ARE THE FEDS OUT TO NAIL ACEVEDO?

Governor Anibal Acevedo Vila’s essential defense is this: I am being accused of doing what every politician does to raise money in the campaign. Why pick on me? The answer is that they, the federal prosecutors in Puerto Rico, are out to nail me. The answer is political persecution: a conspiracy to destroy me so that I lose the November elections.

Lets look at this defense.

The first question that pops up is: why would the federal prosecutors in Puerto Rico want to get involved in Puerto Rico’s elections? They are not running for office in Puerto Rico. In fact, if they are doing what Acevedo says they are, they are putting their own jobs and careers at risk.

Just days ago, Attorney General Michael MuKasey, in a major speech before the American Bar Association, repeatedly declared that he will not tolerate any federal prosecutor doing precisely what Acevedo accuses the prosecutors in Puerto Rico of doing. Since Mukasey has pledged that if he sees any evidence of politics playing a role in the department’s investigations and prosecutions, his response will be “swift and unambiguous,” why would any federal prosecutor in Puerto Rico or anywhere else want to test if he means it or not?

The answer, Acevedo said repeatedly last Wednesday after he was indicted for five additional counts, is that behind all of this is “hatred and vengeance.” He was referring to former Governor Carlos Romero Barcelo whose original complaint of campaign finance fraud led to the federal investigation and indictment of Acevedo. It should be recalled that before that, Acevedo accused Romero of campaign finance fraud using a sworn statement that turned out to be false. Romero retaliated trying to get Acevedo disbarred.

This, then, is Romero’s “revenge. ” But regardless of whether this has any credibility or not – that Romero, a national Democrat, has in fact that great influence in Washington, what about Acevedo’s essential legal argument that he is the target of what is called “selective prosecution.”

If you prove in court that the investigation and prosecution were not done “in good faith and in nondiscriminatory fashion,” the judge can throw the case out, whether the indictment is factually correct or not.

The latest indictment states that Acevedo used fraudulent means to accept $250,000 in campaign donations from a private firm that had multiple business relations with the government. Acevedo, the indictment says, personally and through aides assisted the firm. And to hide the donations, the indictment declares, the firm paid the money to the Governor’s public relations and advertising company for fictitious services: that is, to pay invoices that were fraudulent.

Now, it is generally believed that this is common practice in Puerto Rican politics. As the costs of campaign advertising increase, candidates find themselves accepting and hiding donations that exceed legal limits. A campaign is a desperate race and when one candidate sees the other winning because he or she is spending much more in advertising, the pressure to do the same becomes irresistible.

Acevedo denies that he did or authorized anything illegal. But his essential “selective prosecution” argument is: if this is the way we all play the game, and have for years, why single me out? Why not go after the other politicians that have done exactly the same? If this is not “bad faith, discriminatory prosecution”, what is?

Proving “selection prosecution” in court, however, is not easy. Island attorneys point at a 1983 case in Delaware, State v. Holloway. Herman Holloway was accused of violating state income tax laws. If there was ever a defendant that seemed to be victim of “selective prosecution”, it was him. He was a liberal, often controversial Democratic member of the state legislature, an outspoken militant in favor of the Democratic candidate for president, a radical Teamster leader, and he was black. Why, he asked, didn’t the state go after so many others that violate the income tax law? The answer, he said, was obvious: because he was outspoken, controversial, Democrat and black.

The court did not agree. By necessity, prosecutors must chose which cases to prosecute, and which not. The state cannot possible investigate all suspected violations of income tax laws. To prove “selective prosecution” the defense must go into the prosecutor’s motives and judgments to come up with the “bad faith.” Furthermore, the court said, it is permissible for the state to select for prosecution a “high profile” personality precisely because of all the publicity that will serve as a deterrent to potential violators.

Now, Acevedo, needless to say, is now engaged in fighting, not a legal, but a political battle. Everything he does and says has one aim: help him win the November elections. But when he made the fateful decision that he would not resign as candidate back in March, he mixed into one his legal and political battles. It is one thing for his attorneys to attempt to convince the judge that the defense meets the legal requirements of “selective prosecution”, it is another, in this political campaign, to hammer again and again to the people of Puerto Rico that the U.S. Justice Department, indeed the U.S. Government, is persecuting him because of the “hatred and vengeance” of an aggrieved political rival.

In 1960 something incredible happened in Puerto Rico. Catholic Church bishops organized a political party to condemn Governor Luis Munoz Marin as “anti-God.” It didn’t work. Munoz was again reelected and the party disappeared. But the bitterness of the emotions tested Puerto Rico’s belief in the separation of Church and State.

There is today a similar test. It is simply not credible that the accusations are purely politically motivated: that, yes, the Feds are out to nail him. Yet Acevedo’s decision to stay and fight is also arousing bitter emotions that put to the test something as essential as the separation of Church and State, the confidence the people must have in the vital institutions of Puerto Rico’s relationship to the U.S.