From what I’ve read, he may have at least one decent argument.
It is not this one:
Lawyers for Scrushy said there was no evidence of an explicit promise, a quid pro quo agreement, to swap the donations for Scrushy’s appointment to the state Certificate of Need Review Board.
“If this conviction is upheld, it means in Alabama anytime you make a contribution politically and later are appointed to any position by the person receiving the contribution, it will be up to prosecutors to decide if they want to indict you,” said Terry Butts, one of Scrushy’s attorneys.
Guess what? That is exactly how the law works today. To convict for bribery, the prosecutors have to prove there was a quid pro quo. For Siegelman, that means he took the money intending to provide some benefit to Scrushy. For Scrushy, that means he gave the money intending to influence Siegelman. There is no requirement, though, that the intent be explicit. Circumstantial evidence is perfectly competent to prove the quid pro quo. The argument Butts summarizes in that paragraph has been made, and rejected, many, many times.
Does giving that much power to federal prosecutors scare you? It scares me, and I’m neither a politician nor a political supporter. Unfortunately, courts have not done anything to limit this discretion.
This one, however, is a good legal argument:
[Siegelman’s attorney Vinnce] Kilborn said the convictions should also be set aside because of the way U.S. District Judge Mark Fuller instructed the jury.
He said Fuller told the jury they would have to find that there was an express agreement between the two, or that the bribe was part of a pattern of gratuities, or gifts, to Siegelman.
But Kilborn said the judge should not have included the “pattern of gratuities” portion and that lawyers had objected to it during a conference with Fuller.
A bribe is something of value given with the intent to influence an official act. A gratuity is something of value given in appreciation for an official act. If A says to B, I’ll give you a campaign contribution if you award my company an official contract, then A has bribed B. On the other hand, if B – who has never even heard of A – introduces legislation favorable to A’s company, and A then gives B a contribution and says it is in appreciation for B’s acts, then A has given B a gratuity.
There is a statute that applies to federal officials that prohibits both bribes and gratuities. It has two different sections, and two different punishments. The statute that applies to state officials, however, does not so clearly forbid gratuities. As far as I know, that is an open question in the Eleventh Circuit.
So, what these guys are going to argue on appeal is that they were convicted for actions – giving and receiving gratuities – that are not prohibited by the statute under which they were indicted.
They have a good argument on the law. I am inclined to agree that the statute does not prohibit gratuities. Nevertheless, they will probably still lose. Most of the courts to consider this issue resolve it by saying something like “we do not decide if the statute prohibits gratuities because the evidence introduced at trial is sufficient to prove the existence of a bribe.” That is probably what will happen here. The Eleventh Circuit will avoid deciding whether or not the statute covers bribes and gratuities by holding that the evidence was sufficient to prove the existence of a bribe. Hence, whether or not it covers a gratuity is irrelevant.