We Build the Wall’s corporate entity might be tried “in absentia” alongside former Donald Trump strategist Steve Bannon after the purported border-wall charity’s officers resigned, court filings indicate.
Late last month, WeBuildTheWall, Inc.’s lawyer Justin Weddle announced in court that an internal exodus left the company bereft of “human beings,” who could be the face of the corporation’s criminal charges.
In a letter filed on March 13, Weddle said that prosecutors described “various possible outcomes, including abating the prosecution entirely, the entry of a guilty plea by the Court, or a trial in absentia.”
“I do not know what outcome WeBuildtheWall will face as a result of its current circumstances, but I am ill-positioned to advocate about those matters given my inability to communicate with the client, the client’s inability to participate in that analysis and make decisions, the client’s inability to pay for my services to conduct that analysis, and the divergent interests the entity and I have on these outcomes,” Weddle wrote, seeking the court’s permission to withdraw as counsel.
Manhattan Supreme Court Justice Juan Merchan indicated at a hearing on Thursday morning that he would be amenable to Weddle’s withdrawal, which has not yet taken effect.
We Build the Wall started off as a crowd-funding initiative to build a barrier along the U.S.-Mexico border, but after funding more than $25 million, only three miles of fence were built. The Department of Justice indicted four people associated with the company in August 2020: co-founder Brian Kolfage, Andrew Badolato, Timothy Shea and Bannon.
After Trump pardoned Bannon at the twilight of his presidency, all three of the remaining defendants were convicted. Kolfage and Badolato pleaded guilty. Shea was found guilty by a federal jury.
As recently as Jan. 5, 2023, WeBuildTheWall’s corporate paperwork only listed two officials: Timothy Shea’s wife Amanda Shea, listed as a secretary, and former Kansas Secretary of State Kris Kobach (R), listed as a director. Prosecutors say that Kobach resigned days later because he was sworn in as Kansas’s attorney general on Jan. 9.
Weddle says that leaves the company as “a legal fiction with no owners, no officers, no directors, and no associated human beings.”
“All of its directors have resigned or, in the case of Brian Kolfage, have been disabled (since his indictment) and disqualified (since his guilty plea) as a director, since he faces self-interests demanding his recusal from any decision of WeBuildtheWall relating to the investigations and this prosecution,” he wrote in a letter to the court.
Manhattan District Attorney Alvin Bragg’s (D) office says that Kolfage, however, never formally resigned or was properly removed. Prosecutors claim that Kolfage can reengage with the company, depending on the outcome of his sentencing scheduled for April 26, 2023.
“Based upon conversations with the U.S Attorney’s Office for SDNY, if Kolfage receives a sentence of supervised release, those restrictions will likely be lifted on that date,” Assistant District Attorney Michael Frant wrote. “If he is sentenced to a term of incarceration but given a date in the future at which to surrender, his conditions would continue until that surrender date. When his sentence begins, he could re-engage with WBTW.”
Prosecutors want WeBuildTheWall’s lawyer to provide so-called Parker warnings to Kolfage, informing him that the company’s “trial and sentencing can proceed even in its absence.” Weddle must deliver those warnings before withdrawing.
Former federal prosecutor Mitchell Epner, who is now a partner at Rottenberg Lipman Rich PC, noted that the law allows corporations, and even human beings, to be tried in absentia in certain circumstances.
“Even in cases with a human defendant, there have been trials in absentia where the defendant fled before trial started,” Epner told Law&Crime.
Prosecutors note that corporations can be tried in absentia and are not constitutionally required to be appointed counsel in fighting criminal charges, as they cannot be jailed.
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