Ex-Macomb prosecutor says U.S. case against Fieger is politically motivated

A former Macomb County prosecutor says the U.S. Attorney’s Office likely is targeting Southfield lawyer Geoffrey Fieger because of his outspoken progressive political views.

Carl Marlinga, a Democrat who is now in private practice, was unsuccessfully prosecuted by the U.S. Attorney’s Office in 2006. He says the case against Fieger, who is charged with illegally donating $127,000 to former Sen. John Edwards’ presidential campaign, is the latest example of a Justice Department gone awry.

“In general the U.S Attorney Offices run clean and pure, but when you get the Bush Administration in charge from Washington you do see a tendency to play outside the rules,” Marlinga said. “It’s very cynical, very corrupt, very bad. [In this case] we have those kinds of people in the Justice Department in the Bush Administration on one side and Geoff, who’s very outspoken, maybe too strident, on the other side and he just naturally becomes a target.”

Fieger and his partner Vernon Johnson were indicted last August for allegedly recruiting friends, family, employees and vendors to contribute to Edwards’ campaign, then reimbursing them for their donations. Fieger and Johnson claim the prosecution is politically motivated.

Continued -The indictments came after a federal investigation, which followed an earlier state investigation by Republican State Attorney General Mike Cox that had run aground. The federal investigation began in 2005 when dozens of FBI agents raided Fieger’s law office and interviewed 32 of his employees.

Fieger’s claim of being the victim of a politically motivated vendetta rests in part on the unusual scale and intensity of the U.S. attorney’s investigation. Fieger, who recently returned to Michigan after a trial in Indiana, has not responded to a request for an interview. 

“I do believe if it were not Geoffrey Fieger, this would not have gone to a criminal prosecution,” Marlinga said. “Because most other cases that involve these allegations have settled with a civil settlement and payment of a fine or payment of monies back — it’s just been an economic sanction. To move it into the criminal arena is a bit extreme and raises suspicions.”

In 2006, Marlinga, a Democrat who in 2002 ran for the congressional seat now held by Republican Candace Miller, was acquitted of bribery and wire fraud charges brought by the U.S. Attorney’s Office.

The prosecution claimed he had agreed to help two men convicted of rape in exchange for $34,000 in contributions to his unsuccessful congressional campaign. Miller and the State Republican Party requested the investigation.

Several media reports have pointed to similarities between Fieger’s case and the prosecution of former Alabama Gov. Donald Siegelman, a Democrat.  In that case the Republican state attorney general began investigating Siegelman shortly after he took office in 1999, pairing up with a U.S. attorney who had tried and failed to convict Siegelman of Medicaid fraud. Siegelman lost his 2002 re-election bid in a disputed contest.

In 2005, when he was running for governor again, federal prosecutors charged Siegelman with bribery. He was found guilty on seven of 33 counts and is serving seven years in prison. 

In July 2007, congressmen including House Judiciary Committee Chairman John Conyers (D-Detroit), wrote to then-Attorney General Alberto Gonzales asking him to provide documents pertaining to Siegelman’s conviction and stating their concern that it may have been part of a pattern of selective political prosecutions by a number of U.S. attorneys across the country.

On Aug. 28, Gonzales announced his resignation in the face of a scandal regarding the Justice Department’s firing of nine U.S. attorneys so that they could be replaced with others more sympathetic to the Bush Administration’s agenda.

Fieger, a Democrat who ran for governor in 1998, argues that the investigation of him initially focused on allegations that he paid for anonymous attack ads against Republican Michigan Supreme Court Justice Stephen Markman in Markman’s 2004 re-election campaign.

The U.S. Attorney’s Office has disputed that claim. The office’s spokeswoman said Wednesday it had no comment after federal Magistrate Mona Majzoub order Fieger to pull TV ads that accuse the Bush Administration of selectively prosecuting him. Majzoub issued a gag order for both sides in the case. 

Markman, when he was the U.S. attorney in Detroit, hired Stephen Murphy as an assistant. Bush later appointed Murphy U.S. attorney in Detroit. Markman also hired Jonathan Tukel, now senior counsel to the U.S. attorney.

Murphy, Tukel and Assistant U.S. Attorney Terrence Berg all contributed to Markman’s Supreme Court campaigns. The Justice Department recused them from participating in the Fieger investigation.

In a 30-page opinion issued Jan. 23, U.S. District Judge Paul Borman ordered Assistant U.S. Attorney Lynn Helland to explain to Fieger the reason for recusing Murphy, Berg and Tukel and to provide Fieger with a list of cases in eastern Michigan where large numbers of federal agents were used to conduct a raid or to interview witnesses. On Jan. 30, Helland filed a request that Borman correct several key points in his opinion.

The Fieger case is scheduled to go to trial in April.

Fieger’s claim — that he is being selectively prosecuted — draws on an area of law that is not well settled, Marlinga said. Typically, selective prosecution is applied in cases involving race or religion; an African-American defendant being prosecuted for a crime, for example, claims she would not be prosecuted if it weren’t for her race.

Fieger is claiming selective prosecution based on his political views — not a typical application of the law, Marlinga said.

“And before we can determine that, we need to know what the facts are,” he said. “The judge might decide he was prosecuted because he was outspoken, but that that’s not a defense; or he might say it is a defense. But before you can make a call if it was an underlying factor, you need to know the facts.”