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Andrew Brasher confirmed to federal bench; Marshall appoints new state solicitor general

Brandon Moseley

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Alabama Attorney General Steve Marshall applauded the confirmation of Andrew Brasher to serve as district judge on the U.S. District Court for the Middle District of Alabama on Wednesday. Marshall appointed Edmund LaCour to Brasher’s former position as solicitor general of Alabama.

“It is hard to imagine anyone who is more qualified to take on the responsibility of a federal judgeship than Andrew Brasher,” Marshall said. “He brings to the federal bench impeccable professional credentials as Alabama’s solicitor general and deputy solicitor general for the last seven years, during which time he successfully argued cases before Alabama Supreme Court judges and U.S. Supreme Court justices.”

Marshall appointed LaCour to fill the vacancy at solicitor general.

“I am pleased to announce the appointment of Edmund LaCour as the new Solicitor General of the State of Alabama,” Marshall said. “Mr. LaCour, a Wiregrass native, draws upon an impressive legal and academic background to lead my office’s legal team. He has served as Alabama’s deputy solicitor general since December 2018 and has already made his mark. In addition to arguing multiple appeals, he has drafted briefs in several important cases, including the state’s response to Mike Hubbard’s Alabama Supreme Court appeal. I look forward to his continued service on behalf of the state of Alabama here in the Attorney General’s Office.”

U.S. Sen. Richard Shelby, R-Alabama, praised the confirmation of Brasher.

“Andrew Brasher is an outstanding choice to serve as a district judge for the Middle District of Alabama,” Shelby said. “His judicial temperament and vast legal experience make him well suited to assume this new role. I congratulate him on this honor and am confident that his integrity and commitment to the rule of law will further contribute to the high standard of our nation’s judicial system.”

“Andrew Brasher is equally well versed in the law from an academic perspective as a cum laude law graduate of Harvard Law School where he was a member of the Harvard Law Review, as well as a former law clerk to Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit,” Marshall added. “I was proud to support Mr. Brasher’s nomination by President (Donald) Trump, and I wish him all the best as the newest judge on the U.S. Middle District Court here in Alabama.”

In addition to Brasher’s confirmation, six Alabama judicial nominees, initially nominated by Trump in 2017, have been confirmed. Corey Maze, who was nominated by Trump in 2018 to be a U.S. District Judge for the Northern District of Alabama, has been voted out of the Senate Judiciary Committee and is awaiting confirmation by the full Senate.

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Shelby said historic obstruction by Democrats has occurred during this administration’s attempt to confirm judges. The previous six presidents combined faced a total of 24 procedural votes on judicial nominees while Trump faced more than 100 during his first two years in office.

Last month, the Senate voted to reduce post-cloture debate time from 30 hours to two hours for certain executive and federal judicial nominations, including district court appointments, preventing further delay on confirming nominees.

Brasher was the solicitor general of Alabama before his nomination. In that role, he defended Alabama’s Sanctity of Marriage law, anti-abortion rights legislation passed by the legislature, Alabama’s voting rights law and filed briefs on behalf of the Alabama Attorney General’s Office opposing former President Barack Obama’s expansion of environmental laws.

This drew the ire of Democrats who had made a point of trying to block his nomination.

Attorney General Luther Strange appointed Brasher as solicitor general of Alabama in 2014. Brasher has served as deputy solicitor general since 2011.

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Courts

DOJ’s dropping of charges against Flynn may raise question in Siegelman case

Brandon Moseley

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Defenders of former Gov. Don Siegelman suggested that U.S. Attorney General William Barr’s dropping of federal charges against General Michael Flynn raises questions of the prosecution of Siegelman.

Flynn, a retired Lt. General, was President Donald Trump’s first national security adviser. He was investigated under the Logan Act as part of the wider Russian collusion investigation into the 2016 election, when Trump defeated former Secretary of State Hillary Clinton.

A preeminent scholar in prosecutorial misconduct, Professor Bennett Gershman, has now proclaimed the prosecutors of former governor Siegelman are the ones who should have been charged with a federal crime.

“Yes, the prosecutors should be in jail,” Gershman said. “Of the thousands of prosecutorial misconduct cases I’ve written about, the government’s bad faith described in Stealing our Democracy stands out and may be without parallel.”

“Stealing our Democracy” is Siegelman’s new book. The new book raised more questions of prosecutorial misconduct.

David C. Iglesias is a former Republican U.S. Attorney for New Mexico. He is now an associate professor of Politics and Law at Wheaton College in Illinois.

“If you doubt that politics are the mortal enemy of justice, read Stealing Our Democracy,” Iglesias said. “This is a sobering reminder of the vast powers the federal government has wrongfully used as a sledgehammer to achieve a conviction at any cost. Terrible things happen when you mix politics with prosecutions.”

The White House maintains that the prosecution of Flynn was a political exercise. White House Press Secretary Kayleigh McEnany blasted the effort to prosecute Flynn.

