In the memoir Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit List (written with Stephen Saltarelli), Howard Root tells the story of his experience as chief executive officer of Vascular Solutions caught in the crosshairs of the federal government when prosecutors sought to put his company out of business and to send him to the big house. Howard touched on one aspect of his story in the Wall Street Journal column “Sally Yates’s legacy of injustice at the Department of Justice.”
Howard is one of the most amazing people I have ever met. Among other things, he is a corporate lawyer turned entrepreneur, inventor, and corporate executive.
Howard faced down the government. The jury didn’t think much of the government’s case. It returned with a verdict of acquittal on all charges after a day of deliberations, and that includes the time spent electing a foreman.
Howard’s case is important in its own way. The crimes charged were bogus. The government procured testimony through serious prosecutorial misconduct. The prosecution represented fruit of the poisonous Yates Memo tree. Howard had the resources to fight the government’s case against him and his company, but it exacted an enormous toll. The case cries out for study and reform.
Howard has thus sought to engage prosecutors in discussion of the case in person before professional audiences of lawyers and businessmen for whom it holds immediate relevance. The prosecutors and their superiors in the department have sought to keep Howard from speaking to such audiences. When I wrote the Department of Justice to request its explanation for what it was doing, it declined to comment (a week after I asked the question).
Former Assistant United States Attorney Andrew McCarthy was more forthcoming. He called out the Department of Justice’s behavior as “a disgrace.”
The Department of Justice declines to answer to Howard or me but it has at long last responded to Senate Judiciary Committee Chairman Chuck Grassley and Utah Senator Mike Lee. Senators Grassley and Lee sent a letter to Deputy Attorney General Rod Rosenstein seeking an update on the Justice Department’s inquiry into professional misconduct committed by prosecutors and higher-ups who brought the charges against Howard and have since sought to prevent him from being heard. I posted the Grassley/Lee letter in “Fear & loathing at the DoJ, cont’d.”
In their letter Senators Grassley and Lee noted that “reports suggest a pattern of threatened and actual retribution against defendants and witnesses borne out of the Department’s disappointment with the outcome of a particular case. This not only casts doubt on the Department’s ability to accept the results of judicial proceedings in a professional manner befitting the nation’s preeminent law enforcement agency, but it significantly undermines our confidence in its commitment to hold government attorneys accountable for questionable actions that may have occurred in the course of this case or other cases.” The letter posed seven questions and asked for response by April 5, 2018. Minnesota Senator Amy Klobuchar, incidentally, rested on her right to remain silent.
The Department of Justice must have granted itself a six-month extension to respond. The department’s four-page response is posted below. Howard observes that the letter is “issued with gritted teeth and the same arrogant attitude that I saw throughout the entire case. I particularly love the penultimate paragraph for the way it completely misses the point.”
That is a polite way to put it. Suffice it to say that the department’s evasion of Howard continues. The department’s refusal to engage Howard on his personal experience in the administration of justice by the department is precisely, as Andrew McCarthy diagnosed it even before this nonresponse, “a disgrace.”