Sunday, September 16, 2007
Siegelman's Detractors: A Stink from Down South
The Remarkable ‘Recusal’ of Leura Canary
DEPARTMENT No Comment
BY Scott Horton
PUBLISHED September 14, 2007
[for complete article links, please see original here. - ape]
Alabama media continue to report uncritically on almost every statement that emanates from the office of Leura Canary, the U.S. Attorney in Montgomery, who is currently in the crosshairs of the Siegelman investigation. One of the most often repeated, and still unexamined, contentions to emanate from her office is the claim that Leura Canary recused herself from the prosecution of Governor Don Siegelman, and that the case was handled from that point forward by the head of her criminal department, Louis V. Franklin. As we will shortly see in an examination of that question forthcoming in a major legal periodical, Franklin’s claim that he ran the case collapses completely under close inspection. He did handle the trial, which is important, but the key aspects of tactical and case management decision-making were retained by political appointees in Washington—to an extent that was quite extraordinary. Yet it seems that no reporter in Alabama ever worked up the gumption to ask any questions or do any research about it; they all just reported what Louis Franklin said, and they didn’t put any follow-up questions to him, either.
One of the oddest claims has consistently been the simple suggestion that Leura Canary ‘recused’ herself from the case. When I first heard this, I put down on my check list: collect Canary recusal papers from court docket. My researcher went off looking for them, and reported back: there are no Canary recusal papers.
How could that be? I sent him back again, for the same result. I started asking counsel and clerks at the court. It seems no one else had ever seen the recusal papers. So did Leura Canary actually recuse herself? I’m skeptical. It’s an extremely important matter, as Mrs. Canary went to great lengths to create a public appearance that she had withdrawn. But there’s a lot to suggest that in fact she never relinquished complete control over the case. Let’s take a deeper look, shall we?
In mid-2001, Leura Canary commenced an investigation into “certain state employees” on corruption allegations. It soon became apparent that the principal target of this investigation was Governor Siegelman. The investigation had been initiated at the request of William Pryor, then Attorney General of Alabama. Various representatives of Mrs. Canary’s office have given conflicting false explanations of the source of the complaint that initiated the investigation. Usually they attribute it to a newspaper reporter from Mobile, in an effort to obscure the actual and highly partisan political source. This is important because William Pryor and Leura Canary share a common partner. And his name is William Canary.
In March 2002, David Cromwell Johnson, an attorney for Siegelman, filed paperwork with the Justice Department for her recusal. Johnson argued that Mrs. Canary was conflicted under ethical guidelines binding on U.S. Attorneys for two reasons: first, her husband, William Canary, was then working as a paid political consultant for Attorney General Pryor, the man whose complaints were driving the case, and second, her husband was the paid political consultant for Lt. Gov. Steve Windom, who had declared his intention to oppose Siegelman for the governorship.
I was amazed in reviewing this document to see how little Johnson knew about Canary and his role in Alabama Republican politics. Or perhaps he was simply being too polite to give it detail. But I think for readers to understand the depth of the conflict point, it really is essential to get a closer look at Leura Canary’s impressive husband, Bill.
Karl RoveMr. Canary served as chief of staff for the Republican National Committee, as chief of staff to the 2000 G.O.P. Convention chairman and former Bush chief of staff, Andy Card, and as National Field Director for the Bush-Quayle campaign in 1992. I am told by senior Republican figures that Canary secured these various roles largely on the strength of his close personal friendship with Karl Rove and with Rove’s express endorsement. In 1994, Mr. Canary and his friend and mentor Karl Rove put together a grand strategy to turn around the court system in Alabama, putting the G.O.P.’s handpicked candidates in control of key Alabama appellate court races. This process was chronicled by Joshua Green in a major article on Rove’s remaking of the judicial politics of Alabama published in The Atlantic. In a 1995 article, Time Magazine’s Michael Kramer called Bill Canary a “legend in Republican circles” and in the same article, former RNC Chairman Rich Bond described Bill Canary as an “expert political paratrooper” and “someone you dropped into a state where something needed fixing and it got fixed.” Mr. Canary was the architect of a special relationship between the Alabama G.O.P. and the Business Council of Alabama that proved the finance lifeline for many Alabama G.O.P. election campaigns. He was widely described as the G.O.P.’s Alabama “kingpin.”
