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Kyle Whitmire @WarOnDumb
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Back in court for closing arguments in the #thwartergate trial. Judge Kallon gave jury instructions this morning. Prosecution should begin in a few minutes.
First up for the prosecution is Assistant US Attorney Robin Mark. The prosecution gets to split its time in closing, going first and last (gets the last word because it has the burden of proof).
Mark tells the jury about her childhood, when her mother was a seamstress in a theater costume shop, how she saw the crew backstage, but the audience only ever saw the actors on stage. That's who Oliver Robinson was, she says -- an actor on the stage.
Mark: “Today you are being asked to turn on the house lights, to look at the underbelly of politics, to tell them that it’s not OK.”
Mark says the defendants have good reputations, but even good people make bad choices, and those choices have consequences.
Mark will now walk the jury through the charges — conspiracy, bribery, honest services wire fraud and money laundering — and she will explain to the jury how the prosecution has proven the elements of each of those crimes.
Among the elements of the bribery charge is whether the defendants acted corruptly. Mark argues that the timing of the alleged bribes and the defendants' attempts to conceal those payments are proof of their corrupt intent.
Mark goes through the deliverables in Robinson's contract with Balch, including building a website, publishing a newsletter, etc. -- all things Robinson didn't deliver. If he had, Mark says, we wouldn't be here.
Mark: What did they ask Robinson to do? Email blasts? Newsletters? No, they gave him talking points to use at an Alabama Environmental Management Commission meeting.
Mark: The defense will argue that Robinson didn't influence EPA, but you (the jury) are here to determine what they intended when they sent him to meet with the EPA with their questions.
Mark now speaking about the biggest point in the prosecution's case: Gilbert testified that he did not send Robinson to the AEMC to act as a state legislator, but in the letter to the AEMC he drafted for Robinson he wrote the words "as a state legislator" at the beginning.
Mark now showing how Roberson and Gilbert rushed a check for Robinson after Robinson expressed reluctance to speak before the AEMC (secretly on their behalf).
Again, the timing: Contract executed and check delivered four days before Robinson appeared before the Alabama Environmental Management Commission, where he represented himself as a legislator but was secretly speaking for Balch and Drummond's interests.
Mark now speaking to how the defendants concealed their crimes: Scrubbing information from invoices that were going to Drummond and the Alliance for Jobs and the Economy -- the only time Balch staff said they could remember anything like that ever happening.
Records showed that someone from Drummond questioned an invoice because it had the Oliver Robinson Foundation's name as a vendor. It was after that when Gilbert had that information scrubbed from invoices.
Mark showing how even other attorneys and staff at Balch didn't know what Gilbert and Roberson were doing, including one lawyer Balch sent to the AEMC meeting to report back what Robinson said.
Now looking a the elements of honest services wire fraud in this case: Making a payment to a public official to pressure or advise another official in a matter.
Marks arguing that defendants wanted ADEM to be fully engaged in pushing back against the EPA but ADEM Dir. Lance LeFleur wasn't helping them. They applied pressure on multiple fronts and Robinson was one of those.
If you're outside the courtroom and wondering whether there's space inside, the answer is no. Courtroom is full.
Now looking at the money laundering count. If the jury winds up looking for a compromise verdict, this could be where they might find it.
Now we're on the conspiracy count: Did two or more persons agree to an unlawful plan?
Also an element of conspiracy: Did the defendants know the unlawful purpose of the plan and willfully join? (Roberson's defense has a good argument there that he asked Gilbert whether all of this was legal and Gilbert told him it was.)
Mark now preempting some possible defense arguments, the first being that Robinson was paid to do "community outreach." Mark says that there was community outreach -- nine months into the contract, well after Robinson appeared before the AEMC and after Robinson first paid.
Huge hole in Gilbert's testimony: Drummond CEO Mike Tracy asked Gilbert whether the contract had been vetted by Balch to confirm legality under Alabama ethics law. Gilbert told him yes. But that meeting happened BEFORE Gilbert ever asked Balch ethics staff about it. He lied.
Mark now heading off defense attack on Oliver Robinson's credibility as a witness. She says the prosecution doesn't need Robinson to prove most (if not all) of the facts in this case. Robinson's testimony is corroborated by other evidence.
