Don Perata is nothing if not a political and public relations
genius. His decision last week to publicly lambast the US Attorney’s
Office in Sacramento for taking over the once-dormant federal
corruption probe of him was a masterstroke. His spokesman Jason
Kinney called the US Attorney’s move late last year politically
motivated, a “highjacking of the case by a Bush appointee in the waning
days of the Bush administration.” In short, the former Democratic state
senator claimed that he was a victim of a vast right-wing conspiracy.
It’s a charge he has leveled repeatedly during the past four-plus
years. But a closer look at the case reveals little evidence of any
conspiracy against him. Still, there’s a chance that Perata’s
allegations may influence prospective jurors or intimidate prosecutors
into not filing public corruption charges against him.
Perata has been under investigation by the FBI since 2003. The case
originally focused on his former aide and onetime Oakland lobbying
powerhouse Lily Hu. The feds have been examining whether the
senator traded official favors in exchange for illegal bribes or
kickbacks funneled through Hu; Perata’s son, Nick Perata; or
Perata’s longtime pal, Timothy Staples. All have said they did
nothing wrong.
Last summer, it looked like the US Attorney’s Office in San
Francisco was on the verge of finally filing charges against Perata.
Both this newspaper and the Wall Street Journal published
stories, citing anonymous sources who said they expected that the
Perata indictment was going to happen soon. But then the summer and the
fall came and went, and nothing happened. Sources now tell Full
Disclosure that the San Francisco federal prosecutors backed off after
the Perata defense team convinced them that they could never persuade a
jury that the senator was guilty beyond a reasonable doubt. Perata has
a first-rate, highly paid team of lawyers, led by former federal
prosecutor George O’Connell. It appears that the San Francisco
US Attorney also was nervous about Perata’s repeated claims that the
probe was a product of the Bush administration, which had an undeniable
track record of politicizing the Justice Department under former
Attorney General Alberto Gonzales.
Perata claimed last week that Sacramento US Attorney McGregor
Scott, another Bush appointee, poached the case in a GOP-motivated
vendetta. However, neither the senator nor his defense team has
provided any evidence to back up that allegation. But there is evidence
that FBI agents were unhappy with the decision by the San Francisco US
Attorney and decided to take their case to Sacramento. “We don’t reach
out, the FBI reached out to us,” Lawrence Brown, the new acting
US Attorney in Sacramento, who took over for Scott when he retired in
January, told Full Disclosure. “It’s an absurd allegation that we
‘highjacked’ the case. It smacks of desperation. The FBI approached us.
McGregor Scott, the US Attorney, did not seek this case out. It’s
simply false that there is anything improper in the case.”
If Perata’s allegation is true, then Brown must be lying. But it
sure doesn’t sound like it. Brown said his office felt the Perata probe
was “serious enough” to examine. Brown also noted that if his office
ultimately decides to bring charges against Perata, they will
effectively be coming from the Obama administration’s Department of
Justice, now run by Attorney General Eric Holder, thereby making
the right-wing conspiracy allegation patently ridiculous. Brown said
that the Holder Justice Department Public Integrity unit is working on
the Perata case with his office. And he indicated that no charges will
be filed without the okay from Washington, DC.
So what about the FBI? Are they on a right-wing witch hunt, too?
That seems unlikely. The FBI was one of the few agencies within the
federal government to show some independence from the Bush White House.
It was the FBI, for example, that refused to go along with torture. In
fact, FBI Director Robert Mueller spoke out against torture, and
forbade his agents from engaging in so-called “enhanced interrogation
techniques” after learning that the CIA and military interrogators were
using them.
In a subsequent interview, Perata’s spokesman Kinney backed away
somewhat from his earlier claim that the Sacramento US Attorney’s
Office was politically motivated. Instead, when asked to respond to
Brown’s assertion that his office did not poach the case, Kinney pinned
the blame on “rogue FBI agents” who have it out for Perata and were
frustrated that San Francisco prosecutors dropped the case based on a
“lack of merit.” “This is about rogue, runaway FBI agents who have now
found someone who will continue to demonize Senator Perata,” he
said.
The Perata defense team also claims that the Sacramento US Attorney
has violated agreements it had with the San Francisco US Attorney’s
Office. Specifically, the Perata defense had repeatedly agreed to
suspend the statute of limitations on allegations against the senator
in exchange for the promise that prosecutors would give them a thorough
chance to counter those allegations before bringing charges. By all
indications, San Francisco prosecutors lived up to that bargain and it
apparently resulted in their decision to ultimately not file charges
against the senator. But Kinney said they would never have signed off
on the agreements if they knew that the case would transfer to another
US Attorney’s Office.
On closer look, however, that claim appears shaky. Typically, in
these types of deals, prosecutors ask defense attorneys to suspend the
statute of limitations, telling them if they refuse then they will be
forced to bring immediate charges against the defendant. So Perata had
a strong incentive to agree to such a deal. If he hadn’t, then he would
probably been on trial by now. Instead, he took the deal, and for a
time, it looked like it had worked out for him.
