DOJ claim Maike’s motion a “distracting red balloon, full of hot air”
On the day he was indicted, Richard Maike filed a motion seeking disqualification of a DOJ attorney working the case
Assistant United States Attorney Marisa Ford filed the April criminal complaint against Maike. She also lead the DOJ’s intervention in Maike’s defamation case against whistleblower Chuck King.
As part of proposed settlement in the defamation case, King was purportedly being pressured into signing off on documents with “untrue statements”.
The DOJ was concerned that King, who was representing himself, might wind up signing an agreement that would harm the government’s criminal case against Maike.
In his filing, Maike argued that Ford
breached the Ethical Standard for Prosecutors Act by ‘providing legal assistance in any case in which the United States is a party of has a direct and substantial interest‘.
In a response to the filing, the DOJ claim Maike’s motion is a ‘distracting red balloon, full of hot air but devoid of any substance‘.
The DOJ asserts Maike’s “red balloon” motion ‘bursts under even the most gentle of probing.‘
AUSA Ford did not engage in prohibited outside activities, did not engage in the legal representation of a third party, and does not have any conflict of interest.
The core of the DOJ’s “probe” into Maike’s motion is rooted in dishonesty.
On (April 10, 2017) King told the FBI that Maike’s settlement proposal now went beyond the simple terms King had described in March, and that Maike was now attempting to leverage the looming April 17, 2017 civil trial to extract additional concessions from King, specifically an Affidavit and a one million dollar Consent Judgment.
King indicated that the statements contained in the Affidavit Maike’s attorneys had drafted were untrue.
The FBI case agent conveyed this information to AUSA Ford, the prosecutor assigned to the Maike criminal investigation.
AUSA Ford recognized that the Affidavit and Consent Judgment in particular appeared to have the potential to compromise the integrity of the government’s criminal case, because King was a government witness and was being pressured to execute an Affidavit containing false statements, and a Consent Judgment which could be used later as impeachment material.
According to the DOJ, this dishonesty continued into Maike’s motion.
Maike’s Motion contains numerous false statements.
First, Maike claims that the parties agreed to terms of a civil settlement on Friday, April 7, 2017.
Maike claims that King “agreed to sign an affidavit that stated his intention to destroy … Maike’s company, Finance Ventures.
However, immediately prior to executing the settlement, [King] abruptly cut off communication.”
Maike’s claim is flatly contradicted by the Order and Report filed by the United States Magistrate Judge regarding settlement.
If the parties had already agreed to settlement terms, as Maike claims, it seems unlikely that the Court would conduct a lengthy settlement conference on April 10, 2017.
Second, Maike asserts, without any factual basis, that:
“[FBI Special Agent Dave McClelland] advised [King] that the settlement agreement and affidavit would significantly hurt any criminal prosecution of [Maike].
SA McClelland instructed [King] to refuse to sign a consent judgment that included a monetary figure of loss caused by [King’s] videos.
S/A McClelland further advised [King] to counter-propose an affidavit wherein [King] testified that the statements had not been proven as fact.”
None of this ever happened.
The DOJ maintains that
on the occasions FBI Special Agent McClelland spoke with King, he advised King multiple times that the United States could not give King legal advice, that King should consider retaining counsel in the civil defamation suit and, in the event he represented himself, King needed to do what he thought was in his interest in either attempting to settle the suit or proceed to trial.
Maike also falsely asserts that he agreed to accept King’s counter-proposal on April 17, 2017, and “[t]hat same day, the government arrested Mr. Maike.”
With respect to Ford inadvertently representing King, the DOJ claim
Maike has not and cannot cite any case supporting his argument that AUSA Ford somehow represented King when she engaged in the unremarkable action of filing a motion to intervene on behalf of the United States in a civil case,
and to stay a civil trial.
Maike has not and cannot provide any case to support his contention that AUSA Ford should be disqualified from representing the United States in this case.
Summing up their response, the DOJ conclude;
What Maike attempted to do through his civil action does not differ in any appreciable way from a criminal target or defendant who pressures a witness to give a favorable, albeit untruthful statement, or to provide other false testimony.
Maike was using the time, cost, inconvenience, and pressure of a civil suit against a potential witness to extract false statements and other documents which could be used to undermine the government’s criminal investigation.
Put simply, Maike’s conduct was an attempt to obstruct justice.
AUSA Ford had a responsibility to protect the government’s criminal case from these efforts.
AUSA Ford did her job, and she never represented King, and she does not have any conflict of interest in prosecuting this case.
Maike’s Motion is comprised entirely of unsupported speculation and demonstrably false statements, and lacks any legal basis.
Accordingly, Maike’s Motion should be denied, and he should be cautioned against filing frivolous motions in the future.
The DOJ’s response was filed on July 25th. A decision on Maike’s motion is pending.