Mark now returning to her theater theme. She plays a video where Robinson spoke before the AEMC, but she says that it's time for the credits to roll, and those credits show who was responsible for the show -- the defendants.
First half of the prosecution's closing is now over. Defendants will take turns next. Prosecution's second half will probably take place tomorrow.
AUSA Robin Mark gave a strong closing -- clear, concise, with a nice narrative framing device thrown in. (But a lot of trial lawyers will tell you a case is won or lost long before we get to the end.)
Gilbert defense attorney Brandon Essig is up first for the defense's closing. "Where is the bribe?" he asks. Essig says that question is still unanswered.
Essig points out that Robinson never used the words bribe or bribery in any of his six interviews with the FBI, and was first used in his plea agreement with the government.
Essig arguing that there was no bribe and the government never showed one. (I've seen this argument in other cases I've covered. It's an easy one because envelopes full of cash are rare. Sometimes this argument works, but more often it doesn't.)
Essig now leveraging the fact that Gilbert testified in his own defense, says that Gilbert's story has been consistent -- that it was never his intent to bribe anyone, that he never knew or meant for Robinson to benefit personally.
Essig turns Mark's theatre analogy on the prosecution. Says prosecution has cast the defendants as something they're not.
Essig now arguing that his client is honest and truthful, just as his character witnesses said. He calls Robinson a tax cheat and a fraud.
Essig now arguing that lack of disclosure is a First Amendment issue -- that it was their right to hide Robinson's contract with Balch and Drummond.
Essig calls Robinson the most business-friendly Democrat in Alabama, argues that he was the logical person for them to reach out to. Robinson hosted a gala for black business leaders, which Essig says he funneled money out of into his own pocket -- a fraud on the sponsors.
Essig points out moment in Robinson's testimony where he said he never gave defendants any reason to believe that he personally was taking money out of the Oliver Robinson Foundation. (A strong point for the defense.)
I don't buy the argument that the defendants thought Robinson was doing all this out of the goodness of his heart, but that segment of his trial testimony works very well for the defense.
Essig now talking about the meeting Gilbert had with Balch government affairs lawyer Chad Pilcher in Dec 2014 -- a meeting about ethics law compliance. Essig says the meeting is evidence that Gilbert was acting in good faith.
Essig now pointing out that Robinson had contracts with Regions and the Birmingham Airport Authority similar to the Balch/Drummond contract.
In email to Gilbert, Aug. 3, 2016, Robinson said the foundation was not a thing of value to him. (This appears to be in the wake of an Ethics Commission ruling regarding PSC commissioner Chip Beeker).
(Tweeting during trial, looks over at Twitter to see if anyone's paying attention, sees "Russian Sex Trap.")

Well, hell.
Essig says defendants weren't co-conspirators of Oliver Robinson. Instead, they were victims of Oliver Robinson. Essig points out Robinson and Powe side plan to administer a settlement between polluters and EPA. "You can't conspire with someone you don't know is a crook."
Thank God the jury isn't on Twitter, because this Russian sex-trap stuff is way more interesting.
The whole time Essig is speaking, he has two huge posterboards on easels. One if of the Oliver Robinson Foundation's tax forms showing other companies paying into the foundation, and the other is of corporate logos of all the companies that sponsored ORF events.
Essig now attacking government's argument that Robinson and Gilbert broke the law when Robinson voted on a joint resolution in the House Rules committee. (This is probably the weakest point in the government's case.)
Essig using the end of his closing to drop in as many times as he can that Gilbert has small children. Says that Gilbert had a lot going on in 2014/2015, including a one-year-old daughter at home.
Essig now hammering on reasonable doubt, burden of proof, evidence of character. Argues that Robinson had a "100-year-motive to lie" (the max time Robinson could get).
Essig calls the United States government the most powerful human organization in the universe. Essig telling jurors they are peers of Joel Gilbert and that they should hold their government accountable.
Essig is done. We're breaking for the day. Tomorrow morning we will hear Roberson's closing and the prosecution's rebuttal.
Essig's closing was strong. He zeroed in on the weakest points in the prosecution's case and hit them hard. His delivery was firm and not over the top. He delivered what's been missing from this defense -- an alternative narrative with verisimilitude.
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