WASHINGTON (Jul. 19)
A motion to dismiss a classified information case against two former pro-Israel lobbyists alleges that federal prosecutors pressured the American Israel Public Affairs Committee into firing its employees and cutting off their legal fees and health benefits. The motion filed Tuesday says the prosecutors made the firing of Steve Rosen, AIPAC’s former foreign policy director, and Keith Weissman, its former Iran analyst, a condition of dropping an investigation of AIPAC itself.
The motion marks the first time it has been revealed in an unsealed court document that the organization was ever the subject of an investigation.
Prosecutors did not return requests for comment. A spokesman for AIPAC said the motion was “selective” and a “significant distortion” of the facts, and insisted that AIPAC’s decisions were its own.
He also said the organization never understood itself to be under any formal investigation. Ever since the August 2005 indictments of Rosen and Weissman, prosecutors repeatedly have made clear that neither AIPAC nor any of its current officers are suspected of wrongdoing.
The case first came to light in August 2004 when FBI agents raided AIPAC offices. A year later, the eastern Virginia office of the U.S. attorney indicted Rosen and Weissman under a never-used 1917 espionage statute that criminalizes the receipt of classified information.
The indictment alleges that the two men solicited and received information on Iran and terrorists from three government officials and relayed it to journalists and Israeli diplomats. The only other person charged in the case, Lawrence Franklin, a former midlevel Iran analyst at the Pentagon, pleaded guilty earlier this year.
The new motion comes in the wake of an earlier motion filed in January to dismiss the case. The earlier motion argued that the charges violate the defendants’ First Amendment rights to free speech and to petition the government.
Judge T.S. Ellis, the federal judge considering the case in the U.S. District Court in Alexandria, Va., has yet to rule on the earlier motion.
Meanwhile, the trial has been delayed until at least October.
Lawyers decided to file the latest motion to dismiss in the wake of a decision last month in the case against 16 former KPMG LLP partners accused of setting up bogus tax shelters, according to the brief.
In that landmark case, Judge Lewis Kaplan, a federal judge in Manhattan, ruled that forcing a company to abrogate its agreement to pay legal fees for employees violated defendants’ constitutional right to a defense. He ordered KPMG to pay the legal fees.
Rosen and Weissman long have asserted similar protections, citing the organization’s bylaws, which indemnify employees against legal costs incurred in the course of their employment.
AIPAC fired Weissman and Rosen in March 2005 and cut off their legal fees in ensuing weeks.
The organization said the two were fired “for conduct that was not part of their job and beneath the standards required by AIPAC employees.” It would not elaborate except to say that the conduct was uncovered in the course of the investigation.
Patrick Dorton, AIPAC’s spokesman, repeated that contention Tuesday.
Sworn affidavits by Abbe Lowell and Laura Lester, lawyers for Rosen, and John Nassikas, Weissman’s lawyer, allege that prosecutors aggressively adhered to a memo by Larry Thompson, the former U.S. deputy attorney general, outlining factors that could lead to the prosecution of an organization.
“A corporation’s promise of support to culpable employees and agents, either through the advancing of attorneys fees” or “through retaining the employees without sanction for their misconduct,” would count against the corporation, according to the Thompson memo.
Lowell wrote in the motion filed Tuesday that on March 21, 2005, the day Rosen and Weissman were fired, an assistant U.S. attorney told him that prosecutors had met three days earlier with lawyers for AIPAC and its executive director, Howard Kohr, and had said they wanted AIPAC to dismiss Rosen and Weissman.
Subsequently, Lowell wrote, an AIPAC lawyer outlined the subtle pressure prosecutors brought to bear at the meeting. Prosecutors “were prepared to conclude that AIPAC did not commit any wrongdoing, but that a company that had not done anything wrong would not continue to pay the fees of its wrongdoing employees.”
Nassikas recalled similar conversations with AIPAC lawyers describing meetings with prosecutors. In one instance, Nassikas wrote, he learned that prosecutors wanted to stop AIPAC from paying health benefits and severance pay. Nassikas said he confirmed the reports with prosecutors when he called them to complain.
AIPAC cut health care, but balked at cutting severance pay.
Rosen had two heart operations in 2002. His government-mandated COBRA package is about to end and he is not eligible for Medicare.
Dorton, the AIPAC spokesman, said the accounts distorted the record.
“This brief is selective about how it uses the facts, and the net result is a significant distortion of what really took place,” he said. “All the decisions in this case, including decisions about the dismissal and legal fees, were AIPAC decisions alone, made independently and based on the facts and our commitment to doing the right thing in a very difficult situation.”
The motion lists AIPAC as a “subject” of investigation. A “subject” is one level below being a “target” of an investigation. “Targets” are likely to be charged; “witnesses” have been cleared; and “subjects” remain under investigation until told otherwise, which AIPAC apparently was told in March 2005.
The brief claims that more than $4 million is owed to lawyers, and that AIPAC had offered only a “deeply discounted” lump sum, which JTA previously had determined was less than $1 million.
Dorton said AIPAC repeatedly has offered to renegotiate the fees to amounts acceptable to the defense attorneys. Those negotiations have faltered, he said, because “the two former employees wished to preserve their ability to sue AIPAC.”
The defense would not comment. However, in the affidavits filed Tuesday, Lowell and Nassikas say they repeatedly have requested remittance from AIPAC, and that AIPAC never has offered to pay what it owes in full.
Ellis, the judge, granted a separate motion filed this week by Weissman.
The former Iran analyst, a baseball fan seen recently at Baltimore Orioles and Washington Nationals games, sought permission to travel to the Baseball Hall of Fame in Cooperstown, N.Y., with his young son, to attend an induction at the end of this month. Under the terms of his indictment, he needs court permission to leave the greater Washington area.
Notably, one of the meetings between Weissman and Franklin, the Pentagon analyst, recorded unbeknownst to them by the FBI, was a family outing to Camden Yards in Baltimore for an Orioles game.