A Preposterous Prosecution

By Scott Horton

On April 5, the United States Court of Appeals for the Seventh Circuit reversed the conviction of Georgia Thompson, a Wisconsin public official, and ordered her acquitted and immediately set free. The action, coming in the midst of a public scandal focusing on the politicization of the U.S. attorney's offices, invited prompt public scrutiny. Indeed, at that time, many observers were wondering: if eight U.S. attorneys were fired for refusal to politicize the conduct of their office, what did this say about the remaining eighty-five U.S. attorneys who were allowed to keep their jobs? This case provided a very unpleasant answer.

One of those eighty-five “unfired” was Steven M. Biskupic, the U.S. Attorney in Milwaukee. Since the decision in the Thompson case, even more disturbing facts have come to light that put the entire episode in context. Biskupic was revealed to have initially figured on the list of U.S. attorneys to have been dismissed. Sometime in the fall of 2006, in the lead up to the election, Biskupic was granted a reprieve. Why? This is one of the 65 occasions on which Gonzales had a convenient lapse of memory—about something that transpired only a few weeks ago. I believe that Gonzales lied about this and many other things. Indeed, any employer knows that few things are ever quite so gut-wrenching as a decision to fire a senior employee. It's not something that Gonzales would likely have forgotten (though, as Jon Stewart reminds us in his brilliant Daily Show send-up, Gonzales cited National Meth Week as a more important matter for the time in question, which might just explain all the memory lapses).

The circumstantial evidence is very clear. Karl Rove was eager to have the support of the U.S. attorney's office in Milwaukee in a large scale voter suppression effort. Polls in Wisconsin show a series of extremely tight races—it has long figured as a “battleground state”—and Rove had developed a particular bugaboo about voter fraud in the largely Black inner city of Milwaukee. Biskupic launched a series of prosecutions in search of voter fraud that did not exist—one particularly noteworthy case involved a grandmother who voted by accident. He lost most of the cases, which is not surprising, since there was no large-scale voter fraud. But Rove was unappeased; he wanted Biskupic's head.

He then came upon the case of Georgia Thompson. She had awarded a state procurements contract for travel services to the low bidder in a competition. But the low bidder had been a campaign contributor to Wisconsin Governor Jim Doyle, who was the GOP's chief target in the 2006 election. A higher bidder complained that it had done better in the show-and-tell competition and should therefore have gotten the contract. Biskupic decided to take the case. Not only that, but he decided to publicize it aggressively in the midst of the election campaign, providing the critical issue for the GOP contender, Mark Green. In the end, Thompson was convicted (a brilliant demonstration of the power of an aggressive prosecutor and his ability to get an unjust result by lobbing about vague and unsubstantiated insinuations of political corruption). When challenged on the case later, Biskupic had virtually nothing to say in his own defense. He consulted with the state's then attorney general, Peggy Lautenschlager, a Democrat, he said. That's right. She decided not to pursue the case. And this is the best defense he can muster?

Today the Court of Appeals published its decision. (View it here.) It comes down to one key word: “preposterous.” That's how Biskupic's theory of the case is characterized. The panel is unanimous and the author of the opinion is Frank H. Easterbrook, chief judge of the Court of Appeals. An appointee of Ronald Reagan, Easterbrook is the very image of the Republican law-and-order judge. He is also an academic respected for his work in the field of law and economics. Easterbrook patiently dissects the case that Biskupic presents and reveals it to be a mountain of hot air built on no inculpating facts. No reasonable prosecutor would ever have brought this case. But Biskupic did have a very powerful motive for bringing the case: serving the GOP electoral campaign and salvaging his job.

In the end the case of United States v. Thompson is proven indeed to revolve around political corruption: not by Thompson, but by Biskupic. The inexplicable fact at this point is that Steve Biskupic remains U.S. attorney in Milwaukee. He obviously should be relieved of his duties to prepare to defend himself. If there still is justice in this country, Biskupic will now be getting a first-hand experience with the criminal justice process—from the other end.