The truth about the Agriprocessors prosecution’s conduct

By Nathan Lewin and Guy Cook

U. S. Attorney Stephanie Rose has decided that “silence is no longer in order.” But should a U.S. Attorney take offense at the exercise of First Amendment rights by citizens who support Sholom Rubashkin and publicly denounce how he has been treated? Her June 23 guest column, which makes assertions never proved or tested in court, opened the propriety of her conduct to discussion in the media.

Nathan Lewin has criticized her in a letter to the Department of Justice. We now challenge her to debate him on the propriety of the prosecution in a public session in Des Moines.

This response concerns 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 enjoyed 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.

Can Rose explain why the Department of Homeland Security has reduced substantially the immigration-raid policy she extols - deciding that the “fears” Rose describes are in fact caused by immigration raids?

Several U.S. attorneys rejected ICE'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.

Why was this peaceful proposal rejected?

Rose praises the “tireless” federal court proceedings 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 that the identity-theft felony her office and Judge Linda Reade 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 and the judge.

Rose says that Rubashkin's supporters have painted the prosecutors as “racists, Nazis, and zealots.” No responsible Rubashkin supporter has said or implied that anyone on the prosecution team is a racist or a Nazi.

Her claim that Rubashkin personally profited from Agriprocessors' funds fails to note that he put personal funds into his father's wholly owned business. Agriprocessor funds paid to Rubashkin were reimbursements for company expenses or repayment of loans he made to the company.

Rose claims that the accusations against her office are “vicious and false” and “ill-informed.” But there are many critical accusations that she has failed to answer.

Wasn't 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 the office's bogus claim that 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 to 163 counts to impress the media, the public and the jury?

Why was a 1921 law that has never before been used for criminal prosecution invoked when the charges were based on full payments Rubashkin made 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 virtually impossible?

A consensus of the legal community, both liberal and conservative, has objected to Rose's overzealousness in her initial sentencing recommendation.

We trust Rose will debate Lewin publicly on these important questions.

Nathan Lewin of Washington, D.C., is a former Deputy U.S. Assistant Attorney General in the Civil Rights Division and teaches Supreme Court litigation at Columbia Law School. He is principal appellate counsel for Sholom Rubashkin. Guy Cook is a Des Moines-based attorney who was the principal trial counsel for Rubashkin. He is a former assistant U.S. attorney for the Southern District of Iowa. Comments: gcook@gref

esidney.com