FILED

Case 2:16-cv-00083-MHH Document 1 Filed 01/18/16 Page 1 of 9

2016 Jan-19 AM 09:47

U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
JOSEPH SIEGELMAN,
Plaintiff,
v.
UNITED STATES DEPARTMENT
OF JUSTICE, OFFICE OF
PROFESSIONAL
RESPONSIBILITY,
Defendant.

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COMPLAINT FOR INJUNCTIVE RELIEF

This is an action under the Freedom of Information Act (FOIA), 5 U.S.C.
552, for injunctive and other appropriate relief, seeking the disclosure and release
of agency records that have been improperly withheld from Plaintiff Joseph
Siegelman by Defendant the United States Department of Justice and its Office of
Professional Responsibility.
Jurisdiction and Venue
1.

This Court has jurisdiction over this action under both 5 U.S.C.

552(a)(4)(B) and 28 U.S.C. 1331. Venue is proper in the district under 5 U.S.C.
552(a)(4)(B).
2.

Alabama.

Joseph Siegelman is an individual who resides in Birmingham,

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3.

The Office of Professional Responsibility (OPR), part of the United

States Department of Justice (DOJ or the Department), is responsible for

investigating attorneys accused of misconduct while acting within the line and
scope of their duties as DOJ employees.
4.

The DOJ is responsible for criminal prosecutions and civil suits in

which the United States has an interest.

5.

The DOJ, and the OPR within it, fall within the meaning of agency

contained in 5 U.S.C. 552(f).

Statement of Facts
I.
6.

Underlying Undisputed Facts

The prosecution of former Alabama Governor Don Siegelman is

widely held as one of the most controversial cases brought by the Department of
Justice in recent history.
7.

Don Siegelman was Governor of Alabama 1999-2003. He narrowly

lost reelection in 2002, partly due to press reports based on information leaked
from a grand jury investigation of Mr. Siegelman. 1

Although Siegelman officially lost re-election in 2002, evidence indicates he may have won the most votes. On
election night, Siegelman was declared the winner by the Associated Press and gave an acceptance speech. By the
next morning, a different result was announced. All of the deciding votes for Siegelmans opponent were counted in
Baldwin County, where an after-hours retabulation was conducted after Democratic Party poll watchers had gone
home for the evening. The Republican Attorney General, who had initiated the criminal investigation against Mr.
Siegelman, certified the retabulation of 6,000 votes from this precinct after rejecting calls for a supervised recount.
An independent Auburn University statistical analysis of the election results concluded that the Baldwin County
returns were almost certainly tampered with.

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8.

On May 27, 2004, nearly two years after the initial leaks from the

grand jury, Mr. Siegelman was indicted in the Northern District of Alabama.
Judge U.W. Clemon dismissed part of that indictment with prejudice, after finding
that the government was unable to make a prima facie showing that would allow
their claim to be presented to a jury. The remaining charges were dismissed by the
government.
9.

Judge Clemon later recalled the matter as the most unfounded

criminal case over which I presided in my entire judicial career [of nearly 30
years].
10.

Shortly after Mr. Siegelman announced he would seek re-election in

the 2006 Alabama gubernatorial race, federal prosecutors in the Middle District of
Alabama brought a new indictment against Mr. Siegelman. At that time, the
United States Attorney for the Middle District of Alabama was married to a key
campaign consultant for Mr. Siegelmans opponent.
11.

The Middle District U.S. Attorney had claimed she would recuse

herself from the prosecution after an attorney for Mr. Siegelman uncovered and
complained of her conflict, but evidence shows that the U.S. Attorney remained
involved in the case.
12.

The case against Mr. Siegelman in the Middle District of Alabama

resulted in his conviction, which has been upheld by appellate courts.

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II.
13.

Post-Conviction Fact-Finding

Following Mr. Siegelmans conviction, several national news

organizations, including 60 Minutes, TIME Magazine, The New York Times, The
Washington Post, Harpers Magazine and others, reported on the Siegelman case
and have questioned the veracity of the conviction and the propriety of the
governments conduct in obtaining it.
14.

These independent reports uncovered previously unknown details, for

example, that prosecutors placed undue pressure on witnesses; communicated

improperly with members of the jury; engaged in ex parte communication with the
judge2; and illegally withheld exculpatory information from the defense. These and
other problems have been reported in the press since Mr. Siegelmans conviction.
15.

