Alabama Scene

Did FBI and DOJ cross the line in bingo probe?

Bob Martin is editor and publisher of The Montgomery Independent. Email him at: bob@montgomeryindependent.com.

Bob Martin is editor and publisher of The Montgomery Independent. Email him at: bob@montgomeryindependent.com.

Questions arose last week in the alleged bingo vote-buying trial in Montgomery on whether an FBI investigation had turned from a criminal probe of possible “vote buying” to illegal federal interference in the state’s legislative process. Was the FBI’s attempt to kill the bill that would permit Alabama voters to decide whether electronic bingo would be permitted statewide an illegal con game by the Justice Department?

The limited testimony about this, which seeped into the trial last week, indicates the primary purpose of the federal probe and making it public was to kill the legislation that had passed the State Senate on Mar. 30, 2010. There is no question the federal interference was the death knell of the proposal.

Consider the testimony of FBI Agent George C. Glaser of the Mobile FBI office, who said investigators made public their inquiry into allegations of vote-buying at the Alabama State House because of concerns that the gambling legislation at the heart of the probe was “tainted.” Glaser took the witness stand for the prosecution last week and discussed the decision to make the investigation public after the bill passed the Alabama Senate.

Glaser has testified there was a belief at the Department of Justice that, “We could not knowingly allow tainted legislation to progress.” It was revealed in testimony that investigators sat down with Gov. Bob Riley and legislative leaders two days later to tell them they had grave concerns about the bill.

Riley later denied he had knowledge of the investigation and even sent out a press statement to that effect. Now that his involvement has been verified in court, will the defense be allowed to call him to the stand?

But the main question is whether there is legal justification for the FBI to, on its own, determine if state legislation is “tainted” and rush to arrest people so that it would fail? It is interesting that members of the state Senate are the only elected officials who were targeted. Why no House members were targeted remains an FBI secret. However, it is reasonable to assume the FBI knew the release of information about the arrest of senators would be enough to accomplish their mission and Riley’s mission.

The FBI decision to initiate the investigation and then make it public has, I believe, been an effort by the federal government to illegally interfere in the state’s legislative process.

There is a general proposition in federalstate relations that state legislators have legislative immunity. “Although the separationof powers doctrine justifies a broader privilege for Congressmen than for state legislators in criminal actions, United States v. Gillock, (445 U.S. 360 1980), we generally have equated the legislative immunity to which state legislators are entitled under Section 1983 to that accorded Congressmen under the Constitution,” U.S. Supreme Court Justice Byron White wrote for the majority in the 1980 Supreme Court case of Virginia vs. Consumers Union.

Another high court case reported in the Memphis State Law Review in 1977 states that a state legislator “enjoys a federal common law privilege excluding evidence of his action in a legislative capacity in federal criminal proceedings.” So did the FBI even have the authority to question state lawmakers about legislative matters?

Agent Glaser’s testimony centered around his interview of one of the defendants, then state Sen. Jim Preuitt of Talladega. He is said to have interviewed Preuitt at a restaurant in the Embassy Suites Hotel in Montgomery at a time when it is believed that Sen. Preuitt perhaps mistakenly thought the FBI wanted to talk with him about his missing grandson. The questioning went like this:

Question to Agent Glaser: “You said that you knew the investigation was going public almost immediately?” Answer: “I knew that it was going public very soon.”

Question to Glazer: “You knew that the investigation was going public and did go public because of meetings with members of the legislature and the governor?” Answer: “The Federal Government decided that they needed to go to the leadership of Alabama (Governor and State House leadership).”

Question to Glazer: “Did you attend any meeting with the state’s leadership where the subject of the legislation being tainted came up?” Answer: “I heard about it from people who were in the meeting.”

Question to Glazer: “And someone in that meeting accused the Federal Government that they were trying to stop this legislation?” Answer: An OBJECTION was made to this question and the jury was told it should ignore the question.

So did the FBI have any authority to question state legislators concerning the process of a bill in the state Legislature? It’s a question that must be answered… by a court… somewhere.