Leura Garrett Canary

Crossposted at Oxdown Gazette.

Personal Information: Leura Garrett Canary

• Name: Hon. Leura Garrett Canary
• Employment: United States Attorney for the Middle District of Alabama
• Address: P. O. Box 197, Montgomery, AL 36101-0197
• E-mail: leura.canary@usdoj.gov
• Phone: (334) 223-7280
• Date Admitted: September 25, 1981
• Law School: University of Alabama

Leura Garrett Canary was nominated by Pres. George W. Bush to be the United States Attorney for the Middle District of Alabama. Since assuming this position in September 2001, Mrs. Canary has failed to adhere to even the most basic tenets of professional conduct required of her by her membership in the Alabama State Bar, beginning with the Preamble to the Alabama Rules of Professional Conduct which states, in part, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. [Emphasis supplied.]

The following analysis establishes that Mrs. Canary has violated her obligations under the Alabama Rules of Professional Conduct by her continued participation in the prosecution of Gov. Don Siegelman after her supposed recusal from the matter and that her conduct raises a substantial question as to her honesty, trustworthiness and fitness to practice law. Specifically, Leura Garrett Canary violated the following Alabama Rules of Professional Conduct:

1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
5. RULE 3.6 TRIAL PUBLICITY
6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
11. RULE 8.4 MISCONDUCT

Statement of Facts

On November 7, 2008, Rep. John Conyers, as Chairman of the House Committee on the Judiciary, and Rep. Linda Sanchez, as Chair of the Subcommittee on Commercial and Administrative Law, sent a letter to Attorney General Michael Mukasey in which they succinctly set forth the facts under which Mrs. Canary – allegedly – recused herself from the prosecution of Gov. Don Siegelman:

Department of Justice records show that United States Attorney Leura Canary recused herself from the Siegelman case on May 16, 2002. According to the Acting United States Attorney responsible for the case, “In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest.” [Footnote] 15 Mr. Franklin further explained that “Ms. Canary had no involvement in the case, directly or indirectly, and made no decisions in regards to the investigation or prosecution after her recusal. Immediately following Ms. Canary’s recusal, appropriate steps were taken to ensure the integrity of the recusal, including establishing a ‘firewall’ and moving all documents relating to the investigation to an off-site location. [Footnote] 16 On October 5, 2007, Mr. Franklin stated again “[Leura Canary’s] recusal was scrupulously honored by me.” [Footnote] 17 These statements have been repeated many times and have been relied on by defenders of the Department’s handling of this politically-sensitive matter.

[Footnote] 15 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 16 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 17 October 5, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://www.wsfa.com/global/story.asp?s+7176844&ClientType=Printable

On May 16, 2002, Mrs. Canary clearly and unequivocally declared that she had recused herself from the prosecution of Gov. Siegelman stating in this press release that:

As to any matters pertaining to any current investigation of state officials or matters of state government which may or may not be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.

It is of the utmost importance to me, as a United States Attorney, that the people in the Middle District of Alabama and throughout the State have confidence in the manner in which matters are handled by me and by the office I serve and that no one has a basis under which to question the integrity of any investigation undertaken by my office. To that end, the Department has assigned responsibility for the supervision of any investigation regarding state officials or matters of state government to First Assistant United States Attorney Charles R. Niven.

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article September 14, 2007 article The Remarkable ‘Recusal’ of Leura Canary, Prof. Horton identified two material misstatements that raise the question of Mrs. Canary’s honesty regarding her recusal from the case:

I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.

Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” …

As far back as September 2007 when he published his article, Prof. Horton questioned whether Mrs. Canary had recused herself in fact and not just in word, noting that Mrs. Canary’s statement that she recused herself is only the beginning of the discussion:

And third, the press statement says she recused herself. But did she?

The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.

I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.

In September of 2007, the evidence that Mrs. Canary had not recused herself in fact from the prosecution that was available to Prof. Horton was limited to Mrs. Canary’s involvement in several press opportunities:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

However, as Rep. Conyers and Rep. Sanchez explain in their letter to Attorney General Michael Mukasey, documents – obtained by both Prof. Horton and Adam Zagorin – have surfaced that establish that Mrs. Canary did not, as a matter of fact, recuse herself from the prosecution of Gov. Siegelman:

Ms. [Tamarah] Grimes[, an employee of the United States Attorney for the Middle District of Alabama,] has provided several emails[*] casting serious doubts on these assertions, however. The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

[Footnote] 18 September 19, 2005, email from Leura Canary to JB Perrine, Steve Feaga, Louis Franklin, Debbie Shaw and Patricia Snyder.

[*Portions of the images of the e-mails released by Ms. Grimes are printed below.]

Regarding Mrs. Canary’s advice that the prosecution seek a gag order against Gov. Siegelman, Adam Zagorin reported on November 14, 2007 at Time.com that the prosecution team did just that:

Prosecutors in the case seem to have followed Canary’s advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman’s public statements about political bias — like the one Canary had flagged in her e-mail — as grounds for increasing his prison sentence. The judge’s action is now one target of next month’s appeal.

