By Nathan Lewin and Guy Cook
U.S. Attorney Stephanie Rose has decided “silence is no longer in order.” But should a U.S. attorney take offense at the exercise of First Amendment rights by American citizens who support Sholom Rubashkin? By writing a guest essay (“Setting the Record Straight on the Postville Prosecution,” June 23 Register) that makes assertions neither proven nor tested in court, Rose has opened the propriety of her conduct to discussion.
Nathan Lewin has criticized her in a letter to the Department of Justice. We now challenge her to debate the propriety of the prosecution in a public session. This essay addresses errors in her published defense.
Rose portrays Postville before the May 12, 2008, raid as beset by fear that necessitated the federal government’s “massive enforcement operation.” Before the immigration raid Postville was enjoying a substantial economic boom because of Agriprocessors’ commercial success and substantial employment at the plant. Fears of deportation, creditors or a crumbling economy resulted from – and were not cured by – the ill-conceived raid.
Rose fails to explain why the Department of Homeland Security has reduced substantially the immigration-raid policy she extols. Have the “highest levels of the United States Departments of Justice and Homeland Security” now decided the “fears” Rose graphically describes are in fact caused by immigration raids?
Several U.S. attorneys rejected Immigration and Customs Enforcement’s raid requests while they were in office. Her office was asked in a formal lawyer’s letter to enter the Postville plant peacefully and remove those they found to be illegal aliens, as had been done in Texas. This peaceful proposal was rejected.
Rose praises the “tireless” federal effort that followed the raid. Professor Erik Camayd-Freixas, a Spanish interpreter, wrote a detailed essay condemning the assembly-line process, and a federal civil rights lawsuit attacked the procedure she lavishly praises. The U.S. Supreme Court held unanimously in May 2009 the identity-theft felony her office threatened to use against the aliens to get them to plead guilty in 2008 was inapplicable to their case and was, therefore, misused by the prosecutors.
Rose says Rubashkin’s supporters have painted the prosecutors as “racists, Nazis, and zealots.” No responsible Rubashkin supporter has said or implied anyone on the prosecution team is a racist or a Nazi.
Her claim that Rubashkin personally profited from Agriprocessors’ funds fails to note he put personal funds into his father’s wholly owned business. Agriprocessor funds paid to Sholom Rubashkin were reimbursements for Agri expenses, repayment of loans Rubashkin made to Agri, or funds used for Agri purchases.
Rose claims the accusations against her office are “vicious and false” and “ill-informed.” But there are many critical accusations she has failed to answer.
– Was Rubashkin handcuffed and arrested in October 2008 only to generate publicity? The routine procedure is to tell the defendant’s lawyer to bring the client in to plead to the charge.
– Why was Rubashkin imprisoned for 76 days before trial on her office’s bogus claim he could flee to Israel and would be immune from extradition under Israel’s “Law of Return”?
– Were the charges against Rubashkin deliberately multiplied by the office through an unprecedented seven superseding indictments to 163 counts to overwhelm the media, the public and the jury?
– Why was a 1921 law that has never before in U.S. history been used for criminal prosecution invoked when the charges were based on full payments made by Rubashkin 10 days late?
– Did the office prevent sale of the business to any purchaser who might employ any member of the Rubashkin family in a managerial capacity, thereby making a sale of the business virtually impossible?
A consensus of the legal community, including six former U.S. attorneys general, both liberal and conservative, has objected to Rose’s overzealousness in her sentencing recommendation.
We trust Rose will debate publicly on these important questions about the propriety of her office’s conduct and tactics.
Nathan Lewin is a former deputy U.S. assistant attorney general in the Civil Rights Division, teaches Supreme Court litigation at Columbia Law School, and has argued 27 cases before the U.S. Supreme Court. He is principal appellate counsel for Sholom Rubashkin.
Guy Cook is a Des Moines-based attorney with Grefe & Sidney P.L.C. who was the principal trial counsel for Rubashkin. He has tried more than 200 jury trials and is a former assistant U.S. attorney for the Southern District of Iowa. Contact: GCook@grefesidney.com.