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“The FBI exists to investigate crimes. But in the case of Lieutenant General Michael Flynn, it appears that they might have existed to manufacture one,” McEnany said at the White House press briefing. “As the motion filed by the Department of Justice yesterday explained, the FBI set out to interview General Michael Flynn, when they had no predigate [sic] — predicate for any investigation of any crime.”

“Over the past week, we learned, from a handwritten note, the true intent behind the FBI’s investigation of Lieutenant General Michael Flynn,” McEnany explained. “The very day that then-FBI Director Jim Comey sent agents to the White House to interview Flynn, the FBI discussed what their intent was beforehand. This is what they said: “What is our goal? Truth, admission? Or to get him to lie so we can prosecute him or get him fired?” These notes, in addition to other evidence, raise serious questions about the handling of the — of the FBI’s handling of Michael Flynn’s case.”

Siegelman’s supporters maintain that is what happened to the former Governor.

Law Professor John Farmer is the former Dean of Rutgers Law School and seems to agree with Professor Gerhman.

“Don Siegelman’s story is nothing less than an American tragedy,” Farmer wrote. “Understanding the abuses he experienced may well be the first step to ending them and to healing our broken politics.”

Siegelman is the only Democrat to be elected as the Governor of Alabama since 1982’s election of George C. Wallace (D). Siegelman served as Governor from 1999 to 2003. He was narrowly defeated by then-Congressman Bob Riley, R-Ashland, in the 2002 election after just one term as Governor. Siegelman was mulling a run for the Democratic nomination for president of the United States in 2004.

Siegelman claims that he was then targeted by President George W. Bush’s Department of Justice and claims that he was prosecuted on the orders of GOP strategist and top Bush White House political strategist Karl Rove.

Flynn’s guilty plea was overturned and the case against him lifted with the aid of AG William Barr and the Trump Department of Justice after being investigated and prosecuted by Barack H. Obama’s holdovers at the DOJ, whom some Republicans accuse of attempting a legal coup against the incoming Trump officials. Siegelman on the other hand was prosecuted during the 2006 election when he was running to regain the Governor’s mansion. Siegelman, then under a legal cloud, lost the Democratic primary to then Lt. Governor Lucy Baxley (D). Baxley was then trounced by Gov. Riley. Siegelman was convicted by a jury of his peers and his convictions were upheld by the federal court system, spending years in prison until 2017.

Siegelman claims that his new book raises more questions of prosecutorial misconduct in his case.

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Courts

Gov. Kay Ivey extends public health emergency, issues COVID-19 lawsuit protections

Eddie Burkhalter

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Gov. Kay Ivey on Friday extended the formal “public health emergency” for 60 days, beginning May 13. 

Ivey also issued another proclamation that provides liability protection for businesses and health care providers from being sued over COVID-19 matters if those businesses and health care providers “comply with or reasonably attempt to comply with applicable public health guidance.”

Ivey’s order also states that the emergency liability protections would cover businesses and health care providers unless they show “wanton, reckless, willful or intentional misconduct.” 

“I want to do everything within my authority to protect businesses as Alabama’s economy gets up and running again,” Ivey said in a statement. “As we resume operations, the very last thing a business owner needs to worry about is a frivolous lawsuit from responding to COVID-19. Let me be clear, this in no way shields them from serious misconduct. If someone knowingly abuses the public during a time of crisis, they should be held accountable and prosecuted as such.”

Ivey is to hold a press conference at 11 a.m. to discuss possible changes to her “safer-at-home” order. The new proclamations issued Friday morning are separate from the state’s public health orders.

The existence of the states of emergency simply allows the governor to take extraordinary steps to deal with an emergency situation.

Eighth proclamation summary:

  • The order provides safe harbor to health care providers, businesses, and other entities to encourage “reopening our state.”
  • The order protects health care providers from a frivolous lawsuit based on actions they took or failed to take as a result of the COVID-19 pandemic.
  • The order protects businesses from frivolous lawsuits when they conduct COVID-19 testing or distribute PPE to help protect people from COVID-19.
  • The order “in no way shields these groups from claims of egregious misconduct. Claims based on egregious misconduct would be allowed to proceed,” according to the governor’s office.

Ninth proclamation summary:

  • One provision allows for probate judges to improve procedures for administering the July 14 primary runoff election.
  • Probate judges would be allowed to reduce the number of poll workers, if necessary. They would also be allowed to conduct poll-worker training remotely.
  • Another provision “cuts red tape for electric co-ops seeking to obtain emergency loans.” This will “help ensure that electrical cops are still able to provide electricity to their members during this public health emergency.”
  • A final provision will extend the formal “public health emergency” for 60 days, beginning May 13.

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Courts

Appeals court refuses to lift injunction prohibiting Alabama from banning abortions

Chip Brownlee

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A federal appeals court Thursday refused to lift a preliminary injunction prohibiting Alabama from banning abortions during the COVID-19 epidemic.

