EXCLUSIVE: Correcting the Rubashkin Injustice: An Interview With Alan Dershowitz

Dershowitz Rubashkin
Prof. Alan Dershowitz (AP Photo/Sergei Chuzavkov, File)

Among the many legal scholars and others who have fought for years for a commutation of Sholom Mordechai Rubashkin’s prison sentence, one of the most important in finally getting the mission accomplished was Alan Dershowitz, a distinguished lawyer and Harvard law professor.

As celebrations continued around the world Thursday, Prof. Dershowitz spoke with Hamodia about the case, from his home in Florida.

 

When did you first hear the name Sholom Mordechai Rubashkin?

Shortly after the sentencing; I think I received a phone call from Nat Lewin telling me about the case.

And I was outraged by the sentence, because it appeared to me to be about ten times longer than sentences for comparable cases involving non-Jews or non-Orthodox Jews.

So you think that there was an anti-Semitic element here?

Well, I think if he weren’t a Chasidic Jew, he would not have gotten that sentence. And the evidence of that is there are other cases in this district involving non-Jews where the sentences were much lower for more serious frauds and crimes.

Do you think there was animosity toward him in the district, in the city?

I don’t know about that. I know that there was animosity toward him by the prosecutor and by the judge.

There were allegations of significant prosecutorial misconduct, specifically regarding the testimony of Paula Roby [attorney for the bankruptcy trustee], which they allowed to go on even though they knew it was false. Can you talk about that a little bit?

I want to talk more generally, because we’re probably going to pursue some of these issues further, now that he’s home with his family.

The major prosecutorial misconduct that I’ve been focusing on has been the way the prosecutors manipulated the sale price of the business, to bring the sale price down, to cause the losses to go up to increase the sentence.

So you think that the “No Rubashkin” rule in the bankruptcy sale was actually a tactic just to make the price go down to get him a higher prison sentence?

It was more than just the “No Rubashkin” rule; it was broader. The affidavits in the case from some of the potential buyers said that the totality of the circumstances, the way they approached it, deterred them from offering a bid for the company.

You mean the prosecutor was basically scaring them off in some way?

That’s right, yes.

What do you have to say about Judge Linda Reade’s conduct throughout this [case]?

I think it’s been disgraceful: right from the beginning, where she helped engineer the search and then stayed on the case; the fact that her husband is invested in prisons for profit; the sentencing in the case – the totality of the circumstances creates the impression of bias.

Were the people who were arrested in the initial raid, the immigration raid – a case that was later dropped – incarcerated in private prisons?

I don’t know whether they were, but they could have been. All you need is the appearance of an injustice and the possibility that she or her husband could have profited by mass incarcerations.

You had a big hand in drafting federal sentencing guidelines, which you later said were misapplied in this case.

Yes. They were misapplied generally.

After I worked with Sen. Kennedy on the guidelines, we had had a commitment from the Republicans that they would not use it as a way of increasing sentences; they would just use it as a way of making sentences fairer. And they reneged on that promise.

Fairer in what way?

Fairer, more equal around the country for various crimes. And then the Republicans used it as an excuse to raise sentences.

[They] passed legislation increasing sentences, and then the Sentencing Commission – which consists of some judges, some politicians, some prosecutors, some others – created a scheme under which too much depended on the amount of loss, which allowed prosecutors to manipulate the loss and increase the sentence.

In this case specifically, can you explain how the sentencing guidelines were misapplied? Or did you mean that this was more just symptomatic of the guidelines being misapplied in general?

It’s just symptomatic of the more general problem that was manipulated in this case by the prosecutor artificially raising the amount of loss.

Even after the prosecutor asked for a high sentence, the judge actually gave an even higher sentence. That’s pretty rare, isn’t it?

That’s pretty rare, yes.

Normally in a case like this [he would be given] a much lower sentence because he’s a first-time offender, and he has a large family …

Can you describe your part in the commutation effort – I know it was first with President Obama, which failed, and then ultimately the successful effort with President Trump.

I raised it with the Obama Administration. A number of us wrote letters to President Obama, trying to get him to commute the sentence. He didn’t do it. And then when the Trump Administration came in, we continued our efforts.

At what point did you know that the commutation was imminent?

Yesterday.

You found out along with everybody else?

I knew it was in the works, but I found out only yesterday, a few hours before it happened, that it would be that day.

Can you discuss a little who were some of the people that you were most involved with in this effort?

Sure.

Most important was Rabbi Zvi Boyarsky, the head of the Aleph Institute; he organized a great many things. And Gary Apfel, who is Sholom’s current lawyer.

There are many, many other people who helped.

Both legal and political.

Yes.

And this was totally a bi-partisan effort, right?

Not only bi-partisan, it was bi-religious. We had many Christians, many non-Jews involved in this effort.

One of the leading people is an African-American Republican named Larry Thompson. We had Louis Freeh, the former head of the FBI. I have never seen a more bi-partisan, diverse group of people seeking justice than in this case.

What was it about this case that galvanized so many people?

It was three things: the excessive sentence, the whiff of anti-Semitism, and the prosecutorial and judicial misconduct.

Any final comments on the Rubashkin matter?

I spoke to him this morning. He’s thrilled. He gave me a blessing.

It was a very great honor for me to have been able to participate – on a completely pro-bono basis; I didn’t receive a single penny for this – to try to achieve justice. And it was nice to have it happen in the last hours of Chanukah.

There were celebrations all around the world last night. Did you watch any of them?

People sent me a few video clips.

Finally, on another note, today was the U.N. General Assembly vote on Jerusalem. Do you have any comments on that?

Abba Eban once said that if Algeria introduced a resolution in the General Assembly that the Earth was flat and that Israel had flattened it, it would win 162-6, with 21 abstentions. Or as Ben Gurion said a long time ago, “UM Shmum.” The U.N. General Assembly means nothing. It’s an automatic majority against Israel on every issue. It should be totally ignored. President Trump did the right thing. President Obama did the wrong thing by allowing the Security Council resolution of December 2016 to go through.