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Where's the justice in this department?

By Robyn E. Blumner, Times Columnist
In print: Sunday, April 6, 2008

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The problem with a Justice Department that has allowed political considerations to interfere with legal judgments is that you just don't know when you can trust it.

Evidence abounds that under George Bush the Justice Department has been used as a tool of the Republican Party.

• Former Attorney General Alberto Gonzales, a political hack with a sentimental backstory, used his authority to purge the department of U.S. attorneys who weren't "loyal Bushies."

• Monica Goodling, an ill-equipped graduate of the evangelical Regent University, admitted that she took Republican affiliations into account when making hiring decisions for nonpolitical departmental jobs.

• The department's Voting Section has turned its mandate on its head and pushes policies that tend to disenfranchise minority voters (read: Democrats).

• The prosecution of former Alabama Gov. Don Siegelman, a Democrat, is so fraught with allegations of political influence that more than 50 former state attorneys general have called for a review.

And now comes a disturbing prosecution in Miami of an attorney who helped to represent Al Gore during the 2000 election recount fight.

Ben Kuehne, one of South Florida's pre-eminent lawyers, has been charged with conspiracy, money laundering and obstruction of justice and is looking at a potential 20-year sentence. The charges stem from a series of opinion letters he wrote in the federal prosecution of Colombian drug kingpin Fabio Ochoa Vasquez.

In 2002, Kuehne was hired by Roy Black, Ochoa's lawyer, to determine the origin of payments made by Ochoa to Black. It is a crime for an attorney to accept money that he knows was obtained through drug sales, and Black was being careful not to accept tainted fees.

Kuehne's investigation, which included traveling to Colombia, determined that the money for Ochoa's defense was from the proceeds of cattle, horse and real estate sales. The Ochoa family ranch is an asset that predates Ochoa's drug involvement.

Kuehne was paid about $200,000 for his advice. All told, he allowed $5.2-million in legal fees and costs to be transferred to Black, after having determined that it had been derived from legitimate sources.

But the government in its indictment says that Kuehne knew that at least some of the money was the proceeds of drug trafficking and sent through money launderers. Reports are that FBI and IRS agents found that some of the Ochoa family assets were auctioned off to known cartel members.

Kuehne and two Colombian defendants — an accountant and lawyer who had worked with Kuehne — pleaded not guilty on Feb. 7 in federal court in Miami.

Part of the reason I'm writing about this case is that I know Ben Kuehne. He was a volunteer lawyer when I headed the ACLU of Florida. I remember him as a meticulous lawyer of the highest professionalism and integrity. His reputation is that of a "lawyer's lawyer," and some of the most prominent members of the Miami legal community say it is impossible that Kuehne knowingly broke the law, as such a thing is beyond him.

Also, Kuehne is a high-profile progressive. In addition to his representation of Gore, he spent a number of years as a board member of Legal Services of Greater Miami. And in 2006, the liberal group People for the American Way gave Kuehne its "spirit of liberty" award as a "champion of constitutional rights."

But even if Kuehne's political bent didn't have anything to do with the decision to prosecute, one can't help but wonder if this isn't an attempt by the Justice Department to make top-notch attorneys think twice about criminal defense work.

Milton Hirsch, one of those top Miami criminal defense attorneys, says that this prosecution changes the landscape for his profession, making the prospect of accepting even reasonably vetted money from a client a terrifying gamble. You would think, Hirsch says, that "good-faith brownie points" would be earned by an attorney who at least tries to assess the origin of fee money. But instead the attorney faces a career- and possibly liberty-ending indictment.

"The mere process of indictment is a life-destroying event," Hirsch says.

If the department wanted to broadcast a warning to the criminal defense bar that accused white-collar criminals, drug lords and mafia dons are untouchable, it couldn't have found a better case. The prosecution of Kuehne is reportedly the first time an attorney has been charged after approving another attorney's fees. And the government wants $5-million from Kuehne in addition to decades of his freedom.

Regardless of its ultimate resolution, the case appears designed to interfere with the right of criminal defendants to obtain competent counsel of their choosing. And if that's true, then the taint of Ochoa's money is nothing compared with the taint of this prosecution.