Why Was the Case Against Perata Abandoned? 

The Don says it's because he's innocent, but there were many factors in play.

When federal prosecutors announced last week that they had decided to not seek public corruption charges against Don Perata, the former state senator said he had been fully "vindicated." Even some media organizations declared that Perata had been "cleared" of wrongdoing. But is that true? Did prosecutors, after reviewing the evidence, including several years of grand jury testimony and thousands of pages of documents, determine that Oakland's leading mayoral candidate was not guilty? Or did they drop the case because there simply wasn't enough evidence to secure a conviction against him? We may never know the answers to those questions because prosecutors are declining to say how they arrived at their decision or what it really means. But a review of the case reveals that there were likely several factors in play.

First, there's the possibility that Perata really was innocent. Of course, that's what the senator has claimed since the probe became public in late 2004. And in a statement last week, he declared: "This is a complete affirmation of everything I've maintained for the last five years — that I've acted appropriately in both my professional life and my career in public service." Perata and many of his supporters also have maintained for years that he would ultimately never be charged, and strongly disputed reports last year, including one by this newspaper, that felony charges were imminent. On that point, they were right, of course.

However, readers of these pages can guess that Full Disclosure doesn't view the senator's long political career the same way he does. There is plenty of evidence, for example, that the Oakland Democrat has been the most ethically challenged politician in the East Bay for the past two decades. He has repeatedly provided official favors for his biggest campaign donors, from lobbying on behalf of a $40 million publicly funded road in Alameda for his buddy Ron Cowan to carrying legislation would have put a tax on diapers. Perata also used at least $1 million from his stable of donors to finance a lavish lifestyle, including dining in California's finest restaurants and staying at its best hotels, even ones just a short drive from his home. So, yes, Perata has acted "appropriately," if you consider pay-to-play politics and living large to be the best way to conduct the public's business.

Second, some might argue that Perata really was a victim of a Bush-administration conspiracy against prominent Democrats. The senator, his chief spokesman Jason Kinney, and his lead attorney George O'Connell have leveled this allegation repeatedly for the past several years. O'Connell trotted it out again recently in a complaint letter to the US Department of Justice after the Sacramento US Attorney had decided to review Perata's case even though the US Attorney's Office in San Francisco chose not to file charges. "As the entire country knows by now," O'Connell wrote, "the Bush administration has been the subject of several inquiries pertaining to the selective prosecutions and the unfair and highly politicized targeting of Democratic politicians."

O'Connell's assertion is true, of course, and that gave this allegation legs. There is no dispute that the US Department of Justice was politicized under former Attorney General Alberto Gonzales. It's also fairly clear that Gonzales fired several US attorneys for not targeting Democratic public officials often enough. The only problem is there is no proof that this ever occurred in the Perata case. There is no evidence that anyone in the Bush administration ordered or directed, or even encouraged, federal prosecutors in California to go after Perata. Still, it does seem possible that the multiple black eyes the Justice Department received during the Bush administration may have played a role in the decision to shy away from the Perata case — especially since O'Connell and Perata made such a big deal out the department's problems and were likely going to continue to do so.

Third, it's entirely possible that the case against Perata was weak. From all that's in the public record, it appears that FBI agents were never able to produce a smoking gun that proved Perata took bribes or kickbacks. Sure, they had evidence that he provided favors to donors and then those donors' campaign contributions were funneled to his son, Nick Perata, and to his college pal Timothy Staples, who, in turn, paid Perata for "consulting" work or for renting out office space and living quarters.

But Perata always maintained that the hundreds of thousands of dollars he got from his son and his friend had nothing to do with his official government work, and it would have been hard for prosecutors to convince a jury otherwise — without some eyewitness testimony that prosecutors apparently didn't possess.

Fourth, it's possible that the senator's first-rate, highly paid defense team made a big difference. This also appears to be true. O'Connell is not only an ex-federal prosecutor, but he's the former US Attorney for Sacramento. In other words, he once held a job that most federal prosecutors can only dream of attaining. Plus, he's a bulldog. He repeatedly demanded investigations and complained about prosecutorial conduct, firing off letters to Congress and the Department of Justice in Washington, DC — where he is well known and respected.

According to sources, he also managed to convince federal prosecutors in San Francisco last year to drop the case. Both this newspaper and the Wall Street Journal printed stories last summer saying that charges against Perata appeared to be imminent. The Express story was based on anonymous sources and the Journal's report cited sources close to Perata's defense team. In short, some of the senator's own people apparently thought he was going to be indicted. But then, sources told Full Disclosure, O'Connell went to work and convinced the US Attorney's Office in San Francisco that its case was too flimsy and that it could never convince a jury beyond a reasonable doubt that Perata was guilty.

The senator, not surprisingly, paid O'Connell extremely well for his accomplishments. In all, Perata spent more than $3.8 million on his legal defense, starting in January 2005, when he first began taking donations, through January of this year, according to his campaign finance disclosures. That's an enormous sum, considering that no charges were ever filed in the case.

And although the senator has denied it, there is evidence that Perata himself thought he was close to being indicted last year. According to his financial disclosures, the senator spent more than $2.2 million — about 58 percent of all the money he spent — in 2008 alone. That's more than four times more than he spent in each of the previous three years, on average. If Perata didn't think he was close to being charged, why shell out all that money in a last-ditch attempt to convince prosecutors not to charge him?

And finally, there's the Ted Stevens angle. When the Sacramento US Attorney's Office decided to look into the Perata case late last year after San Francisco federal prosecutors turned it down, Acting US Attorney Lawrence Brown and the FBI also consulted with the Department of Justice's Public Integrity Unit in Washington DC, which, in turn, also reviewed the case. That decision appeared to make sense because the DC team is considered the nation's elite when it comes to white-collar crime and public corruption cases. It also would have made sense for the DC team to take over the Perata case and prosecute it in San Francisco. That way, the government wouldn't have to worry about jurisdictional problems that came with prosecuting the case in Sacramento, and thus could preclude charges for alleged illegal activity that originated in Oakland.

But the DC team also had a huge downside. Late last year, it came under heavy criticism for its conduct in the prosecution of Alaskan Republican Senator Stevens. The team had plenty of evidence against Stevens and even won a conviction against him, but it screwed up the case so badly that newly appointed Attorney General Eric Holder ultimately decided to drop all charges — and ordered ethics investigations of the prosecutors. Like Perata, Stevens subsequently claimed that he had been vindicated. As a result, it's not hard to imagine why the DC team may have backed away from pursuing another public corruption case in which the defense team had complained loudly and often about alleged prosecutorial misconduct. At the very least, the DC team's involvement in the case threatened to be an asset for Perata, because of what happened with Stevens.

So what does it all mean? There appear to be a lot of possible explanations for why Perata beat the rap. But that doesn't necessarily mean he's been "vindicated" or "cleared." It does mean, however, that he is now free to run for mayor of Oakland without having to worry about a federal probe hanging over him. And because he's one of the most prodigious fund-raisers in the state, he'll be tough to beat. The question is whether voters will view the ethically challenged Teflon Don as the best person to run a city with so many problems of its own.

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