Photo provided by Steptoe & Johnson.
Recently, Jonathan Drimmer, a former deputy director in the Justice Department's Office of Special Investigations, was awarded the department's prestigious Human Rights Law Enforcement Award for his role in successfully prosecuting the retrial of Ukrainian immigrant John Demjanjuk. The proceedings resulted in a 2002 federal court decision that the Justice Department had established that Demjanjuk served as a guard at Nazi death camps. Formerly accused of being Ivan the Terrible, the sadistic guard at the Treblinka death camp, Demjanjuk is widely considered one of the most notorious war criminals ever to have entered the United States.
The case was especially complex because the evidence was more than 50 years old and the crimes were committed in foreign lands during a time of war. In addition, the 6th U.S. Circuit Court of Appeals in 1993 overturned the first decision against Demjanjuk on grounds of prosecutorial misconduct involving the withholding of exculpatory evidence (Drimmer was not involved in that case). In June 2008, the Supreme Court denied Demjanjuk's writ of certiorari with respect to his removal proceedings so that he could be extradited to stand trial in Germany. Currently, Drimmer is a partner in the Washington, D.C., office Steptoe & Johnson and focuses his practice on international human rights and related issues.
Lawdragon: Can you briefly describe what was at issue in the case?
Jonathan Drimmer: This was a retrial of John Demjanjuk based on his World War II activity. The case was brought under the Office of Special Investigations' program dealing with World War II- era war criminals. Demjanjuk had participated in Nazi atrocities and had come to the United States. This was the retrial seeking to revoke his citizenship and establish the war crimes he had committed, which will enable him to potentially be extradited and prosecuted in Germany.
LD: What were the allegations?
JD: The allegations were that Demjanjuk had been an active guard, a senior guard at the end of his tenure, at some of the very worst camps in the Nazi system. The allegations were based almost solely on documentary evidence. In fact, we didn't rely at all on eye-witness testimony, except to corroborate the documents. And ultimately we prevailed. The court issued an opinion that establishes that Demjanjuk deserves to be deemed one of the most notorious, if not the most notorious, war criminal to come to the U.S.
LD: What made the decision so significant?
JD: Well, I think there are two aspects to the significance. One is certainly the decision standing on its own. All of these cases have a component of establishing the historical record - of verifying and validating not only what happened but what the individual did to make that happen. Genocide doesn't occur in a vacuum. It occurs because you have people like Demjanjuk who actively participate in making it happen. And so you have a decision that confirms his substantial role in the deaths of tens of thousands of people in the war. That, in and of itself, is significant. The second significant aspect relates to the history of the case. The 6th Circuit essentially vacated the decision from the first go around. Its opinion was as harsh in criticizing the Justice Department as any you'll ever read anywhere in any law book. For the government then to litigate the case again and establish that indeed Demjanjuk was an active participant in genocide, and to do it in a way that would make any litigator proud, is also significant here.
LD: What was the problem the first time around? It's so unusual to have a case thrown out and then be able to go back in.
JD: What happened the first time around, in short, was a Brady violation - it was a failure to turn over exculpatory evidence by the Justice Department. The exculpatory evidence, according to the 6th Circuit, was such that it could have been used by Demjanjuk to show that he wasn't Ivan the Terrible. But by the time the 6th Circuit issued that decision, Demjanjuk already had been convicted in Israel for crimes against humanity as Ivan the Terrible - that was in 1986 - and the Supreme Court of Israel reversed that decision saying that there was reasonable doubt - that was in 1993. And the 6th Circuit then issued this absolutely scathing opinion about evidence that the government wrongfully withheld.
LD: How did you come to serve on the prosecutorial team?
JD: Ned Stutman and I were on the team from the get-go. The District Court said that the Justice Department could file new charges and start again if it wanted in February 1998. I had been in that office for about six weeks at that point and obviously had time on my hands - my case load had not fully been filled. We typically ran cases as a two-lawyer team. There was a junior attorney, and that would have been me. Then there was a senior attorney and that would have been Ned Stutman, who was probably the top trial lawyer in that office. We worked on that case together from 1998 through 2001. At trial I was going to be second chair. At the end of the first day, Ned called me into his hotel room and said that earlier that morning he had received a call from his doctor telling him that he had been diagnosed with cancer and had to withdraw immediately. So it was after the first day that I took over as lead counsel.
LD: That must have been incredibly scary.
JD: Ned and I had become close friends. Hearing his news was terrible. It was also incredibly scary being thrust into that position with Michael Tigar, the famous defense lawyer, on the other side. Then add to that the history of the case and the Justice Department's failure the first time in the sense of the case being thrown out and the harsh criticism it received. In fact, the case was sufficiently controversial that there had been talk that if we lost this case OSI itself might end up getting shut down. So you had all these pressures in addition to my friend being sick, which did make it a very stressful experience.
LD: What was the most challenging aspect of the case?
