Blankenship says DOJ office is investigating his prosecution

By Chris Dickerson | Apr 4, 2018

CHARLESTON – U.S. Senate candidate Don Blankenship says the Department of Justice is investigating his prosecution related to the Upper Big Branch mine disaster.

In an April 4 press release, the former Massey Energy CEO said the DOJ’s Office of Professional Responsibility of the Department of Justice is conducting an investigation.

“It has already been established beyond all doubt that the prosecution in my case withheld information from my attorneys and me that should have been provided before my trial,” he said. “The United States Department of Justice has, since my trial, provided my attorneys with numerous reports and other information not previously disclosed. These materials should have been provided to me pre-trial.”

April 5 is the eight-year anniversary of the disaster, which killed 29 miners. Blankenship was convicted in 2015 of conspiring to violate federal mine safety and health standards during the 15-month period before the April 5, 2010, explosion. He was acquitted of felony charges of securities fraud and making false statements. He was sentenced to one year in prison in April 2016. He finished that sentence last May and appealed his conviction to the U.S. Supreme Court, which said it wouldn’t hear his appeal.

“Because of this withheld information, it my understanding from my attorneys that the actions of the prosecution are being reviewed by the Department of Justice Office of Professional Responsibility (OPR),” Blankenship said. “I look forward to the report from OPR’s investigation, which I hope will be issued in the near future.

“From what I know about what was withheld, I fully expect that report will conclude that the actions of the prosecution violated what the law and Department of Justice policy require.”

Blankenship said that at the conclusion of the investigation, the OPR will prepare a report of investigation in which it makes findings of fact and reaches conclusions as to whether the subject attorney committed professional misconduct. Booth Goodwin and Steve Ruby were the lead prosecutors in the case.

The OPR may find the subject attorney committed professional misconduct by: (1) intentionally violating a clear and unambiguous obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy; or (2) recklessly disregarding his obligation to comply with that obligation or standard. The OPR may also find that the attorney exercised poor judgment or made a mistake.

Once the OPR completes its report of an investigation, the subject attorney and the component head are officially notified of the results of the investigation. If the OPR determines that the subject attorney committed professional misconduct, prior to issuing a final report, the subject attorney, pursuant to a confidentiality agreement, and the component head may review the draft report, comment on the factual findings, and offer arguments as to why the OPR should alter its conclusions. The OPR will consider the comments and incorporate them into the final report, to the extent the OPR considers it appropriate.

The OPR may include in its report information relating to management and policy issues noted in the course of the investigation for consideration by Department officials. The OPR also notifies the complainant of the results of the investigation.

Blankenship also released a statement regarding the anniversary of the Upper Big Branch tragedy.

"The miners who lost their lives were among Massey and the coal industry’s very best," he said. "Collectively they had perhaps 400 years of experience. They had proven day after day and year after year that they were professional miners.

"Some had worked at UBB throughout the mine’s entire seventeen years of existence. There is no way I can personally express the sorrow and heartbreak I felt when I first learned of the tragedy sometime near 4 p.m. that day.  

"My expression of regret, sorrow, and condolences to the families of the miners has never been enough for several of the families, and I understand that. And it is also not enough for me to say 'sorry.'"

Blankenship said his goal is to honor the lost miners by using lessons learned from the accident to prevent other miners and families from ever experiencing such a tragedy again.

"My efforts to prevent another UBB like tragedy began shortly after the explosion when I hired an explosion investigation expert and directed that, no matter what the truth was, I wanted to know what really caused the explosion," he said. "My efforts are continuing today. Absent my someday feeling that I have done all that I can do; my efforts will continue for the rest of my life. Among the reasons that I will continue to speak on behalf of the perished miners is that they cannot defend themselves from the government’s false claim that the miners themselves caused the tragedy.

"Based on what I was advised by experts in forensics, by mine ventilation experts, and by experienced coal miners, I formulated specific mine safety enhancement recommendations more than three years ago. I then provided those recommendations to all of our federal government representatives. ...

"April 5th is not only a reminder to all of us that 29 miners perished that day – April 5, 2010. It must also be a reminder to us all that we have failed to honor the lost miners by learning from their loss so that we can save others."

Blankenship will face Republican primary competition from current West Virginia Attorney General Patrick Morrisey, U.S. Representative Evan Jenkins, former coal miner Bo Copley from Delbarton, Martinsburg businessman Tom Willis and Weirton truck driver Jack Newbrough. Incumbent Senator Joe Manchin will be challenged in the Democratic primary by Raleigh County environmental activist Paula Jean Swearengin.

West Virginia’s primary is May 8.

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Department of Justice Justice Department Massey Energy Company

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