Articles by Solomon Wisenberg

If you are going to try and kill the King, you better damn well get it done. Cyril Wecht is a celebrity pathologist superstar. This means that the Cyril Wecht prosecution is a suitcase trial. If you are the prosecutor, you pack your suitcase ahead of time. If you don’t win, you leave town. Maybe that’s why the Wecht prosecutors were so quick to announce they would retry the case, almost right away, despite a hung jury leaning toward acquittal.

The haste to announce retrial was unseemly. Judge Schwab’s strong advice to the jury not to discuss the case with the press or the attorneys was bizarre at best and improper at worst. The publicly displayed animosity between the defense team, which includes a former U.S. Attorney General, and Judge Schwab was stunning. This just doesn’t happen at the federal level. 

The FBI’s decision to call some of the jurors to interview them about the case, reported here in the Pittsburgh Tribune-Review, was unusual and stupid, although Judge Schwab’s decision to wisk the jury away quickly after the trial obviously prompted the move.

I started reading about the Wecht trial late in the day. Press coverage has been abysmal. Some things are clear, though, from merely reading the indictment. The case looks pretty chicken-_____ at best.

Prosecutors and defense atttorneys divide crummy cases into two fundamental categories; chicken-_____ and bull-_____. Chicken-_____ cases allege actual crimes, but the charges, even if true, are technical and/or low-grade in nature. Bull-_____ charges are not really crimes at all. They are not “righteous” and never should have been brought in the first place.

The government charged way too many counts in the Wecht case. Most of them appear to be incredibly petty “misuse of public office charges” masquerading as honest-services mail and wire fraud. But honest service fraud cases usually require, in the absence of bribes or kickbacks, lying and/or concealment by a defendant regarding his/her theft of honest services. The Wecht indictment doesn’t do a great job of setting this lying/concealment out and neither, apparently, did the evidence. (Dr. Wecht’s private forensic pathology practice was well known to all.)

The only thing in the indictment that looks like a real crime, if true, is Dr. Wecht’s alleged billing of private clients for reimbursement for transportation expenses that were actually provided by the county. The indictment charges that phony receipts from a defunct company were used in connection with these bills. But even if this happened and Dr. Wecht knew about it, it isn’t the kind of thing you typically see prosecuted at the federal level. It falls under the category of petty theft or greed–fodder for state cases or private lawsuits at best.

The jury in the honest services fraud trial of celebrity pathologist Cyril Wecht begins its 10th day of deliberations. Jurors told the judge on Thursday that they were deadlocked. The defense has, therefore, made a mistrial motion. The Philadelphia Inquirer reports here on the jury’s languid pace.

KPMG either initiated or tolerated accounting fraud at New Century Financial Corp., according to a 581 page report by Michael Missal, the bankruptcy court’s independent examiner appointed at the request of the Department of Justice to investigate New Century’s 2007 plunge into bankruptcy. The report also blames New Century’s management, and details significant departures from generally accepted accounting practice. New Century was once the nation’s second largest subprime lender. Reuters has an excellent piece here by Amanda Beck. The Washington Post’s Carrie Johnson has a story as well. KPMG, the financial industry’s poster child for abandoning your employees in the face of a federal investigation, vigorously denies the report’s conclusions.

Friday’s Miami Herald reports here that longtime GOP operative Roger Stone alerted the FBI to Eliot Spitzer’s call girl habit last year. In November of 2007, Stone’s Cosa Mesa, CA attorney sent a letter to the FBI declining an interview request but reporting Stone’s admittedly second-hand information about New York’s then-Governor. Stone had learned from Miami Velvet, an acquaintance, that Spitzer once used the services of a high-priced call girl in Miami. Stone, in the letter, reported what he knew and stressed that the information was second hand. Stone’s Florida lawyer released the letter last week in an effort to counter Internet-based conspiracy theories about his purported role in bringing down Spitzer, a long-time nemesis. Hat tip to TalkLeft for alerting us to this story. 

File this one under Department of Ho-Hum. Even if the snoopers revealed passport contents to outsiders, they have only committed misdemeanors. The Washington Post story, here, does suggest, somehwat murkily, that State Department employees and contractors accessing passport files must first represent (by touching a “Yes” button on a computer monitor) that they are authorized to view the contents. Will a zealous prosecutor claim that such a representation by an unauthorized person constitutes a false statement to the government under 18 U.S.C. Section 1001? Your guess is as good as mine. The Post says that the State Department’s OIG will investigate, but may ask for assistance from DOJ.