JD: With Ned getting sick and my having to take over, and the ramifications of the potential loss, with Michael Tigar on the other side, that was about as challenging a legal experience as a lawyer is going to have. Also building the case after the decision to refile was a real challenge. This was a massive case involving hundreds of thousands of pieces of relevant evidence that went into crafting a story. So putting together a tight, concise trial that told the story in a convincing way and doing it quickly, without repetition and without any undue waste of time was an incredible challenge. We tried this case in just a few weeks.
LD: Noting that a retrial was necessary, what did the team do differently the second time around that enabled it to succeed?
JD: There was a significant difference. This is one of those classic lawyer lessons and especially for prosecutors. In the first case, it is the "bridge to far" theory. They wanted to prove that Demjanjuk was Ivan the Terrible. They thought he was Ivan the Terrible. They could have succeeded in their case by showing much less but they went for that brass ring. In our case, we didn't feel that we needed to show any more than the evidence showed and were very comfortable that the nature of what he did was sufficiently atrocious. We really let the evidence speak for itself and tried not to hyperbolize anything that he may have done. I think that may have been the big difference. Prove your case, win your case based on the evidence in front of you and don't try to hyperbolize. Don't try to go for the bridge too far.
LD: What has happened with Mr. Demjanjuk since the decision to denaturalize him?
JD: I have heard that there will be an extradition request from Germany. I haven't seen it come through at this point. Between 2002 and today, we argued the appeal in the Sixth Circuit and, after that, since 2004 it's essentially been an administrative process based on the record and the decision in the federal District Court. It was basically going through exhausting his appeals and administrative rights, and those have been exhausted and the Supreme Court denied certiorari in June [of 2008] on his final appeal. So, ultimately, there's nothing that stands in his way in terms of his being sent to Germany for prosecution.
LD: Where he is now?
JD: He's at home in Cleveland, last I heard.
LD: Discovery must have been a nightmare - gathering the evidence, establishing its authenticity. Was this one of the hardest parts of the case?
JD: No question - it was a massive undertaking. The records that existed from the Nazis are just voluminous as to each one of these sites, whether it is Trawniki, Flossenburg, Sobibor or Majdanek, and to go through that evidence and show how it connects with each other and ultimately to Demjanjuk was just a massive undertaking. It involved travel to maybe half a dozen countries and taking forensic document examiners to a number of countries. We also had to fly over to the United States custodians from a numbers of countries to have documents tested here. It was an incredibly daunting task to put all that evidence together and to prove that indeed they were authentic Nazi wartime records.
LD: What do you consider to be the greatest strides in discovery techniques?
JD: This was the very start of electronic media in discovery, putting stuff on databases and CDs and certainly the ability to do that now is so much more advanced than it was then. But the biggest thing for us, frankly, was that given the initial case and the reason that it was overturned - Brady - we proceeded almost exclusively on an open file policy. Anything that wasn't directly privileged they had access to. From our standpoint, we felt that was the way to go. We wanted them to have every document, every advantage that we had. We wanted them to be on the very same footing as we were on and to try the case based on whatever evidence we had access to. And for us that seemed to be the best approach.
LD: We don't hear enough about the Justice Department's Office of Special Investigations division - can you talk a bit about what the group does?
JD: The group was established in 1978, and it was essentially a task force. It was established after there were some high-profile stories about Nazis living in the United States. From 1978, it was initially part of the INS before it was moved over to the Justice Department. Until a few years ago, it focused almost exclusively on World War II war crimes. More recently it has shifted its mandate to handle modern war crimes cases, extra-judicial killings, torture and modern war crimes cases from around the globe without any geographic or time limitation. That is its mission and that is what OSI does.
LD: What other types of cases did you handle while at OSI?
JD: I handled a substantial number of cases. I was there for 6 1/2 years and by the time I left I was a Deputy Director of the office. I handled a series of cases involving individuals who participated in the "final solution to the Jewish question" in Poland and people who assisted in liquidating the Warsaw Ghetto. I had members of Lithuanian mobile killing squads. I had one Gestapo interrogator. It was a variety of cases that included all collaborators, but they included people who participated in the genocide in a variety of different capacities.
LD: What were the best lessons you learned for private practice from your experience as a prosecutor?
JD: There were a few really useful lessons. First and foremost, you learn how the Justice Department works. Understanding their thought processes, understanding the way they go about making their charging decisions, and understanding how they go about building their cases are incredibly useful for anybody who is on the opposing side of the Justice Department. From the substantive side, I learned how to try cases. Also, for my practice, conducting foreign investigations and working with and around foreign laws, dealing with the international aspect of evidence gathering and case management, which were unique to OSI, were incredibly valuable experiences for me.
LD: Would you tell me a little about what you are doing now?
JD: My primary focus is on the Alien Tort Claims Act, human rights litigation and human rights preventative litigation, and also the Foreign Corrupt Practices Act - those are the areas I end up focusing on the most and it's not a surprise given my focus at OSI.
LD: Do you have any final comments?
JD: The Demjanjuk case was an amazing and fascinating case based on its history, the evidence, the trial itself and because I was trusted in the lead role after the first day. The case was one of those once in a lifetime unique experiences.