We build the wall can be tried in absentia: court documents
Steve Bannon, former aide to former President Donald Trump, speaks to members of the media following his arraignment in the NYS Supreme Court September 8, 2022 in New York City. (Photo by David Dee Delgado/Getty Images)
The We Build the Wall business unit could be tried “in absentia” alongside former Donald Trump strategist Steve Bannon after officials at the alleged border wall charity resigned, court filings show.
Late last month, WeBuildTheWall, Inc. attorney Justin Weddle revealed in court that an internal exodus has resulted in the company robbing “people” who could be the face of the company’s criminal charges.
In a letter filed on March 13, Weddle said prosecutors had “described various possible outcomes, including a full cessation of prosecution, the court entering a guilty plea, or a trial in absentia.”
“I don’t know what outcomes WeBuildtheWall will face given the current circumstances but I am ill-placed to advocate for these matters as I am unable to communicate with the client, the client is unable to participate in and make decisions in this analysis, the client’s inability to pay for my services in conducting this analysis, and the divergent interests that the company and I have in these results,” Weddle wrote, seeking the court’s permission to retire as a lawyer.
Manhattan Superior Court Justice Juan Merchan said at a hearing Thursday morning that he would be open to Weddle’s withdrawal, which is not yet effective.
We Build the Wall began as a crowdfunding initiative to build a barrier along the US-Mexico border, but after funding more than $25 million, only three miles of fence were built. The Justice Department indicted four people associated with the company in August 2020: co-founder Brian Kolfage, Andrew Badolato, Timothy Shea and Bannon.
After Trump pardoned Bannon on the twilight of his presidency, all three remaining defendants were convicted. Kolfage and Badolato pleaded guilty. Shea was found guilty by a federal jury.
As recently as January 5, 2023, WeBuildTheWall’s corporate filings listed only two officials: Timothy Shea’s wife, Amanda Shea, who is listed as secretary, and former Kansas Secretary of State Kris Kobach (R), who is listed as director. Prosecutors say Kobach resigned days later because he was sworn in as Kansas Attorney General on Jan. 9.
Weddle says this leaves the company as “a legal fiction with no owners, no officers, no directors and no people connected.”
“All of its directors have resigned or, in the case of Brian Kolfage, have been disabled (since his arraignment) and disqualified (since his guilty plea) as a director as he faces self-interest requiring his waiver of any decision by WeBuildtheWall in relation to the investigation and this prosecution,” he wrote in a letter to the court.
Manhattan District Attorney Alvin Bragg (D)’s office says Kolfage, however, has never officially resigned or been properly removed. Prosecutors allege Kolfage may return to work with the company pending the outcome of his sentencing, scheduled for April 26, 2023.
“Based on discussions with the U.S. Attorney for SDNY, these restrictions are likely to be lifted on that day if Kolfage receives a supervised release verdict,” Assistant District Attorney Michael Frant wrote. “If he is sentenced to prison but given a date in the future for him to surrender, his terms would continue through that surrender date. When his sentence starts he may get in touch with WBTW again.”
Prosecutors want WeBuildTheWall’s attorney to issue so-called Parker Warnings to Kolfage, informing him that the trial and conviction of the company “may proceed in his absence.” Weddle must issue these warnings before retiring.
Former US Attorney Mitchell Epner, now a partner at Rottenberg Lipman Rich PC, noted that the law allows companies and even people to be tried in absentia in certain circumstances.
“Even in cases involving a human defendant, there have been trials in absentia where the defendant fled before the trial began,” Epner told Law&Crime.
Prosecutors point out that companies can be tried in absentia and are not constitutionally required to appoint attorneys to fight criminal charges because they cannot be imprisoned.
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