William Pryor, who was notoriously eager to get a position on the federal bench and whose nomination proved the most controversial single judicial appointment ever made by George W. Bush, had another key political advisor to whom he turned for support: Karl Rove. In his political campaigns, Pryor spoke ceaselessly about the “corruption” of the Democratic administration in Alabama, and made no bones about his desire to maneuver prosecutorial resources to accomplish a political mission. And working at his side on this project, as an assistant, was Leura Canary–until President Bush picked her to be the U.S. Attorney in Montgomery. And William Pryor’s other main political advisor throughout this period was Leura’s husband, Bill Canary.
Steve Windom ultimately lost in the Republican primary to Bill Riley, but during his campaign he continuously drew on the Leura Canary investigation for political grist to support his “corruption” accusations against Siegelman. The posturing, campaign rhetoric, and advertising were arranged by William Canary. The criminal investigations that fueled it were managed by his wife.
Shortly after Johnson filed his papers, the Justice Department responded saying it had them and would study the matter. The next development came on May 16, 2002—roughly a year into the case—when Leura Canary issued a press statement:
As to any matters pertaining to any current investigation of [Governor Siegelman] which may be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.
I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.
Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” And third, the press statement says she recused herself. But did she?
The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.
I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.
But the path of Leura’s ‘recusal’ gets still stranger as things unfold. First, no sooner did Leura announce her recusal, than Bill became involved in another campaign—Bob Riley’s effort to unseat Governor Siegelman. This was a high-stakes effort of immense importance to the G.O.P.: retaking the statehouse in Montgomery. Again, the “corruption” allegations relating to Leura’s investigations became the main staple in the Riley campaign arsenal against Siegelman. That is to say, few people benefited more than Bill Canary from the fact that the investigation was pending, and the related rumor-mongering that flooded the Alabama media in this period. It was a huge boon to the Riley campaign. And at the same time there was something else fishy going on. Investigations in Washington, D.C., into the Abramoff scandal made clear that Riley’s former press secretary, Michael Scanlon, was right in the middle of the affair, as were a whole platoon of Riley aides. Suddenly, millions in cash from Indian gaming interests advised by Abramoff began to gush into the Riley campaign. But the U.S. Attorney’s office in Montgomery, far from ever examining these matters, began to act as Riley’s guardian angel–deflecting inquiries and dead-ending investigations.
When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney.
What exactly did her ‘recusal’ entail? Attorney John Aaron wanted to know the answer to that question. He filed a Freedom of Information Act request with the Department of Justice on February 6, 2006. He asked for all the conventional papers usually prepared in connection with a recusal.
On June 21, 2006, he received a response. It stated that no documents would be provided. It cited as the main grounds for withholding them Leura Canary’s desire for confidentiality. Generally a person is entitled to confidentiality concerning health issues and personally identifying information (a social security number, a birth date, bank account numbers and the like). The fact that information would be embarrassing to a public official is not a reason to withhold the information.
In August, I spoke with a senior Justice Department FOIA official about the case. He noted that a response had improperly been sent indicating that there were “no responsive documents,” when in fact there were more than 500 responsive documents. He said that the handling of the request had been irregular in a number of ways and that the request was the “subject of some very strange apprehension” on the part of political appointees at the Justice Department. He didn’t know what was in the files, but he thought a lot of political pressure had been exerted to “keep them secret.” He also noted that professional staff had objected to the false statements issued in response and had insisted that the false statements be corrected. “It was pulling teeth to get them to tell the truth.”
By that point, of course, Judiciary Chair Conyers and his committee were on the trail of the Siegelman case and making the same demands. Now, you’d think that a Congressional Committee with oversight powers over Justice would get these documents. You’d be wrong. The Committee’s request affected three different U.S. Attorneys. The U.S. Attorney in Wisconsin turned over his internal notes and volunteered a briefing; the U.S. Attorney in Pittsburgh likewise offered extensive responses. And what was the response of Leura Canary? That’s easy. It was “drop dead.” She produced nothing, not even the routine, mundane papers governing her own recusal. So what’s the dark, mysterious secret lurking in Leura Canary’s ‘recusal’? It might just be that she never recused herself at all.