‘Something Was Desperately Wrong There’: An Interview With Former Deputy AG Philip Heymann on the Rubashkin Case

Philip B. Heymann, professor emeritus at Harvard Law School, is one of the prestigious individuals who worked tirelessly during the past few years, on a pro bono basis, to free Sholom Mordechai Rubashkin from prison.

Prof. Heymann served in the State and Justice Departments during the Kennedy, Johnson, Carter, and Clinton Administrations, including a stint as Deputy U.S. Attorney General in 1993-1994.

Prof. Heymann, former U.S. Attorney General and federal Judge Michael Mukasey, and former Deputy Attorney General and current University of Georgia Law Prof. Larry Thompson, were recently honored at a reception in Spring Valley, N.Y., for their tireless efforts in the Rubashkin case.

Several days after the reception, Prof. Heymann spoke with Hamodia about his role in overturning what he considered a major injustice and a stain on the Justice Department.

When did you first become involved in the Rubashkin case?

About four or five years ago.

Who brought you into the case?

Rabbi Zvi Boyarsky of the Aleph Institute. He said that by the time they came to me, he had 25 or 30, or maybe more, high-level Justice Department officials who were saying that the Rubashkin conviction, and particularly the sentence, was unjust, outrageous and wrong.

Zvi called me up and asked me to get involved and, to his surprise, I quickly said, “Yes,” that I would help.

What was it about this story in particular that made you want to get involved?

The 27-year-sentence seemed to me way out of line. For what Rubashkin was convicted of, which was not maintaining collateral he was obligated to maintain with a bank from which he’d borrowed, that would be more like a three-year sentence. The 27-year sentence was way out of line with everything. It was way out of line with Enron, it was way out of line with all the major frauds. This was not a major fraud.

And more and more troubling information came out about the case over the next four years.

Also, I didn’t find this out until later, but at the beginning, right after the conviction, the prosecution and Probation Department recommended a sentence much longer than even the 27 years!

To what do you attribute this disproportionate sentence?

I’ve been talking this over with the people who were involved from the beginning. There’s a whole set of questions I have about the stages before I was there. The story is that the raid on Rubashkin’s kosher meat plant was justified as pursuing allegations that he was dealing drugs from there and had guns in there! There was never anything like that – nothing like that was found, there was nothing in his history that suggests anything like that. If that was really the basis for authorizing a search, something was desperately wrong there.

The Iowa judge was taking part in defining the search, helping the prosecutor agree when the search would be, what it would be, how it would be handled, coordinating the raid. There’s just a bunch of stuff in there, and it felt wrong for the trial judge to be involved at this investigative stage.

I’ve asked others what they think it was that created this extraordinary aggressiveness toward Rubashkin. All I can tell you is that it feels like somebody really hated Rubashkin; somebody was trying to get him.

When you say “somebody,” do you mean both the judge and the prosecution?

No. They were enlisted, but I don’t know what the start of it was. Was it a competitor? There was just a viciousness about the prosecution from the beginning. A viciousness about the sentence, a viciousness about the raid. There was hostility, anger and viciousness – that’s the best term – and that motivated me to get involved.

I don’t really know where the viciousness and the hatred came from.

But there are not many cases where a sense of injustice spreads so quickly. It spread through law enforcement, to the extent of 107 legal scholars and Justice Department officials who signed a letter protesting the Rubashkin sentence.

Four years ago, Larry Thompson, deputy attorney general under George W. Bush; Judge Charles Renfrew, deputy attorney general under Carter; and I, deputy attorney general under Clinton, became convinced that this was an injustice that had captured the Justice Department, too. Rubashkin’s supporters asked we three deputy AG’s to talk for the more than 100 prosecutors and judges who had shared this uncomfortable belief. When Boyarski talked to me, he had told me that six former U.S. attorneys general had signed on. That’s extraordinary; six attorneys general wouldn’t agree that the world was round!

What had happened, what this had turned into, was a battle between people deeply offended by the injustice of what was done to Rubashkin, and, somewhere, a fund of resentment and anger at him that we never identified.

In August 2014, you, Judge Renfrew, Prof. Thompson, and Rubashkin attorney Gary Apfel had a meeting with Kevin Techau, the new U.S. Attorney for the Northern District of Iowa, seeking to have Rubashkin’s sentence commuted to time served. You made an impassioned presentation that the Rubashkin case was a stain on the Justice Department.

This is all part of the injustice theme: Renfrew, Thompson and I felt that this was an embarrassment and a shame to the Department of Justice.

And we could never get the Department of Justice to meet with us, to respond. I don’t know why.

Do you think that the federal sentencing guidelines played a role here?

Of course the sentencing guidelines played a role, because they set a presumptive sentence. Some other judge would have said three years, but because there was $27 million that the bank lost for lack of collateral, he got 27 years. It’s done mechanically.

But the $27 million was itself a phony: The $27 million resulted from a very low price in the bankruptcy sale of the business, attributable to the prosecutors going around and scaring off everybody who was thinking of buying the business at a higher price. There was an offer of $40 million early on.

It ended up that Rubashkin was $27 million short. But the prosecutors had gone around and told everybody, including those who would buy it for more than $27 million, that they couldn’t have any Rubashkin working anywhere.

By the way, the bank that had loaned to Rubashkin’s business itself vehemently objected to the prosecutors scaring off the bidders; it just wanted to foreclose and take whatever he had and that was that.

If you wanted to buy the business, for, say, $35 million, which was more than the bank was owed, they forbade the involvement of any Rubashkins, or anybody else who had worked for the Rubashkin business, in running the business.

