I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Some Thoughts on the Paul Minor oral argument

I’m going to post some thoughts on the Paul Minor oral argument before I read any of the online stories; I’ll post about them later. A partial transcript of the oral argument in the Paul Minor case is online at the Raw Story site, here.  The primary issue in the appeal, at least from a reading of the briefs, is about whether the jury was properly instructed about the quid pro quo requirement for bribery.

Recall what the conviction is about:  Paul Minor guaranteed bank loans to two judges, Teel and Whitfield.  The loan to Teel was while he was running in a judicial election and was used on the campaign.  Whitfield used his loan to buy a house.  Minor later had one case before each judge and won a big victory in each; while Teel paid some of his loan before that, after the victory Minor paid off both the loans to Tell and to Whitfield.

The primary issue was about what exactly was required for the government to prove a quid pro quo. Did the government have to prove an actual exchange of promises at the time of the payment (that is, at the time Minor signed the loan documents)?  Minor’s side is arguing that the jury instructions were defective because they did not require the jury to prove that there was a deal to get the benefit of a ruling struck at the time of the payment.   He’s arguing that there has to be something quite like a bargained for exchange of promises, and not a loose acquisition of good will (as it were) producing the later ruling.  The Government is arguing that the instructions allowed the jury find that Tell and Whitfield were going to rule favorably in some unknown case later, and that is enough.

The questions from the court were interesting.  Judge Haynes closely questioned Minor’s lawyer, Abe Lowell, about whether signing off on someone’s loan could really be called a “campaign contribution.”  He said:  “I’m having trouble understanding how guaranteeing a loan for somebody’s house has anything to do with the campaign contribution.”

A central feature of Minor’s argument is that campaign contributions have special First Amendment status, which he argues requires a tight linkage between the exchange of promises.  He’s basing the First Amendment part of the argument on a US Supreme Court case called McCormick v. U.S. in which a congressman was prosecuted on the theory that a bribe was shown by links between campaign contributions by a doctor group andaction on legislation.  Another circuit court has described the holding in McCormick:

McCormick recognized several realities of the American political system. Money fuels the American political machine. Campaigns are expensive, and candidates must constantly solicit funds.… It would be naïve to suppose that contributors do not expect some benefit—support for favorable legislation, for example—for their contributions.

A campaign contribution followed by favorable action isn’t enough– there must be a linkage, says McCormick. The problem Judge Haynes was keying in upon was that these weren’t normal  campaign contributions– and with Judge Whitfield, weren’t even used for the campaign.  Lowell’s answer was essentially that this was what a properly instructed jury would have to decide– a decent answer.  I’m having a little trouble deciding how the defense jury instructions might look.  I understand the argument for requiring an exchange in the basic bribery instruction.  But then shouldn’t the jury be told there’s a diference between a contribution and an under-the-table payment?  That sounds like dangerous turf for the defense, particularly in this case.

The Government, by the way, argued that there was enough of a requirement of an exchange in the instructions.  Later, I’ll try to dig out the actual language of the instructions.

When Teel’s lawyer got up, Judge Garwood keyed in on a very different part of the appeal– that the statute here criminalizes what is called “federal program” bribery– the officer being allegedly bribed must have charge of federal dollars.  Garwood wanted Teel’s lawyer to talk about whether there had to be a nexus between the supervision of spending federal dollars and the particular decision that was what the judge allegedly gave for the bribe.  Clearly there is no nexus between the federal dollars (used for court expenses) and the decision in the particular case.  If that is required, it is fatal to the prosecution.

If this argument is sound, it involves a principle that may well have been fatal to the prosecution in Scruggs I (or for that matter to the bribery part of Scruggs II, although not to the mail fraud part).  Scruggs did raise this issue but lost before Judge Biggers (the motion can be found here)

Judge Haynes questioned the government closely about the linkage required between the payment and the case:

And how much — well, let me ask you this. What is your context of what that agreement was? Because in neither of these two cases that we have been presented were pending in front of those judges at that time as I understand it. And one of them wasn’t even a judge yet he was a candidate. So he might never have a case. But all right. The idea is you will win and you will rule for me on this case but it’s not yet pending. So what was the agreement as you present.

