregarding the warning signs about credibility that came up early in the investigation and he also made some very strong (and unsubstantiated) claims about the case. He abused his discretion IMO and I also think the US attorney did in this Thompson case.

As to the per se illegal concept, the appellate court did refer to that as “preposterous”. But beyond that, it doesn’t pass the smell test. There was no evidence of any kind of bribe, kickback, from the travel company to Ms. Thompson, AT ALL - no payments, no compensation, no freebies, no nothing. The only argument that the prosecution had was that Ms. Thompson made her superiors happy and allegedly was given a $1,000 raise 3 months later. (Please note that this raise was part of her usual yearly review and the amount of the raise was 1.5%, which is below the rate of inflation and also in line with her salary history - I can’t find the link right now, but one of the local Wisconsin legal blogs had the info). Also keep in mind that her attorney didn’t challenge that issue because his legal theory cut that idea off at the kneecaps: he was saying the whole “misapplication” theory of the prosecution was BS, and the appellate court agreed with him.

Lastly, if you are going to say that anytime political considerations influence the paying of money by the government, thats per se illegal and you need to throw the perps in prison, you may as well lock up every official in the US from dog catcher to the President. Honestly the “per se illegal” interpretation may be possible due to the badly written law, but it doesn’t make any sense. This is a case where a prosecutor with even a modicum of discretion would not pursue the theory. To prosecute, convict, move to deny bail, and throw this middle aged lady into prison for 4 months pending appeal is deeply wrong on many levels.

As to how a jury convicted her, that is a very good question. I don’t live in Wisconsin so finding local coverage has been a bit hard: I don’t know the papers and the local blogs. But I did see one Wisconsin blog that alleged that the case was heavily hyped on the right wing talk radio stations - that blog claimed that Thompson was basically convicted on the airwaves. I saw another site that claimed that in post-conviction interviews one of the jurors blamed the whole thing on the Governor, saying something like “Gov. Doyle orchestrated the whole thing”. Strangely, the prosecution introduced no evidence regarding Gov. Doyle at the trial at all. They didn’t even contend that Ms. Thompson knew that Adelman travel was a political contributor to the governor.

Bottom line is, this was a case with no facts suggestive of actual corruption. The legal theory that the prosecution stretched to pursue the case was considered “preposterous” by a very well-respected Reagan-appointed circuit court judge. And even well-respected conservative legal scholar Eugene Volokh says “the prosecution seems to have been singularly ill-founded”.

I suspect we are going to be hearing a lot more about this case. Keep in mind that it is a fact that before this case was brought, the US Attorney, Biskupic, was on the list of attorneys to be purged from the DOJ. After this case was brought, his name was removed from the list and he still has his job. Mere chronology doesn’t create a causal link of course - the linkage is at this point, speculative. But based on Mr. Biskupic’s willingness to take a wild theory and run middle aged ladies into prison with it, maybe he should be investigating himself :0. And denying bail to himself, too.

See guys? This is why I fight to keep criminals on our streets.

To provide yourself material for incredible internet jokes? I’d believe it.

I don’t want to defend the Duke prosecutor. It wasn’t a case I had interest in, so I’m going to stay out of it. I will say that in general I prefer that a prosecutor take a case where he thinks he has a shot of proving wrongdoing, rather than leaving it lie. Sure, there are mitigating factors, but you can’t blame someone for doing their job in the manner they feel is proper just because you have post hoc information. The article I read about the Duke case seemed fairly damning, and I’m sure I’m not the only person who would have been confused if the prosecutor failed to press charges. I blame the media.

Lastly, if you are going to say that anytime political considerations influence the paying of money by the government, thats per se illegal and you need to throw the perps in prison, you may as well lock up every official in the US from dog catcher to the President. Honestly the “per se illegal” interpretation may be possible due to the badly written law, but it doesn’t make any sense. This is a case where a prosecutor with even a modicum of discretion would not pursue the theory.

Like I said above, I don’t necessarily agree with the prosecution’s position. But I would hesitate to require material evidence of compensation prior to convictions on charges of corruption. Is it entirely unreasonable to consider that wealth was exchanged, but that the exchange went undetected or unrecorded? Or that perhaps her compensation was in the form of cheaper personal trips through this agency (kickbacks)?

