CHARLESTON – The U.S. Attorney for the Southern District of West Virginia has been recused from Don Blankenship’s attempt to have his federal conviction vacated.
U.S. Attorney Mike Stuart won’t be representing the federal government, court records show. Instead, U.S. Attorney for the Eastern District of Kentucky Robert M. Duncan Jr. will step in. The case remains in federal court in Beckley under District Judge Irene Berger.
Stuart’s office declined to explain the reasons for his recusal from the matter. But Stuart, a former head of the state Republican Party, unsuccessfully ran for House of Delegates in 2006 when Blankenship spent millions of dollars to help Republican candidates.
Blankenship issued a statement through his campaign for U.S. Senate. Blankenship finished third in the May 8 Republican primary for Democrat Joe Manchin’s Senate seat. Blankenship recently accepted the nomination of the Constitution Party to be its Senate candidate in the fall general election.
“This means that Cocaine Mitch McConnell’s appointees within the Department of Justice (DOJ) will now be deciding the DOJ’s position on whether my case should be invalidated,” Blankenship said, referring to the Senate Majority Leader from Kentucky. “Cocaine Mitch will, of course, claim that he is not involved — just like he originally said he was not involved in the West Virginia Republican primary.
“Yet, today Mitch makes jokes about his involvement in the campaign and compares himself to Pablo Escobar.
“We live in a country where the Majority Leader of the Senate now decides who his future Senate colleagues will be, compares himself to Pablo Escobar, and places his political adversary’s case under the control of his own DOJ appointees. The American justice system is a criminal enterprise itself.”
Blankenship contends the 2010 explosion at the Upper Big Branch mine in Raleigh County that killed 29 miners occurred because of government regulations that reduced the amount of air to the mine.
“Since then, the government has done everything it can to cover-up the truth including falsely imprisoning me,” he said. “They have even continued their charade after their own witnesses testified under oath at my trial that the government forced the miners to cut the air in half — a task which was completed just eight hours before the explosion.
“The government has even admitted to destroying and altering documents and that they have in their possession additional documents that they continue to fight to keep hidden. In addition, they have in their possession a report from the DOJ’s Office of Professional Responsibility which likely makes abundantly clear that my prosecution was a corrupt prosecution — another report they refuse to release.”
Blankenship says “freedom of speech does not exist in America.”
“It is not enough that McConnell and multiple Republican Senators and dozens of news media outlets sabotaged my (Republican) campaign for the United States Senate with outright lies — McConnell now wants the DOJ to uphold a corruptly achieved misdemeanor conviction, as well,” Blankenship said. “He must have figured out that I will be on the ballot to become West Virginia’s U.S. Senator this fall.”
In the original motion filed April 18, Blankenship’s attorneys argue that federal prosecutors and the U.S. Labor Department did not hand a “mountain of undisclosed information” that would benefited Blankenship. The “staggering” amount of information includes FBI interviews with Chris Blanchard and Bill Ross, two of the main witnesses against Blankenship.
“The conviction of Mr. Blankenship that resulted from this terribly flawed process cannot stand,” the motion states. “The newly discovered evidence, withheld by the prosecution until after trial, would have tipped the balance in Mr. Blankenship’s favor.”
The motion claims there is no lawful basis by which these materials could have been withheld.
“The prosecution of this case deprived Mr. Blankenship of his constitutional right to a fair trial, violated the Jencks Act, violated this court’s discovery orders and made material misrepresentation to Mr. Blankenship’s defense counsel and to the court,” the motion states. “The conviction of Mr. Blankenship that resulted from this terribly flawed process cannot stand.”
It says there were 61 memoranda of interview that were not disclosed to Blankenship and his attorneys until 2017. Also not provided were several dozen emails from the federal Mine Safety and Health Administration. And even earlier this month, the U.S. Attorney’s office turned over more MSHA documents.
Some of the documents “demonstrate MSHA’s contempt” for Blankenship and Massey, the motion states.
“My only comment is to put a dagger into massey [sic],” MSHA Mine Administrator Kevin Stricklin noted on a draft press release. That was overruled by former MSHA chief Joe Main, who wrote, “This is about presenting the facts to the public in a responsible way.”
“I hope that him [Blankenship] and Glenn Beck get raped by a rhinoceros. Horn end,” another MSHA employee wrote.
The motion also notes evidence of destruction of documents.
“How many miners worked their entire career at UBB?” wrote MSHA employee William Francart in an email. “We had a shredding party here in Beckley and the charts you printed for everyone were modified so that they can’t be read.”
In an April 16 press release, Blankenship said his attorneys told him they expect the case to be nullified or dismissed, “whatever legal term is appropriate.”
Earlier in April, the former Massey Energy CEO also said the U.S. Department of Justice’s Office of Professional Responsibility is investigating his prosecution related to the Upper Big Branch mine disaster.
“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 then. “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.”
On May 21, Blankenship’s legal team filed another motion seeking the release of even more MSHA records.
“Separately, MSHA employee performance reviews were recently provided to Don by the Department of Justice showing that multiple MSHA supervisors received positive reviews for their performance in 2009 and 2010,” a Blankenship press release stated. “But other performance reviews that had previously been hidden show that these same inspectors were disciplined for bad conduct related to the Upper Big Branch (UBB) mine explosion.
“This is yet another of many examples of the illegal actions MSHA has taken to avoid the public finding out all the facts about UBB. The government’s efforts to scapegoat Don are methodically falling apart as the evidence of the government’s prosecution misconduct continues to mount. Don will continue to fight to get to the truth so that today’s coal miners can be made safer and the government’s false claim that the UBB miners killed themselves is exposed.”
In his motion to vacate his conviction, Blankenship is being represented Henry Jernigan of the Charleston office of Dinsmore & Shohl as well as Howard C. Vick and Benjamin L. Hatch of Richmond-based McGuireWoods.