Ms. Collery for the Government “The agreement was you will take this money and in some future case you will rule
dishonesty for me. ”    Judge Haynes drove the point harder:

But what is the deal? In other words, if you could enforce this contract or they are paid the money now the judge rules honestly against you. How did that judge know it was that case that they were supposed to rule dishonestly. That’s what I’m trying to say. What is the deal as the government presented it?  …

Just any case? Because these lawyers Mrs. Minor had 700 cases and he is this Jones act guy and he is all over the country. So in this case in their court with Mr. Minor or what about Mr. Minor’s firm Mr. Minor’s friend Mr. Minor’s friend?

MS. COLLERY: The deal I will make sure you get a case and in both of these cases there was Mr. Minor engaged in actions that channeled a particular case to these judges. It was part of our case to show that there was forum shopping here in regard to both of the cases.

JUDGE HAYNES: I understand that and the clerk come in and assign the cases. My question is was every case the deal I will give you this money and every case I have as lawyer or my firm has a lawyer in your court you are going to rule for us whether that is the right result or not? Don’t you have to be able to articulate the deal?

When Collery was responding, Judge Garwood chimed in:  “You are going to rule for me where?”  This exchange closely followed:

JUDGE BENAVIDES: The actual transaction which provided the quid pro quo as opposed to some generalized feeling that the jury might still be able to convict if they thought that the money might be used on some generalized  transaction in the future?

MS. COLLERY: No, the only evidence of what the quo was was those two lawsuits, and the instructions required –

16 comments to Some Thoughts on the Paul Minor oral argument

  • ampal

    with holders decision on stevens maybe the doj will review the minor case. minor legal team boasting too much.

  • Tim

    You never know what the Fifth Circuit is thinking by oral argument. I’ve seen them slam the Government at Oral Argument then find a way to rule in the Government’s favor ala error but harmless error.

  • meanderline

    As long as we have elected judges we need to be exceedingly careful to require a nexus and intent for both parties, or any judge who’s ever taken a campaign contribution could be indicted and convicted.

    That said, I am exceedingly troubled both by the loans made by Minor to both Teel and Whitfield, which I understand were technically not violations of the campaign finance laws, and even more by the payoff of said loans which if I’m remembering correctly exceeded the limit on campaign contributions and weren’t reported. Indeed, at least in Whitfield’s case they were actively concealed if memory serves.

    Someone please correct me if I’m wrong, but isn’t both the giving and receiving of a thing of substantial value to a sitting judge a serious breach of both attorney and judicial ethics? I don’t think this was addressed in the attorney suspensions, but shouldn’t it have been? I would think it could have independently grounded a suspension or disbarment and would not have been dependent on their conviction on bribery charges.

    I bring this up because these folks have a lot of defenders, and we should be clear that what was done was not exactly on the up and up, even if there are strong arguments that it did not constitute bribery. I would certainly move for recusal of any judge who owed opposing counsel a large loan, or who had received the benefit of the payoff of a large loan from opposing counsel, particularly if it had not been reported as a campaign contribution.

    I thought I knew, and knew I liked 2 out of the 3 principals, but in the words of Garrison Keillor their professional ethics weren’t “above average.” Let’s all hope they weren’t average either or poor folk are in serious trouble.

  • NMC

    For general information, the judge who replace Judge Owens on the panel is Judge Benavides.

  • “The Alaska Republican Party further believes that current Senator Mark Begich should resign his position to allow for a new, special election, so Alaskans may have the chance to vote for a Senator without the improper influence of the corrupt Department of Justice.”

    Mumph mumph mumph. Isn’t that what they call an “own goal”?

  • It'sAboutTime

    Why is this oral argument just now happening? Hasn’t Paul been in prison for years?

    Also, either the judges and lawyers were very inarticulate or the court reporter (not you?) botched the transcript. It was very difficult to decipher what they were saying.

