A federal judge has allowed two local attorneys to withdraw as counsel for We Build the Wall, the Florida-based crowdfunding nonprofit that helped fund the construction of a private border wall south of Mission last year.
David Oliveira and Thomas Haskins have been representing the nonprofit since the North American Butterfly Association, on behalf of the National Butterfly Center, filed suit against it and the rest of the private wall builders in late 2019.
But since last August, the pair has not been paid for their services. The checks stopped coming after federal prosecutors in New York filed criminal charges against We Build the Wall founder Brian Kolfage, as well as former presidential adviser Steve Bannon and two others.
In unsealing the indictment against the four men, prosecutors also froze We Build the Wall’s bank accounts, alleging the funds — individual donations from hundreds of people — were obtained as part of a criminal conspiracy the four men concocted to line their own pockets.
After continuing to make appearances without pay in several status conferences over the last year, Oliveira and Haskins filed to withdraw as the nonprofit’s lawyers. But U.S. District Judge Randy Crane seemed reticent to do so, denying their request in May, and temporarily postponing making a ruling earlier this month.
That was due in large part to assurances made by a third attorney, Kris Kobach, who said We Build the Wall was expecting to be able to access donations made after the indictment was unsealed.
Kobach is both general counsel for We Build the Wall and a member of the nonprofit’s advisory board, according to We Build the Wall’s website.
The former Kansas secretary of state and one-time immigration adviser to former President Donald Trump has also made appearances in the New York federal criminal case, in the U.S. Second Circuit Court of Appeals, and in a second lawsuit filed against We Build the Wall in McAllen federal court.
That second lawsuit was filed just days apart from the butterfly center’s lawsuit by the federal government on behalf of the International Boundary and Water Commission, which alleged the then-under construction wall would put the United States in violation of a 1970 international boundary treaty with Mexico.
Kobach made an appearance in that lawsuit in December 2019, when he successfully argued to have We Build the Wall dropped from the litigation after saying the nonprofit’s $1.5 million contribution to the project was a minor fraction of its nearly $40 million price tag.
Kobach also made an appearance in the butterfly center’s lawsuit during an Aug. 4 status conference when he assured Crane that We Build the Wall would soon have access to a cash flow again, despite a decision from the Second Circuit denying the nonprofit’s appeal to access frozen funds.
“In rendering its ruling, the Second Circuit did say that, although the principal assets are still not available to the organization, contributions received after a certain date in August of 2020 are still available,” Kobach said then.
“We are hopeful that we can resolve this and pay the outstanding fees,” he added.
But that didn’t happen, despite the three weeks Crane gave We Build the Wall to sort out its financial affairs.
“Our outstanding bills have not been paid yet,” Oliveira said Thursday morning.
“It’s been over a year and they’ve been unable to pay our fees. Neither Mr. Haskins or my firm is willing to personally finance this case and we’d ask the court to allow us to withdraw and allow Mr. Kobach some time to find new counsel,” he said.
Kobach confirmed the nonprofit has been unable to pay the other two attorneys, and asked the court to allow We Build the Wall three months to find new local representation.
Crane gave them just 30 days.
“Finding a lawyer I don’t think is a big problem. I think finding a lawyer who’s willing to risk not getting paid is probably the real issue here,” Crane said.
He further said he expected Kobach to be on hand for the next status update a month from now.
“Mr. Kobach, I know you’re not counsel of record, but I’ll look to you for appearance there to get us up to date. You’re not going to represent them in this case formally. If you can appear, it will be helpful, if not, there will be nobody representing them,” Crane said.
But it’s that statement that has Javier Peña, the attorney representing the butterfly center, both concerned and confused.
Part of the reason Crane has allowed We Build the Wall such latitude in the lawsuit — both in not previously releasing Oliveira and Haskins from their obligations, and in putting a formal pause on the butterfly center’s ability to conduct discovery for the better part of a year — is because of his concerns that the nonprofit would have to proceed without legal representation.
But Peña argues that Kobach does, indeed, represent We Build the Wall.
“I don’t know what that’s about. He is counsel for We Build the Wall, he’s made an appearance on behalf of We Build the Wall in this case and the federal case so the statement that he’s not representing We Build the Wall, I don’t understand it,” Peña said after the hearing.
Peña also added that Kobach has formally appeared in the New York criminal case.
However, despite attending several status conferences in the butterfly center’s lawsuit and being recognized to speak by the judge, Kobach is not listed as one of the attorneys of record on the lawsuit’s docket.
A minute entry posted to the docket after Thursday morning’s hearing also makes specific mention of Kobach’s lack of formal status in the case.
“Kris Kobach (Attorney not of record),” reads the portion of the minute entry which lists the appearances of all the attorneys associated with the lawsuit, including Peña.
Peña said he’s never heard of that designation before.
If the judge doesn’t want to recognize him as the attorney of record, then he shouldn’t have asked him to officially speak on behalf of We Build the Wall,” Peña said, adding that questions over We Build the Wall’s legal representation are “the most frustrating part” of the litigation thus far.
Until the nonprofit can sort out its attorney issues, the butterfly center is prohibited by court order from conducting discovery on We Build the Wall.
That order has domino effects on conducting discovery on the other defendants in the case, including Tommy Fisher, the North Dakota construction magnate who built the wall, as well as his construction firms, and former landowners, Neuhaus and Sons.
Though Peña can conduct what he calls “paper discovery” on the other defendants, he cannot depose them until We Build the Wall can meaningfully participate in the depositions, as well.
“We’re the ones with the burden of proof, so all these delays only help the defense. That’s it. It’s not a neutral thing, it’s not something that affects both parties equally. It only harms the plaintiff,” Peña said.
And with the judge making clear his plans to continue with a February 2022 trial setting, Peña worries there will be inadequate time to prepare.
Meanwhile, the government — whose lawsuit Crane has been carrying jointly with the butterfly center’s suit, until recently — filed an amended complaint Wednesday.
The 18-page complaint lays out conclusions the IBWC has come to in the nearly two years since the lawsuit was filed — conclusions that were once only suppositions in December 2019, when the judge granted a temporary restraining order. At that point, crews had yet to put up a single bollard.
“(T)he erosion caused by the works and actions of the Fisher Defendants, may or has caused a shift of the Rio Grande banks and river channel and, is an unauthorized private action that has likely shifted the location of the international boundary line which runs in the center of the channel, pursuant to the 1970 Treaty,” the amended complaint reads, in part.
“The Fisher Defendants’ actions have exposed the bollard structure and underlying support … could result in the collapse of the structure, potentially further exacerbating the harms noted above as well as harming United States and Mexico structures downstream, including the Anzalduas International Dam,” it further reads.
Those conclusions are no surprise to Marianna Treviño Wright, executive director of the National Butterfly Center.
Treviño Wright has long been critical of the private wall project, often referring to it as a scam. She has also been critical of the judge’s repeated decisions to allow the delays to continue.
“Due to Judge Crane’s blatant bias against us in this action, we had to hire engineering experts a long time ago and they proved all of this in their examination and study of this project. But the court was not willing to consider that,” Treviño Wright said after the hearing.
If Treviño Wright seems frustrated, it’s because the butterfly center has been at the fore of the issue all along. The center filed its suit in state court a week before the federal government filed its own. But the butterfly center has seen little progress on its suit after Crane tied its hearings to the government’s parallel suit, and especially after the forced delays in conducting discovery.
“It’s crazy that the National Butterfly Center has had to run point on holding these people accountable for the potential catastrophe they’ve created in our community,” Treviño Wright said.
