By Jacob Kamaras
Another important date for Sholom Mordechai Rubashkin looms July 25, when the U.S. government is scheduled to file a brief that will likely ask the Supreme Court not to hear Rubashkin’s case.
Rubashkin in 2011 lost his bid for a new trial before the U.S. Court of Appeals 8th Circuit.
Through Freedom of Information Act (FOIA) requests, Rubashkin’s lawyers obtained documents showing that Iowa federal judge Linda Reade, who sentenced Rubashkin, cooperated with government agents and prosecutors regarding the immigration raid. Rubashkin’s representation, therefore, argued before the 8th circuit that Reade was biased against Rubashkin and should have recused herself from his fraud trial.
Shortly after the 8th circuit rejected this argument, Paul Clement-who recently led the multistate challenge to “Obamacare” in the Supreme Court-joined Rubashkin’s team as its lead attorney. The government requested three extensions beyond the initial May 5 deadline to file a Supreme Court brief, but Clement expects no further delay past July 25.
In the following interview, Clement spoke with JNS.org about the upcoming brief and what comes next.
JNS.org: What is the significance of the government’s July 25 brief, and what are you expecting?
Paul Clement: “The first thing to note is that the government’s request for a third extension is rather unusual and that it suggests that the government is working hard on this brief, and it has not been a straightforward brief.
“It’s obviously a tremendously important brief. The government usually in this situation will explain to the court why it thinks that the Supreme Court should not take the case. There’s been no indication yet that the government is going to do anything other than that. The government does have the option of what’s called confessing error or acquiescing, and so they don’t have to tell the court not to take the case, but they do in virtually every case. They only acquiesce or confess error once or twice a term. So, we certainly have encouraged them to confess error on at least one of the issues in the case (regarding concerns over Judge Linda Reade’s bias)… but given the odds here, we’re certainly ready for that brief to tell the court not to take the case.”
Can you elaborate on why you believe the government should confess error in this case?
“The thing about the 8th circuit decision that we’re trying to get the Supreme Court to review, that I think is the most difficult to defend, is this notion that when a party like Sholom Rubashkin comes up with new information that suggests that the judge should have not sat on the case-and that’s what we have here, there was a Freedom of Information Act (FOIA) request that revealed that there were these extensive meetings between the judge and the prosecution team-under those circumstances, the 8th circuit has basically held that new information that suggests that the judge should have never sat on the case is essentially irrelevant and won’t get considered, unless the defendant can also show that information demonstrates that they are likely to be acquitted on the merits. And the problem with that is that really, one doesn’t have to do with the other.
“A defendant is entitled to a fair trial in order to determine whether or not they are guilty or innocent. If you have new information that suggests the judge should have never sat on the case-that ought to be enough to get that information considered as to whether or not the fundamental guarantee to a fair trial was violated. The 8th circuit is saying that, even when you have information that suggests the judge never should have sat on [the trial], unless you can also show essentially your factual innocence, then we won’t even consider that information. And that seems to us to be either inconsistent with the law in other courts, but also just fundamentally incorrect.”
.How do you feel about the abovementioned FOIA request being processed by the government only afterRubashkin was sentenced?
“When you talk about something as fundamental as the guarantee to have the judge that’s overseeing the case be impartial, you don’t want that kind of determination to be foreclosed based on considerations of timing or technicalities.”
Is it possible that the government will ask for a fourth extension on its brief to the Supreme Court?
“You can never say never, but it would be very unusual I think for the government to give another extension. Typically these extensions are granted in increments of 30 days. Here they agreed with us that they would only [need] an additional 20 days [for the latest extension to July 25]. I think that reflects, at least in my understanding, that this will be the last extension they request.”
After the brief is filed, what is the next step for your legal team?
“The very important next step is that we will file our reply brief, and we will explain why the [Supreme] Court should take the case.
“We’ll probably file that roughly two weeks after the government files its brief. There’s not a hard deadline for that brief, but we want to get it in before the justices start considering the petition. Then the justices will consider the petition as part of their review of literally a couple thousand petitions over the summer, and then we should learn whether the court is going to take our case probably at the end of September.”