I’m not saying that speculation of this sort is a substitute for hard evidence, but I am saying that the absence of evidence is not the same thing as the absence of wrongdoing. Having at least the option of using a per se rule against corruption isn’t always a bad thing.

And if it means we can lock up the President, that is probably another point in favor of keeping it.

On a more serious note, common practice does not connote legality. Many people speed and a significant number of people smoke pot. Neither of these activities are legal, even though they are both widespread. In a similar way, trading votes, though widespread, may or may not be legal.

The prosecutor was able to convince a jury, and that does mean something (whatever Bill thinks).

To prosecute, convict, move to deny bail, and throw this middle aged lady into prison for 4 months pending appeal is deeply wrong on many levels.

This part I wholeheartedly disagree with. The woman had been found guilty of her crimes and was tossed into jail, as befits convicted criminals. She was also accorded special treatment by the court of appeals unlike other, apparently less important, people. I have zero sympathy.

Aeon, I think we’ll just have to agree to disagree :0. However, I do think that this prosecution was questionable enough, when combined with all the other evidence of White House manipulation of the Department of Justice to warrant further investigation. The prosecutor in this case was on the list to be fired before he prosecuted Thompson, and then taken off the list after he won the conviction - its not a smoking gun but it raises suspicions.

One significant reason that I don’t think the US Attorney was merely going after all corruption is the selective nature of the prosecution. According to some of the Wisconsin blogs I found there were several other potential cases involving businesses who contributed to Republicans and received contracts and yet Biskupic didn’t prosecute any of them. If his theory was an absolute per se rule then he should have been indicting everyone who fit the rule. And per se rules tend to paint with a VERY broad brush. I find it non-credible that a broad per se rule would catch only 1 bureaucrat, a Democrat, just in time for attack ads during the governor’s race.

Given the overall context, I do think this prosecution stinks.

Honestly, whether this prosecution is in itself politically motivated is kind of a moot point.

The mere fact that we are questioning whether it’s politically motivated shows that the damage has been done. The only thing that keeps our legal system running is the belief that people are (at least in theory) equal under the law.

gg, Bush administration.

Link still broken, is there a permalink? Anything with “tmp” in the path is not very trustworthy.

Well, here is the direct link I got from going to the US 7th Circuit website and putting in the case number:

http://www.ca7.uscourts.gov/tmp/2J0ZEFDD.pdf

That does have the tmp designation so maybe the government’s site is just screwy.

If that doesn’t work, go here and enter 06 for the year and 3676 for the case number. Then select the 4/20/07 appellate opinion document.

Sorry, I cannot find a better link. BTW the links all work fine for me.

How about this?

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=06-3676_015.pdf

We have a winner.

It’s a fair cop.

Full story here. It cites several other examples of seemingly-sketchy behavior, including the one Sharpe mentioned above.

The headline from the local Wisconsin paper says it all: “Biskupic tried to ‘squeeze’ Georgia Thompson”.

The gist is that the prosecutors made several offers to let her off with a slap on the wrist if she would “roll” on “higher ups” (ie the Democratic governer of WI, who was in a heated re-election campaign at the time).

If you recall from earlier in the thread was that although Ms. Thompson appealed her conviction (and won it 6 months later) she was jailed immediately at the insistence of the prosecution. That always seems questionable to me given that she was not a flight risk and that she had some pretty strong appeal grounds. Well it turns out that right after they got her jailed, they then went and made another offer to let her off if she would testify against higher ups.

Each time she refused, saying she didn’t know anything that would implicate higher up.

The article says it is VERY unusual for a plea deal to be offered after someone is already convicted, sentenced, and actually in jail. The article also says that was probably a tactic to squeeze Thompson (keep in mind she jailed about 6 weeks before the election - if she had gone to Grand Jury to testify against the governor at that time it would have been a HUGE political/media deal, given that her case had already attracted attention in WI).

I don’t know if the squeeze stuff is true - I don’t know if what the article says about the unusual tactics is true, since I don’t practice criminal law.

But the whole thing looks even worse than i initially thought :(.