Paul Minor continues to languish in prison, awaiting an overripe decision from the 5th Circuit, while Karl Rove remains free and working intensely to cloud his role in the partisan political prosecutions of Democrats across the country. Willing stenographers at The New York Times reprinted Rove’s spin, he could not have bought a better version.
But new developments in Minor’s case hold promise that the tables are turning.
Fifth Circuit appeals court judges reviewing Minor’s case recently requested an “almost unprecedented second round of post-argument briefing-pressing the Justice Department to explain its decision to reindict following the initial acquittal and hung jury. They are focused on just the act that may have saved Lampton’s career as a U.S. attorney, and they are suggesting that it looks improper,” reports Scott Horton.
The second supplemental brief filed by Paul Minor’s attorneys clearly lays out the argument that Lampton and Bush’s DOJ recycled the exact same charges in Minor’s second trial that failed the first time around, amounting to “double jeopardy” in lawyer speak.
“The Double Jeopardy Clause prevents the government from relitigating any issue necessarily decided by a jury’s acquittal in a prior trial,” Minor’s attorneys wrote in their second supplemental brief. “Despite the acquittals of Mr. Minor and Mr. Whitfield in 2005, the government chose to prosecute both men a second time under the very same theory rejected by the jury in the first trail.” [pg 3 of PDF]
That behavior is not only unethical, but also unconstitutional, as the Supreme Court recently upheld in Yeager v. United States. The Fifth Circuit may be close to ruling as much, given that the judges’ multiple requests for additional information appear to favor Mr. Minor’s defense.
Lampton was handling one case that was a matter of intense concern to Republican Party leaders in Mississippi as well as to Karl Rove in the White House: the Minor prosecution. That prosecution was used heavily by the Republicans in their efforts to portray their Democratic opponents as “corrupt.” As I noted previously, it formed the core of a Republican advertising campaign, coordinated perfectly with Lampton’s prosecution efforts. It sent a message to campaign contributors in Mississippi that they donated to the Democrats at their great peril. The coffers of the state Democratic Party quickly went dry, helping to ensure a series of Republican election triumphs.
But Lampton’s efforts failed in the courtroom. The trial resulted in the outright acquittal of one defendant and a hung jury on the balance. That was in August 2005, as Lampton’s name appeared on the list of U.S. attorneys to be fired. In December 2005, however, he secured a new indictment of Minor and the judges. A few weeks later, Lampton’s name was removed from the firing list.
The convictions of Paul Minor and his codefendants are now on appeal, with a ruling past due. The appeals court judges hearing the case have requested an almost unprecedented second round of post-argument briefing–pressing the Justice Department to explain its decision to reindict following the initial acquittal and hung jury. They are focused on just the act that may have saved Lampton’s career as a U.S. attorney, and they are suggesting that it looks improper. Any lawyer knows that projecting a ruling on the basis of a judge’s questions is problematic, but at this point things don’t look good for the Department of Justice.