Kohring and Kott: When Prosecutors Cheat On Politicians Who Cheat, Who Can We Trust?

From a Les Gara press release:

Dear Neighbors,

Yesterday's news that the Department of Justice is seeking the release of former GOP legislators Vic Kohring and Pete Kott from jail sent shock waves across the community. Alaskans are left shaking their heads because, well, we're left in the middle. We now face the prospect that politicians who still very likely broke the law will be 'vindicated" because those who we trust to enforce the law also broke it. In that case, the only victims will be the public.

The defense in these cases will undoubtedly ask for their cases to be dismissed. That's the remedy proposed by prosecutors in the Ted Stevens case, but notably, not yet proposed here. I'll walk you through some of the legal standards, possible outcomes, and my concerns that a dismissal of these cases would undermine both the public interest, and our right to integrity from our lawmakers. Dismissal would tolerate the greatest corruption scandal in state history, and the conduct of those who, it still appears, joined the scandal.

Fair Play By Prosecutors is a Lynchpin of a Fair Justice System

The difficulty in this case is that there's more than one important interest at stake.

The public has a right to prosecutors who play by the rules. It is a danger to a free society to allow prosecutors to hide evidence. That kind of conduct jeopardizes the rights of innocent people. Convicting an innocent person is one of the greatest injustices a government can commit. President Obama and Attorney General Eric Holder have done the right thing in recasting a Department of Justice that the former Presidential Administration ran poorly. To the extent the former Administration tolerated misconduct by those hired to enforce the law, the new one says it won't, and that's good for us all.

But that doesn't mean the remedy is to sweep the greatest corruption scandal in state history under the carpet. Certainly, stern punishment of those who cheated is justified. That rule applies to prosecutors as much as it applies to citizens who break the law. I'll talk about the legal standard the court will apply, and that may justify new trials to make sure those who have been convicted were given a fair shot.

People have a right to a fair trial, guilty or innocent. But - at least based on what we know so far - we'll all be harmed if the Department of Justice simply throws up its hands, and dismisses these cases. That would disregard that Alaskans have been victimized by the greatest corruption scandal in Alaska history.

New Evidence Doesn't Alter the Worst Political Scandal in Alaska History

If the evidence we heard is correct, the legislators who were convicted worked with VECO officials Bill Allen and Rick Smith to stop Alaskans from receiving our fair share for our oil. Under our Constitution, that oil belongs to all of us, and the wealth from that oil is meant to help us run this state for the public's 'maximum benefit."

We would do well to remember a few things as this story unfolds. Here are a few indisputable facts that aren't altered by the fact that prosecutors broke the law by withholding evidence. The latter is important, but it doesn't do a lot to alter the history of this corruption scandal.

Over the past 25 years, VECO did more to influence this state's politics, out of pure greed and self interest, than any group of people ever.

They put more than $1 million into state political campaigns, were by far Alaska 's biggest campaign donor, ran a slanted newspaper, and then ran a full page of misinformation and pro-oil company propaganda in the state's largest newspaper. They did the latter, in their so-called 'Voice of the Times", to regularly launch biased, fact twisting attacks against democrats, those who didn't toe the oil industry line, and less frequently to attack republicans they didn't like.

They didn't do this to make our schools better, to help our seniors, or to clean up our politics. They used their money to try to elect public officials they thought would make heaps of money for their company, and the oil companies they served on the North Slope .

I want to be clear here. Many innocent politicians accepted their campaign donations. They didn't know these VECO officials were bribing other political leaders. They didn't know the litmus test VECO was using in choosing them over their opponents. But we now know, from Bill Allen and Rick Smith's sworn admissions, that VECO also used its money to bribe people; to undermine the public interest; to cheat Alaskans of oil revenue that was rightly ours, and that could fund our roads, schools, children's services and savings accounts. VECO's officials admit they worked to cheat us all for their own personal benefit, and for the benefit of the oil companies they sought oilfield service contracts from.

This scandal unfolded in 2005 and 2006, at a time oil companies were raking in record profits, only to be exceeded by the record profits they gathered in the next year. It was then that VECO went on a mission to try to corrupt the oil tax law the Alaska legislature was considering. We need to remember why we were considering oil tax reform at that time.

