Bench Memos

More Questions for Ms. Lynch

Attorney General nominee Loretta Lynch is going to have a lot of sticky questions to answer when her hearings begin.

A few weeks ago, I noted a particular incident involving ugly and indefensible conduct by state and federal officials who fatally compromised an investigation into the 2007 “Moonlight Fire” in California by trying to scapegoat an innocent company that happened to have deep pockets. I urged members of the Senate Judiciary Committee to ask Ms. Lynch how she plans to protect the public from future instances of such misconduct.

Other publications have highlighted the scandal since then. Just this past weekend, an op-ed by two former senior employees of Cal Fire, including a retired chief of fire prevention and law enforcement, in the Sacramento Bee decried the damage to the agency’s hard-earned reputation and called on the agency to clean up its act.​ Over the holiday, the Sacramento Bee reported that Cal Fire, the state agency responsible for investigating the Moonlight Fire, had put 16 workers on administrative leave after a preliminary investigation showing rampant misconduct by on-duty firefighters. And last Saturday, the Wall Street Journal covered the Moonlight Fire, concluding:

The case is growing in infamy. In October, Sierra Pacific filed a motion before federal judge Kimberly Mueller under rule 60(d) to vacate the settlement on grounds that it had been reached as the result of fraud on the court. The case was then removed from Judge Mueller and reassigned to a new judge, William Shubb, who will hear the next phase of the case.

That move acknowledges a legal fraud that could burn down the courthouse, not to mention the reputation of the government’s fire investigators and the federal prosecutors pursuing a payday. Judge Shubb has an obligation to sanction these legal abuses with enough force that prosecutors across the country get the message.

Now, an investigative reporter for the Washington Times, Jim McElhatton, has raised serious questions about another prosecutorial responsibility: ensuring that victims of crime get a fair hearing in court.

Specifically, the question is whether the U.S. Attorney’s Office under Ms. Lynch violated the Crime Victims Rights Act (CVRA) by failing to give notice of proceedings in a massive stock scam case. The CVRA gives victims a right to “reasonable, accurate, and timely notice of any public court proceeding . . . involving the crime or of any release or escape of the accused.” The point of the notice is to allow victims the opportunity to find representation, submit restitution claims, and otherwise seek recompense from the defendant.

According to McElhatton’s investigation, though, the U.S. Attorney’s Office failed to inform victims about the guilty plea and sentencing—ten years later after the guilty plea—of one of the delightful gentlemen who swindled them out of more than $40 million. In addition to ensuring that victims had no opportunity to observe the sentencing, the secrecy effectively deprived the victims of their statutory right to mandatory restitution from this defendant:

In court papers, [attorneys] noted that Sater faced nearly 20 years in prison and a mandatory $40 million in restitution and $80 million forfeiture, but the sentencing judge imposed no restitution or confinement. And victims weren’t at the hearing to object because they were never told about the sentencing in the first place, according to the attorneys’ Supreme Court petition.

What is more, Ms. Lynch’s office—aided by judges in the Eastern District of New York—fought tooth and nail to preserve the secrecy of the case long after the sentencing, raising questions about whether the victims will ever be notified. One victim’s attorney argued that the office was evading federal forfeiture and restitution laws to reward the defendant for his assistance. Regardless of how helpful a particular defendant might have been to the government, though, the law does not allow the government to waive the restitution rights of victims simply because they are inconvenient.

This case received added public scrutiny in 2013, when law professor and former federal judge Paul Cassell testified before the House Judiciary Committee. He said then: “Every day that the office withholds notice from the victims in this case about the continuing proceedings that are occurring in this case is a day in which the office is violating the CVRA.” He also urged the committee to conduct its own inquiry into Ms. Lynch’s office.

McElhatton later asked the House Judiciary Committee if it had followed up on Cassell’s testimony with Ms. Lynch. The committee acknowledged in an e-mail that it had not.

Despite a trip to the Second Circuit and (briefly) to the Supreme Court, much of the court record remains sealed. What we know, however, raises important questions about Ms. Lynch’s willingness to ensure that her subordinates follow the law, especially in a federal agency as powerful and important as the Department of Justice.

When Ms. Lynch testifies before the Senate Judiciary Committee, she should have to answer some important questions:

1. Do you believe that the government can simply ignore victim rights to restitution whenever it is convenient? If not, why didn’t the scam victims get their day in court?

2. Did the defendant in this case forfeit property to the government, and if so, how much? Was the forfeited property used to pay back the victims? If not, why not?

3. If confirmed, how will you ensure that the Department of Justice adequately protects the restitution rights of crime victims in the future?

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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