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Uncomfortable Questions for Loretta Lynch

Senators should probe her disregard for the rights of crime victims

By George Landrith     •     The Washington Times

United States Attorney Loretta E. Lynch speaks during an announcement of the arrest of Abraxas J. ("A.J.") Discala, CEO of OmniView Capital, and six co-conspirators for fraudulent market manipulation at the U.S. Attorney's office in Brooklyn, New YorkThe president’s nomination of Loretta Lynch to be the next attorney general caught many by surprise. Given his penchant for perpetual campaigning and divisiveness, most analysts expected him to choose a known partisan rather than a relatively unknown prosecutor. Nonetheless, as her record receives more scrutiny, some troubling details are coming to light — something few anticipated when she was first nominated.

The New York and Washington press have both reported that Ms. Lynch, while serving in her current post as U.S. attorney for the Eastern District of New York, oversaw an environment in which prosecutorial misconduct, trampling on the rights of victims, and violations of the law by prosecutors working for her were more routine than anyone should be comfortable with.

In one case, University of Utah law professor Paul Cassell alleges Ms. Lynch used her office to deprive victims in a major stock fraud case of the opportunity to seek restitution of the $40 million taken from them by a defendant who received a secretly negotiated and very favorable plea deal. A former federal judge, Mr. Cassell understands how things are supposed to work and is smart enough to recognize when they go off track.

The issue of prosecutorial abuses is starting to get some much-needed attention. Sidney Powell’s recent book, “Licensed to Lie,” gives hair-raising accounts of prosecutorial cover-ups and corruption that illustrate the dire need for reform. Sadly, it is not at all clear that Ms. Lynch is committed to reforming the Justice Department or even to ensuring that the vast network of U.S. attorneys pursues justice as its highest objective rather than simply winning convictions by whatever means.

There is concern that Ms. Lynch systematically violated the Crime Victims’ Rights Act and the Mandatory Victims Restitution Act. There is growing evidence that she cut secret, very generous plea deals with cooperative witnesses and by so doing denied their victims their legal right to restitution. When victims asked why convicted criminals were allowed to keep the ill-gotten money and not required to return it as part of the plea deal as required by law, Ms. Lynch’s office worked overtime to deny victims the information the law required be given them.

While the victims were kept in the dark, some parts of the deal have leaked out despite the impressive secrecy surrounding the case. The guilty party, Felix Sater, was required to pay only a modest fine, without confinement or making restitution — a remarkable feat given the potential penalties included paying back as much as $40 million to his victims, forfeiting an additional $80 million, and serving up to 20 years in prison.

One of the reasons Mr. Cassell is speaking out is because the secrecy is troubling, involving as it does threats of contempt charges being made against attorneys Frederick M. Oberlander and Richard E. Lerner, who are seeking to shed light on secret dockets. The aggressive secrecy makes it nearly impossible to know how many other times victims may have been trampled while criminals prosecuted by Ms. Lynch’s office were allowed to keep the money they stole. The almost reflexive denials for information suggest, to Mr. Cassell at least, that this was just “business as usual” in Ms. Lynch’s office.

Other examples of Ms. Lynch’s reliance on secret deals include blocking the release of flood-insurance documents that one source says likely reveal fraud against those who suffered losses from Superstorm Sandy. If operating through secret deals is part of the way Ms. Lynch does business now, can the Senate be confident she is the one to change the culture of secrecy in which the Justice Department and its prosecutors have been enmeshed for at least a decade?

The issue isn’t politics — it is a question of respect for the law and openness in the administration of the law. Under federal sentencing law, specifically the Mandatory Victims Restitution Act, restitution is “mandatory” as to defendants who are sentenced for certain designated crimes. The Supreme Court has ruled that sentences that fail to award restitution may be corrected — even after the fact — because Congress intended restitution to be mandatory, not discretionary.

What of the rights of defendants? Prosecutors by law must give exculpatory and impeachment materials to defendants. Yet the prosecutors do not disclose that cooperators like Mr. Sater will be allowed to keep the money they stole in exchange for “good” testimony.

Ultimately, this is not a conservative or liberal issue but one of respect for the law and the rights of all: the rights of victims to restitution; the rights of the public to access the courts; the rights of criminal defendants to fair trials; and the rights of citizens to bring to the attention of the public their concerns about prosecutorial and judicial misconduct without being threatened with contempt. The Senate would do well to consider Ms. Lynch’s disregard for such principles when deciding whether to confirm her.