The case that will not go away.
On June 20, 2010 Federal Judge Linda R. Reade of Iowa’s Northern District fined Sholom Mordechai Rubashkin $27 million and sentenced him to 27 years for supposed financial fraud. As I explain and emphasize later, the “fraud” itself was manufactured by the government. The facts of this case make a mockery of the American judicial system.
The vindictive prosecutors had sought a draconian sentence of 25 years, a stretch protested as a travesty by every living former attorney general at the time, from Ronald Reagan’s Ed Meese to Bill Clinton’s Janet Reno. In response, Judge Reade added two more years to Rubashkin’s sentence! But Judge Reade, as we shall see, has unclean hands.
Many others convicted of financial fraud — real crimes, not the exaggerated accusation against Rubashkin — have received lesser sentences, often five years or less. And when you do look at major, historic cases — for example, former Enron CEO Jeff Skilling, who was involved in that company’s $60 billion scam, then the largest corporate bankruptcy in U.S. history, even Skilling’s sentence was actually shorter.
Rubashkin arguably sought to borrow more money for his family’s Midwestern meat processing plant than justified. Even if you assumed Rubashkin was guilty of intentional misrepresentation to his bank, he already has now served more than eight years, twice the normal sentence for that crime (that is, before prosecutors unethically embellished it). Mr. Rubashkin, the abundant record (which I only summarize here) shows, was prosecuted unfairly. He is worthy of a pardon. He should be set free, for time served, and the Department of Justice should institute overdue reforms, or change its name.
This all started on May 12, 2008, when federal authorities raided Rubashkin’s Agriprocessors kosher meat packing facility in Iowa and arrested 389 workers, allegedly here illegally. The saga is overpowering. That orchestrated raid was not only the initial result of the collusion between Judge Reade and the federal agents to target Rubashkin, but also their opening salvo to put him behind bars. They would find a way to do that, big time. Five months later Rubashkin’s company would be fined $10 million. Then, the very next day the Feds, as part of their conspiracy, would arrest Rubashkin on, ironically, “conspiracy charges.” In an all too familiar pattern, the federal government next would go nuclear, advancing its scheme further, now to deprive Rubashkin of the resources to defend himself. To crush Rubashkin, the government predators quickly and intentionally would drive his company into bankruptcy (and also, unfortunately, aggravating the small Iowa town’s economic decline). The government’s strategic plot to destroy Rubashkin’s business would have a profound, consequential corollary, the details of which were then concealed, amidst what the evidence now shows to be government obfuscation, possibly even perjury. The government’s maneuvers were programmed to escalate drastically its contrivance, that is, the definition of Rubashkin’s “crime” — a dispositive injustice I shall explain momentarily.
Rubashkin is a kindly man who, contrary to the portrait the government painted of him, treated his employees well, as they would later testify, despite government inducements for them to perjure themselves. Rubashkin, who is now 57, has ten children, one autistic. However, what amounts to a life sentence for him deserves a presidential reprieve not only on humanitarian grounds, but, perhaps more importantly, based on substance. A pardon by President Donald Trump would be universally acclaimed as a “righteous” pardon. And the timing, now, within days of Yom Kippur, the holiest day on the Jewish calendar, is auspicious, especially for the pious Rubashkin who, according to Jewish tradition, will humbly seek on that day forgiveness for his sins, such as they are. And are those Inspector Javerts who incarcerated him remorseful?
Yet, this is not a “Jewish issue.” For years varied religious figures here and abroad have publicly and privately expressed concern for Rubashkin’s plight. For example, the renowned evangelical Christian Chuck Colson, who made his life’s work seeking to reach and rehabilitate the incarcerated through his prison ministry, championed Rubashkin’s cause. Before his death in April 2012, Colson authorized Pat Nolan, then vice president of Prison Fellowship (and now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform), to file Prison Fellowship’s amicus brief in support of Rubashkin. And that was hardly the only amicus brief filed by assorted organizations, neither Jewish nor religious, like the American Civil Liberties Union. Indeed, the Rubashkin case has appalled fair-minded civil libertarians, and honest, impartial, and conscientious federal agents, prosecutors, and jurists who see what happened to this man as an affront to ethical law enforcement and moral legal judgment.
