The federal judge who denied a prominent Democratic fundraiser’s motion for release pending appeal last week is a former client and protégé of former White House Deputy Chief of Staff Karl Rove.
On Aug. 15, US Fifth Circuit Court of Appeals Judge Priscilla Owen (above right) upheld a lower court’s decision to keep Mississippi attorney Paul Minor in jail pending his appeal, adding more controversy to a case alreadysteeped by allegations of both a politically motivated prosecution and conflicts of interest on the part of the US Attorney.
Minor, a once-prominent trial lawyer, was formerly Mississippi’s largest Democratic donor and made millions from a 1998 settlement with tobacco companies of a lawsuit for costs incurred by Medicare from smoking-related illnesses. The suit kindled resentment among Republicans who had been beneficiaries of the tobacco companies’ largesse.
Owen’s two-sentence order reads: “Minor has failed to establish by clear and convincing evidence that he is not likely to pose a danger to the community if released.”
Minor was convicted of mail fraud and bribery in 2007. The prosecution hascontended that Minor is dangerous because he violated the terms of his pre-trial bond two years ago. The defense countered that Minor’s rule-breaking was trivial, non-violent in nature, and unlikely to recur because Minor has now been successfully treated for his drinking problem.
As reported in Raw Story’s ongoing award-nominated series, The Permanent Republican Majority, many saw the two Minor trials – which included as co-defendants Justices Wes Teel and John Whitfield, who were also found guilty, and Justice Oliver Diaz, who was not – as connected with the politicization of the US Department of Justice and the alleged use of US Attorneys by former White House Deputy Chief of Staff Karl Rove to target political opponents and perceived enemies of the Bush administration.
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Priscilla R. Owen was one of the Bush administration’s most conservative and most controversial judicial appointees. The Senate Judiciary Committee voted against Owen’s confirmation as a federal judge in 2002.
A New York Times op-ed excoriated Bush for nominating Owen a second time over the objections of the Senate Judiciary Committee, saying that “ignoring the committee’s decision is only one in a growing list of ways the White House and its allies have politicized judicial selection.” Ultimately, Bush got his way and Owen was confirmed following a second battle in Congress.
It was Karl Rove’s interest in seeing Owen on the bench that kept her nomination alive, despite strong criticism of her hard-right interpretation of the law.
Rove had a longstanding interest in Owen’s career, beginning in 1994, when Owen hired him as a campaign consultant in her successful bid for a seat on the Texas Supreme Court, paying him $250,000 for his efforts. Rove helped Owen raise over $900,000 for that campaign.
Jim Moore, a long-time Texas journalist who has chronicled Rove’s career in several books, including Bush’s Brain: How Karl Rove Made George W. Bush Presidential, explained the unique relationship between Rove and Owen in a Wednesday phone interview.
“He did everything for her. He created her career. He handpicked her to go to the Texas Supreme Court when he was trying to take over the Texas Supreme Court,” said Moore. “He was looking for people to groom and raise money for and have in his pipeline. Rove went and plucked her out of obscurity. She was an unknown lawyer in Houston.”
According to a 2003 article in Mother Jones “[Rove] signed on, giving the candidate the seal of approval from the state’s corporate establishment.”
“Rove went and plucked her out of obscurity,” says Moore, “He did everything he needed to to promote her. He’s the guy who brought her name up to Bush for the federal appointment.”
A 2005 article in the New York Times noted that Owen’s appointment to the Fifth Circuit “is the latest reward of a partnership that began a dozen years ago when a prominent Texas conservative introduced her to Karl Rove, who was at the time a political consultant and emerging kingmaker.”
As recently as 2006, Rove called Owen “my friend” in a speech to the Republican National Lawyers Association
A Conflict of Interest?
Lawyers familiar with the judicial process say Owen could not have been assigned the case by means of favoritism because it would be impossible to interfere with the process of randomly assigning cases to judges without implicating the clerk of court and possibly other judges in a conspiracy.
Yet the appearance of impropriety, even when none actually exists, is often reason for recusal.
According to canon two of the US Code of Conduct for United States Judges, “A judge should avoid impropriety and the appearance of impropriety in all activities.”
It’s unknown whether Owen was aware of allegations Rove had been involved in the prosecutions of Minor, Diaz, Whitfield and Teel. However, the public record and legal filings both either mention Rove by name or reference the White House’s alleged involvement in political prosecutions in general terms.
For example, in a letter (pdf) from Paul Minor to the US House Judiciary Committee, dated Oct. 22, 2007, Minor expresses his belief that Rove was directly involved in his prosecution.
“I am writing to you because you are the only people who can help me prove that the Bush Justice Department’s prosecution of me and Justice Oliver Diaz, Jr., and Judges Wes Teel and John Whitfield was politically motivated,” he writes. “Over the past few months, it has become increasingly clear that Karl Rove, political strategist for Bush and other Republicans, conceived a strategy to dry up political money to Democratic candidates which included using the Justice Department as an instrument to prosecute prominent Democrats, particularly trial lawyers.”
