A U.S. judge is urging the Obama administration to protect from public disclosure federal court records related to the once-secret criminal history of a former Donald Trump business partner.
In a highly unusual order prompted by The Associated Press, U.S. District Judge Brian M. Cogan said that unless the Justice Department acts before April 18, he will decide whether to make the court files public under the assumption that federal prosecutors don't care.
The case involves Felix Sater, a Trump business associate who had pleaded guilty in a major Mafia-linked stock fraud scheme and cooperated with the government.
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The AP reported in December that, even after learning about Sater's background, Trump tapped Sater for a business development role in 2010 that included the title of senior adviser to Trump. Sater received Trump Organization business cards and was given an office within the Trump Organization's headquarters, on the same floor as Trump's own.
"It seems to me that the government has a unique interest in keeping documents that relate to cooperation agreements under seal," the judge wrote in his order. "The government should speak and assert its position as to whether the public's right to access each document in the record is outweighed by a compelling need for secrecy."
Lawyers for the AP had asked the judge to justify sealing a five-year criminal contempt proceeding in U.S. District Court for the Eastern District of New York.
Not only did Cogan seal all documents in the contempt case, he also initially sealed the AP's request that he unseal his justification for their sealing. When The New York Times asked the judge to unseal the AP's request to unseal the sealing order, that request was sealed, too.
Late last week, he made the requests by the AP and the newspaper publicly accessible — but ordered that the parties to the case file any response to them under seal.
The defendants in the contempt case, Frederick Oberlander and Richard Lerner, are attorneys whom the government said revealed once-secret court records about Sater's crimes and cooperation.
Sater's lawyers, who once included Leslie Caldwell, now the head of the Justice Department's criminal division, have said that Sater's cooperation was vital to national security and disclosures about his past put him in danger.
Oberlander and Lerner said they never revealed sealed records. Some of what they had been ordered not to disclose is already publicly available in the Congressional Record, they said.
"We wish that people could inspect the documents, because it would reveal judicial and prosecutorial misconduct of the highest levels," Oberlander told the AP.
Also at issue in the case are statements that U.S. Attorney General Loretta Lynch — formerly the top prosecutor in Cogan's district — made about Sater's case before the Senate confirmed her last year. Oberlander and Lerner said the government improperly permitted Sater to use his status as a secret cooperator to commit new crimes and avoid paying restitution to past victims, who are owed millions of dollars.
In February 2015, Lynch told Sen. Orrin Hatch, R-Utah, of the Senate Judiciary Committee that information about Sater's restitution "remains under seal," and that the Justice Department would never waive victims' right to restitution as part of a cooperation agreement.
Court records already publicly available at the time showed that Sater was not ordered to pay restitution and the government never requested it. One of Sater's attorneys said in a statement at the time that the government had waived restitution payments partly out of gratitude to Sater.
A Justice Department spokeswoman, Melanie Newman, told the AP that Lynch's comments were accurate because some documents related to restitution in Sater's case remain under seal.
Oberlander told the AP that the original cooperation agreement Sater signed in 1998, which has been publicly available since 2013, said Sater acknowledged that the penalty for his crime included roughly $60 million in restitution payments to victims.
The New York judge has twice asked the Justice Department to pursue contempt charges against the two lawyers who revealed Sater's cooperation. In both cases, local federal prosecutors recused themselves over unspecified conflicts of interest after consulting with Justice Department officials in Washington. They referred the case to federal prosecutors in Albany, New York, who likewise did not act.
In his latest order, Cogan again urged prosecutors to go after Oberlander and Lerner.
"One would think that the desire to ensure that further informants cooperate in government investigations should also motivate the government to take swift action against individuals who seek to expose the identity of informants, their proffered criminal history and the details of their cooperation," the judge wrote.
Sater's attorney, Robert Wolf, said the judge was right.
"Mr. Sater shares and supports the court's frustration and outrage as to why these rogue lawyers have not yet been criminally prosecuted," Wolf said in a statement. He credited Sater with providing information that "potentially saved tens of thousands, if not millions, of our citizens' lives."
Sater pleaded guilty in 1998 to one count of racketeering for his role in a broad stock fraud scheme involving the prominent Genovese and Bonanno crime families, according to court records. Five years earlier, a New York State court had sentenced Sater to more than a year in prison for stabbing a man in the face with a broken margarita glass.