I’ve been writing about my friend Howard Root in the series “Fear & loathing at the DoJ.” I ended the series with this post on Friday with the Department of Justice letter responding to issues raised by Senators Grassley and Lee on Howard’s case.
Last year John hosted Howard at a packed Center of the American Experiment lunch forum in downtown Minneapolis. Howard told 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 him in the big house and his company out of business. It was the most powerful 45-minute presentation I have ever seen. Howard tells the whole story in his book (written with Stephen Saltarelli) Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit List.
Prosecutorial misconduct permeated Howard’s case. Indeed, the case was to a substantial extent predicated on it. The federal judge originally assigned to the case in the Western District of Texas nevertheless denied Howard’s motion to dismiss the case on account of this prosecutorial misconduct. Appended to the Department of Justice letter is the trial judge’s memorandum opinion denying the pretrial motion. I asked Howard to comment on it for readers who might be interested. This is what he had to say:
Here’s the Catch-22 — we brought the motion to dismiss the indictment based on the limited evidence we had before trial. Judge Biery ruled that he didn’t want a hearing because even if we proved misconduct, the remedy would
not be dismissal of the indictment. So we were too early at that time.
Then we wait until after trial and request a misconduct investigation but DoJ says we’re too late because Judge Biery already decided that there was no misconduct, ignoring that most of the documented evidence of misconduct
came out at trial, and that Biery wasn’t ruling on their misconduct, only the indictment.
Also, Judge Biery’s findings on pages 15-16 were written word-for-word by the prosecutors and submitted after all the briefing was done. Then they magically appear in the ruling a week later. Judge Biery and the prosecutor
Bud Paulissen have been friends for decades. Judges don’t like allegations of misconduct against their local prosecutors.
Beyond that, Judge Biery’s ruling on disclosure of grand jury testimony is nonsensical. The rule is that prosecutors can’t disclose it, period, not that they can disclose it as long as the witness they read it to doesn’t go in front of the grand jury again.
Howard reviewed the highlights of the prosecutorial misconduct in his Center of the American Experiment presentation. If you haven’t seen it before, you may want to do so now. There is a reason that Department of Justice lawyers refuse to appear in public with Howard to discuss his case (or even respond to this point, as in the DoJ letter to Senators Grassley and Lee). The government’s behavior in Howard’s case was indefensible and disgraceful, as Howard shows in this devastating J’Accuse.