December 22, 2016
As I’ve written before, much of the reporting on Senator Sessions’ bid for Attorney General has failed to dig deeper than the top-level talking points of his opponents. New reports are out digging up a decades-old lawsuit Sessions was involved with in which a state judge wrote that “the misconduct of the Attorney General in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by this court.
”Sounds pretty damning, at least until you learn that the order quoted above itself was found “particularly unreliable and misleading” by a unanimous panel of the Eleventh Circuit Court of Appeals. The appellate court faulted the judge below for simply cutting and pasting his order from the opposing lawyer’s briefs, which explains the over-the-top language. Far from finding prosecutorial misconduct, the Eleventh Circuit held that there had been probable cause for prosecution. And it found the trial court’s order to be sufficiently misleading that the $7.2 million verdict in a related civil case was thrown out because the jury had been read that order.
To clarify the timeline of the case, it began in 1995 when a Tieco whistleblower disclosed evidence of fraud to a customer company, USX, which in turn disclosed it to Sessions, then Alabama Attorney General. Following an investigation which uncovered Tieco’s own records which suggested fraud, a grand jury indicted Tieco in July 1996. The Eleventh Circuit later held that the witness and record evidence was sufficient at the time to support prosecution.
In mid-1996, while the case was pending and Sessions was running for Senate, Tieco filed an ethics complaint with the Alabama Ethics Commission that was investigated and rejected unanimously, 5-0. At least one news outlet has characterized the cooperation between USX and the AG’s office in the case as a “bizarre arrangement” and suggested it was following up on the malicious prosecution decision. But the idea that the customer who was allegedly being defrauded should not be allowed to assist the state Attorney General in accessing records that would prove the fraud is itself bizarre. And the ethics investigation itself was only required because Tieco’s counsel had gone on the offense to file ethics charges in the middle of the litigation.
In the course of the trial it became apparent that the whistleblower witness’ testimony was weaker than it had originally seemed. In 1997, shortly after Sessions stepped down as AG to take his Senate seat, the judge granted a motion to dismiss the case. In an unusual move, he adopted as part of his final order the defense counsel’s own brief, even the hyperbolic language alleging prosecutorial misconduct.
That’s right: the language trashing the Attorney General’s office was written, not by the trial judge, but by the very aggressive opposing party in the case.
At the time, Sessions characterized the case as one in which the prosecution had been abused by the defense lawyer and maintained that the allegations of misconduct were “unfounded and without merit.”
The Eleventh Circuit apparently agreed. While they never got a chance to weigh in on the criminal case itself, which was in state court, a civil case based on the same factual allegations did make it up to the federal appellate court.
Although Tieco dodged the fraud allegations in the criminal trial, its customer USX filed a civil case in federal court. Tieco countersued, alleging malicious prosecution by USX and basing its case almost entirely on the state court order language that Tieco itself had drafted. The jury awarded Tieco $7.2 million.
But the Eleventh Circuit tossed out the verdict, citing the state court’s “particularly unreliable and misleading” order and its prejudicial effect on the jurors. While the court couldn’t directly overturn that order because the criminal case wasn’t the one being appealed, having the appellate court treat an order that way sends a clear signal: it thought the order wasn’t worth the paper it was written on.
The Eleventh Circuit did something the media ought to do. Before jumping on a sensational story, it weighed the reliability of the order to determine whether it represented a serious effort to determine that Sessions or his office had engaged in prosecutorial misconduct.
I’ll add that the report of this case by CNN was especially unfair in suggesting that Sessions was hiding the case by not listing it in his judicial questionnaire as one of his “most significant litigated matters,” and by speculating that he didn’t want to draw attention to it because it was a “major embarrassment.” In fact the questionnaire didn’t ignore the case: The relevant facts of the ethics complaint were properly disclosed to the Judiciary Committee, and two press releases from the prosecution were part of the public portion of the questionnaire. The fact that Sessions didn’t rank the case as one of the most significant matters he had ever handled is hardly sinister. And CNN’s failure to note the inclusion of the information elsewhere in the questionnaire raises questions about the journalists’ willingness to do the homework necessary to report the truth.A headline reading “Decades-old Charges of Misconduct Against Sessions Have Been Repeatedly Discredited” isn’t exactly clickbait. But that’s about what this nothingburger of a story deserves.