On Apr. 18, 2008, the House Judiciary Committee issued a majority reporttitled “Allegations of Selective Prosecution in Our Federal Criminal Justice System.” The report names Rove in connection with the alleged political prosecution of former Alabama Governor Don Siegelman, and briefly discusses less prominent alleged cases of political prosecution, including Minor’s.
On May 22, the Committee subpoenaed Karl Rove “for testimony about the politicization of the Department of Justice.”
Rove refused to appear. His lawyer said he had a previous engagement overseas.
As recently as last month, Minor’s attorneys filed a brief on appeal with the Fifth Circuit in which an entire section was devoted to the US Attorney scandal and alleged political prosecutions. The document does not explicitly name Rove or any other senior Bush administration officials, but the source documents do.
In part of the brief, for example, Minor’s attorneys state that should there have been an investigation and hearings held by Congress and other relevant bodies into the prosecution of Paul Minor, et al and “that such a hearing would also end with an evidentiary confrontation against the White House itself.”
Given the level of public interest and media attention in this case, and the controversy and allegations of impropriety already surrounding it, many of Minor’s supporters feel that Owen should have recused herself.
A Republican legal scholar and attorney in the South, who wishes not to be named for fear of retaliation, said during a late Monday phone interview that “the appearance of impropriety, even if none exists, is as bad as actual impropriety,” in relation to Owen’s ruling on Minor’s case. “She should have recused [herself].”
According to Professor Matt Steffey, a Constitutional scholar at Mississippi College School of Law, Owen’s connections to Karl Rove might raise the specter of divided loyalties if more information were to come to light. There are two factors to consider, Steffey explained, the first being the strength of the evidence against Rove.
“If clear wrongdoing by Mr. Rove can be established, then it would be time to take a closer look at those political ties.” Steffey said, “As more becomes clear about the strength of the relationship or Rove’s involvement in wrongdoing then there is cause, perhaps, to revisit.”
“I do think that the nature of the case comes into play, and i do think extra care is warranted when the case is already under close public scrutiny,” Steffey added.
Stephen Gillers, Emily Kempin Professor of Law at New York University, was unable to say whether Owen should have recused herself without a complete understanding of the circumstances.
Gillers explained that many variables come into play when deciding if a judge should recuse herself, such as whether Minor was asking the judge to evaluate specific allegations of wrongdoing by her former campaign consultant and political ally.
“Owen can sit on the appeal and a bail application unless Rove’s conduct is an issue in either decision,” Gillers wrote in a follow-up email. “For that to happen, someone in the case would have to inject it, most likely the defendant. Otherwise, Rove’s relationship to the case is just background noise so far as the law is concerned.”
Asked whether public apprehensions about the integrity of the Minor case could affect Owen’s ability to sit, Gillers replied, “Courts sometimes say the perception of justice is as important as justice. However, the fact that Owen has ties to Rove – owes her job to him perhaps – is not sufficient to create a disqualifying perception if nothing Rove did or did not do ever arises in the case as a subject for the court to address.”
No Crime in Mississippi or Texas
In an ironic twist, Owen herself has been criticized for not recusing herself in cases brought by big corporate donors to her judicial campaigns and for allowing her Texas Supreme Court clerks to accept thousands of dollars in bonuses from law firms with business before the Texas Supreme Court.
For example, Owen received $8,000 from Enron employees and PACs in her 1994 campaign for a seat on the Texas Supreme Court. She later authored an opinion in the Enron bankruptcy case that saved the company $225,000.
According to Andrew What, the Research Director for the non-profit legal watchdog Texans for Public Justice, Owen’s career has been rife with questionable decisions.
“When we followed her on the Texas Supreme Court, she was an activist jurist that was results oriented,” What wrote in an email late Wednesday. “Her record suggests that she was keenly aware and sensitive to what side her bread was buttered on. She threw out precedent out again and again to deliver decisions that benefited the business community that paid her bills.”
Professor Steffey notes, however, the fact that Owen accepted campaign contributions from corporations that later appeared before her as a judge would not disqualify her from ruling on Minor’s motion for release or hearing his appeal, despite the marked parallels between her corporate rulings and what Minor has been convicted of doing.
Steffey said that the allegations against Minor and his onetime co-defendant Justice Oliver Diaz seem to have stemmed from “pretty standard campaign activity.”
“One thing that always troubled me about the prosecution of Justice Diaz was that I never understood what he was alleged to have done wrong,” Steffey said. “These campaign finance issues are kind of nebulous.”
Minor has already served two years of his seven-year sentence. Prosecutorsargued that Minor should not be released because he presents a danger to the community. The lower court agreed, and Owen’s ruling supports that ruling.
Judge Owen’s order comes as a blow to Minor, who had hoped to be released to care for his wife, Sylvia, who is suffering from late-stage terminal brain cancer.
Out Of My Mind 