Hunter Biden, Donald Trump, and Prosecutorial Assassination
Even if Presidents want to target political rivals for prosecutorial assassination, there are significant structural barriers and ethical rules that make it difficult, if not impossible to do.
Last week, the Justice Department, through special counsel David Weiss, brought new tax evasion and failure to file tax return charges against President Joe Biden’s son, Hunter Biden. These charges mark the latest step of a journey that began during President Donald Trump’s tenure. Sometime during his first two years in office, the President’s attention turned from prosecuting Hilary Clinton to investigating Hunter Biden. In a July 2019 phone call with Ukraine’s President, President Trump arguably conditions United States aid to Ukraine on Ukraine’s cooperation with the investigation of Hunter Biden. The President’s desire to have Hunter Biden prosecuted eventually bore fruit.
At the same time, former President Trump, as I discussed in an earlier issue, has accused President Biden of demanding Trump’s own prosecution. Claiming President Biden promised to prosecute Trump so that the former President would have a more difficult time returning as President, Donald Trump asked the court to dismiss the pending criminal charges connected with the Jan 6, 2021 events at the Capitol.
Now, both sides point to the other accusing the opposite administration of using federal criminal prosecution as means to accomplish a political assassination. The accusations raise the question of how viable it is to poitically assassinate someone through criminal prosecution. Surely a criminal prosecution would impair chances of re-election. Just ask George Santos. If such a tool could be used, would we not see it more frequently?
The fact that prosecutorial assassinations are so rare tells us that there are strong forces aligned against it. Two such forces are the Rules of Professional Conduct that specifically refer to the prosecutorial function and the political independence of line federal prosecutors. To see how these two forces combine to resist even questionable attempts to engage in prosecutorial assassination, this issue looks at the case of former Alabama governor Donald Siegelman.
Don Siegelman is the only Democrat elected as the governor of Alabama since 1987. He won the governor seat in 1999 and served one term. Prior to election as governor, Siegelman served as Lt. Governor, Attorney General and Secretary of State for Alabama. As a popular Democrat in a Republican-majority state, Siegelman posed a threat to Republican hopes nationally. During his government career, Siegelman encountered Richard Scrushy. Schrushy founded HealthSouth, a medical rehabilitation service provider. Scrushy later expanded HealthSouth into other medical care areas. In the early 2000s, investigators uncovered accounting problems indicating the company had falsely inflated its billings by more than $1 billion at Scrushy’s directon. During the investigation, the government found Scrushy contributed $500,000 to Siegelman’s efforts to establish a state lottery in Alabama. In return, Siegelman appointed Scrushy to a position on the state’s hospital regulatory board. This led to a grand jury indicting both Siegelman and Scrushy in the Northern District of Alabama.
This 2006 indictment was not Siegelman’s first. He had been indicted in 2004 for similar conduct. In that case, the government alleged Siegelman accepted various gifts in exchange for rigging bids in the state Mecaid contract. A district court judge determined the government could not prove most of the charges as a matter of law. The government then dismissed the remainder.
At the same time Siegelman’s trial was proceeding, allegations emerged that President Bush’s Chief of Staff, Karl Rove, had initiated Siegelman’s prosecution to neutralize Siegelman as a political threat. The allegations came from a Republican attorney who, as she later admitted, worked with a Siegelman supporter, to write an affidavit asserting that she was on a conference call with Bill Canary, a Republican political consultant, when Canary stated that “Karl” would ensure Siegelman no longer posed a threat to Alabama Republicans.
The allegations carried weight because Canary’s wife, Leura, served as the United States Attorney for the Middle District of Alabama. Bill Canary used this connection to influence Alice Martin, the United States Attorney for the Northern District of Alabama. Martin, in turn, instructed the assistants in her office to bring charges against Siegelman.
Despite the lack of supporting evidence, the allegations generated significant attention. The release coincided with the Bush Administration’s firings of several United States Attorneys, several of whom had resisted Justice Department and Congressional pressure to pursue public corruption cases against Democrats due to the lack of sufficient evidence. The Democratically-controled House of Representatives held a series of hearings regarding the politicization of the Justice Department. One such hearing featured Doug Jones, Martin’s Democratic predecessor as United States Attorney and who would later become a United States Senator.
If the Rove-Canary-Martin connection did, in fact, lead to Siegelman’s prosecution, it was an effective prosecutorial assassination. A jury convicted Siegelman of several charges including bribery and honest services fraud. He was sentenced to nearly six years in prison, effectively ending his political career.
The question is whether the case against Siegelman amounted to a political assassination. Did Karl Rove improperly initiate the prosecution? Several factors would indicate no. First, as United States Attorney, Alice Martin established a health care fraud unit within the office. This unit pre-dated the Siegelman investigation. This shows that one of Martin’s top priorities was cases like HealthSouth and Scrushy. Siegelman’s case resulted from that investigation. The same applies to the failed 2004 prosecution. It also involved health care fraud. Second, the evidence of Rove’s involvement is minimal. While he may have wanted Siegelman prosecuted and may have even made such a statement to Canary, this does not establish that Rove ordered the case prosecuted. Third, and most importantly, Siegelman was, in fact, guilty. He was convicted and those charges were upheld on appeal. More importantly, one cannot say the jury was predisposed to find Siegelman guilty because they acquitted him not just on most counts but also on the more serious racketeering (RICO) charges.
One might argue, however, that the RICO charges were overkill designed to ensure a long prison sentence. Here, Rove might have more influence as Justice Department guidelines require that all RICO prosecutions be approved by the Justice Department’s Criminal Division. Rove, through Attorney General Alberto Gonzalez, could have influenced that decision.
Even if Rove did influence the RICO charging decision, the likelihood of the charge’s impropiety is low because of the political/professional divide within the Justice Department and because of ethics rules applied to prosecutors. Within the Justice Department there are the politically appointed supervisors and the career-oriented prosecutors. This divide provides some manner of political insulation. The career-oriented prosecutors evaluate cases based on the evidence. They get no benefit from initiated politically motivated prosecutions. In fact, if the case lacks all merit, they could be sanctioned for ethics violations. Ethical rules require that prosecutors only file cases for which there is probable cause. If they knowingly pursue a case without evidentiary support, they can be disciplined by their state bar association. This combination largely prevents the politically-appointed supervisors from pursuing cases intended as prosecutorial assassinations.
All of this is to say that the case against Hunter Biden, though likely initiated as a means to harm Joe Biden’s candidacy, is not a political assassination. The charges are based on evidence and, it is likely, based on the track record of federal prosecutors, that Hunter Biden is guilty. Just because partisanship plays a role, it does not mean the person has not committed a crime. The same holds true for the federal cases against former President Trump. Though perhaps politically motivated, the charges are not an unfounded witch hunt.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!