OUTLANDISH CONSPIRACY THEORIES: ‘The Case of the Mass Recusal’

“(Tricoli’s attorney) has accused the attorney general’s office of engaging in criminal conspiracy... that this wasn’t a matter of some misaccounting or someone screwing up as far as the audit procedure was concerned.”

— Assistant Attorney General Mac Sitton on WABE radio, September 2014

What happens if you take a case to court but there is no judge to hear it?

In prior installments of the Outlandish Conspiracy Theories series, I wrote as the lawyer in cases pending before the Georgia Supreme Court. One is the Phantom Case at Kennesaw State, in which Attorney General Chris Carr never responded to pleadings documenting a campaign of bribery and extortion to cover up financial fraud in the University System of Georgia (USG), as well as other miscellaneous illegal activities.

Not only did Carr’s failure to answer the allegations go on past the 30-day legal deadline to respond in the trial court. The complete and total vacuum has endured for more than three-and-a-half years now, extending throughout the appeals process. (Though Carr never responded, courts just kept ruling in his favor at every level — which is a trick of legal legerdemain no other lawyer has ever been able to replicate).

Another is the strange case of Anthony Tricoli, in which Chris Carr also failed to answer pleadings documenting falsification and misrepresentations of USG financial reports for the purpose of defrauding the federal government. That pregnant silence has lasted for over a year now, since April 1, 2019.

The USG dragged into this mess the attorney general, the Georgia Department of Audits (DOAA), and the SACS accreditation agency. With a lot of secretive transfers of millions of dollars and double counting of funds, they were able to fudge the USG’s way into meeting the financial requirements to receive federal assistance, and also to misrepresent the USG’s financials to bond-rating agencies who determine how much it costs the Board of Regents to borrow money.

The federal funding received by the USG on false pretenses, by itself, amounts to about a billion dollars a year in Pell Grants alone. Without falsifying the financial records — and substituting phony reports for the independent audits that are supposed to be required — the USG would not have qualified for that money.

Under the federal false claims act, the USG could be required to pay it all back — which, of course, would be a major disaster for higher education in Georgia. Rather than risk that calamity, the USG scapegoated Dr. Anthony Tricoli and Dr. Dan Papp, and destroyed their reputations and careers. Meanwhile, those responsible for the financial fraud keep running the USG. In legal parlance, that is known as injustice. It is the reason we have courts of law, in the first place.

So that explains why Attorney General Chris Carr never answered these allegations. Carr did not even repeat former Attorney General Sam Olens’ famous unfounded smear that the RICO allegations against the state were simply an “outlandish conspiracy theory” I concocted.

It is undisputed that the attorney general never investigated the allegations of fraud arising from Georgia Perimeter College for which Anthony Tricoli was scapegoated. Governor Brian Kemp has also not responded to repeated requests to appoint an independent investigator.

What was more surprising is that the Georgia courts kept ruling in the taciturn attorney general’s favor, entering almost equally minimalist one-sentence orders denying relief to Tricoli and the KSU plaintiffs — without a word of explanation.

They even stopped asserting the position they previously concocted that sovereign immunity allows state officials to commit felonies with impunity. It was nonresponse on top of nonresponse. I never knew before that silence could have an echo. In legal parlance, the phenomenon is more commonly known as denial of due process.

On March 26, 2020, when the Georgia Supreme Court denied review of the Phantom Case at Kennesaw State — again with no explanation, ignoring a motion to consolidate it with the Tricoli case, I finally lost patience with that ephemeral legal theory.

I filed a motion to vacate that order — though the KSU case has arguably gone as far as it can go in the Georgia courts, with Attorney General Chris Carr failing to respond for almost four years, and with the courts never offering a word of explanation.

Before I could get the same treatment in the Tricoli case, I turned my attention away from the law and toward the Supreme Court justices themselves and any biases and conflicts of interest they might be harboring to create this void. That seemed like as good a way as any to elicit a word to the wise from the Georgia judiciary, just to break the monotony, if nothing else.

The result was a motion to recuse seven of the nine justices, along with a request to the other two to examine whether they had been influenced by their conflicted brethren and sistren.

