- The Washington Times - Monday, June 1, 2009

The lawyer for indicted former New York City Police Commissioner Bernard B. Kerik has accused the Justice Department of using the press to poison public opinion against his client mere months before his scheduled trial for corruption and tax charges.

Defense attorney Barry Berke criticized a press release last week from Justice Department prosecutors in New York that announced Mr. Kerik had been indicted in Washington on charges of lying to White House officials during the background investigation of his aborted 2004 nomination to head the Department of Homeland Security.

Those charges were originally part of a larger 2007 indictment in New York, but they were dismissed in March because they had not been brought in the proper jurisdiction.

Prosecutors refiled charges last week Washington, which is the proper jurisdiction because it is where the supposed crimes took place.

“It is hard to fathom what legitimate law enforcement purpose could have been served by the government issuing a press release about 1 1/2-year-old charges,” Mr. Berke told The Washington Times. “There can be no question that the prosecutors’ actions has the obvious effect of generating news reports that wrongly suggested Mr. Kerik had been charged with additional wrongdoing, which clearly had and will continue to have an impact on the public’s perception of Mr. Kerik.”

Yusill Scribner, a spokeswoman for acting Manhattan U.S. Attorney Lev Dassin, whose office is prosecuting Mr. Kerik, declined to comment on Mr. Berke’s statements.

The press release issued about the new indictment did note that the new charges were similar to those brought in the New York indictment.

“Charges similar to those in todays indictment were initially brought as part of an indictment returned in the Southern District of New York in November 2007 but were dismissed from that indictment because the crimes are alleged to have occurred in the District of Columbia and not in the Southern District of New York,” it reads.

According to the indictment, Mr. Kerik lied to White House officials about receiving gifts from a contractor seeking public contracts from New York City. Mr. Kerik’s nomination for homeland security secretary ultimately unraveled when he acknowledged hiring an illegal immigrant to work as a nanny.

“The charges recently filed in D.C. are identical to the charges originally filed by New York prosecutors in December 2007 that the court dismissed for lack of venue,” Mr. Berke said. “The government nevertheless issued a press release that had the effect of suggesting that these old charges were new, significant and expanded the allegations against Mr. Kerik.”

Mr. Kerik refused to waive jurisdiction and allow the charges related to the White House to be prosecuted in New York. Mr. Berke also challenged those charges on jurisdictional grounds, which led Judge Stephen C. Robinson to dismiss them.

As a result, prosecutors brought the charges in Washington.

Mr. Kerik, who also served in 2003 as Iraq’s interim interior minister, is scheduled to appear Thursday in federal court in the District to answer the charges contained in the new indictment.

He is scheduled to go on trial in October in New York for the other charges he still faces there.

In the New York case, Mr. Kerik faces a wide range of corruption and tax charges that included accusations he received $255,000 worth of home renovations from a company that sought to do business with the City of New York.

Mr. Kerik has maintained his innocence, and his lawyer has called prosecutors “overzealous.”

The federal case stems from a 2006 state case in which Mr. Kerik pleaded guilty in a Bronx court to two misdemeanor ethics charges related to his accepting those renovations. Mr. Kerik received a $221,000 fine in that case.

Mr. Berke called the new charges filed in Washington “the third separate prosecution against him arising out of the same purported corruption allegations from 10 years ago … the latest example of the Department of Justice’s overzealous pursuit of high-profile public figures.”

Prosecutors disagreed with the assessment in a motion they filed in opposition to Mr. Kerik’s motion to dismiss the federal case.

“The defendant’s two misdemeanor guilty pleas and attendant fines in the Bronx - while related to one or more of the (current) offenses - do not begin to account for the vast array of federal felonies he committed or vindicate the substantial federal interest in prosecuting him for those crimes,” prosecutors wrote.

But filings from Mr. Kerik’s lawyer suggest prosecutors have been more aggressive with his client than with other public officials, particularly when it comes to the charges that were brought last week.

“Recent events have provided a reminder that the nomination and vetting process for presidential and other federal appointments is just that, a process - and an imperfect one, during which mistakes and omissions occur, honorable public servants are revealed to have made good-faith errors and oversights with respect to taxes and other issues, and allowances are made to permit corrections,” Mr. Berke wrote in a motion to dismiss.

“Such omissions rarely provide a basis for disqualification, let alone criminal prosecution, for the very reason that the question must be so clear and unambiguous so as to leave no doubt that the omission was intentional,” the motion said.

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