Eric Holder remains the only former attorney general silent on Rubashkin, whose arrest occurred before Holder became President Barack Obama’s attorney general. But Holder presided over the Justice Department when it prosecuted Rubashkin. Recall that Holder years earlier had facilitated President Bill Clinton’s pardon, just before leaving office, of swindler Marc Rich, a fugitive who had fled the United States to avoid justice, but whose wife and her friends had contributed to Clinton’s legal defense fund and the Clinton library. As for President Barack Obama, who could have pardoned Rubashkin, he refused, but he did pardon terrorist Oscar Lopez Rivera and traitor Chelsea Manning. It’s highly questionable whether Rivera or Manning deserved a presidential reprieve, but only the diehards within the Department of Justice who never admit culpability will resist President Trump’s pardon of Sholom Rubashkin, because restoring freedom to Rubashkin is an admission of government wrongdoing. Worse, it shines the light on government practices that would be repugnant to our nation’s founders.
And the malfeasance was disgraceful. We know that Judge Reade met with prosecutors secretly for months before the raid on Rubashkin’s Agriprocessors facility in Postville, Iowa. According to emails and affidavits, Reade met with federal agents to discuss “charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues.” At one meeting where the judge requested law enforcement personnel, she said she was “willing to support the operation in any way possible, to include staffing and scheduling.” In a government email on March 20, 2008, we find: “The Chief Judge has indicated she wants a final game plan in two weeks (April 4).” And on April 4 the assistant U.S. Attorney met with Reade because the judge wanted “a briefing on how the operation will be conducted.” Documents indicate that the judge required a written briefing of the raid which was planned “in coordination” with her. She actually had “a weekly operations/planning meeting” with federal agents and the U.S. attorney. This collusion is an extraordinary conflict of interest that raises many troubling extrajudicial questions beyond the scope of this article.
Attorney General Jeff Sessions believes passionately in the rule of law. Sholom Rabushkin and what his case means should be his cause, even after the pardon.
Separation of powers? “Judge” Reade, who would then preside over the case and make rulings, was effectively part of the police and the prosecution, so how could she judge impartially? Rubashkin’s lawyers did not make an issue of all this at the trial, because they did not know the information. Subsequently, the appeals court would eventually reject Rubashkin’s appeal that was based considerably on this information, as not filed in a timely matter. But how could it be, when the prosecutors did not disclose, and the judge was in a position to suppress, this information that the defense discovered much later?
Former Harvard Law professor Alan Dershowitz wrote about these facts after they emerged. The judge and the prosecutors should have informed Rubashkin’s lawyers about their joint role in the raid, and her vested interest in finding Rubashkin guilty. Their failure to do so prevented the defendant’s lawyers from moving to recuse her. The prosecutorial misconduct and judicial misconduct here should have been grounds for throwing the conviction out of court. In fact, when the matter of her disqualification arose later, she ruled in favor of her own version of events, though documents and affidavits contradicted her. As Dershowitz pointed out, the judge was judging her own credibility; yet, the federal statue provides that when a litigant alleges judicial prejudice, “another judge shall be assigned to hear such proceeding.” The judge was engaged in her own cover-up which, some might say, is worse than her crime.
There’s more. A majority of immigration offenders are housed in privately operated Federal prisons. That’s where Judge Reade sentenced the hundreds of workers from Agriprocessors…for five months! And just five days before the Rubashkin raid, Reade’s husband added to his stock holdings in these prisons, a likely ethical violation of the Code of Conduct for U.S. judges. Talk about insider trading: her husband was buying stock in privately run prisons as she was filling them up.
Down the road, when Rubashkin’s lawyers appealed Judge Reade’s sentencing, she sat with these federal appeals court judges on other cases, on the same day these appeals judges upheld her Rubashkin edict, a ruling which 107 former U.S. Attorneys General, FBI directors, federal judges and prosecutors denounced in an unprecedented letter to the U.S. Supreme Court.
Six months ago Rubashkin’s lawyers sought “a certificate of appealability” to appeal the U.S. Court of Appeals for the 8th Circuit. Weeks before, Judge Reade had not only refused to allow a new hearing to present evidence of the false testimony against Rubashkin but effectively denied his lawyers the paperwork to appeal. Remarkably, in her recent denial Reade effectively stated that she would have sentenced Rubashkin to 27 years even if evidence showed the prosecutors contrived the crime. In originally sentencing Rubashkin, Reade relied partly on witnesses whose testimony now is shown to be perjury, but the perjury likely would implicate her colleague in the U.S. Attorney’s office. Supreme Court decisions prohibit a prosecutor from violating due process by presenting false testimony against a defendant (Napue) or suppressing material evidence favoring the defendant (Brady).
Consider the background. In its unfortunate modus operandi, the federal government had concomitantly encouraged Iowa to prosecute Rubashkin on state charges. But the 9311 labor violations (not a typo) were dropped to 83. With a fair state judge, Rubashkin then was acquitted of all state charges. For example, and contrary to alleged safety violations, the company’s record on safety was so good that an insurance company refunded part of the premiums. And early last year, a state judge expunged from the record the entire state case against Rubashkin, even the indictment, thus a tacit apology for a miscarriage of justice.