With just a little background research, that motion to recuse seemed to do the trick. For the first time in many years, Georgia judges had to pay attention to these cases. Of course, Carr did not respond to the motion, and the justices did not give any reason why, but five of nine justices disqualified themselves from participation in the Tricoli case.

Despite the usual lack of explanation, this mass recusal speaks volumes. It is a rare event, by itself, for five justices — a majority of the court — to end up disqualified in any case, even without a billion-dollar government corruption scheme at stake.

What is even more noteworthy is that some of the justices, who had to disqualify, had previously been ruling against Tricoli — despite their obvious conflicts of interest — before they were called out.

For example, Justice Sarah Warren, who served as solicitor general in the attorney general’s office under both Sam Olens and Chris Carr, voted to deny my motion to add to the record Chris Carr’s ethical violations in obstructing criminal investigation of the financial fraud in the USG.

A reasonable observer might say she favored Carr or was prejudiced against Tricoli. So what should be done about that apparent transgression of the canons of judicial conduct?

Justice Nels Peterson also voted to deny Tricoli’s same motion to supplement the record with evidence of the USG’s fraud on the federal government — even though Peterson served as legal counsel to the USG and Board of Regents while they were litigating against Tricoli.

Justice John Ellington had previously not only ruled against Tricoli, but had refused to even consider Tricoli’s arguments as a judge on the Court of Appeals — which means he was disqualified by statute from participating in the decision to deny the motion to supplement the record with evidence of Attorney General Carr’s obstruction of justice in that very case.

That motion to point out Carr’s ethical peccadillos committed to save the USG’s felonious bacon was literally dead on arrival in the Supreme Court. The justices got together and denied that motion within an hour of my filing it. They obviously did not have time to discuss their conflicts of interest, as all of them participated.

Other justices who were disqualified in Tricoli did participate in the decision to deny review in the related KSU phantom case. That was the case where Dr. Papp got extorted out of existence to make way for Sam Olens, after Olens obstructed investigation of the federal fraud in the Tricoli case. So there were likely more undisclosed conflicts there (though Warren and Peterson did sit that one out), since one case was just a continuation of the same RICO enterprise in the other.

Another extraordinarily unusual thing happened, though, in connection with the mass recusal. The case of the uncontested billion-dollar fraud, Tricoli v. Watts, actually got some media attention, despite the Atlanta Journal-Constitution editor Kevin Riley’s longstanding contention that fraud on the federal government and obstruction by the attorney general (who should be prosecuting the crimes) does not offer any hook to interest the average reader.

That racketeering scheme in state government only caught the attention of five Georgia Supreme Court justices, and Tricoli is filing a further motion to recuse three more, based on the developing state of information.

The unaccustomed media attention came in the form of a Fulton County Daily Report article with a promising headline — about all those justices recusing in a mass exodus from this state barge filled with the bilge of corruption — but the Daily Report left out a lot of the ramifications — such as the prior participation of the disqualified justices. Anthony Tricoli, the one whose life and career was destroyed, took the opportunity to write a letter to the editor to fill in some of the blanks.

The Daily Report declined to publish the letter as a little too controversial, though we offered to supply documentation on any point the publication considered debatable. Though you missed it in the Daily Report, you can read Tricoli’s letter here.

One thing’s for sure, after the mass recusal, Tricoli cannot be subjected to the same old mass refusal to even consider his case. Maybe the replacement judges will honor Tricoli’s request to tear down the already-crumbling barrier of sovereign immunity for felonies and send his case back to Superior Court for a trial by a jury of his peers.

That is the longstanding Anglo-Saxon tradition. Then, at a trial, maybe we can find out what was really behind those screw-ups in the audit procedures the assistant attorney general was talking about on the radio.

And maybe next, if qualified judges reconvene to reconsider the decision to throw out the uncontested phantom case at Kennesaw State, we’ll get to see the evidence presented to a jury about the financial fraud the USG was covering up when Dr. Papp was coerced to vacate the KSU presidency to make way for Attorney General Sam Olens.

Any questions? —CL—