  • NMC

    The transcript assumes a lot of knowledge about the briefs, the caselaw, and the facts in the case– it was a panel already in the middle of thinking through the case to a great extent. I pulled what I put on the post straight from it. I’ll reread the post to check, and consider adding more context to make it clearer.

    Somewhere in Lowell’s argument he notes that Minor has already served 31 months, I think (it’s in the part before the transcript). Why it took so long to get up there I don’t really know, but I vaguely remember controversy about that. The case I just argued went to judgment in January of 2008.

  • NMC

    BTW, the oral argument transcript also starts with this disclaimer, which I’ve cut and pasted verbatim, as I did the quotes in my post:

    “This unedited rough draft of the proceedings is not certified. The rough draft transcript may not be cited or used in any way or at any time to rebut or contradict the certified transcription of proceedings. There will be discrepancies in this form and the final form, because this has not been proofread, corrected, finalized, indexed, bound, or certified.
    (Note: Approximately the first five mintues of the proceedings are missing from the transcript.)”

  • sailor

    FYI: Oliver Diaz to discuss his eyewitness account of Austin arguments today live on “It’s a New Day” 9:30 ish. Jax area listeners can tune in to 90.1FM, coast listeners 94.5FM, or listen via web itisanewday.com.

  • NMC

    I started listening to Diaz in the middle. He’s interesting. One odd thing, though: “Paul Minor singlehandedly started the funding of legal services that got them off the ground.” He then said it was statewide.nb

    Huh?? Legal services began as a Great Society program when Paul Minor wasn’t out of law school.

  • NMC

    I’ve had a clarification about what Justice Diaz may have been thinking about Paul Minor and Legal Services: That Paul Minor had a role in Legal Services opening a Biloxi office, and then, when funding was being pulled (which presented a serious crisis for Legal Services everywhere and caused a gross cutback in services), he funded its continued operation in Biloxi. A good thing to have done.

  • It'sAboutTime

    It’s disturbing that you can rot in jail for 31 months and still not have your appeal ruled on long before.
    Whether he’s guilty of the technical crime charged, I, as a lawyer, would assume he’s guilty of something.

  • Mikey's Mom

    Don Corleone gave money to the Catholic Church, so what?

  • Wrong Venue

    The points raised in some of the comments seem to hit the nail on the head… several of you question the ethics of Minor’s actions. Well aren’t those ethics complaints usually dealt with by the state bar? Not by the FBI and the DOJ…unless of course there were political motivations behind the scenes… Paul Minor was the largest donor to Democratic candidates in Mississippi…Karl Rove wanted to cut such figures off at the knees, and his reputation for using indictments fished out of thin air to wipe out political competitors is well documented. Google the new movie “Project Save Justice,” directed by John McTiernan (“Die Hard,” “The Hunt for Red October,” “Predator” and other mega Hollywood hits) which details how the Bush DOJ prosecuted Democrats at a far greater rate than Republicans. McTiernan was inspired to make the film after hearing about the study by University of Missouri professors Donald Shields and John Cragan which found that eighty percent of the Bush DOJ’s political investigations targeted Democrats – 5.6 Democrats for every Republican investigated by U.S. attorneys for political misconduct. (McTiernan was actually indicted himself! Go figure… start asking questions and that’s what happens under Bush rule)

    Anyway, Paul Minor probably should’ve been asked to account for his actions by the state bar. But locking him up for 11 years for actions that were perfectly legal under state law at the time – never mind if they were 100% ethical, the Republicans were doing the exact same thing – that’s just not right. He deserves bail now, and probably a new trial, or new sentencing based on Gratuity laws (less than quid pro quo). Enough is enough.

  • Wrong Venue

    There’s a new blog today on Huffington Post by RFK Jr. and Brendan DeMelle that says Minor’s attorneys have filed a motion for his release pending the decision of the 5th Circuit. Check it out at http://www.huffingtonpost.com/robert-f-kennedy-jr-and-brendan-demelle/paul-minors-attorneys-fil_b_184013.html

  • [...] Tom Freeland analyzes the legal issues in the Minor oral argument, and follows up. P.P.S. Freeland’s reaction to the RFK Jr. work is [...]

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