That’s Melvyn Weiss, former name partner at Milberg Weiss, LLP, the securities class action powerhouse. WSJ.com has the story here. The WSJ.com Law Blog has more detailed info here. The LA Times reports here that Weiss’ lawyer says he is pleading to “limited participation in a criminal conspiracy.” The Indictment against Weiss alleged that he and former partners enaged in a scheme to pay illegal kickbacks to class-action plaintiffs.

The Journal story is here. The conviction was overturned because of the trial court’s limitations on the testimony of the defense’s expert and its limitations on the defense’s use of classsified data.

Here, for our readers, is Jeff Skilling’s Supplemental Brief Regarding Andrew Fastow Interview Notes. Originally filed under seal, and now unsealed, the brief details the material withheld from Skilling and how this withholding affected Skilling’s trial defense. We breathlessly await the government’s response. Brady-Giglio claims seldom prevail on appeal. An appellant must prove, among other things, that the withheld information was material, non-cumulative, and unavailable to the defendant by other means. Nevertheless, my initial take on this issue, after coming to it late, is that Skilling has a decent chance to win. The government’s use of a composite 302, which allegedly masked Fastow’s changing stories, as well as the government’s failure to show all of its raw Fastow interview notes to the trial court, are, in my view, quite striking (troubling) factors–and highly unorthodox. Ideoblog discusses the matter further, here, as does the always informative Tom Kirkendall, in Houston’s Clear Thinkers.

The Houston Chronicle reports here on convicted former Enron CEO Jeff Skilling’s latest substantive, and fully unsealed, appellate brief, which publicly references for the first time all of the Fastow interview notes that Skilling claims were improperly withheld from the defense by the prosecution. According to Hays, “[a]fter the trial, jurors told reporters that they didn’t give Fastow’s testimony much weight.”  This gratuitous information, whether true or false, will be utterly irrelevant to the Fifth Circuit’s ultimate analysis of whether there was a Brady violation, and, if so, whether it warrants reversal.

Former National Republican Congressional Committee (”NRCC”)Treasurer Christopher J. Ward has been accused by GOP officials of diverting up to $1 million from various campaign coffers to his personal accounts. The Washington Post has Paul Kane’s story here.

They do things a little differently in Guam.  Apparently without any advance notice to Greenberg Traurig LLP, the giant law firm was added to a Second Superseding Indictment in Guam, along with convicted lobbyist Jack Abramoff, who once worked for Greenberg Traurig. The ABA Journal  story is here.  Here is the Abramoff/Greenberg Traurig Indictment. The Pacific Daily News of Guam has coverage here. The charges were brought under Guam territorial law and essentially allege a conspiracy to evade the procedures and regulations, and misapproriate the funds of, the Superior Court of Guam, in an effort to hide lobbying activities undertaken by Abramoff and Greenberg Traurig on behalf of the Court. Greenberg Traurig has vowed to fight the Indictment, and has stated that it is a victim of Abramoff. From a quick view of the Second Superseding Indictment, it looks as if Greenberg Traurig may have simply been added because Abramoff worked for the firm at the time of the alleged events.

Kimberly Strassel, in WSJ’s Opinion Journal, analyzes Spitzer’s Media Enablers. WSJ’s Review & Outlook discusses the use and abuse of old statutes in prosecuting current crimes in Of Martin and Mann. The reference is to New York’s Martin Act, which Spitzer used as Attorney General as part of his effort to intimidate Wall Street, and the Mann Act, the old federal prostitution statute, which may be used against Spitzer himself. The Washington Post has the resignation story. One thing is clear as the fog begins to lift in this scandal; for the SDNY U.S. Attorney’s Office to be even contemplating charging Spitzer under the Mann Act is unprecedented and appalling. It is virtually unheard of for a call-girl customer to be prosecuted at the federal level. This would constitute a clear abuse of prosecutorial discretion.

The Washington Post has the basic Elliot Spitzer story here. Dana Milbank’s Washington Sketch column reveals perhaps the most revolting aspect of the case: Client 9 would not even spring for the Amtrak Acela to transport Kristen down to DC from Manhattan. Egads! He forced her to take the regional! Meanwhile, the Wall Street Journal editorializes on it all, here, noting that there isn’t a “shred of nobleness” in Spitzer’s fall. The investigation of Spitzer apparently started with a Suspicious Activity Report filed by a bank in connection with the Governor’s transfer of funds to pay for call girls. We’ll see in coming days whether this turns out to be true and how the investigation grew from this kernel into the exposure of a sitting opposition-party Governor. Stay tuned.