Writing at the Daily Beast, Prof. Horton characterized Mrs. Canary’s conduct in this manner:

Canary, attaching a Siegelman campaign missive to one email, noted that Siegelman claimed that the prosecution is politically motivated and that 67 percent of Alabamans agree with him. Canary suggested that her subordinates obtain a gag order against Siegelman to bar him from making any references to the political nature of the charges brought against him. The communication suggested that Canary’s motivation is, just as Siegelman alleges, political in nature. More significantly, it demonstrates that Canary continued to drive the case notwithstanding her “recusal.”

In fact, the prosecutors sought a gag order against Siegelman and persuaded the judge, a former member of the Executive Committee of the Alabama G.O.P., to ratchet Siegelman’s sentence upwards because he claimed he was a victim of a political prosecution led by Republicans. (Recent polling suggests that Alabamans believe by overwhelming margins that Siegelman was a victim of a political prosecution, and newspaper editorial boards across the state called for his release.)

In another email, Canary’s first assistant referred to Canary making staffing decisions surrounding the prosecution of the Siegelman case long after her “recusal.” These allegations are backed up by the fact that Canary repeatedly appeared at news conferences concerning the Siegelman prosecution and granted at least three press interviews to discuss it—all after she said she had removed herself from the case.

In their letter to Attorney General Michael Mukasey, Rep. Conyers and Rep. Sanchez continue to document Mrs. Canary’s unethical conduct:

Ms. Grimes has provided other documents to the Committee that bear on this issue. In one email, Ms. Canary forwards another another article to essentially the same group of recipients. [Footnote] 19 This too appears improper and again raises the question why a recused United States Attorney would be providing such information to the active prosecution team. Another email notes that Ms. Canary was consulted about the decision to add Ms. Grimes to the Siegelman/Scrushy team – referred to as the “big case” – and states that “Leura and Louis both liked the concept[“] and further reports that “Leura asked me to pass this information [regarding Ms. Grimes’ role on the case] on …[.]” [Footnote] 20 We appreciate that a United States Attorney who is recused from a particular matter will continue to play a role in the overall administration of the office, but question whether participating in detailed discussions about the staffing of the matter from which she has been recused is appropriate and whether messages or information from the recused United States Attorneys should be passed on to new members of the team.

In her July 2007 report to OPR, Ms. Grimes elaborated on this subject, stating that “Leura Canary kept up with every detail of the case through Debbie Shaw and Patricia Watson.” [Footnote] 21 Once again, if this statement is accurate, it raises serious concerns. It is difficult to imagine the reason for a recused United States Attorney to remain so involved in the day to day progress of the matter under recusal.

[Footnote] 19 September 27, 2005, email from Leura Canary to Steve Feaga, Louis Franklin, JB Perrine, and Patricia Snyder.

[Footnote] 20 April 6, 2005, email from Patricia Snyder to Steve Doyle

[Footnote] 21 July 30, 2007 Letter to H. Marshall Jarrett from Tamarah Grimes.

On November 21, 2008, Adam Nossiter at the New York Times reported that:

Yet in her complaint, the Justice Department employee, Tamarah T. Grimes, cited several instances suggesting Ms. Canary maintained a close watch on the case. Ms. Grimes said a legal aide in the office reported on Mr. Siegelman’s trial to Ms. Canary or her top deputy “every day, sometimes several times per day by telephone.” Once, she observed Ms. Canary “frantically pacing in the executive suite” after a courtroom blowup, “pleading with someone” to get on the phone to “tell Louis he has to control his temper.”

Ms. Grimes also disclosed an e-mail message written by Ms. Canary commenting on legal strategy in the case and suggesting to aides that Mr. Siegelman not be allowed to “comment on court activities in the media.” Ms. Grimes, who is also in a dispute with the department related to her accusations that the Siegelman prosecution team had harassed her, cited the affidavit of a former legal aide in the Montgomery office, Elizabeth Jane Crooks, who wrote that “the morning that the trial started, the U.S. attorney herself carried food and beverage over to the courthouse to support the ‘Trial Team.’ ”

Mr. Siegelman’s lawyers have reacted with anger to these contentions, saying they demonstrate that Ms. Canary never really took herself out of the case. “She was supposed to be recused precisely because her involvement would reek of political conflict of interest, yet she remained involved,” they wrote in a filing to the 11th Circuit court this week.

Mrs. Canary has denied any wrongdoing both personally and through her subordinates. In reviewing Mrs. Canary’s conduct, neither her nor Mr. Franklin’s statements that Mrs. Canary recused herself need not – and indeed must not – be accepted at face value. To the contrary, her denials of improper motives or conduct must be evaluated based on the totality of the circumstances. As provided in the adopted Terminology of the Alabama Rules of Professional Conduct, for Mrs. Canary to believe that her conduct was proper, she must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.”

