A Presidential Commutation: Behind the Scenes with Gary Apfel, Esq.
Michael Rubinstein, Esq.
It’s 12:30PM on the last day of Chanukah in the Downtown Los Angeles office of Attorney Gary Apfel. Gary’s phone rings, signaling an incoming call from a 202 area code.
Is this the call? The one he’s been davening and working pro bono for, for more than four years?
On the other end of the phone is an attorney from the Office of the White House Counsel. He informs Gary that President Donald J. Trump just commuted the 27-year prison sentence of his client, Sholom Mordechai Rubashkin. Gary is instructed not to disclose this information to anyone, not even Sholom Mordechai’s family. In short order, the warden of the federal penitentiary in Otisville will be informed that Mr. Rubashkin is to be released, by order of the President, “with all deliberate speed.”
Gary hangs up and opens a Tehillim. But instead of beseeching Hashem for mercy, this time Gary, or Chaim Yosef, says tefilos of thanksgiving. Sholom Mordechai Rubashkin, who served 8 of his 27 year sentence, is going home to his family.
Gary Apfel spent decades representing large corporations. More recently, he oversaw a team of hundreds of attorneys assisting with the corporate restructuring of General Motors after its bankruptcy—the largest bankruptcy in American history. So how did this corporate lawyer come to take on and champion the cause of Sholom Mordechai Rubashkin?
Many people, Gary included, were stunned when the federal court in Iowa sentenced Sholom Mordechai to 27 years. As time passed, more and more legal observers and scholars began to express outrage about this unjust sentence. A driving-force behind this grassroots effort to bring attention to Sholom Mordechai’s plight was Rabbi Zvi Boyarsky, the West Coast head of Chabad’s Aleph Institute. Gary knew Rabbi Boyarsky and had had prior interactions with him for other community matters. Over the course of the Rubashkin case, Gary would come to work with Rabbi Boyarsky on a much deeper level.
Gary knew from Rabbi Boyarsky, and his Shabbos interactions with Sholom Mordechai’s nephew Shalom (the editor of this newspaper) that the Rubashkin legal team already had enormous talent. Gary saw first-hand how Rabbi Boyarsky was totally consumed with the Rubashkin case. Rabbi Boyarsky’s commitment made a huge impression on others, too. In due time, Gary’s own dedication and commitment to undoing the injustice perpetrated on Shalom Mordechai led him to join the team of lawyers already representing Shalom Mordechai in his subsequent appeals.
The first order of business was filing a “2255” motion in federal court in Iowa. This motion in essence attacked the criminal sentence on the grounds that the prosecution violated Sholom Mordechai’s constitutional rights by 1) withholding exculpatory evidence—which prosecutors are obligated to turn over to the defense; and 2) providing the court with perjured testimony. The motion was filed in September 2013. The next day, Gary traveled to Washington D.C. along with Shalom Mordechai’s daughter Roza Weiss to meet with members of Congress to raise awareness about Shalom Mordechai’s case. The team also met with high-ranking Department of Justice attorneys. The goal of these meetings was to raise awareness about the prosecutorial misconduct Shalom Mordechai suffered and gain support for team’s effort to correct this injustice.
In August 2014, Gary and the team of attorneys met with the new U.S. Attorney in Iowa, Kevin Techau. Shalom Mordechai was prosecuted by Mr. Techau’s predecessor. After filing the 2255 motion, the team requested the meeting to bring to Mr. Techau’s attention how the prosecution team committed misconduct during the case. Also attending on behalf of Sholom Mordechai were Charles Renfrew, a former federal judge and Deputy Attorney General; Larry Thompson, a Bush-era Justice Department attorney and General Counsel for Pepsi; and Harvard Law Professor Philip Heymann.
Other legal heavyweights, including former FBI Director Louis Freeh, a partner at Gary’s law firm, supported the Rubashkin legal team’s endeavors too. Gary later learned that many of his accomplished colleagues had agreed to join the Rubashkin case in response to Rabbi Boyarsky’s cold-calls imploring them for help. Larry Thompson, who is not Jewish, told Gary that he learned a lot about faith from observing Rabbi Boyarsky—a true Kiddush Hashem.
Sadly, the team’s efforts did not meet with success. The 2255 motion was denied, and subsequent appeals, including to the Court of Appeals for the Eighth Circuit, and the United States Supreme Court were denied too. It became apparent to Gary that Hashem did not want Sholom Mordechai’s salvation to come from the legal process. Perhaps it would from the political process.
A great effort was made to obtain clemency form President Obama.Senator Orrin Hatch even requested a meeting with President Obama’s Attorney General, Loretta Lynch, to discuss Sholom Mordechai’s case. She refused to meet. Towards the end of President Obama’s term in office, a senator personally approached the President seeking a commutation, but it never happened.
Then President Trump was elected.
A New President
Shortly before President Trump was inaugurated, Michael Mukasey, a former federal judge and Attorney General under President Bush, sent the President-elect a letter. In it, he asked Mr. Trump to consider commuting Rubashkin’s sentence upon assuming the Presidency. Gary and the team helped orchestrate this letter. They understood that their efforts could meet with more success with the new Administration. But Gary had personal experience informing his belief that they might achieve success with President Trump.
In the early 1980s, when Gary was a young Wall-Street lawyer, another lawyer friend of his worked with Donald Trump on one of his early real estate deals. The deal required Gary’s friend to meet with Mr. Trump on a Sunday. It also meant that Gary’s friend would miss his son’s little league baseball game. The deal closed, but before it did, Trump was made aware of the sacrifice the young lawyer made by participating in the deal and missing his son’s baseball game. Trump sent the young boy a personal handwritten letter thanking him for letting his dad miss the game. The letter demonstrated to Gary that Donald Trump was and is a man of deep compassion. The real estate tycoon took the time to personally write a letter to a young boy telling him how proud he should be of his father for participating in the deal. Maybe, with Donald Trump as President, Rubashkin’s team would make progress on the case.
In March 2017, President Trump invited Alan Dershowitz to the Oval Office to discuss Middle East policy issues. Alan Dershowitz is a lifelong Democrat. He is also a passionate advocate for Israel and intellectual honesty. At the end of the meeting, the President asked Professor Dershowitz if there was anything else to discuss. Professor Dershowitz brought up the matter of Rubashkin’s unjust prison sentence and asked the President to commute his sentence. Mr. Trump told Professor Dershowitz he would consider the matter.
President Trump commuted Sholom Mordechai’s sentence on Zos Chanukah. Klal Yisrael observed a modern-day Chanukah miracle. Sadly, Charles Renfrew did not live to witness this momentous event. Judge Renfrew died one week before Shalom Mordechai’s sentence was commuted. The community owes a serious debt of hakaras hatov to Professor Alan Dershowitz; Judge Louis Freeh; Professor Phillip Heymann; Judge Michael Mukasey; Judge Charles Renfrew obm; and Professor Larry Thompson. These remarkable human beings championed Sholom Mordechai’s cause pro bono and made it their own. And of course, most importantly people can and should send President Trump thanks for making the courageous decision to commute Shalom Mordechai’s sentence.
Gary’s inspiration for working so hard on the Rubashkin case comes from his late-father, Willy (Zev) Apfel z’l. His family’s association with the Kopycyznitz Dynasty taught him the importance of Chesed. And Gary’s more than four years of pro bono legal work on the case could not have been accomplished without the hard work and dedication of Rabbi Boyarsky.
Sholom Mordechai’s commutation was nothing short of a modern day miracle. Of course, the real thanks for this joyous outcome goes to Hashem.