The 11th Circuit Court of Appeals on Thursday issued a ruling that denied the state of Alabama’s request to stay a preliminary injunction issued by federal district court Judge Myron Thompson.

The decision ensures that the injunction prohibiting the state from banning abortions as part of its COVID-19 response will remain in effect throughout the appeal. Abortion care will continue to be available.

“Today, the court refused to allow Alabama to use the COVID-19 crisis as a pretext to prevent patients from accessing abortion care,” said Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project. “This is a critical victory that recognizes that government response to the pandemic must be grounded in public health, not politics.”

The decision comes after Attorney General Steve Marshall appealed Thompson’s partial blocking of the state’s temporary ban on abortions amid the COVID-19 pandemic.

In his order, Thompson said of Alabama’s temporary ban on elective procedures, “for some group of women, a mandatory postponement will make a lawful abortion literally impossible. Under Alabama law, a woman’s window for seeking a lawful abortion is limited: abortion becomes illegal when the probable post fertilization age of the fetus is at least 20 weeks.”

Marshall and the state of Alabama have argued that State Health Officer Scott Harris’s order “covers all elective medical procedures, including abortions.  The purposes of the order are to promote social distancing and ensure that scarce healthcare resources—including personal protective equipment for medical providers—are available for the fight against COVID-19.”

“This ruling ensures that everyone in Alabama can continue to make the decision about whether to have an abortion for themselves,” said Randall Marshall, executive director of the ACLU of Alabama. “We will keep fighting to hold our politicians accountable to protecting the needs of our communities, rather than using the pandemic to further an anti-abortion agenda.”

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Corruption

Will Mike Hubbard ever go to jail? Yes. And likely soon.

Josh Moon

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Mike Hubbard is likely going to prison within the next couple of months. 

Hubbard, the former Alabama House speaker, had his conviction on 11 felony ethics counts partially upheld last week by the Alabama Supreme Court. The justices overturned five of the charges and sent them back to the Alabama Criminal Court of Appeals for review, but upheld six of his charges. 

And those six matter a lot. 

Under the original sentence imposed by Lee County Circuit Court Judge Jacob Walker, Hubbard was set to serve four years in prison and eight years of probation. That sentence was structured in a manner that all but assured that Hubbard would serve that time unless the entire verdict against him was overturned. 

It wasn’t. And a source familiar with the ALSC’s opinion in the case told APR that the justices were fully aware that their opinion would not lessen Hubbard’s jail time. 

That ALSC opinion puts an end to Hubbard’s appeals bond that has allowed him to remain a free man as his case worked its way through the appeals process over the past four years. 

According to the Lee County Circuit Court clerk’s office, once a final determination is made by the ALSC on charges that result in a sentence, that opinion is the final piece supporting the need for an appeals bond.

Basically, there are no additional avenues for appeal that could possibly result in Hubbard not serving his prison sentence, so the bond has to be revoked and Hubbard sent to prison.  

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Once Walker receives the certificate of judgment from the ALSC showing it upheld the counts that related to Hubbard’s sentence, that should prompt Walker to revoke the bond and Hubbard will be notified that he is expected to begin his prison term. 

According to Scott Mitchell, the clerk of the Alabama Court of Criminal Appeals, that certificate of judgment can’t be issued by the ALSC until at least 14 days have passed. That span allows both the prosecution and defense time to submit requests for rehearings on ALSC’s opinion. Should either side do so, consideration of those requests by ALSC could add more time. 

“It’s really hard to say (how long it might take) — it’s such a case-by-case thing,” Mitchell said. “It could be anywhere from weeks to a couple of months before we get it.” 

It is also not uncommon for one side or the other to ask for an extension of time to file their requests for a rehearing, which would add additional time. 

However, once that certificate is sent out by the ALSC, it should trigger Walker to revoke the appeals bond. 

The Criminal Appeals Court will also have to review Hubbard’s case and issue a new decision that considers the ALSC’s opinion on the six reversed counts. That process is likely to take much longer.

“Again, a lot of factors play into that and it’s hard to determine how long any one case might take,” Mitchell said. “I’d say you’re looking at a few months at least.”  

It will only add to the extraordinary length of this case.

Hubbard was convicted in June 2016 on 12 felony counts for using his office for personal gain and directing public business to his clients. Court testimony and evidence revealed Hubbard was making more than $600,000 per year in “consulting” contracts, mostly for work in areas in which he held no prior work experience.  

Since his conviction, a team of attorneys working for him — and financed by his campaign funds and various other entities — have challenged every word of his conviction, accusing the prosecution of misdeeds and attacking the state’s ethics laws — which Hubbard helped write — as overly broad and vague. 

Those appeals have been successful in getting half of the charges knocked down. But because Hubbard’s prison sentence was tied to only a couple of the specific charges, those decisions will not lessen his jail time.

 

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