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VOL. 131 | NO. 218 | Tuesday, November 1, 2016

Pursuing Corruption Cases Near Elections

By Bill Dries

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Presidential elections aren’t the only political contests federal prosecutors weigh in making decisions about investigations and possible criminal charges against candidates or elected officials.

FBI Director James Comey is at the center of a dispute about when federal investigations should go public in an election year. The question of timing has come up before in Memphis politics with charges and counter charges of political motives.

(AP Photo/Pablo Martinez Monsivais)

Members of Congress are up for election every two years, making it difficult to find a time when word of an investigation or an indictment won’t have some influence on an election.

But the standard is to avoid pursuing a case that could unduly influence an election. And it has been tested several times locally.

In a 2008 cover story for The Memphis News, then-assistant U.S. Attorney Tim Discenza defined the standard at a Memphis Bar Association event that reviewed the Tennessee Waltz corruption cases he prosecuted.

“If we are dealing with elected officials,” he said then at the end of the cases, “we have to be very concerned that our investigation does not affect an election or the ability of a public or elected official to do their job. The mere fact of an investigation can affect that sort of thing.”

FBI director James Comey’s written notice to Congress last week that his office has renewed its investigation of presidential nominee Hillary Clinton’s use of a private email server while she was Secretary of State came a week and a half before election day.

Finding a time when an election won’t be affected isn’t easy, and political leaders who are investigation targets are not without their own influence in shaping public perception.

U.S. Rep. Harold Ford Sr. was indicted on bank fraud charges in 1987 by a federal grand jury in Knoxville. The federal charges were connected to the 1983 collapse of the Knoxville-based Butcher-family bank empire.

The trial was moved to Memphis federal court.

Ford later claimed that the indictment derailed his plan to run for Memphis mayor in 1987, four years after his brother, state state Sen. John Ford, lost a bid for mayor.

Harold Ford made the claim after a mistrial in 1990 and before a 1993 retrial in which he and his codefendants were acquitted by a Memphis jury of all charges.

The critical setting of the terms for the retrial came as Bill Clinton was coming into office as the new president. Clinton, whom Ford supported in the 1992 election, sent representatives of the new Justice Department into Memphis federal court to dramatically change the prosecution’s course.

Under George H.W. Bush, the Justice Department had won in court the selection of a jury of citizens in West Tennessee but outside Memphis. That followed allegations that there had been attempts to influence the jury in the mistrial. The mistrial was declared by U.S. District Judge Odell Horton after the jury declared itself deadlocked.

Clinton ally Webster Hubbell and his team at the new Justice Department sought to dismiss the jury from outside Memphis that had already been selected. Hubbell had the backing of acting U.S. Attorney General Stuart Gerson, a holdover from the Bush administration.

Ed Bryant, then the U.S. Attorney for the Western District of Tennessee, resigned in protest.

In his ruling to keep the out-of-town jury, U.S. District Judge Jerome Turner also criticized the Justice Department for giving in to political pressure from the new administration.

After the verdict, Turner was critical of Ford supporters and Ford was critical of Turner’s conduct in the trial, even after his acquittal.

Ford’s son, Harold Ford Jr., succeeded him in Congress in the 1996 elections. And as the younger Ford was about to announce his bid for the U.S. Senate in the 2006 elections, his uncle, state Sen. John Ford, was indicted on federal corruption charges in the Tennessee Waltz corruption sting.

The younger Ford was critical of the timing of the charges, of which his uncle was ultimately convicted.

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