Kerik Persecution
by Bob Barr
Issue 142 - October 28, 2009

One of the most spectacular falls from grace in recent years is that suffered by former New York City Police Commissioner Bernard ("Bernie") Kerik. This was the man who shared the international limelight and afterglow with Rudy Giuliani for their visibility on September 11, 2001. He had very nearly served as a US cabinet officer; nominated by former President George W. Bush in late 2004 to be the nation's second Secretary of Homeland Security (to succeed Tom Ridge).

Bernie Kerik's meteoric rise to the top echelon of government service ended abruptly, however, just one week after his nomination was announced - the result of damaging allegations that surfaced and took root in the hot light of the media scrutiny that surrounded his short-lived stint as secretary-designee.

While most of those men and women who withdraw their names from consideration after a high-level nomination suffer nothing more than bad publicity and a bruised ego, Kerik's nightmare has continued for nearly five years and threatens to land him in federal prison for many years more.

Some of those allegations that came to light following his nomination by Bush will be presented soon in the first of three federal trials Kerik is set to undergo. The case set for jury selection involves allegations of corruption against the former top cop; later trials will center on charges of tax evasion and perjury.

The government's relentless pursuit of Kerik raises questions that should trouble all Americans, but especially those who occupy or may in the future pursue public office.

These concerns date back at least to the time of Kerik's decision to withdraw his name for confirmation as Homeland Security Secretary. At that time, the district attorney for the Bronx apparently became intrigued by allegations that when Kerik was police commissioner in 1999, he improperly accepted renovations to his apartment in that New York City borough. The local prosecutor's case against Kerik was strikingly similar to the case the US Department of Justice had brought against former Alaska Senator Ted Stevens - and in which the Department was later forced to exonerate Stevens after securing a tainted conviction. Unlike Stevens, however, Kerik opted in 2006 to cop a plea to state misdemeanor ethics violations.

Unfortunately for Kerik, that decision was but the start of a long legal nightmare.

During the course of the Bronx investigation, Kerik was subjected to surreptitious electronic eavesdropping - surveillance that picked up a conversation between Kerik and former Westchester County District Attorney Jeanine Pirro. Among other things, Pirro was well known for having run briefly for the 2006 Republican Senate nomination to oppose Hillary Clinton. In one recorded conversation, Pirro asked Kerik - then a private security consultant - to conduct surveillance on her husband because she thought he was cheating on her. Although Kerik tried to talk Pirro out of the surveillance, this brief conversation was sufficient to cause the Manhattan US Attorney to investigate Kerik for conspiring to illegally wiretap.

The federal prosecutor then pressured Kerik to plead guilty to wiretap conspiracy. The US attorney also resurrected the Bronx apartment case, this time from the perspective of Kerik not having paid taxes on the renovations. He tried to get Kerik to plead guilty to this trumped up tax charge as well as the wiretap charge. When Kerik refused to accept the offered plea, the government moved its prosecution into high gear. The feds played the hardest of hard ball.

The government successfully stopped a civil suit in New York from proceeding, because evidence in that case would have proved beneficial to Kerik in the federal criminal case. Also, and as it does in many of its prosecutions, the federal government brought in testimony by a convicted felon in the cases it has arrayed against Kerik. The feds also decided to charge Kerik with failure to pay a housekeeper's Social Security taxes; apparently the only instance in which a public official has been charged criminally for an infraction that literally dozens of public office nominees have admitted or been accused of. He has also been charged with improperly taking a federal tax deduction for a home office five years ago, even though his accountant had caught the error, amended the return and for which Kerik paid a penalty.

The government has gone after Kerik's defense counsel, and even levied a lien on his home so he could not obtain a mortgage to secure funds to pay his lawyers. Still, Kerik has chosen to fight rather than cave. In at least two instances, his stubbornness has paid off. The federal judge overseeing his cases in White Plains, New York, dismissed a wire-fraud count and also dropped charges that Kerik had lied to the White House when he denied there were any embarrassing "secrets" that might harm him or then-President Bush.

A Department of Justice that would attempt to put a man in prison for failing to tell political operatives at the White House about something that might at some point prove "embarrassing" to the president, is a Department of Justice that has lost sight of what should be its goal of seeing that "justice is done," not mounting scalps on the wall.

Bob Barr is a former Congressman and is a lawyer in Atlanta. Check out the BARR CODE Monday and Friday’s at http://blogs.ajc.com/bob-barr-blog/

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