And that’s what drove the price down?

Gary Apfel had about eight witnesses who said, “We’d have bought it for more, but the prosecutors called us into a room and said that they would forfeit the property if we ever hired a Rubashkin,” the only people who knew how to run the business. I don’t think there was any forfeiture statute applicable, but they told this to these laypeople who were thinking of buying the business.

You mean civil asset forfeiture?

Yes.

And then, when the defense attorneys called this to the judge’s attention at sentencing, the government sat by while Paula Roby, an attorney for the bankruptcy trustee, denied that this was going on. It was going on; she knew it!

You referred to all the people who were involved in the effort to free Sholom Mordechai: You served in the Kennedy, Johnson, Carter and Clinton Administrations, Judge Renfrew served in the Carter Administration, and Alan Dershowitz is a liberal Democrat. Among the other Justice officials involved were Judge Michael B. Mukasey and Larry Thompson, who served in the Bush Administration. Have you ever seen another case that had such an array of prestigious legal and governmental figures, from across the political spectrum, uniting for a common cause?

I first went into the law-enforcement business in the Air Force in 1955 [in the Air Force’s Office of Special Investigations, reviewing security clearances]. So I’ve only been around the business for 63 years. I’ve never seen a case in which the apparent injustice mobilized thousands of lay people – in the Jewish communities – and hundreds of high-level Justice Department officials.

In other words, this was a case where a sense of [anger over an] injustice eventually won after eight years of fighting against a government that was totally indifferent to it – or had some secret that nobody on the Rubashkin side has ever been told.

How long before the commutation came down were you informed that it would happen?

Two days.

Prior to the commutation, had you ever spoken to Sholom Mordechai?

No.

What about his family?

I went in to see Massachusetts Gov. Deval Patrick with Boyarsky and a couple of others. Sholom’s wife, Leah, came to the meeting, but arrived too late to meet with Gov. Patrick. But I saw her as we came out of the office, and I talked to her and walked down to the street with her. That’s the only time I ever met any of them, until the recent reception.

At the reception, you, Judge Mukasey and Prof. Thompson got to meet with Sholom Mordechai and his large family. How did that feel, knowing that you’d played a large role in returning a father and grandfather to his family and setting off joyous celebrations around the world?

It felt wonderful!

I’ve done a number of cases – somebody gets in trouble and asks if I’ll help them out. I don’t take any money for it, and I try to make it a point not to get to know the defendant personally, so that I can talk just from the point of view of someone looking at that case.

So that you can be objective.

Yes. And I like that. And that’s what I was doing in this case, too.

So you specifically didn’t meet them until after he was freed.

If Gary Apfel had said, “I’d really like it if you came to the prison with me and met Sholom,” I quite possibly would have said, “Yes.” But I’d have felt that I was weakening my position – my position depended on being independent.

The other people I’ve represented pro bono are generally minors. I don’t want it to be thought that I’ve just been conned or come to like the particular person; I want to do it for the sense of justice.

In all the 63 years that I’ve been in the legal field, I’ve never seen an outpouring of feelings of injustice help create and then shape a huge campaign. These people – both Jewish communities in the New York area and around the world, and the U.S. Justice Department officials – all felt that a terrible injustice had been done. And the heart of that was the sentence.

All of them wanted to step up. I was stunned when I learned four years ago that six former attorneys general had signed on to a letter saying that Rubashkin should be pardoned. [Note: The list of former U.S. attorneys general supporting Rubashkin would only grow; eventually, every living former attorney general who had served prior to the Obama Administration had signed on.]

As we discussed, you served in several Democratic presidential administrations; Judge Mukasey and Prof. Thompson served in the Bush Administration. Did you ever imagine that you’d be honored at the same event as them?

Larry Thompson and I got to be good friends very quickly, when we both went out to Iowa for the meeting with Techau. By the time Thompson and I had finished that half-day meeting in Iowa, we were very good friends.

I’d known Renfrew, because I’d worked under him in the Carter Administration.

I met Mukasey for the very first time at the celebration last week, and I liked him.

The power of injustice to unify is stunning! That’s what I saw.

When Zvi Boyarsky tells me he’s got 107 former judges, Justice Department officials, prosecutors and criminal-law professors signing a letter to Techau, I’m seeing a huge outpouring of anger at an injustice – for the people in the Justice world, it’s an embarrassment.

Judge Renfrew died just a few days before Sholom Mordechai was freed. Can you tell us a little about Judge Renfrew and his work in the Rubashkin case?

I liked Judge Renfrew immensely. When he was deputy attorney general, I was head of the Criminal Division. He was very supportive, very funny, never panicked at all. He liked to tease and to crack jokes. He was one of my favorite people.

But here, I saw a side of him that I’d never seen: He was angry, as far as I could tell, all the time, at what was going on. He was angry at the Justice Department not responding, not inviting us in for a meeting and talking about the case; he was angry at the U.S. Attorney’s Office. And I mean “angry” in a good way: He was impassioned about it.

Among the three of us – Judge Renfrew, Larry Thompson and me – I was aware of who was taking the lead at any given time. We all came aboard the Rubashkin case around the same time. Sometimes I was taking the lead – I think I did it at Techau’s office. Sometimes Thompson did – and Thompson was impassioned about it, and angry. And, very often, Charlie Renfrew did. I’m used to him smiling, laughing, even when something bad happens. But in the Rubashkin case, he was just outraged and determined to remedy what he saw as a terrible injustice.

I have to emphasize that I’ve never seen – beyond the family – such an outpouring of motivation over a sense of injustice. It made me very proud of all those people.