Misguided Conservative Attack with Lynch Nomination a Cliffhanger

Conservative critics of Loretta Lynch have raised a bogus argument in an effort to derail her nomination for U.S. Attorney General as her nomination enters a critical and perilous stage.

In the past week Senate vote-counters are predicting that, even if the Senate votes on her confirmation, the result would be a 50-50 tie with Vice President Joe Biden casting the deciding vote. That leaves Lynch, who has been the U.S. Attorney based in Brooklyn since 2010 zero-room for defectors. Four of the senators currently in her column are Republicans, one of whom is Hatch (R-Utah), who sits on the Judiciary Committee.

On Tuesday Senator Dick Durbin (D-Ill.), who as minority whip is the Democrats chief vote counter, told the Huffington Post link that he is “worried” about the outcome of a vote on Lynch’s confirmation. But yesterday, Senator Lindsey Graham (R-S.C.) told the Huffington Post that he thinks “a couple” of Republican votes will be found to put Lynch over the top.

In the past two weeks, two prominent publications with a conservative editorial bent have launched a factually inaccurate attack claiming that Lynch mislead Hatch in responding to a written question he posed to her after her two-day hearing before the Judiciary Committee wrapped up on Jan. 29.

On Thursday, March 11, the New York Observer ran an article written by a former federal prosecutor under the headline “Breaking: Loretta Lynch Caught in Deceptive Disclaimer.” The Observer story was followed a week ago Tuesday, March 17, by an editorial in the Washington Times, which likewise accused Lynch of misleading Hatch.

Time is not on Lynch’s side, a point made in the Washington Times editorial. Lynch’s nomination once looked like a slam dunk,” the editorial observed, but “the longer Mrs. Lynch remains in limbo the more her support in the Senate crumbles.”

The Lynch nomination has been stalemated for the last two weeks since Senate Majority Leader Mitch McConnell refused to bring the matter up for a vote until the Democrats abandoned their filibuster of a bill to help victims of sex trafficking, which contains an anti-abortion provision. According to the latest political intelligence, the earliest the Senate could take a floor vote would be mid-April after it returns from its Easter recess.

 A ‘Gotchya’ Moment

In the Observer article, former prosecutor Sidney Powell, author of “Licensed to Lie: Exposing Corruption in the Department of Justice,” blasted Lynch for her answer to a written question Hatch posed about a case in the Eastern District in which prosecutors did not provide a required notice to the victims of a $40 million stock scam of their right to restitution. In her answer, Lynch wrote that the “initial sealing” of the case had “pre-dated my tenure as United States Attorney.”

It was a “gotchya” moment, according to Powell, who wrote immediately after she described Lynch’s response to Hatch:

“Really?! Guess whose signature appears on the charges?” Loretta Lynch’s “name and signature appear” on the 1998 charges as “Acting U.S. Attorney.”

This is the peg that Powell hangs her hat on in accusing Lynch in the first paragraph of her story of having given an answer that “is either very wrong, flat out false, or demonstrates an egregious gamesmanship that is corrupting our Department of Justice.”

The Washington Times followed with the same line of reasoning, writing that the difference between “actual” U.S. Attorney and “acting U.S. Attorney “is precisely the kind of disingenuous semantics, drawing distinctions without differences that has marked the Justice Department during Eric Holder’s tenure.”

But, is the difference between “acting” and “actual” in referring to a U.S. Attorney a distinction without a difference? The answer to that question is a resounding “no” according to two former prosecutors who were familiar with practices in the Eastern District of New York in 1998.

It has been the practice for many years for the U.S. Attorney in the Eastern District to sign all criminal charges issued by the office, which covers all of Long Island as well as Brooklyn, Queens and Staten Island.

It is also totally routine, they said, for a person to be designated as “acting” U.S. attorney to act in the stead of the “actual” U.S. attorney when he or she is unavailable due to illness, vacation or any other reason. This practice is provided for in one of the dullest documents in legal libraries: The Code of Federal Regulations (CFR), which at Section 0.136 states “[e] ach U.S. Attorney is authorized to designate any Assistant U.S. Attorney in his office to perform the functions and duties of the U.S. Attorney during his absences from the office …”

In December 1998, Lynch as the Chief Assistant U.S. Attorney had been designated to act in then-U.S. Attorney Zachery Carter’s absence. An examination of the faux controversial criminal information that Lynch signed reveals that is precisely what happened. Carter is listed as U.S. Attorney who signed the document “by” Loretta E. Lynch, whose signature is above the description “Acting U.S. Attorney.”

Powell: Lynch’s reply to Hatch was ‘disingenuous’

In a written statement, Powell defended her article in the Observer, saying that as Chief Assistant U.S. Attorney in 1998 when Lynch signed the criminal information, she “would have likely been involved in decision making” and “should have taken full responsibility” for the criminal information she had signed and the plea deal that sealed the defendant’s court file.

“Lynch’s statement that “it was ‘before her tenure’ is “disingenuous in light of her participation in the charges and the way the case was handled since its inception,” she added. The full text of Powell’s response is at Footnote 1.[1]

Hatch instrumental in adoption of laws requiring restitution for victims

Some background is needed to understand why Lynch’s foes are trumpeting Lynch’s so-called “deception.” One needs to understand that Hatch was a strong supporter of two laws Congress enacted in 1996 and 2004 to insure that crime victims are advised of their right to claim restitution.

Hatch is also a big fan of Powell’s book. During the Lynch hearing, Hatch held a copy of “License to Lie” aloft and told Lynch that even if half of what is in here is true, you’ve got a lot of work to clean up the Department.”