For example, in her May 16, 2002 press release, Mrs. Canary admitted that “it would not be appropriate for me to discuss any investigations that may or may not be under review in my office.” However, as Prof. Horton notes in his article The Remarkable ‘Recusal’ of Leura Canary, Mrs. Canary made this statement to the Los Angeles Times:

Leura Canary said that suggesting she exerted political influence over the case was “a ridiculous assertion” because it was handled by a career prosecutor, Franklin, in conjunction with the public integrity section of the Justice Department in Washington.

As noted above, Prof. Horton reported on several interactions between Mrs. Canary and the press regarding the prosecution of Gov. Siegelman after her alleged recusal:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

Mrs. Canary’s denials were echoed by Louis V. Franklin, Sr., Acting U.S. Attorney in the Siegelman/Scrushy Prosecution:

When the investigation first began, Leura Canary was not the U.S. Attorney for the MDAL. Initially, the investigation was brought to the attention of the Interim U.S. Attorney, Charles Niven, a career prosecutor in the U.S. Attorney’s Office. Niven had almost 25 years of experience as an Assistant U.S. Attorney in the office prior to his appointment as Interim U.S. Attorney upon U.S. Attorney Redding Pitt’s (currently attorney of record for Defendant Siegelman in this case) departure.

Ms. Canary became U.S. Attorney in September 2001. In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest. Although Department of Justice officials reviewed the matter and opined that no conflict, actual or apparent, existed, Canary recused herself anyway to avoid even an appearance of impropriety. I, Louis V. Franklin, Sr., was appointed Acting U.S. Attorney in the case after Charles Niven retired in January 2003. I have made all decisions on behalf of this office in the case since my appointment as Acting U.S. Attorney. U.S. Attorney Canary has had no involvement in the case, directly or indirectly, and has made no decisions in regards to the investigation or prosecution since her recusal. Immediately following Canary’s recusal, appropriate steps were taken to ensure that she had no involvement in the case. Specifically, a firewall was established and all documents relating to the investigation were moved to an off-site location. The off-site became the nerve center for most, if not all, work done on this case, including but not limited to the receipt, review, and discussion of evidence gathered during the investigation.

* * *

Armed with cooperation agreements from Bailey, Young and Kirsch, the investigation continued. In June 2004, a special grand jury was convened to further assist in the investigation. An indictment was returned under seal against Mr. Siegelman and ex-HealthSouth CEO Richard Scrushy on May 17, 2005. The first superseding indictment was filed and made public on October 26, 2005, charging Siegelman, Scrushy, Siegelman’s former Chief of Staff Paul Hamrick, and Siegelman’s Transportation Director Gary Mack Roberts. …

However, as specifically noted by Rep. Conyers and Rep. Sanchez in their letter to Attorney General Michael Mukasey, it was during this exact time frame specified by Acting U.S. Attorney Franklin in which Mrs. Canary clearly was not recused in fact from the prosecution of Gov. Siegelman:

The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

In light of the evidence presented by Ms. Grimes and the contradictions between her actions and her contradictory, self-serving statements, Mrs. Canary’s denials are simply not believable. In short, “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, and, therefore, Mrs. Canary should have known that her conduct was improper even if she actually (and, in that case, quite incompetently) did not know her conduct was improper.

If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct. Although the Alabama State Bar Office of Legal Counsel has the authority to begin an investigation on its own volition, a state bar system will not normally begin a formal investigation until it receives a formal complaint. A formal grievance complaint can’t be filed online, but anyone – whether a resident of Alabama or not or otherwise involved in this matter – can easily file a grievance against Mrs. Canary with the Alabama State Bar in just three simple steps:

1. Print, complete and sign the official Alabama Complaint Against a Lawyer;
2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
3. Mail the complaint to the address noted on the Complaint Form.

Rules Violated by Leura Garrett Canary:

1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
5. RULE 3.6 TRIAL PUBLICITY
6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
11. RULE 8.4 MISCONDUCT

*Portions of the images of the e-mails released by Ms. Grimes. The complete images of the e-mails can be found here.

September 19, 2005 e-mail from Leura Garrett Canary:

September 25, 2005 e-mail from Leura Garrett Canary:

April 6, 2005 e-mail from Patricia Snyder to Stephen Doyle:

Tags: Adam Nossiter, Adam Zagorin, Alabama, Alabama Rules of Professional Conduct, Alabama State Bar, Daily Beast, Debbie Shaw, Department of Justice, Don Siegelman, Elizabeth Jane Crooks, Gary Mack Roberts, George W. Bush, Harper’s Magazine, H. Marshall Jarrett, House Judiciary Committee, JB Perrine, John Conyers, Leura Canary, Leura Garrett Canary, Linda Sanchez, Los Angeles Times, Louis Franklin, Louis V. Franklin, Michael Mukasey, Montgomery Adviser, New York Times, No Comment, Noel Hillman, Patricia Snyder, Patricia Watson, Paul Hamrick, Richard Scrushy, Scott Horton, Steve Doyle, Steve Feaga, Tamarah Grimes, Time.com, Time Magazine

h/ts: Legal Schnauzer, WriteChic Press, at-Largely and capt.

Thanks are also due to Scott Horton for all his contributions to reporting on the Siegelman prosecution.