The Washington Post reports here on the two year sentence handed down yesterday in Manhattan federal district court to Texas oilman David B. Chalmers. Chalmers pled guilty in August to conspiracy to commit wire fraud, based on kickbacks he and his company paid to Saddam Hussein’s regime during the pendency of the U.N. Oil-For-Food Program. U.S. District Judge Denny Chin also fined Chalmers $9 million dollars and sentenced his companies, Bayoil USA and Bayoil Supply & Trading, to three years probation.

Today’s Washington Post reports here on Lyglenson Lemorin, one of the “Liberty City Seven.” Indicted in Miami federal court for plotting to blow up the Sears Tower, Lemorin was acquitted. (The jury deadlocked on the other defendants. ) Over two months after the acquittal, Lemorin is still incarcerated, because the government wants to deport him back to Haiti. Lemorin, age 33, is a permanent legal resident who has lived in the U.S. for over 20 years. The government is seeking to deport Lemorin based upon the same charges the jury acquitted him on. Yes, the standard of proof is lower in immigration cases. Yes, the government does this kind of thing all the time. Yes, the government has the right to do it. But that doesn’t make it the right thing to do–particularly here where the evidence against Lemorin was so thin. Come January, certain segments within DOJ are due a major housecleaning.

Reuters has the obituary here.

DOJ Fraud Section Principal Deputy Chief Paul Pelletier took a page from Karen and Richard Carpenter after yesterday’s guilty verdicts against former Gen Re and AIG executives, telling reporters, in effect, “We’ve Only Just Begun.” The trial was notable in a number of respects: spotty and superficial news coverage, the inclusion of the high-ranking Pelletier on the trial team, and the naming of the current and former AIG CEOs as unindicted co-conspirators. “The investigation continues,” Pelletier said. “We’ve got a lot of work to do to work up the ladder.” This is the kind of tough, classic, old-fashioned prosecutor-speak we haven’t heard in a long time, sending a clear message to the just-convicted defendants and to AIG itself. Not surprisingly, it comes out of the Fraud Section, the most aggressive, mad-dog white-collar unit within all of DOJ. Today’s WSJ($$) has an excellent story on the trial, the verdict and the larger implications.

Here is a copy of the indictment handed down in Congressman Rick Renzi’s case. Renzi Indictment. The indictment is a veritable kitchen sink of charges: conspiracy, wire fraud, Hobbs Act extortion, money laundering, and insurance fraud. At first blush, it is unclear to me why the insurance fraud charges, which also involve attorney Andrew Beardall, were included in the indictment. They appear to allege a wholly separate conspiracy.

Also, here is Bloomberg.com’s updated story. Renzi’s DC attorneys, Reid Weingarten and Kelly Kramer, adamantly deny the charges against their client and vow to fight them vigorously.

Remember Travis County D.A. Ronnie Earle’s extortion of money from four corporations charged in the TRMPAC investigation? He demanded that the companies, among other things, donate money to the LBJ School of Public Affairs in exchange for the State of Texas dropping campaign finance-related charges against them–charges that never should have been brought in the first place. Now it turns out that the money has never been spent, because Earle hasn’t “followed up.” Even worse, Earle forced the companies to pony up the cash in the face of warnings from one of his key aides that such an arrangement: didn’t pass the smell test; probably ran afoul of a Texas Attorney General’s opinion; and, might violate federal law. The Austin-American Statesman has the story here.  

Bloomberg.com has the story here. No comment as yet from Renzi’s attorney, Reid Weingarten. Indicted along with Renzi are James Sandlin, one of Renzi’s political backers, and attorney Andrew Beardall. According to the story, Renzi attempted to tie his sponsorhip of a bill sought by a private company to that company’s purchase of land owned by Sandlin.

Word reached me last week, by way of the Texas Bar Journal, that Bob Huttash died in November of last year. Bob will be remembered by generations of Texas judges, prosecutors and defense attorneys as an able and gifted State Prosecuting Attorney, a position he held with great distinction from 1979 to 1996. Texas has a split criminal and civil jurisdiction. The Texas Supreme Court hears no criminal cases. That job falls to the Texas Court of Criminal Appeals, the court of last resort in Texas for all criminal matters. The State Prosecuting Attorney is similar to the U.S. Solicitor General, at least for criminal cases coming before the Court of Criminal Appeals. When district attorney’s offices are unable to brief or argue appeals in front of the Court of Criminal Appeals, the State Prosecuting Attorney steps in and fills that function. 

