“Obnoxious” Govt Policy Won’t Force Dismissal of AIPAC Case

The presiding judge in the closely-watched prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) charged with unlawfully receiving national defense information has denied a defense motion to dismiss the case on grounds of alleged constitutional violations by the government.

The defense had argued that the case should be dismissed because the government pressured AIPAC, the defendants’ former employer, not to pay their legal fees and thereby violated their constitutional rights to due process and the right to counsel.

The alleged interference occurred in 2004 and 2005, when “the government was actively investigating defendants and AIPAC,” Judge T.S. Ellis III explained in a new memorandum opinion (pdf).

According to the defendants’ account, “prosecutors implicitly or explicitly threatened AIPAC with criminal charges, and/or threatened further intense scrutiny of AIPAC in the event the government perceived AIPAC’s cooperation as unsatisfactory.” To demonstrate its “cooperation,” AIPAC subsequently fired the defendants and ceased to pay their legal fees. The organization was not charged in the indictment.

The court essentially validated the defense account. “Defendants have adequately shown a wrongful [government] interference with their contractual relations with AIPAC” (p. 16).

The government’s policy (under the so-called “Thompson Memorandum”) of pressuring employers to withhold legal fees to support their employees “is unquestionably obnoxious and is fraught with the risk of constitutional harm in specific cases,” Judge Ellis wrote (p. 26).

But in this case, the practice did not prejudice the defendants, he said, since they nevertheless managed to assemble an extremely capable defense team.

“A mountain of evidence convincingly demonstrates that defense counsel’s zealous, thorough, and effective representation of defendants has not been adversely affected by the loss of AIPAC’s fee payments,” he wrote in his May 8 opinion.

The motion to dismiss was therefore denied.

The AIPAC trial, previously scheduled for June 4, has been postponed. A closed hearing is scheduled for June 7.