I wish I could exaggerate this one, but I can't. In 2006 Exxon earned more profit than any other corporation in the history of the world. In 2007, a year when they took in more than $40 billion in clear profit, Exxon broke that record. New York Times article on Exxon profits, http://www.nytimes.com/2008/02/01/business/01cnd-exxon.html?_r=2. They, Conoco and BP were earning these record profits, in part because the price of oil was soaring, and in part because when the price of oil soared, Alaska 's flawed oil tax system - one jealously defended by VECO, Exxon, Conoco and BP - badly shortchanged the people of this state.

That's why I, former Governor Jay Hammond and many others had long called for oil tax reform. For many years the state of Alaska taxed the nation's most productive oil fields at an artificially low rate. The state's production tax rate - which was between 0% (for most fields on the North Slope) and 13% - didn't go up when oil rose from $20/barrel, to $30, to $40, to $60, or even to $120/barrel. High oil prices were producing staggering, windfall profits for Exxon, Conoco and BP. Alaskans - who former Governor Jay Hammond reminded me own the oil on the North Slope - were being badly shortchanged - to the tune of over a billion dollars a year.

As we debated an oil tax fix in 2006, Bill Allen was handing notes to legislators telling them how he wanted them to vote. As those of us who believed in reform were trying to build coalitions to fix the tax in a fair manner, he was organizing strategy to cheat Alaskans out of our fair share. As part of that effort, we watched him hand a wad of cash to Rep. Vic Kohring. According to indictments, he orchestrated strategy with a number of legislators - Pete Kott, Ben Stevens, and others - to find a way to keep Alaska 's oil tax rate artificially low. The evidence we heard at trial makes it at least likely that this is exactly what happened.

So - how well did they succeed? At every turn in 2006, as many legislators were working for a fair oil tax law, VECO and its allies in the legislature were pulling the other way. As a result, we ended up with a compromise oil tax law that vastly shortchanged Alaskans. By how much? Well, here's one measure. In 2007 we fixed this loophole-ridden law with real oil tax reform. Had the 2006 law still been in effect, by now it would have cost Alaskans over $5 billion in lost revenue - money we have available to bolster Alaska's savings, and fund this state's services.

What's Next?

Yesterday the Department of Justice did the appropriate thing. They admitted their investigation shows prosecutors withheld evidence, and that their internal investigation is continuing. It may be that with this evidence revealed, the convicted defendants would have received shorter sentences. It may be that a new trial is justified. So the Department of Justice said that until this is all sorted out, former Reps. Kott and Kohring shouldn't serve any more jail time.

It's the next step that gets dicey. Under federal law a new trial, and possibly dismissal, may be justified IF the withheld evidence would have 'likely" altered the jury's verdict. That's a high hurdle, and frankly seems hard to fathom at this point. But the Trial Court will be asked to make that determination when all the evidence comes to light.

It is also within the Department of Justice's purview to request dismissal of these cases, like they did with Senator Stevens' case. If they did that, there would be no practical way for the court to require a new trial. The cases would likely be dismissed.

Based on what we know so far, that option, I think, would undermine the public's right to know, right to fair prosecution when there is substantial evidence of guilt, and our right to a political system where corruption isn't tolerated.

In the end the Court will need to examine the fairness for all the defendants. The Department of Justice should do that too. But the hope is that if evidence of likely criminal behavior remains, neither the Department of Justice nor the Court will punish the prosecutors in this case by punishing the public.

It is proper for the public to voice its opinions. The new Attorney General may not know the facts of this corruption scandal, and the impact it has had on Alaskans, from where he sits in Washington , D.C. It would be fair if he heard them as his office makes its decision about what the most just outcome in this case will be.

Surely, there is no greater victim than an innocent person who's been done harm. And we should never tolerate the conviction of the innocent.

But if the evidence remains of the defendants' guilt, dismissal just doesn't fit the misdeeds of the prosecutors in this case. I'm willing to change my mind as I hear what evidence was withheld. But the evidence of wrongdoing by politicians and VECO's executives isn't likely to change.

Stay tuned, and as always, stay informed. This is an issue that's going to require a vibrant public discussion - one that our new Attorney General should probably listen to as he's weighing the various interests - including the public's interest in integrity from our officials - that will be affected by the decision he'll have to make.

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