But it wasn’t Pelosi or Dershowitz who convinced Trump to give clemency to Rubashkin. It was the persistence of his son-in-law Jared Kushner, according to the impression of three former officials close to the issue. It was Kushner, they say, who brought the Rubashkin case up to a dispassionate Trump several times in the summer and fall of 2017, before finally persuading him to make what would be his first commutation and only his second act of clemency.
The letters of support told a nice story, but on their merit alone, the former White House officials say, the documents would not have moved Rubashkin “to the top of the pile” of what they believe were far more legitimate candidates sitting at the Justice Department’s Pardons office. In fact, according to two former White House officials, even if Rubashkin’s name had been submitted to the Justice office for consideration under Trump, no one from the Pardon Attorney’s office had raised the case with the White House.
Interviews with those three former senior White House officials reveal for the first time the critical role Kushner played in winning clemency for Rubashkin. The exclusively reported details offer a window into the ad-hoc personality-driven way decisions are made in this administration. They also show the influence of the President’s son-in-law and Kushner’s father, Charles, a convicted felon, who sources say was lobbying the New York legal community to rally around an effort to push for clemency for Rubashkin shortly after Trump was elected.
The Rubashkin commutation is one of the earliest examples of Kushner’s success in persuading the President to make a decision that appeared to some in the White House to be a blatant example of cronyism and was out of step with their political messaging. The Rubashkin commutation was felt by those three senior White House staff who spoke to CNN, to be glaringly hypocritical, because of what one person called “the immigration element.”
One former White House senior adviser observed to CNN that, when viewed together, the Arpaio and Rubashkin cases were completely contradictory. Regardless, both were ultimately viewed as political triumphs by the President: two completely disparate camps of his base (immigration hardliners and orthodox Jews) expressed their gratitude and support. That showed him the transactional benefit of Presidential pardons and commutations, and how they might be used going forward.
In response to questions from CNN and the President and Jared Kushner’s roles, a senior administration official said: “The President was going to do the right thing — and will do the right thing — on pardons and commutations regardless what the particular messaging will look like.”
Justice Department records show that Trump has now issued at least 14 pardons and six commutations. By contrast, Presidents George W. Bush and Bill Clinton issued no pardons or commutations in their first two years of office. President Barack Obama issued his first commutation in December 2010, just shy of the two-year mark of his time in office.
Prosecutors argued that he fabricated documents that falsely claimed he had vast amounts of collateral, costing banks that loaned to him tens of millions of dollars. Although Rubashkin was initially charged with immigration offenses, prosecutors focused on Rubashkin’s financial abuses.
In addition to his prison term, Reade ordered Rubashkin to pay back nearly $27 million in restitution.
Over the next several years, Rubashkin’s lawyers made various attempts to appeal the ruling, including all the way until December 2017, the same month that Trump commuted his sentence. In their appeals, Rubashkin’s lawyers claimed Reade had been too closely involved with the US Attorney’s office and its planned raid on Rubashkin’s plant. Prosecutors subsequently said that Reade was not told in advance where the operation would take place and that she was not told about the targets.
Before leaving office, Obama rejected Rubashkin’s appeals for clemency. By then, his lawyers were lobbying intently for high-level political and legal support. Among them was Gary Apfel, a prominent California corporate lawyer who also represents the Aleph Institute, a non-profit organization affiliated with the orthodox Chabad Lubavitch movement that Rubashkin belongs to.
Apfel had read about Rubashkin’s case and had asked to take him on as a client pro bono.
The Aleph Institute reached out to the former Harvard law professor, Dershowitz, who says he was asked to do a legal analysis of the government’s role in the sentencing. Apfel says he was the one who directly reached out to legal experts and members of Congress including Pelosi.
Kushners on the case
According to a source with knowledge, Charles Kushner also started to lobby the New York legal community the moment Trump won the 2016 election. In January 2017, Reade denied Rubashkin’s motion to be resentenced. Soon after, Jared Kushner took up Rubashkin’s cause inside the White House.
Charles Kushner’s attorney said he understood Dershowitz’s lobbying is what deserves credit.
“Anyone who helped get Rubashkin out deserves a medal, not criticism,” said Benjamin Brafman.
It is not known if the Kushners personally knew Rubashkin. But Charles Kushner has talked about the gratitude he has felt toward the Chabad Lubavitch movement, according to someone familiar with that community. A Chabad rabbi took Kushner, an observant Jew, kosher meals and helped him with religious obligations while he served 14 months of a two-year prison sentence in Montgomery, Alabama, for witness tampering, tax evasion and illegal campaign contributions. President Trump has also welcomed the Lubavitch group into the White House.
