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Opinion Column In Wall Street Journal Calls For Obama To Pardon Rubashkin

smr[By Charles B. Renfrew and James H. Reynolds]

One of the Roman poet Juvenal’s best-known lines is quis custodiet ipsos custodes. Who will watch the watchers? Some 2,000 years later, this question is especially relevant for America’s criminal-justice system, given the power wielded by federal prosecutors. Too often their profound authority leads to significant abuse, as demonstrated by the case of Sholom Rubashkin.

Mr. Rubashkin, a 57-year-old father of 10, is the former vice president of Agriprocessors, a kosher food processor based in Postville, Iowa. On May 12, 2008, U.S. Immigration and Customs Enforcement agents raided the company’s plant and arrested hundreds of the firm’s workers who were undocumented immigrants. This led the company to file for bankruptcy several months later.

Shortly thereafter, Mr. Rubashkin was arrested by federal officials and charged with fraud in the U.S. District Court, where one of us formerly served. The government alleged that he illegally shifted money that should have been deposited as collateral for a loan from the St. Louis-based First Bank.

Although Mr. Rubashkin was convicted, he did not intend to cause any loss to the bank. But the federal prosecutors who charged him wanted to extract a pound of flesh, and then some—even at the cost of illegally overstepping their bounds and interfering in the bankrupt company’s sale.

As part of its bankruptcy filing, independent assessors valued Agriprocessors’ assets at $68.6 million. Yet evidence that the prosecutors hid and that Mr. Rubashkin’s attorneys found over the past few years proves that the prosecutors stymied the bankruptcy trustee from making a sale to prospective buyers at a reasonable price. Instead, they warned that buyers would forfeit the business if any member of the Rubashkin family maintained a connection to the firm, although no other family member had been charged.

Moreover, the Rubashkins’ involvement was a critical part of Agriprocessors’ value. The Orthodox Jewish family—especially Sholom’s father, the company’s founder—had significant institutional knowledge and expertise in the kosher food-processing business. Absent the family’s know-how, the company became significantly less attractive to buyers.

The prosecutors achieved their intended goal. Nine prospective bidders walked away from the sale—including one that had offered $40 million. The business was sold for $8.5 million, a fraction of its actual worth, ensuring that the bank would not be paid back for the money it was owed. Even the bank, the victim in the case, objected in writing to the prosecutors concerning the government’s actions. Here, too, the prosecutors unjustly concealed the bank’s objections from the defense.

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. 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-century. The prosecutors concealed their role by soliciting false testimony from Paula Roby, counsel for the bankruptcy trustee, who said that the prosecutors did not interfere in the bankruptcy sale process. At sentencing, the prosecutors misled the court into believing this meddling never happened, a fact that was only recently discovered.

Mr. Rubashkin was found guilty on financial-fraud charges and sentenced to 27 years behind bars. Had justice truly been served, he would have received less than four years. In April 2010, after the conviction but prior to sentencing, a bipartisan group of six former attorneys general and more than a dozen other prominent legal experts wrote a letter to the judge in which they urged her to show Mr. Rubashkin leniency.

This call has grown into a clamor in the intervening six years. In April, a bipartisan group of four former U.S. attorneys general, two former FBI directors and dozens of law professors and former Justice Department officials wrote to the current U.S. Attorney for the Northern District of Iowa, Kevin Techau. They described Mr. Rubashkin’s sentence as “patently unjust” and asked him to act to remedy what the letter called “shocking new evidence that prosecutors in your office knowingly presented false and misleading testimony at the sentencing hearing.”

Mr. Rubashkin has now served more than seven years of his sentence—more than twice as much as he would have served had his punishment fit his crime. Every day that he spends in prison is a day that he should be spending as a free man, with his family.

That is why we urge President Obama to pardon Mr. Rubashkin before he leaves office in January. Congress should also take steps to rein in the serious problem of prosecutorial abuse, which has elicited bipartisan concern from many lawyers, legal scholars and federal judges. One possible reform includes making it a felony for prosecutors to knowingly conceal or alter evidence that bears on a case’s outcome.

The watchers must be watched. If they are not, the criminal-justice system will too often deliver the kind of injustice that Sholom Rubashkin is experiencing.

Mr. Renfrew was a U.S. District Court judge in the Northern District of California (1972-80) and U.S. deputy attorney general (1980-81). Mr. Reynolds was the U.S. attorney for the Northern District of Iowa (1976-82).


14 Responses

  1. I followed the Rubashkin case as it unfolded, and I had the impression that he was in over his head, had inadequate business knowledge to run such a big enterprise. Nevertheless, the evidence in the case clearly showed that he submitted false financial statements to the bank, and that he knew they were false. His conviction was sound.

    The sentence – 27 years, 2 more than the prosecutors asked for – struck me as preposterous. Bank fraud is a serious crime (I am not a banker or friend or relative of bankers), and I thought a 10-year sentence would be appropriate, but no more. I am not familiar with the sentencing guidelines, which the authors tell us is tied to the dollar amount of the fraud.

    The authors have made some serious charges against the prosecutors, and the charges should be investigated. In my mind, Mr. Rubashkin has served enough time for his crime. Clemency would be appropriate.

  2. a pity R didn’t commit a violent drug related or gun related crime and is therefore s threat to society. then it’d be a no brainer

  3. And if Obama would pardon him would you give him any credit? Wold the vile and sinister hatred of the President end? Obama was the president who allowed Pollard to go free. Did he receive any hakoras hatov for that?

  4. I followed the trails and testimony from both trials and the back and forth of Judge Reeds involvement from the start.
    Another person ,non-Jew, got 1 year and 1 day for the same crime in that district at that time. The maximum sentence would have been 3 years. With a first offense, good behavior, white collar offense and some personal circumstances he would have probably served 16-24 months only. It is now over 7 years!
    The sentence was based on false testimony (found in notes of the prosecution in their hand writing)and the judge never pulled back the sentence.
    The sentence is way out of line!!!!!
    The prosecutors were never brought up on charges. WHY!!!!!!!!!!!!!!!!!!!!!!!!

  5. The Wonderful Yidden who are involved in the details of this unjust situation, have said that after years of non-stop efforts and millions of dollars donated to Obama’s library, Rubashkin’s case is finally on President Obama’s desk!

  6. Maybe we get a petition started urging the president to grant him clemency. If enough signatures can be procured, perhaps he would be inspired.

  7. Yes, it is a shame that Mr. Obama has released drug pushers, muggers, and a slew of assorted law breakers and Rubaskin who was basically railroaded and has helped so many people must sit in jail.

    Please Mr. Obama, has mercy on good people too!

  8. Wherein @huju demonstrates that they did not comprehend the piece.

    He did not commit bank fraud. The prosecutors ensured he would go bankrupt. Without this there would have been no opportunity for the vindictive judge to sentence him essentially to life imprisonment.

  9. To: huju

    In not so old days various Governments also officially accused Jews of poisoning wells and abduction xcian children for ritual slaughters. Do you always assume guilt because government says so?

  10. Re comment 12: What, exactly, are you saying? That the government caused the insolvency of Agriprocessors, and Mr. Rubashkin therefore was forced to file false information with the Agriprocessors bank? That’s no defense, and it is nonsense to think that the business failures of Agriprocessors were the result of government conduct.

    Re comment 13: No, I don’t assume guilt because the government says so. Do you assume that all Jews accused of crimes in the United States are innocent? Or all Jews with beards and black hats? The conviction was good. The sentence was outrageous.

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