Hours after the Supreme Court refused to hear his appeal of a case that forced him to take court-mandated law classes, Kris Kobach suffered another defeat in New York on Monday, as a federal judge refused to let him move assets related to a charity that prosecutors allege was used to scam donors.
The order by U.S. District Judge Analisa Torres relates to the criminal charges against four officials of “We Build the Wall”: founder Brian Kolfage, ex-White House strategist Steve Bannon, Andrew Badolato, and Timothy Shea.
The foursome will return to court on Thursday, battling allegations that the duped donors by promising “100%” of the $25 million crowdfunded would build a barrier along the U.S. southern border. Bannon took at least $1 million from the charity, and Kolfage pocketed $350,000 and spent donors’ money on a Jupiter Marine yacht called the Warfighter, a Range Rover SUV, a golf cart, jewelry, cosmetic surgery, personal tax payments and his credit card debt, prosecutors say.
Kobach, who has not been charged, serves as We Build the Wall’s general counsel, and he claims that a pre-trial order blocking the transfer of its assets violated his due-process rights. Kobach attempted to challenge a restraining order that “intended to safeguard funds that will be subject to forfeiture following a conviction in this case.”
Prosecutors argued against that attempt.
“We Build the Wall is not a defendant in this matter, and the fact that the [frozen] Accounts are in the name of We Build the Wall does not permit its intervening now,” the memorandum said. “Additionally, Kobach is neither a defendant nor the owner of the Accounts, and therefore in this context is nothing more than an unsecured creditor with no property interest in the accounts.”
Judge Torres was not persuaded by Kobach’s arguments.
“Although the Supreme Court has made clear that pretrial hearings on forfeiture may be required when the forfeiture order is challenged by a criminal defendant, particularly where their Sixth Amendment right to counsel is implicated, the law concerning the rights of third parties is less clear,” she noted in a 25-page order.
The proper place to lodge those objections is a criminal forfeiture, or “§ 853(n),” proceeding.
Kobach also wanted to unseal an affidavit by United States Postal Inspector Troy Pittenger, along with the restraining order blocking the transfer of We Build the Wall’s assets, but Judge Torres was unmoved.
“This information, if disclosed, could hamper the investigation,” the judge wrote. “Where an investigation is ‘ongoing,’ and the sealed document identifies subjects and the extent of the investigation, ‘[c]ompelling reasons exist to maintain the secrecy of the Government’s investigation.'”
Shea, the final defendant, also failed in a separate request to transfer his prosecution to the District of Colorado, the state where he resides.
“Shea is one of four defendants charged in the indictment, and the others have not joined his motion to transfer,” the ruling states. “Transferring Shea’s case would, therefore, require severing the case against him and conducting two trials on the same conspiracy, thus imposing a ‘double burden on the judiciary.'”
Shea’s attorney John Meringolo kept focused on the road ahead.
“We respect the Judge’s decision and look forward to trying the case in front of a New York jury,” Meringolo told Law&Crime in an email.
Kobach’s attorney Justin Weddle did not immediately return emails seeking comment. The Southern District of New York declined to comment.
(Photo by Scott Olson/Getty Images)
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