[Posted By WLS]

Let me weigh in on a point about the Thompson prosecution, and the characterization of it as “bogus.” That is not correct. This is a long post, but stick with me on this.

What the prosecutors pursued against Thompson was a two-count case charging Honest Services Mail Fraud (use of the mails in connection with government corruption) and Misapplication of Public Funds.

The facts of the Thompson case are that she sat on a panel of 7 civil servants responsible for awarding a contract for state travel services. Six months before the Request For Proposal was issued, representatives of Adelman Travel met with state officials, and provided them a draft RFP. Thompson was aware of this, so she knew that Adelman Travel enjoyed some political connections.

When the RFP was ultimately issued, the two top bidders were Adelman Travel and Omega Travel. Adelman was a Wisconsin-based travel agency, and Omega is a national firm based in Fairfax, Virginia.

During the committee’s scoring process on the bids, Thompson said she inflated her scores on Adelman’s bid, and encouraged other committee members to do the same, though it’s not clear any other member of the committee did so. It’s also not clear whether Thompson’s scoring of the bid changed the ultimate outcome as to which bid scored higher, and the testimony was that the bids were for all practical purposes a tie.

There was testimony that in the committee meeting, Thompson made comments that “Politically, this won’t fly” if Adelman didn’t get the contract, and “My bosses don’t want to hear about anyone but Adelman.”

While Adelman Travel’s owners had made large but lawful political contributions to the governor, there was no evidence that Thompson knew about them when the committee was going through the bid process.

The allegation of the indictment was that Thompson influenced the awarding of the contract so to cause political advantage for her supervisor; and to enhance her job security.

There is a very enlightening tape of the entire oral argument before the 7th Circuit Court of Appeals available. It’s about 26 minutes long — not too bad. But if you skip to about the 12:30 mark you get the questioning by the Court of the prosecutor, which is where the guts of the argument happens.

Click here to hear the argument.

My quotes herein are paraphrases of the comments by the Judges — listen yourself for their actual words.

The government’s theory of the case was that Thompson knew Adelman Travel was favored by the state bureaucracy because of the “close political connection” that existed between Adelman’s owners and the Governor, and she disregarded the criteria for scoring the bids that was established by Wisconsin statute in order to show favoritism to the “politically favored bidder.”

But the evidence of a “close political connection” wasn’t much different than it would be for any politically active business or organization — a meeting with the Governor, having the Governor speak at a company anniversary party, and legal political contributions to the Governor’s campaign (contributions that Thompson didn’t know about). Judge Bauer asked: “Isn’t this what all smart businesses do which want to deal with government agencies?”

The prosecution argued that the function of the committee was to take politics out of the contract awarding process, but Thompson injected politics into the process by favoring Adelman on the basis of criteria not provided for in the statute — that her bosses wanted Adelman to get the contract.

A key issue was the fact that Thompson received nothing of value from her conduct. The case turned on her subjective motivations for her actions, and whether those motivations made her conduct a crime.

Judge Wood asked if it was the government’s theory that a state employee with a subjective rationale (not related to the merits) which caused her to lobby in a certain way for a bidder might wind up in prison, but if the same employee had a different subjective rationale (also not related to the merits) she might not end up in prison?

The example the judge gave was if the employee thought the bidder in question was attractive (looked like Brad Pitt) and just liked the idea of working with that bidder over the three years of the contract rather than the other bidder who was not as attractive. That would be a subjective rationale unrelated to the merits of the bid.

Obviously the Government lawyer said “No,” and went back to his point about Thompson having injected politics into the committee process, and that her conduct favored the bidder whom she knew was “politically favored.” Judge Wood then asked: “So if she had a silly reason for favoring one side over the other she doesn’t go to prison, but if she had a desire to do something politically pleasing her supervisors by picking one side over the other, then she would?”

It was at this point that Chief Judge Frank Easterbrook broke in and made the following KEY point which I think will be the focus of the written decision — and it’s not a claim that the Government’s case was “bogus”; it’s really a claim that the confused state of some Supreme Court jurisprudence on the subject of state contracting makes the conviction untenable. It begins at about 19:40.

Judge Easterbrook commented that there is a very complex line of Supreme Court cases involving state government contracting that allows state governments to favor in-state enterprises when awarding state contracts. Overt discrimination against out-of-state enterprises is not permitted, but when the state is awarding the State’s own money, the Supreme Court has said it is permissible to “supplement” the bids of in-state vendors, in effect giving them a preference. This law has evolved out of civil disputes between states and bidders over government procurement.

Judge Easterbrook asked if it was the Government’s theory of the case that any state employee who misunderstands the appropriate scope of the Supreme Court’s allowable preferences for in-state vendors, and favors an in-state bidder in the award of a state contract as a result of that mistake, has then committed a federal crime by doing something politically motivated?

The attorney for the Government answered “no”, and Judge Easterbrook then asked how in a circumstance such as this — Thompon’s advocating for Adelman Travel, an in-state firm — wasn’t simply a motivation on her part to prefer the in-state vendor over the out-of-state vendor, which would presumably make her “supervisors happy”?

The Government attorney referred to Thompson’s “political reasons” for favoring Adelman Travel, but Judge Easterbrook then closed the trap by saying “favoring an in-state vendor” is indistinguishable from “political reasons” — here they are the same thing. The Governor is going to favor the in-state vendor who gives him legal campaign contributions and votes in state elections because ….. they give him legal campaign contributions and vote in state elections. There is nothing sinister about such a preference, and it’s one the Supreme Court has authorized and condoned.

Even if the state officials — including Gov. Doyle — wanted Adelman to get the contract, the Supreme Court has said in another context that it’s perfectly legal for the Gov. to want the in-state firm to do work for the state. The fact that Thompson’s motives may have been “political” in this context did not make them corrupt — not given what the Supreme Court has allowed.

The outcome really points out how tricky it is to bring a case involving public corruption where the public official didn’t take money or something else of value in a quid pro quo. That doesn’t mean such cases are illegitimate — it simply means that the question of whether criminality is involved in the subjective motivations for the conduct is much more difficult to prove.

On a collateral issue, the decision of the Appeals Court to order Thompson released is not somehow a reflection on the weakness or “bogus” nature of the case. Rather, when a conviction is reversed based on insufficiency of the evidence, the prisoner should be ordered released immediately. Double jeopardy bars retrial on this kind of reversal — the government had its shot, and the evidence it submitted didn’t measure up to the standard of “beyond a reasonable doubt” in the eyes of the Court of Appeals. Such reversals are rare, but they do happen. The only correct thing to do is to not require the defendant to spend one more day deprived of his/her liberty.

What happened in this case is the District Judge that had denied her bail pending appeal, was ordered to release her on her own recognizance pending the decision by the government whether to seek rehearing from the entire Court of Appeals or to take the matter to the Supreme Court. That order is here.