On March 6, 2008, the U. S. Court of Appeals for the Eleventh Circuit unanimously affirmed the bribery and mail fraud convictions of HCA founder Richard Scrushy. In the same opinion, the court reversed the mail fraud convictions of co-defendant and former Alabama Governor Don Siegelman, although Siegelman's bribery and obstruction of justice convictions were affirmed. Siegelman's case was remanded for re-sentencing where the sentencing court will reconsider his seven-year sentence. Scrushy's sentence of more than six years imprisonment stands. U.S. v. Siegelman and Scrushy (No. 07-13163, Op. filed March 6, 2009).
According to the opinion, the bribery count arose from an agreement between Seigelman and Scrushy to appoint Scrushy to the Alabama Certificate of Need (CON) Review Board in exchange for $500,000. The CON Board is responsible for issuing certificates of healthcare need which are required before certain new healthcare facilities can do business in Alabama. Apparently, the former governor had personally guaranteed a large debt incurred in connection with an initiative to convince Alabama voters to approve a statewide lottery to fund educational reform. The opinion describes how the $500,000 was used to offset Siegelman's obligation in exchange for Scrushy's appointment as vice chairman of the CON Board.
Permissible limits on payments to political candidates have been the subject of more than one U.S. Supreme Court case. In a political system dependent upon private contributions for campaigns for public office, the line has been drawn at contributions made for an explicit promise by the official to perform or not perform an official act in exchange for the contribution. Siegelman and Scrushy argued that the law requires not only an "explicit" agreement, but also that the agreement to do or refrain from doing an official act be "express". Recognizing that requiring proof of an express agreement would allow bribers to escape criminal liability through the use of "winks and nods", the Eleventh Circuit refused to read this requirement into the statute.
The court did reverse Siegelman's mail fraud convictions. Those counts charged that Scrushy and Siegelman agreed that Scrushy would use his position on the CON Board to defraud Alabama of his honest services. Concluding that the government failed to prove this was part of Siegelman's agreement, the court vacated those convictions.
You may recall the allegations of partisanship that accompanied this indictment of this former Democratic governor by a Republican appointed U.S. Attorney. In classic strategy, the government offered a deal to a former Siegelman aide facing 10 years in prison on an unrelated extortion case in exchange for his pivotal testimony against the former governor. Allegations have arisen that the prosecution improperly suppressed key impeaching facts about this witness which would have made a difference in the jury's consideration of his credibility. Many considered this prosecution unfair and a group of 52 former state attorney generals asked Congress to investigate whether it was pursued because of politics and not merit. Nonetheless, a jury, district court and three judge appellate panel agreed that a half million dollars was paid in exchange for an explicit agreement to appoint a powerful health care official to a powerful health care board.
This Eleventh Circuit's opinion makes clear that explicit agreements to exchange an official action for a campaign contribution is criminal. It goes on, however, to note” in the absence of such an agreement on a specific action, even a close in time relationship between the donation and the act will not suffice. "That is the line in the sand.” It is expected that the Siegelman and Scrushy will seek rehearing and certiorari to the Supreme Court.
Bottom line, don't expect or ask for anything in exchange for a campaign contribution, especially a $500,000 contribution.