During the same time period as many of these reports, the Honorable

John Conyers, then-Chairman of the United States House of Representatives

Committee on the Judiciary, as well as other Members of the Judiciary Committee
sent multiple letters to the United States Attorney General requesting that he
investigate the extensive allegations of prosecutorial misconduct and politically
influenced prosecutionof former governor of Alabama, Don Siegelman. In one
of their letters, dated September 25, 2009, these Members of Congress wrote, We

An official in the appellate division of the DOJ reported this improper ex parte communication years later in a
letter to Siegelmans attorney on the eve of a filing deadline. This particular misconduct was not independently
uncovered by the press.

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urge you to ensure that the OPR investigation into this matter is done in a
thorough, comprehensive, and professional manner, and that it be conducted with
sufficient transparency, expedition, and impartiality to be seen as credible by the
many outside observers who have so closely followed this case.
16.

Sometime thereafter, the OPR concluded its inquiry into the matter.

17.

As of the date of the filing of this action, the OPR has not released its

findings publicly or to Governor Siegelman or his attorneys.

III.
18.

The Departments Private Account of its Findings

On December 11, 2014, the Project On Government Oversight

(POGO), an independent nonpartisan non-profit organization, published an

article entitled, Justice Department Downplays Evidence of Politics in Probe of
Governor. The article discussed a letter sent from the Office of Legislative
Affairs of the DOJ to the Honorable John Conyers on June 3, 2010 which
purported to summarize the findings of OPRs investigation.
19.

In that letter, the DOJ admits that several of its officials involved in

the Siegelman case acted improperly.

20.

Among those officials was the Assistant U.S. Attorney (AUSA) in

charge of the Siegelman prosecution who communicated directly with the

campaign manager of Mr. Siegelmans gubernatorial opponent. The letter
discusses an email from the AUSA to the campaign manager informing him that
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the AUSA and a small group of like-minded conservative prosecutors within the
U.S. Attorneys office were pursuing Siegelman.
21.

According to the DOJs letter, another AUSA working on the

Siegelman prosecution concealed her husbands connections to, and activities for,
Republican politicians.
22.

The letter also contained other disconcerting information about the

case, including but not limited to the fact that the DOJ knew that their key witness,
whose assertions founded their case, lacked credibility, and further, that
prosecutors pursued Mr. Siegelman in lieu of investigating allegations of
misconduct by prominent Republicans.
23.

None of this information was ever provided to Mr. Siegelman or his

attorneys.
IV.
24.

This FOIA request

On June 12, 2015, Plaintiff submitted a Freedom of Information Act

request to the OPR seeking a copy of the full report of its findings from its
investigation that revealed the prosecutorial misconduct referenced in the June 3,
2010 letter and POGO article.
25.

The request was assigned FOIA number: F15-00097 (the Request).

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26.

In a letter dated June 18, 2015, OPR denied Plaintiffs request, citing

FOIA exemptions 5 (5 U.S.C. 552(b)(5)), 6 (5 U.S.C. 552(b)(6)), and 7(C) (5

U.S.C. 552(b)(7)(C)).
27.

On July 14, 2015, Plaintiff timely submitted an appeal of OPRs

denial of the request.

28.

On September 28, 2015, OPR denied the appeal, citing the same

above-mentioned exemptions: 5, 6 and 7(C).

COUNT I
(Violation of 5 U.S.C. 552)
29.

Plaintiff hereby incorporates by reference each previously stated

material paragraph as if fully restated herein.

30.

Defendant acknowledged that it has in its possession the document(s)

sought by Plaintiff.
31.

Defendant is wrongfully and unlawfully withholding the documents

requested by Plaintiff.
32.

Plaintiff has exhausted all administrative remedies with respect to this

request.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court (1)
issue an injunction ordering Defendant to disclose the requested documents, (2)
provide for the expeditious processing of this action, (3) award Plaintiff reasonable
attorney fees and other litigation costs incurred by Plaintiff in this action, exclusive
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REQUEST FOR SERVICE BY CERTIFIED MAIL

U.S. Attorney's Office for the Northern District of Alabama

Civil Process Clerk
1804 4th Avenue North
Birmingham, Alabama 35203
U.S. Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Robin C. Ashton, Counsel
Office of Professional Responsibility
950 Pennsylvania Avenue, N.W., Suite 3266
Washington, D.C. 20530-0001

/s/ Paul Rand

OF COUNSEL