Former Agriprocessor executive takes case to U.S. attorney general
BY GRANT SCHULTE
Attorneys for Sholom Rubashkin urged the U.S. attorney general to drop its argument that the former executive at Agriprocessors Inc. is a flight risk because he is Jewish.
Rubashkin's legal team contends in a letter to Deputy Attorney General Mark Filip that the argument by a U.S. attorney in Iowa is unconstitutional — a concern echoed by one of the nation's most prominent Jewish groups.
At issue is Israel's "Law of Return," which allows Jews from around the world to become citizens. In December, the Anti-Defamation League complained to U.S. Attorney General Michael Mukasey that the argument is unconstitutional. Mukasey is an Orthodox Jew.
"The U.S. attorney's office in this case creates a dangerous precedent in relying on Israel's Law of Return and a defendant's Jewish heritage to detain a criminal defendant," Rubashkin's legal team wrote. "If not for the Law-of-Return argument, it is our belief that Sholom Rubashkin would have been released."
Rubashkin, who once oversaw the kosher meat plant in Postville, faces federal charges of bank fraud and conspiracy to hire illegal immigrants. The plant was the site of a major immigration raid in May.
Prosecutors in November argued successfully that Rubashkin should remain in jail because of concerns that he could flee. Magistrate Judge Jon Scoles also cited the law when he denied bail. Rubashkin remains in the Dubuque County Jail.
Defense lawyers appealed the decision, arguing that it illegally discriminates against 5.3 million American Jews and 35 million other Americans who are eligible for citizenship in another country.
Rubashkin has offered to hire armed, 24-hour security guards to monitor him or install security cameras around his home.
A spokesman for the U.S. attorney's office could not be reached.
Again, the actual court document tell a different story.
The Law of Return played a minor role in determination of flight risk. And US law already recognizes connection to a foreign country or the the ability to find help and succor in a foreign country as legitimate factors for determining flight risk.
Rubashkin is being detained because:
1. He violated his first bail.
2. He tampered with evidence.
3. He appeared poised to flee, as evidenced by $20,000 in cash along with travel documents for his family found in a travel waist pouch inside a travel bag lying on the floor of his closet next to two open empty strongboxes.
4. He made a suspicious trip to Canada just before his first arrest.
5. Two of his senior managers have already fled arrest and are believed to be living in Israel.
6. He faces over 50 years in prison.
7. The Law of Return.
Prosecutors could have noted previous difficulty in extraditing wanted criminals from Israel. They could have made Israel's spotty compliance with extradition requests a major issue.
They did not.
However, prosecutors blundered by citing the Law of Return, because that gave Rubashkin an opening to scream antisemitism.
There is no antisemitism here.
As for the 24/7 security Rubashkin proposed as a way to allow his release, all one needs to do is read the letter submitted by the security firm to realize why no judge could take the offer seriously. The letter is riddled with mistakes, including calling Postville "Pottsville;" it proposed allowing students with no actual real life law enforcement experience to guard Rubashkin; and its principals have less actual law enforcement experience than Barney Fife – although presumably their guns, unlike Fife's, are loaded.
There may have been a way to get Rubashkin out on bail. But the behavior of Rubashkin's legal team may very well have ruined it.
Running to a lame duck Attorney General – MIchael Mukasey, an Orthodox Jew, no less – to ask for his intercession in a case he should actually recuse himself from is shocking.
This is far different from groups like the ADL or Agudath Israel of America writing Mukasey to express concern while, at the same time, taking no position of Rubashkin's risk of flight.
If Mukasey does intercede, antisemities will have a field day. So will will pundits, who will ask the questions that should be asked, including questions about Mukasey's impartiality and his judgement.
If Mukasey declines to become involved, Rubashkin stays in jail – probably for the next 20 or more years.
Why? Couldn't Rubashkin still appeal the magistrate judge's ruling?
He could. But Sholom M. Rubashkin has already sent a clear message to the Chief Judge of the Circuit Court, and that message is not flattering. And that is a shame because there may have been a way to get him out on bail, and thereby provide his wife and children with the only real private time they may have with their father and husband for the next 10 to 20 years.
Rubashkin and his legal team (chief among them in this regard, Nathan Lewin) may have created a sort of self-fulfilling prophesy, in which their bad behavior may now have elevated Rubashkin's crimes to a level that all Jews – no matter how far from Postville, no matter how opposed to Rubashkin – are tarred with Agriprocessors' very broad, self-serving, dirty brush.