Why Was the Case Against Perata Abandoned?

The Don says it's because he's innocent, but there were many factors in play.

When federal prosecutors announced last week that they had decided
to not seek public corruption charges against Don Perata, the
former state senator said he had been fully “vindicated.” Even some
media organizations declared that Perata had been “cleared” of
wrongdoing. But is that true? Did prosecutors, after reviewing the
evidence, including several years of grand jury testimony and thousands
of pages of documents, determine that Oakland’s leading mayoral
candidate was not guilty? Or did they drop the case because there
simply wasn’t enough evidence to secure a conviction against him? We
may never know the answers to those questions because prosecutors are
declining to say how they arrived at their decision or what it really
means. But a review of the case reveals that there were likely several
factors in play.

First, there’s the possibility that Perata really was innocent. Of
course, that’s what the senator has claimed since the probe became
public in late 2004. And in a statement last week, he declared: “This
is a complete affirmation of everything I’ve maintained for the last
five years — that I’ve acted appropriately in both my
professional life and my career in public service.” Perata and many of
his supporters also have maintained for years that he would ultimately
never be charged, and strongly disputed reports last year, including
one by this newspaper, that felony charges were imminent. On that
point, they were right, of course.

However, readers of these pages can guess that Full Disclosure
doesn’t view the senator’s long political career the same way he does.
There is plenty of evidence, for example, that the Oakland Democrat has
been the most ethically challenged politician in the East Bay for the
past two decades. He has repeatedly provided official favors for his
biggest campaign donors, from lobbying on behalf of a $40 million
publicly funded road in Alameda for his buddy Ron Cowan to
carrying legislation would have put a tax on diapers. Perata also used
at least $1 million from his stable of donors to finance a lavish
lifestyle, including dining in California’s finest restaurants and
staying at its best hotels, even ones just a short drive from his home.
So, yes, Perata has acted “appropriately,” if you consider pay-to-play
politics and living large to be the best way to conduct the public’s

Second, some might argue that Perata really was a victim of a
Bush-administration conspiracy against prominent Democrats. The
senator, his chief spokesman Jason Kinney, and his lead attorney
George O’Connell have leveled this allegation repeatedly for the
past several years. O’Connell trotted it out again recently in a
complaint letter to the US Department of Justice after the Sacramento
US Attorney had decided to review Perata’s case even though the US
Attorney’s Office in San Francisco chose not to file charges. “As the
entire country knows by now,” O’Connell wrote, “the Bush administration
has been the subject of several inquiries pertaining to the selective
prosecutions and the unfair and highly politicized targeting of
Democratic politicians.”

O’Connell’s assertion is true, of course, and that gave this
allegation legs. There is no dispute that the US Department of Justice
was politicized under former Attorney General Alberto Gonzales.
It’s also fairly clear that Gonzales fired several US attorneys for not
targeting Democratic public officials often enough. The only problem is
there is no proof that this ever occurred in the Perata case. There is
no evidence that anyone in the Bush administration ordered or directed,
or even encouraged, federal prosecutors in California to go after
Perata. Still, it does seem possible that the multiple black eyes the
Justice Department received during the Bush administration may have
played a role in the decision to shy away from the Perata case —
especially since O’Connell and Perata made such a big deal out the
department’s problems and were likely going to continue to do so.

Third, it’s entirely possible that the case against Perata was weak.
From all that’s in the public record, it appears that FBI agents were
never able to produce a smoking gun that proved Perata took bribes or
kickbacks. Sure, they had evidence that he provided favors to donors
and then those donors’ campaign contributions were funneled to his son,
Nick Perata, and to his college pal Timothy Staples, who,
in turn, paid Perata for “consulting” work or for renting out office
space and living quarters.

But Perata always maintained that the hundreds of thousands of
dollars he got from his son and his friend had nothing to do with his
official government work, and it would have been hard for prosecutors
to convince a jury otherwise — without some eyewitness testimony
that prosecutors apparently didn’t possess.

Fourth, it’s possible that the senator’s first-rate, highly paid
defense team made a big difference. This also appears to be true.
O’Connell is not only an ex-federal prosecutor, but he’s the former US
Attorney for Sacramento. In other words, he once held a job that most
federal prosecutors can only dream of attaining. Plus, he’s a bulldog.
He repeatedly demanded investigations and complained about
prosecutorial conduct, firing off letters to Congress and the
Department of Justice in Washington, DC — where he is well known
and respected.

According to sources, he also managed to convince federal
prosecutors in San Francisco last year to drop the case. Both this
newspaper and the Wall Street Journal printed stories last
summer saying that charges against Perata appeared to be imminent. The
Express story was based on anonymous sources and the
Journal’s report cited sources close to Perata’s defense team.
In short, some of the senator’s own people apparently thought he was
going to be indicted. But then, sources told Full Disclosure, O’Connell
went to work and convinced the US Attorney’s Office in San Francisco
that its case was too flimsy and that it could never convince a jury
beyond a reasonable doubt that Perata was guilty.

The senator, not surprisingly, paid O’Connell extremely well for his
accomplishments. In all, Perata spent more than $3.8 million on his
legal defense, starting in January 2005, when he first began taking
donations, through January of this year, according to his campaign
finance disclosures. That’s an enormous sum, considering that no
charges were ever filed in the case.

And although the senator has denied it, there is evidence that
Perata himself thought he was close to being indicted last year.
According to his financial disclosures, the senator spent more than
$2.2 million — about 58 percent of all the money he spent —
in 2008 alone. That’s more than four times more than he spent in each
of the previous three years, on average. If Perata didn’t think he was
close to being charged, why shell out all that money in a last-ditch
attempt to convince prosecutors not to charge him?

And finally, there’s the Ted Stevens angle. When the
Sacramento US Attorney’s Office decided to look into the Perata case
late last year after San Francisco federal prosecutors turned it down,
Acting US Attorney Lawrence Brown and the FBI also consulted
with the Department of Justice’s Public Integrity Unit in Washington
DC, which, in turn, also reviewed the case. That decision appeared to
make sense because the DC team is considered the nation’s elite when it
comes to white-collar crime and public corruption cases. It also would
have made sense for the DC team to take over the Perata case and
prosecute it in San Francisco. That way, the government wouldn’t have
to worry about jurisdictional problems that came with prosecuting the
case in Sacramento, and thus could preclude charges for alleged illegal
activity that originated in Oakland.

But the DC team also had a huge downside. Late last year, it came
under heavy criticism for its conduct in the prosecution of Alaskan
Republican Senator Stevens. The team had plenty of evidence against
Stevens and even won a conviction against him, but it screwed up the
case so badly that newly appointed Attorney General Eric Holder
ultimately decided to drop all charges — and ordered ethics
investigations of the prosecutors. Like Perata, Stevens subsequently
claimed that he had been vindicated. As a result, it’s not hard to
imagine why the DC team may have backed away from pursuing another
public corruption case in which the defense team had complained loudly
and often about alleged prosecutorial misconduct. At the very least,
the DC team’s involvement in the case threatened to be an asset for
Perata, because of what happened with Stevens.

So what does it all mean? There appear to be a lot of possible
explanations for why Perata beat the rap. But that doesn’t necessarily
mean he’s been “vindicated” or “cleared.” It does mean, however, that
he is now free to run for mayor of Oakland without having to worry
about a federal probe hanging over him. And because he’s one of the
most prodigious fund-raisers in the state, he’ll be tough to beat. The
question is whether voters will view the ethically challenged Teflon
Don as the best person to run a city with so many problems of its own.

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