In assessing the Rubashkin case, the President turned to three White House officials— Donald F. McGahn, Chief White House Counsel, whose office is the liaison with the Justice Department; Staff Secretary Rob Porter, a lawyer who at the time was a particularly trusted adviser to Trump; and newly-installed chief of staff, Gen. John Kelly, who was supposed to vet all political decisions. All three have left the White House.
Kelly had come to the job with a mandate of instituting a level of order and discipline into the chaotic West Wing. That included being told by the President to rein in his daughter, Ivanka Trump, and her husband Jared Kushner, according to two White House sources. Kelly bristled at the Rubashkin issue, and “wanted to get the case off his desk,” according to a former colleague. McGahn disliked it too, according to two sources close to McGahn, largely because of its association with immigration.
Though McGahn felt the Rubashkin case had some merit, given the disparity between his crime and sentence, he ultimately took a neutral position, feeling there would be more serious issues on which to oppose the President’s son-in-law.
It was a case of: “pick your battles [with Kushner],” said someone close to McGahn.
Porter, a Harvard-educated lawyer with whom the President had a special rapport, took a nuanced view, say sources, feeling that on the one hand it was a clear act of favoritism, but that, given the widespread political support for clemency, the optics were much less controversial than the Arpaio pardon which Porter and others had delayed, fearing a backlash.
Ultimately, it took Trump, who said he had never heard of Rubashkin when Jared Kushner first raised his case, months to wrap his head around what to do. “What do you think I should do?” He occasionally asked a group of his advisers who were non-committal, according to one source.
Kushner, meanwhile, educated himself on the facts of the case; his senior aide Avrahm (Avi) Berkowitz had several conversations with Alan Dershowitz who provided him with information about the case, that he in turn got from Apfel.
Apfel told CNN that Dershowitz was his main avenue into the White House, but that he had also liaised directly with McGahn’s then-deputy Uttam Dhillon. “There’s never been a more outrageous case than this,” said Apfel, adding: “it’s just nasty” to suggest there might “be more compelling cases.”
“When I explained that to the President, he understood that from a business point of view,” Dershowitz told The Forward.
Dershowitz denied ever speaking with Kushner on the subject, though he does admit speaking fairly frequently to Berkowitz.
“I had no knowledge [that the Kushners] were involved,” Dershowitz told CNN. Dershowitz says his meeting with Trump took place in person a few months before the actual commutation.
Trump signs off
Ultimately Trump signed the commutation after Kushner had pushed a number of times as Hanukkah was approaching. The President liked the idea of doing something that could play well in the Orthodox Jewish community, according to a former senior White House official with direct knowledge of the President’s thinking at the time. And he was buoyed by the reaction among anti-immigration voters in his base to the Arpaio pardon.
The irony of the contradictory politics in the two clemency cases never struck him, at least visibly, says a White House source.
Rubashkin’s commutation was met with ecstatic approbation in the Orthodox community in Brooklyn where he was greeted “like a war hero” according to someone who witnessed his return from prison.
But the arguments made to the President by Kushner only went so far. The commutation of Rubashkin’s sentence is not the equivalent of a pardon. A point stressed in the official White House announcement. Though he walked out of prison in Otisville, New York, a free man, Rubashkin still has to pay nearly $27 million in restitution and has a supervised release for five years.
According to a former senior White House official who spoke with Kushner frequently, the President’s son-in-law had already been asking about the broader issue of criminal justice reform, even as the Rubashkin case played out. “I think it’s fair to say that all of this started with his perception that people that he knew, including his father, had been treated unjustly,” the former official said. “And that people sort of deserve to have some mercy and second chances, but his interest was mostly in currying favor with the Orthodox Jewish community.”
Part of a pattern
Even so, Kushner’s actions left a bitter-sweet taste in the mouths of a number of criminal lawyers working on clemency. They were disappointed by the closure of a program at the end of the Obama administration, through which more than 1,700 inmates received pardons or commutations. These lawyers say that if Trump and Kushner truly cared about clemency, they would’ve kept the program.
“On the one hand Kushner got us the First Step Act,” said a prominent lawyer speaking on the condition of anonymity, for fear of reprisals.
“On the other hand, if they’re so interested in correcting outrageous sentences, why don’t they do a clemency program? I mean, instead of, it’s all got to be personal, it’s got to be Kim Kardashian’s person, or this one’s person. I mean, it’s all celebrity bullshit.”