I first met Bob Huttash while I was clerking for Judge Tom G. Davis on the Court of Criminal Appeals. Although he was many years my senior, and already quite accomplished, Bob was unfailingly generous with his time in discussing the arcane world of Texas criminal law, particularly fundamental errors in charging instruments, with me. Every young lawyer needs a mentor and Bob Huttash was that and more for me. He was a true friend and a consummate professional. He had me over to his house on several occasions where he grilled a mean steak and played Justin Wilson records. His legal hero was Justice Hugo Black, who revered the plain words of the Constitution.

I remember all of these things about Bob Huttash, although I moved away from Austin in 1985 and, much to my regret, gradually lost touch with him. But what I remember most is Bob Huttash playing ping-pong. Back then, there was a ping-pong table in the basement of the Texas Supreme Court Building. Every day, after a lunch of Texas Barbecue, Mexican Food, or Chicken Fried Steak,  you would find a group of us down in that basement, sweating up a storm at the ping-pong table. You needed excellent skills, and a very thick skin, to play at that table. I would not characterize it as a politically correct place. Judge Mike (”The Short Judge”) McCormick, Chief Clerk Tommy (”The Stud Duck”) Lowe, Judge Chuck Campbell, Sol “Menachem” Wisenberg, Michael Hutson, Bill Delmore, Jeff Jones, Joe Porto, and a host of briefing attorneys passed through that room. Huttash towered above them all. He didn’t have a nickname. He was just Huttash–the best ping-ponger I ever played against. He used a red Harvard paddle–retail value, $45.00. One time I went to Houston and purchased custom made paddles for Mike Huston and me, in an effort to knock Bob off his perch. It didn’t work.

We had great fun at that table. I can still see Huttash standing at one of its corners–sweat dripping down his shirt, or under-shirt, a cigarette dangling from his mouth–calmly returning the ball, slam for slam. He’d get tired occasionally. (He was never in great shape.) If he had to work real hard to get a point, he’d look out and say, to no one in particular, “You’re gonna send me to King-Tears.” 

The Washington Post reports here (story by Barry Svrluga and Amy Shipley) on today’s showdown in Congress between pitching great Roger Clemens and his accuser Brian McNamee. The Wall Street Journal also has a good piece here by Allen Barra which helps set the stage, and includes some insightful analysis from Bob Costas, who was interviewed by phone for the piece. Costas looks at Clemens’ career pitching stats, noting that they don’t corroborate McNamee’s allegations. One thing is fairly clear from all the hoopla. Representative Henry Waxman’s goal of using the proceedings to browbeat Clemens is likely to backfire. The House Committee on Oversight and Government Reform’s decision to excuse Andy Pettite and Chuck Knoblauch from testifying live also seems dubious to me. I suspect that Waxman wants a rigged game, and that Pettite’s and Knoblauch’s testimony would not have damaged Clemens enough to suit Waxman. Waxman is infamous, even in Washington circles, for his publicity hound stunts. This just in. The Journal runs its first report of McNamee’s actual testimony. The Washington Post is also streaming the testimony live on its website.

The Los Angeles Times has the story here on Lerach’s sentence, handed down today in federal court. After his release from prison, Lerach will be subject to supervised release for a period of two years. Lerach’s lawyers, arguing for leniency, asked for 6 months in prison and 6 in home confinement. The judge was having none of it, noting that Lerach “got a lot of forgiveness in the plea agreement.” The government had recommended 1 to 2 years in prison. The charges stem from Lerach’s payment of kickbacks to plaintiffs in class action suits.

Dow Jones’ marketwatch.com looks here at the SEC’s and DOJ’s widening inquiries into possible wrongdoing at Merrill Lynch–in connection with the sub-prime mess. Yours truly is quoted in the piece, and quoted out of context. Reporter Riley McDermid called me on Friday and asked how likely it was that Merrill Lynch would be indicted. I responded that this was a very unlikely scenario in light of the debacle created by the government’s indictment of Arthur Anderson & Co. (If you recall, the government’s indictment of Anderson effectively shut the company down, throwing thousands of totally innocent people out of work. Anderson’s subsequent conviction was later overturned by the U.S. Supreme Court.) I also told McDermid that Merrill Lynch would gladly cooperate with the government, if necessary by throwing former top officers to the wolves, in order to avoid indictment. In McDermid’s article, co-authored by Greg Morcroft, I am quoted as suggesting that Merrill Lynch’s employees won’t be indicted.  That is a different question altogether. If  the DOJ thinks it has found fraud in connection with Merrill Lynch’s marketing or accounting for sub-prime mortgages, it is in fact quite likely that employees will be indicted, although they will probably be former employees by the time charges are filed.

