Top federal prosecutor in Mass. is now on the hot seat
When President Trump first nominated Andrew Lelling to be Massachusetts’ US attorney in 2017, even liberal-leaning judges and criminal defense lawyers described the prosecutor as judicious and fair.
Now, some are using different descriptions: overzealous, grandstanding, and politically motivated.
Lelling’s indictment this week of a sitting state court judge on charges she allowed an undocumented immigrant to elude federal authorities has thrust the fast-rising prosecutor into the country’s heated immigration debate and put him at the center of another dispute about prosecutorial overreach.
Former Massachusetts Supreme Judicial Court justice Geraldine S. Hines said Friday she was on the phone all morning with colleagues disturbed by Lelling’s decision to prosecute Judge Shelley Richmond Joseph, 51, who on Thursday left the federal courthouse in Boston in tears after pleading not guilty to obstructing justice and perjury charges.
“Maybe he’s trying to get on Trump’s radar for whatever reason, and this is certainly the kind of thing that’s going to get attention in Washington,” said Hines, who was appointed by Governor Deval Patrick, a Democrat, and retired from the state’s highest court in 2017. “It’s a way to get yourself noticed.”
Lelling declined to comment on Friday. Personable and seemingly at ease in the public spotlight, Lelling has also ardently defended the work of federal immigration authorities. And he appeared to almost anticipate criticism when he announced the indictment of Joseph and Wesley MacGregor, a now-retired court officer.
“From certain quarters, I have heard the occasional gasp of dismay, or outrage, at the notion of holding a judge accountable for violating federal law. ‘How dare I,’ ” Lelling said Thursday. “But if the law is not applied equally, it cannot credibly be applied to anyone. If this defendant were a random man or woman on the street, I don’t think I’d be hearing those gasps. You wouldn’t be here and neither would I.”
Before Trump appointed him, Lelling, 49, was a federal prosecutor for 15 years, first in the civil rights division in the Justice Department and later for the US attorney in Virginia and then Massachusetts.
His 17-month tenure has already been marked by several notable cases.
Perhaps Lelling’s biggest bombshell came in March — the massive college admissions bribery scandal that has ensnared celebrity parents, wealthy financiers, and coaches at elite universities. His office has already won a number of guilty pleas, and the case is easily the highest-profile undertaking of the Boston office since the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.
His office has also secured guilty pleas from former Massachusetts State Police troopers as part of a wide-ranging investigation of overtime fraud, and it has also drawn national headlines for its racketeering case against former executives of an opioid drug maker that included revelations of sales reps plying doctors with strip club visits and $500 bottles of champagne.
Lelling has personally also drawn praise from his superiors at the Department of Justice, including then-Attorney General Jeff Sessions, who came to Boston last year to join him in announcing identity fraud charges against dozens of foreign nationals.
But the case against Joseph may be his most controversial.
The judge, who has been suspended without pay, is accused of helping an undocumented immigrant facing drug and fugitive charges evade an ICE agent who had appeared at Newton District Court to detain him last year. Lelling’s office said Joseph and MacGregor allowed the immigrant to leave the courthouse through a back door while the immigration officer waited in the lobby.
Lelling’s charges drew quick condemnation from Maura Healey, the state’s Democratic attorney general, and Nancy Gertner, a retired federal court judge who once praised Lelling for his tempered approach to cases. Now, Gertner said, she is alarmed by what she termed the “overzealousness” of the office under Lelling.
“To take this sort of nuclear step without understanding the implications at all and giving this self-righteous press conference, all I can think is: This is the Department of Justice of Donald Trump,” Gertner said.
A spokeswoman for Senator Edward J Markey on Friday also condemned the indictment, calling it an “unwarranted intrusion’’ into Massachusetts state affairs.
Lelling’s defenders see it differently. He has also prosecuted defendants that have gone after institutions targeted by Trump, including the news media and clinics that provide abortions.
In September 2018, Lelling charged Robert D. Chain, a California man who allegedly threatened to kill employees of The Boston Globe last year and is expected to plead guilty. Earlier this month, Lelling charged Matthew Haviland with cyberstalking after he sent threatening e-mails to a professor who has been an outspoken advocate of abortion rights.
In the case against Joseph, the prosecution may be aggressive, but if Lelling has evidence to support it, he has the discretion to enforce federal law, said Brian T. Kelly, a former assistant US attorney in Boston and now a partner at Nixon Peabody LLP.
“No, I don’t think it’s political,” Kelly said. “In fact, if he wanted to be political — and avoid criticism — he wouldn’t have brought the case at all.”
And organizations seeking to limit immigration roundly cheered the indictment.
“It’s absolutely preposterous for a state judge to be undermining federal authority on immigration enforcement,” said Matt O’Brien, director of research at the Federation for American Immigration Reform. “It’s not clear to me how this is any different . . . if a judge were to help someone avoid any other kind of criminal prosecution or civil warrant for that matter.”
However, some legal specialists pointed to evidence in the case that may undermine the strength of Lelling’s prosecution. The indictment includes a transcript of a sidebar conference during the hearing in which the defense attorney and even the Middlesex County prosecutor questioned whether ICE was seeking to detain the wrong person.
Keith Halpern, a criminal defense attorney who is not involved in the case, said it could be argued the judge believed she was trying to prevent an injustice, not obstruct justice.
“I think it’s clear that the goal of all of them was to do something that they thought was in the interest of justice and fairness,” Halpern said.
Lelling said during the press conference that the defendant — a Dominican national identified as “A.S.,” for “alien subject,” in the indictment — entered the country illegally three times. The defendant was arrested by ICE a month after the Newton court incident, according to ICE officials, and has been released on bond while awaiting a decision by an immigration judge.
This isn’t the first time the US attorney in Boston has been accused of overreaching. Carmen Ortiz, who held the post for nearly seven years until 2017, was accused of “bullying” Aaron Swartz when she charged him with illegally downloading massive numbers of scholarly articles. Swartz, a technology advocate, committed suicide in January 2013.
And in December 2016, a federal appeals court threw out her office’s high-profile convictions of three former state Probation Department officials, charging it had “overstepped its bounds” in bringing criminal charges.