The attorney for a Chula Vista man who is accused of lying to the FBI is seeking dismissal of an indictment claiming President Donald Trump’s appointment of an acting U.S. Attorney General to replace Jeff Sessions is unlawful.
Attorney Eugene Iredale filed court documents that said the U.S. Senate has not confirmed Acting Attorney General Matthew Whitaker to head the Justice Department following the forced resignation of Sessions on Nov. 7.
“Dismissal of this case is proper because Whitaker’s appointment is unlawful,” wrote Iredale.
Iredale represents Johnny Martin, 59, who is a former supervisor in the U.S. Department of Homeland Security. The indictment alleges Martin, of Chula Vista, lied to FBI agents about transmission of sensitive law enforcement information that got into the hands of two men who impersonated being with Homeland Security.
A hearing has been set for Nov. 16 by U.S. District Court Judge Gonzalo Curiel.
The U.S. Attorney’s office is expected to oppose the motion.
Iredale wrote that Whitaker worked for Sessions as chief of staff and it is unlawful for the president to appoint an acting attorney general without Senate confirmation. He wrote that “Whitaker’s appointment marks the first time since 1870” that the Attorney General Succession Act has not been followed.
Martin was indicted in June on one felony count of lying to the FBI. He has pleaded not guilty and remains free on $50,000 bond.
Iredale has also filed a motion seeking to exclude any statements Martin made to a federal authorities in June, 2017 before he was ever charged. His home was searched June 7, 2017, by FBI agents as part of a search warrant.
Martin was interviewed for 3 1/2 hours by federal agents the next day. Iredale wrote that agents surreptitiously tape recorded his comments without his knowledge.
Iredale made a copy of Sessions’ resignation letter as part of his motion. A trial date has not been set.
The two other people who allegedly posed as Homeland Security agents have been charged. Hardev Panesar, also known as Hardev Singh, 70, and Rafael Hastie, 47, are accused of conspiracy to commit wire fraud, and false personation of a U.S. officer. Their indictment alleges they defrauded people out of millions of dollars while collecting fees from victims who believed they were Homeland Security employees. They have pleaded not guilty.