Those who argue that Roger Clemens set himself up for a perjury charge by agreeing to testify under oath before a Congressional Committee do not know his lawyer, Rusty Hardin, very well. To put it simply, Hardin is one of the best criminal defense attorneys in the country. I can guarantee you that Hardin warned Clemens, in excruciating detail, about the potential criminal exposure the pitching great faced if Clemens testified before Congress and there was ANY truth to Brian McNamee’s charges. I am struck by the self-confidence evident in the Clemens camp, even in the face of the box of “evidence” disclosed on Thursday by McNamee’s lawyers and their contemptible revelation on Friday that McNamee injected Clemens’ wife with a human growth hormone. The St. Louis Post-Dispatch has the latest details here.

All defendants have rested in the Gen Re fraud trial in Connecticut. No defendants took the stand and no side called Warren Buffett to testify. The entire defense case took two days to put on. Douglas McLeod of businessinsurance.com has the story here.

We reported below on former Wal-Mart Executive Thomas Coughlin’s Friday re-sentencing. Coughlin was originally sentenced by U.S. District Judge Robert T. Dawson to five years probation and 27 months of electronically monitored home confinement; far, far below Coughlin’s advisory U.S. Guidelines range. The Eighth Circuit reversed in August 2007. Between that reversal and Friday’s re-sentencing, the U.S. Supreme Court decided Gall v. U.S. (Dec. 2007), which drastically increased the discretion of federal district courts to render below-Guidelines sentences–provided they adequately articulate their reasons. Prior to Gall, most federal appellate courts routinely reversed the below-Guidelines sentences of district courts, presuming them to be unreasonable, under appellate review standards that effectively gutted the Supreme Court’s Booker opinion. (Booker had first held the U.S. Sentencing Guidelines to be advisory.) On last Friday, Dawson re-sentenced Coughlin, adding only 1,500 hours of community service to the original sentence. To support the new sentence, Judge Dawson submitted his own 30-page Sentencing Memorandum (Coughlin Sentencing) . The U.S. is deciding whether to appeal. The U.S. Circuit Courts of Appeals have already started applying Gall, and a new era in district court discretionary sentencing is upon us. If Coughlin’s sentence is appealed and upheld by the Eighth Circuit, it will be an even further indication that of how broad that discretion truly is.

RIP: Barry Morse 1918-2008. The New York Times obituary is here.

U.S. District Judge Michael Mills yesterday ordered indicted Mississippi lawyer Dickie Scruggs to submit to questioning by State Farm in its civil case against Mississippi Attorney General Jim Hood. The deposition may well take place on Super Sunday, as it must be completed by close of business Monday. Scruggs’ attorneys had asked Mills to quash State Farm’s deposition subpoena. Of course, nothing in the court’s order will prevent Scruggs from invoking his Fifth Amendment privilege against self-incrimination during the deposition. He has every right to do this, and his attorneys have indicated that he will invoke the Fifth Amendment protection, given his current indicted status. The problem Scruggs faces is not uncommon among white-collar criminal defendants, targets, and subjects. He has a right to invoke the privilege against self-incrimination becasue of his potential criminal exposure and this invocation cannot be used against him in any criminal proceeding. But it can be used against him in a civil proceeding. A civil litigant’s failure to answer a deposition question based on Fifth Amendment grounds typically allows the other party to raise an adverse inference against him. This effectively whipsaws people in Scruggs’ position, and isn’t particularly fair. The Northeast Daily Mississippi Journal has the story here.

U.S. District Judge Christopher Droney denied Defendant Christopher Garand’s motion for mistrial Friday in the Gen Re fraud trial, currently taking place in Connecticut. The motion was based on the prejudicial nature of a taped conversation played to the jury. In the conversation, between former Cologne Re Dublin CEO John Houldsworth and then-Gen Re Senior VP Garand, Houldsworth asks Garand “How much cooking goes on there [at AIG]?” Garand answers, “Quite a bit. They’re fairly aggressive. They’ll do whatever they need to do to make their numbers look right.” Garand’s attorney, Jonathan Rich, complained that the reference to AIG book-cooking constituted “exceptionally inflammatory language.” Droney disagreed. Of course, anything that hurts your client is, ipso facto, prejudicial. The testimony here, however, seems to go to the heart of the government’s primary allegation–that the former Gen Re executives on trial helped AIG cook the books on two reinsurance transactions. Evidence must be relevant to be admissible, and the prejudicial nature of the evidence must outweigh its probative value before a judge can exclude it. Here it appears that Judge Droney not only denied a mistrial, but also refused to strike the tape evidence in the first place. The trial is expected to last two more weeks. The AP story, carried in the Houston Chronicle’s chron.com, is here. 