Hatch’s written query drew Lynch’s attention to a case in the Eastern District in which the defendant had pleaded guilty and, in exchange for his cooperation, his file had been sealed. After cooperating for 11 years, the defendant, Felix Sater, was sentenced to probation and a $25,000 fine. He was not required to pay restitution to his victims nor did the government give them notice that they had a right to restitution and to participate in court proceedings. Under those circumstances, Hatch asked Lynch to explain “in particular” how her office complied with the 1996 and 2004 statutes providing for restitution to crime victims.

A perfectly fair question, and one that I myself asked when I wrote about the Sater case after it exploded into public view in May 2010. That happened when two lawyers used documents from Sater’s sealed file to bring a new class action against Sater, claiming he had used the cover of his sealed file to draw investors into real-estate deals where they suffered an alleged $500 million in losses.

But it is important to keep Lynch’s role in perspective. She was not the U.S. Attorney on Dec. 10, 1998, which was the date that Sater was charged, pleaded guilty, and his file sealed in a single court proceeding.

It was not until seven months later that President Bill Clinton nominated her to succeed Carter as U.S. Attorney. It was only then that Lynch assumed the status of being the “acting” U.S. Attorney Lynch in the sense that she was serving as the “actual” U.S. attorney.

Powell remained the Acting U.S. Attorney until December 2000 when the Senate confirmed her nomination. She was then sworn in and remained the U.S. Attorney until May 2001.

Nor was she U.S. Attorney in October 2009 when Sater pleaded guilty without his victims being given a chance to assert claims for restitution. Instead, she was a partner in the New York office of a firm, now known as Hogan Lovells.

Lynch was U.S. Attorney when battle erupted over sealed file

She did, however, return as U.S Attorney for the Eastern District in May 2010 which was the same month that lawyers Richard Lerner and Frederick Oberlander directly challenged the office’s sealing and sentencing procedures by using material’s from Sater’s sealed criminal file in seeking money damages from his for a second alleged fraud.

Two other points Lynch made in her rebuttal are relevant at this point and require comment. Powell correctly points out in her rebuttal that at the time the Sater information was filed, Lynch held the post of Chief Assistant U.S. Attorney. That is the number two position in the office, and Powell correctly posits that Lynch had a role in the formulation of office policy. But she did not the mentioned that in the Observer article. Had she used that line of attack, it would have leached the article of the “gotchya” punch that Lynch had signed Sater’s information as “Acting Assistant U.S. Attorney.”

Also Powell wrote that “nothing” was forthcoming about Lynch’s comments to on restitution. But the fact is that Sater’s sentencing took place in December 2009 which is when his victims should have been given an opportunity to claim restitution, but were not. That clearly “predated” her tenure as U.S. Attorney which began in May 2010.

Lynch responded that “the prosecutors in my Office work diligently to secure all available restitution for victims” (emphasis added). There is no evidence at odds with statement. Powell’s statement (minus salutation and signature) is printed in full at Footnote 1.

Moreover, in her answer to Hatch, Lynch took responsibility for the office’s efforts, since her return in 2010, to prevent the dissemination of information from Sater’s file relating to his cooperation. She defended that course because Sater’s cooperation had yielded information “crucial to national security” and had led to the convictions of 20 persons who had committed “massive financial fraud” and in some instances were “members of La Cosa Nostra.”

Whether Sater is actually in danger is a hotly contested question. Sater was publicly identified as a defendant in the stock fraud case in a Business Week article published a month before his plea deal and ensuing cooperation; in 2000 the Eastern District itself stated in a press release that Sater had pleaded guilty under circumstances indicating that he had been cooperating; his cooperation was revealed in a New York Times article published in 2007; and, due to a goof in the Eastern District clerk’s office, the lion’s share of Sater’s criminal file has become public as a result of legal proceedings which began in the fall of 2012.

Powell had plenty of ammunition to challenge Lynch’s assertion that continued sealing is necessary to protect Sater’s safety and preserve national security secrets

But instead, she hunted for an eye-popping headline that had the possibility of becoming a game-changer. The problem was that required a distortion of the known facts. Lynch’s signing of Sater’s criminal information as “acting” U.S. Attorney was not the equivalent of being the U.S. Attorney. Rather than being the smoking gun, it was a prosaic administrative act.


[1] If she was First Assistant United States Attorney at the time, she would likely have been involved in the decision-making.  My view of Ms. Lynch’s response has not changed.  She held a supervisory position in the office and should have accepted full responsibility for the Sater charges and deal.  She has fought to keep it secret for years.  Her answer to Senator Hatch’s question left the impression that she had nothing to do with the matter, when in fact, she did.  It remains to me a distinction without a difference for which she should have taken responsibility or at least informed the Senators that she signed the original charges and was part of the plea herself or whatever the truth was.  That it was “before her tenure” is disingenuous in light of her participation in the charges and the way the case was handled from its inception.  She also implied that restitution may have been made but was still sealed, and there is no reason to believe that is true.  Nothing about her answer was forthcoming in addressing the concerns raised by the question.

Being First Assistant US Attorney is not ministerial, and neither is signing criminal charges.  The case was huge.  And there’s also Rule 11.  Indeed, having worked for 9 different US Attorneys in 3 districts, we were told that nothing was ministerial and that we bore full responsibility for anything our names appeared on.

The CFR provision pursuant to which she signed the Sater information vested in her the non-ministerial determination whether to file the case and whether to illegally hide it from the public, with no motion for a sealing order.

In short, I don’t buy it and yes, disingenuous at best


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One response to “Misguided Conservative Attack with Lynch Nomination a Cliffhanger

  1. Jerry Stern

    Eric Holder should announce that he will stay if Lynch is turned down by the Senate. That will move a few votes for Lynch. Maybe it would be the first unanimous Senate vote.