UPDATES & ANALYSIS

Rubashkin Hires Former SG Paul Clement for Supreme Court Challenge

by Ryan Koopmans | February 10, 2012

By Ryan Koopmans

Former Agriprocessors manager Sholom Rubashkin is appealing his conviction and sentence to the U.S. Supreme Court, and he’s hired former Solicitor General Paul Clement for the job.

In 2008, Rubashkin was arrested in connection with the immigration raid of the Postville Agriprocessors plant, which at that time was one of the largest producers of kosher meat in the country.  Although the federal government later dropped immigration charges against Rubashkin, a jury convicted him of 86 counts of bank fraud.  For that, Judge Linda Reade sentenced Rubashkin to 27 years in prison.

That sentence sparked controversy.  Six former U.S. attorneys general, two former deputy attorneys general, one former solicitor general, and fourteen former U.S. attorneys told Judge Reade that Rubashkin’s punishment didn’t fit the crime. (Their letter is here.)  And on appeal several groups, including the Washington Legal Foundation and the ACLU, asked the Eighth Circuit to either lesson Rubashkin’s sentence or reverse his conviction.  Before the Postville raid, Judge Reade met with prosecutors to discuss the logistics of putting hundreds of illegal immigrants into the court system at once.  Rubashkin and his allies claim that Judge Reade should have recused herself because of those meetings.

Last September a three-judge panel of the Eight Circuit affirmed Rubashkin’s conviction and sentence, and the full court denied Rubashkin’s petition for rehearing.

Rubashkin now intends to appeal to the Supreme Court, and he’s going with one of the best.  On January 18 former solicitor general Paul Clement filed a motion for extension of time to file a petition for certiorari on Rubashkin’s behalf.  Clement’s reason for needing more time: He’s busy—really busy.  Last month Clement represented the State of Texas in its Supreme Court challenge to redistricting maps drawn up by a federal district court.  (Texas won.)  Next month, Clement will represent 26 states (including Iowa) in their challenge to the individual mandate.  And in April, Clement will urge the justices to uphold Arizona’s immigration enforcement law.  On top of that, Clement is defending the House of Representatives in several constitutional challenges to the Defense of Marriage Act.

Somewhere in the middle of those blockbuster cases, Clement will craft  arguments that he and Rubashkin hope will will garner the four votes needed for Supreme Court review. In the motion for extension of time, which Justice Alito granted, Clement provided a glimpse of what those arguments might be:

(1) whether Rule 33 of the Federal Rules of Criminal Procedure may be invoked as grounds for a new trial if newly discovered evidence relates not to guilt or innocence but to the legality and fairness of the trial;

(2) whether, under 28 U.S.C. § 455(a) and [the Supreme] Court’s decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), a district judge who has participated extensively in the planning of an immigration raid on a plant may, without disclosing to trial counsel the extent of her participation, fail to recuse herself and preside at the criminal trial of the manager of the plant; and

(3) whether the extraordinary sentence—the functional equivalent of life imprisonment—imposed on a first-time offender for a non-violent crime is permissible.

For more on Rubashkin and his legal battles, see the Wall Street Journal’s coverage here and the New York Times’ coverage here.  Doug Berman also has several posts on the Sentencing Law and Policy blog.

Tags: U.S Supreme Court