Nick Gillespie and Matt Welch, of reason.tv and Reason magazine respectively, take aim at congressional interference in Major League Baseball’s performance-enhancing drug controversy. The essay is here from yesterday’s Washington Post. 

Meanwhile, at Yahoo! Sports, Jonathan Littman highlights the IRS’s aggressive use of Title 18, United States Code, Section 1001, a federal felony statute, to prosecute professional athletes for lying to government agents. Littman’s piece, here, cites my long-standing criticism of Section 1001. My original findlaw.com article on the dangers of talking to government agents, even in an informal setting, is here.

The federal criminal trial of former Gen Re and AIG executives on accounting-related fraud charges, has seen spotty media coverage. Today’s post by David Voreacos and Jane Mills at Bloomberg.com is a welcome exception to the general run of stories on this case. It details the cross-examination of former Gen Re Vice-President Richard Napier, a key government witness, and intelligibly places that cross-examination within the broader context of the government’s allegations.  

A Presidential Administration is winding down and the quadrennial drum-roll for the release of convicted spy Jonathan Pollard is upon us. Yesterday’s Washington Post detailed the latest efforts of Pollard’s friends, including the Israeli government, to secure Pollard’s freedom. The short story carried the usual abbreviated rehash of the Pollard case, noting the severe harm he caused to U.S. intelligence and the lame-ass excuses of his supporters. What I found interesting was the detail that President Bush, on his trip to Israel, dined with, among others, Rafi Eitan, Pollard’s one-time Israeli intellligence handler in Washington and an un-indicted co-conspirator in the case. Eitan left Washington in a hurry at the time of Pollard’s arrest and is barred from entering our country. Although Eitan was never tried, and is innocent until proven guilty, the Israeli government admitted in 1998 that Pollard was its spy and there is really no dispute that Eitan aided and abetted Pollard’s espionage. Yes, I know, Eitan is an Israeli Cabinet Minister. In that sense it was perfectly normal for him to have been at what I assume was a state dinner. But it stills sticks in my craw that the President of the United States was seated at the table with somebody identified by our own government as a co-conspirator in one of the major spy scandals of recent history.

An insurance executive files a lawsuit against the GOP Governor of Alabama, the former Lieutenant Governor, the Insurance Commissioner, and other state officials. The plaintiff subpoenas a political consultant, who served as a strategist or advisor to several of the defendants. The political consultant’s wife is the United States Attorney for the Middle District of Alabama. After the lawsuit is filed, the U.S. Attorney’s Office begins a grand jury investigation of the plaintiff.

Okay, class. That would never happen in the U.S. Department of Justice, right? No U.S. Attorney would allow such an investigation to go forward without first recusing herself and probably her entire office, correct? And if the U.S. Attorney in question was colossally stupid and imprudent enough to initiate such an investigation, without recusing herself, the professionals at Main Justice would not tolerate it for one moment, would they? The U.S. Attorney would immediately be ordered to recuse herself and would probably be fired. Then someone from outside the U.S. Attorney’s Office, someone with an impeccable reputation for non-partisanship, would be brought in to review the investigation and determine whether it should go forward.

That’s how it would have happened in the old days, but, amazingly, not anymore. The insurance executive in question is John W. Goff. The Republican Governor is Bob Riley. The political consultant is William Canary, and the U.S. Attorney is Leura Canary. When Goff complained to the Department of Justice, his concerns were downplayed by Associate Deputy A.G.David Margolis, a DOJ careerist who has served through several administrations in a non-political slot. Margolis denied that a conflict existed, but stated that Leura Canary had decided to voluntarily recuse herself from involvement in the investigation. Of course, Ms. Canary did not recuse her assistants.

This remarkable, and very troubling, story is the subject of Scott Horton’s No Comment column in Harper’s. Here is Horton’s excellent post, which is highly critical of Margolis. Full disclosure: I had some very unfriendly interaction with Margolis when I served as Deputy Independent Counsel for Ken Starr during the Whitewater-Lewinsky investigation.