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December 28, 2016

Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case

Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters.  The piece is headlined "107 former Justice officials think this case was handled unjustly.  DOJ must act."  Here are excerpts:

“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice.  Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.

Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years.  Worse, his sentence was based on perjured testimony and prosecutorial misconduct.

If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons.  In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served.  The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.

Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs.  Moreover, all 107 of us are working on this pro bono.  Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.

The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa.  In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers.  The raid resulted in the company declaring bankruptcy.  Rubashkin was arrested a short time later and charged with bank fraud.  And this is where things went terribly wrong.  The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....

I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case.  Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law.  If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.

December 28, 2016 at 03:40 PM | Permalink


The writer notes: "I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case. " It my experience it is always former federal prosecutors, rarely current ones, who understand the injustice of draconian sentences and the need for mercy to temper justice.

Posted by: Michael R. Levine | Dec 28, 2016 10:00:26 PM

I believe that the Judge who handled the trial & sentenceing went down to the 8th circuit court if appeals and substituted in his absence, on this very case. Dah, it dont take Wiley E Coyote Super Genius to determine thats a conflict if interest. Go down and fill in on the case that you gave more than the railroad prosecutors were asking for and rule on the appeal. oh boy, nothing wrong there right. ( thats right railroad is what happened)

Shack couldnt do a slam dunk any better than Cedar Rapids, Iowa. Oh well, the federal govt won Nd thats all thst counts, right. Dont matter how.

Posted by: MidWestGuy | Dec 28, 2016 11:06:51 PM

This is typical of most federal cases. He has a big voice, but this is essentially the way we prosecute and sentence offenders.

We have thousands of nonviolent offenders serving life or de facto life sentences in federal prison. They should all have their sentences commuted.

I wish that advocates for individuals who are harshly prosecuted and sentenced could broaden their scope and see that irregularities in investigation and prosecution are not singular or rare, but have become standard operating procedure. On appeal, they become harmless error.

You're correct Michael, it is always "former prosecutors" who see the injustice. Once the trial is over and sentencing is done - the bar is high. There is a nonviolent marijuana offender who received a sentence of life without parole whose prosecutor - now in private practice - wrote his petition for clemency. His commutation was denied.

Of course, Sholom Rubashkin's sentence is egregious along with thousands of others.

Posted by: beth | Dec 29, 2016 10:34:17 AM

It would seem that there is political or career pressure in the DOJ/USA office to not only convict but max the sentence on all or most defendants. It certainly happens in state DA offices, especially in high-profile cases, but doesn't seem to be as rampant a practice.

Posted by: Fat Bastard | Dec 29, 2016 11:11:40 AM

I suspect that DOJ is pretty inured to the effect of letters and amicus briefs from former prosecutors. Often, many of the former prosecutors served decades ago, and are not seen as having a particularly valuable contemporary perspective. Typically, many of the former prosecutors may have spent short times as prosecutors (say, the politically appointed U.S. Attorney for whatever district) without substantial prior prosecutorial experience -- and spent decades of their subsequent career in the defense bar. Current DOJ prosecutors therefore view their perspective as inherently more aligned with the defense than as signalling that even prosecutorially-minded people hold a particular view. A similar dynamic is at work with briefs signed by former judges. Often, they're known as very liberal former judges, and DOJ prosecutors' response is to say that those judges got a lot wrong on the bench and that their views are not particularly interesting to the prosecutors in retirement.

Finally, I wonder whether DOJ is concerned about appearing to subvert regular procedures merely because someone or other has high-powered backing. It's no secret that there's an amicus network in DC that works to get support for these kinds of efforts. How they choose their cases may have something to do with powerful private-sector people's sense of injustice. It also has something to do with pressure from law firm clients. (General Counsel or private client says, "Hey - I'm very concerned about this case. Would you take a look at it and see if you want to do an amicus brief?" The answer is likely to be "Yes.") Or the particular interests of particular partners. In general, DOJ is sensitive to the danger that flows from granting only some requests for private meetings -- particularly meetings with counsel for non-parties to discuss a particular case. And that's a legitimate concern -- although again, one can argue about whether it ought to control in all cases, or whether there should in fact be a policy of allowing open meetings.

Posted by: Probably | Dec 29, 2016 12:49:55 PM

Prosecution is further corrupted because of asset forfeiture. Assets are seized and the defense is disabled. The most troubling thing about forfeiture is that it feeds the circuit and district where it occurs. There is great monetary incentive to charge and prosecute to the max and never waver and never risk the validity of the forfeiture that occurred prior to trial.

Posted by: beth | Dec 29, 2016 12:50:22 PM

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