And what happened, you are probably asking, to the federal immigration charges that started all this? They were dropped. The government, at great expense to the taxpayers, had flown in, from Guatemala, workers deported from the U.S. In exchange for work visas for them and their family, they were supposed to testify falsely against Rubashkin. Instead, they admitted under oath that they misled Rubashkin, especially about their being underage, and that Rubashkin treated them fairly and compassionately.
Last year former deputy attorney general Charles Renfrew, along with James Reynolds, former U.S. attorney in the same Iowa district as Rubashkin’s sentencing judge, charged that federal prosecutors were guilty of prosecutorial misconduct and soliciting false testimony. Writing in the Wall Street Journal (November 27, 2016) these two prominent and respected former federal prosecutors also noted (this is key) that Rubashkin was wrongly convicted, because “he did not intend to cause any loss to the bank.” Instead, they charged Rubashkin’s prosecutors with “illegally overstepping their bounds and interfering in the bankrupt company’s sale.” The Department of Justice hid the true value ($68.6 million) of Rubashkin’s company, then precipitating bankruptcy to deprive Rubashkin of the ability to defend himself, but that was only part of their scheme.
The Feds had another very important motive in this “witch hunt.” The government sought to create the crime that would define the punishment.
Remember, the government wanted to prosecute Rubashkin for how he applied for a loan. Rubashkin had been repaying the bank loan in a timely manner and would have repaid it entirely, but the government intentionally forced his company into bankruptcy. The records show the government then discouraged any prospective buyers from involving any of Rubashkin’s orthodox Jewish family in the business. But the Rubashkin name was integral to the kosher meat processing plant’s credibility and the dollar valuation of the business. Nine buyers then walked away, including one who had offered $40 million. Thus the business was liquidated for only $8.5 million, a fraction of its true worth. As Renfrew and Reynolds explain, the bank — the supposed victim in the case — had objected in writing to the government’s actions. The government concealed the bank’s objections from Rubashkin’s attorneys, and instead essentially charged Rubashkin with greater bank fraud, because the bank, solely as a result of the government’s machinations, was not repaid on its loan. In other words, they drove away buyers of the company and thus destroyed its value, so they could lay the basis for a longer prison sentence.
“Under federal mandatory-minimum sentencing guidelines for bank fraud, an offender’s sentence is directly linked to the loss incurred by the bank that was defrauded,” Renfew and Reynolds wrote. “The prosecutors’ meddling meant that the bank incurred a $27 million loss. This enabled the prosecutors to seek a staggering life-in-prison sentence for Mr. Rubashkin, which they later lowered to a still unacceptable quarter of a century.”
Rubashkin did have enemies. People for the Ethical Treatment of Animals (PETA) does not support the ethical treatment of humans, and PETA saw Rubashkin as a poster boy in its campaign against meat consumption. And the leftist “Jewish” newspaper the Forward long ago rejected Judaism in favor of socialist ideology and political correctness. It regularly denigrates traditional orthodox Jews such as Rubashkin whose plight it almost seemed to celebrate. And the anti-Rubashkin union bosses apparently favored the forced closure of the meat processing plant, since the workers losing their job were nonunion.
The Rubashkin case — with its prosecutorial overreach and slimy tactics — is an outrage to those men and women of integrity and ethics within our Department of Justice. But what we see here is not isolated. In my new book, Whiplash: From JFK to Donald Trump — A Political Odyssey, (Jameson Books), I explain why major conservatives like Ronald Reagan’s former attorney general and counselor Ed Meese and former House Speaker Newt Gingrich are in the forefront of criminal justice reform; and there are so are many other conservative leaders involved, such as Grover Norquist, the founder and president of Americans for Tax Reform, David Keene, former president of the NRA, and former Virginia Attorney General Ken Cuccinelli, who heads the Senate Conservative Fund. They understand the Rubashkin case is not isolated but illustrates that we must incentivize prosecutors not to procure convictions, but to secure justice.
A presidential pardon of Sholom Rubashkin offends no one except some embedded bureaucrats in the Department of Justice who feel that dubious ends justify even more questionable means. Drain the swamp. The pardon would draw support and praise from liberals and conservatives, secular leaders and religious leaders.
Rubashkin is a man of deep faith, always at peace with himself, and not bitter. He seems to feel what has befallen him is part of a grand design, but what comes next? President Trump could pardon Sholom Mordechai Rubashkin this week. Out of prison, Yom Kippur would be, as always for Mr. Rubashkin, a day of reflection, of atonement. And for those involved in this sordid affair, it would be their day, too.