Brown, meanwhile, said it should come as no surprise to Perata that
his office has taken over the case, because he said Sacramento federal
prosecutors have been meeting with the former senator’s lawyers “since
last fall.” He also maintained that his office’s decision to take over
the case does not violate any agreement. He said that the deals Perata
made weren’t just with San Francisco prosecutors. “It’s our position
that the agreements were between defense counsel and the United
States,” he said. “They were not limited to the US Attorney’s Office in
San Francisco.” He added that if his office ultimately decides to bring
charges against Perata, he expects the issue over the statute of
limitation deals will be litigated.
So will Perata ever be indicted? Well, the Sacramento US Attorney’s
Office looks like it’s fairly serious. It is unusual for one set of
prosecutors to take over a case after another set chooses not to file
charges. So the Sacramento US Attorney must be convinced that there is a case against the senator, or why would it risk alienating its
colleagues in San Francisco? In addition, the Sacramento US Attorney’s
white-collar crime unit, which is handling the case, is full of veteran
prosecutors who have experience with public corruption cases. And
they’re being assisted by the main public corruption unit in the
Department of Justice. By contrast, the San Francisco US Attorney’s
Office was decimated over the past decade by attorney defections
because of unhappiness with former US Attorney Kevin Ryan, who
was fired for incompetence. Current San Francisco federal prosecutors,
as a result, have little experience with public corruption cases.
It’s also no secret that some federal prosecutors are uncomfortable
bringing cases they might not win, while others relish a tough fight.
It’s obvious that the case against Perata will be a difficult one to
win. But it also looks as if the Sacramento federal prosecutors are no
shrinking violets. They don’t seem the types to be intimidated by
Perata’s claims of a right-wing conspiracy.
Speaking of Brilliant and Cynical
Masterstrokes
Jerry Brown got a lot of accolades for his opposition to
Proposition 8, the anti-gay-marriage initiative (including some from
Full Disclosure), but it was clear from last week’s historic state
Supreme Court hearing that the attorney general did more harm than
good. Brown maintained that he was with the same-sex marriage
supporters, but then he significantly undercut their argument. In fact,
the hearing made one wonder whether Brown inserted himself into the
Prop. 8 fight for purely political reasons.
The primary battle at the hearing was an argument over whether Prop.
8 was an illegal revision to the state constitution or a legal
amendment. Lawyers for gay marriage supporters argued that it was a
sweeping, illegal revision, and as a result, same-sex marriage couldn’t
be outlawed by a simple majority vote (Prop. 8 won in November by four
percentage points). Anti-gay marriage attorneys argued the opposite
— that Prop. 8 was an ordinary amendment that only needed 50
percent plus one to become law.
But then Christopher Krueger, a senior assistant attorney
general who represented Brown at the hearing, admitted that his boss
agreed with the anti-gay marriage folks — that Prop. 8 was a
legal amendment to the constitution. One justice even asked Krueger
what side Brown was actually on. It was a serious blow to the pro-gay
marriage movement, because the court typically takes the attorney
general’s opinions seriously. By agreeing with anti-gay supporters,
Brown gave the Supreme Court cover to uphold Prop. 8.
Krueger, who repeatedly stumbled over his words and was easily the
worst debater at the hearing, then tried to proffer Brown’s esoteric
argument. Specifically, he said that Prop. 8 should be tossed —
even though it was a legal amendment — because it violated the
concept of “inalienable rights” under the state constitution. But most
of the justices would have nothing of it, dismissing the argument out
of hand. Justice Joyce Kennard, who voted for gay marriage last
year, skewered Krueger, noting that Brown’s argument mostly rested on
out-of-date court decisions from the mid-19th century. Clearly, if
Brown wanted to help the cause of gay marriage, then he should have
stayed out of the fight completely or argued that Prop. 8 was an
illegal constitutional revision. But by taking a position that was
obviously unwinnable, he helped the anti-gay marriage cause.
The hearing also provided evidence that Brown’s true reason for
entering the legal fray may have been to offset the popularity of one
of his likely political opponents, San Francisco Mayor Gavin
Newsom. Newsom is a strong gay-rights backer and a likely candidate
against Brown in the 2010 Democratic primary for governor. It was
Newsom who started the gay-marriage battle when he unilaterally decided
to wed gays and lesbians in San Francisco several years ago. But Brown
can now say he fought the good fight for gay marriage, just like
Newsom, thereby undercutting Newsom’s claim to fame.
Brown also has to know that it’ll be a tough, complicated argument
for Newsom to make that the attorney general helped the anti-gay forces
— while calling for Prop. 8 to be overturned. And because the
court appears ready to affirm Prop. 8, Brown won’t ever be blamed by
conservatives for helping gays and lesbians overturn the will of the
people. So congratulations, Jerry, for your brilliant and cynical
masterstroke. You blazed a path for yourself to the governor’s mansion
while helping set back the cause of equality at the same time.
