In unsealed filings, Blankenship claims ‘vindictive’ prosecution

Hundreds of pages of documents from the Don Blankenship criminal case were ordered unsealed Thursday by a federal appeals court, giving the public its first detailed look at the former Massey CEO’s argument that he is the subject of a “selective and vindictive prosecution” by Democratic prosecutors.

Blankenship’s motions to have the case against him dismissed, and the government’s responses to those motions, were unsealed after the 4th U.S. Circuit Court of Appeals, ruling for The Charleston Gazette and other news organizations, threw out a gag order that had sealed from public view most of the filings in the criminal case against Blankenship.

In the unsealed motions, Blankenship claims he is being singled out because of his criticism of the federal government — especially in an Internet video about the Upper Big Branch Mine disaster — and because of “the West Virginia Democratic establishment’s long-standing hatred” for him.

Lawyers for Blankenship complain in their court filings that federal prosecutors should have given them notice before seeking a grand jury indictment against Blankenship so they could try to convince government officials to drop the case, a practice they said is common in “white collar” criminal investigations.

In the newly unsealed court records, Blankenship’s legal defense team also argues that federal judges in Southern West Virginia won’t dismiss the criminal charges against him because the case was brought by U.S. Attorney Booth Goodwin and throwing out the case would disappoint Goodwin’s father, U.S. District Judge Joseph R. Goodwin.

“The motivation for this indictment was not to enforce the law, but to silence Don Blankenship,” the former Massey CEO’s lawyers argue in one of a long list of motions to dismiss. “The inescapable conclusion from this record is that Mr. Blankenship was not indicted because of his involvement in criminal conduct, but rather because of the political establishment and the prosecutor’s desire to punish him for exercising his rights to criticize the government.”

In response, Assistant U.S. Attorney Steve Ruby said prosecutors sought charges against Blankenship not for political reasons but because “a lengthy and progressive investigation” of the mine disaster and Massey safety practices led them “to the top of the Massey organization.”

“[This] investigation has disclosed, as alleged in the indictment, that [Blankenship] micromanaged his mines to an unusual degree, demanding to personally review constant, sometimes half-hourly, production reports and personally supervising even the most obscure and minute details of mining operations,” Ruby wrote. “Through this process, defendant inserted himself deeply into what would normally be considered the day-to-day responsibilities of the lower-level managers that he now wishes were charged with his crimes.”

The legal briefs were made public after the 4th U.S. Circuit Court of Appeals granted a petition sought by the Gazette and a coalition of other news organizations that argued the gag order was an unconstitutional violation of their First Amendment right to cover the case and gather news about it.

“Although we commend the district court’s sincere and forthright proactive effort to ensure to the maximum extent possible that Blankenship’s right to a fair trial before an impartial jury will be protected, we are constrained to conclude that the order entered here cannot be sustained,” the 4th Circuit said in its seven-page order. The 4th Circuit granted the news media petition and directed U.S. District Judge Irene Berger, in Beckley, to enter an order vacating her gag order.

Berger had entered the gag order — without any request for such an order from either Blankenship or Booth Goodwin — the day after an indictment was issued charging Blankenship with mine safety and securities crimes related to Massey’s Upper Big Branch Mine, where 29 miners died in an April 2010 explosion.

Along with the Gazette, the gag order was challenged by The Wall Street Journal, The Associated Press, National Public Radio and the Friends of West Virginia Public Broadcasting.

“We appreciate the appeals court moving swiftly to ensure our ability to inform readers about this important case,” said Elizabeth Chilton, president of the Gazette, “and we want to thank our media partners who joined us in protecting the public’s right to open courts.”

The 4th Circuit case was heard by Judges Roger Gregory, James Wynn and Andre Davis. The appeals court scheduled an expedited oral argument that was held Monday in Richmond, Virginia.

Trial is scheduled for April 20, although Blankenship has asked that it be postponed until January 2016. Berger has not ruled on that request.

Despite the 4th Circuit Court order, legal filings concerning Blankenship’s request to move the trial from Southern West Virginia remained under seal Thursday afternoon. Blankenship’s lawyers sought to file those under seal in a procedure separate from the gag order and argued to the 4th Circuit that those records deserve to be kept secret, regardless of how the appeals court ruled.

But among the documents unsealed were a motion and accompanying legal brief in which Blankenship’s lawyers ask that Berger disqualify not only herself, but all of the judges in the U.S. District Court for Southern West Virginia.

“Neither this Court, nor any other judge in this district, can preside over this case under these circumstances, because Mr. Goodwin’s father is their colleague on this bench,” Blankenship’s lawyers argue. “A reasonable, everyday person would assume a shared understanding of the feelings a father has for his son: a desire for him to succeed in a high profile case and a hope he will not be criticized. A reasonable person would assume that no colleague of Judge Goodwin would want to be the instrument of his disappointment, and therefore would doubt the ability of any of the judges in this district to be impartial in these circumstances.”

In a response, prosecutors noted that Judge Goodwin has recused himself from all criminal cases in the district while his son is the local U.S. attorney. Blankenship’s argument that the judges must all be disqualified, prosecutors said, “relies on improperly and unrealistically imputing Judge Goodwin’s conflict of interest to every other judge in this district.”

“Not only are the judges capable of hearing cases litigated by the family members of another judge, the everyday occurrence of Judge Goodwin’s conflict makes an appearance of bias in this case alone unlikely,” the prosecutors said.

As part of their motion alleging a selective prosecution, lawyers for Blankenship object that they were “given no notice” of the government’s plan to seek a grand jury indictment of Blankenship, despite having previously been assured that he was not a “target” of the investigation. They complained that this denied Blankenship the opportunity “to seek pre-indictment review” by the U.S. Department of Justice.

“This kind of secret pursuit of an individual is virtually without precedent in white collar prosecutions,” Blankenship’s lawyers said. “Such notice is customary and consistent with the Department of Justice’s mission and practice, and gives defense counsel the opportunity to present argument and evidence to both the United States Attorney and the Department of Justice in Washington, D.C., as to why a potential defendant should not be indicted. It is not just uncommon, it is unheard of, that in a complex white collar case, a federal prosecutor does not follow the Department of Justice guidelines and send a target letter or simply make a phone call.”

Ruby responded by explaining that DOJ guidance said prosecutors can provide pre-indictment notice in “appropriate cases” and advises against it when such notice might jeopardize a case because of the likelihood a defendant might flee, destroy evidence, endanger witnesses or cause undue delay that “would be inconsistent with the ends of justice.”

“In fact, many or most defendants in this district and elsewhere are charged with no prior notice that they are being prosecuted, precisely because of the considerations” the DOJ guidance manual mentions, Ruby wrote. “As in many of its prosecutions, the United States concluded here that the risks of prior notification outweighed any possible benefit to the case. The Magistrate Judge’s subsequent findings regarding the flight risk posed by Defendant, based upon Defendant’s own disclosures to the pretrial services officer, suggest that the United States’ decision was a prudent one.”

Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.

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