While former Breitbart News Chairman Steve Bannon continues to battle federal criminal fraud charges in connection with the We Build the Wall campaign, one of the far-right Republicans who has been unable to access funds from that project is former Kansas Secretary of State Kris Kobach. And on Monday, December 28, Kobach went to the Second Circuit Court of Appeals to plead his case.
Kobach — a "birther" known for his anti-immigrant views and voter suppression efforts — has not faced any criminal charges in connection with We Build the Wall, a crowdfunding project for a wall along the U.S./Mexico border. Those who have been charged with fraud include not only Bannon, who served as White House chief strategist in the Trump Administration in 2017, but also, We Build the Wall founder Brian Kolfage and Bannon allies Andrew Badolato and Timothy Shea. Prosecutors allege that Bannon, Kolfage, Badolato and Shea deceived donors by not using 100% of the funds for the construction of a border wall, and instead used a lot of the money for personal expenses.
Federal prosecutors for the Southern District of New York, Law & Crime reporter Adam Klasfeld notes, allege that "Bannon pocketed at least $1 million of the money, and Kolfage took $350,000 plus went on a spending spree to buy a Jupiter Marine yacht called the Warfighter, a Range Rover SUV, a golf cart, jewelry, and cosmetic surgery."
Klasfeld adds that as general counsel for We Build the Wall, "Kobach was compensated handsomely in attorneys' fees that the government does not allege to be improper." And because Kobach has not been accused of criminal wrongdoing — unlike Kolfage, Badolato and Shea — he believes it is unfair that he is being cut off from We Build the Wall assets during the prosecution.
But U.S. District Judge Analisa Torres disagrees. On December 14, according to Klasfeld, "Torres rejected Kobach's argument that blocking the money interfered with his due process rights."
Torres wrote, "Although the Supreme Court has made clear that pretrial hearings on forfeiture may be required when the forfeiture order is challenged by a criminal defendant, particularly where their Sixth Amendment right to counsel is implicated, the law concerning the rights of third parties is less clear."
Now, Kobach — who ran for governor of Kansas in 2018 and lost to Democrat Laura Kelly — is hoping that the Second Circuit will disagree with Torres' ruling. Kobach's attorney, Justin S. Weddle, according to Klasfeld, is arguing "that the indictment" in the fraud case against Bannon and the others "concedes that any alleged fraud ended when We Build the Wall updated the website to disclose that Kolfage would be compensated."
Weddle told Law & Crime, "The government has frozen funds donated well after that date, which can have no logical or legal connection to the alleged fraud. Regardless of the government's intent, the result is that the government has frozen We Build the Wall's pursuit of its mission, which is the opposite of what its donors intended."
Kobach has a reputation for being an extremist even in Republican circles. When Barack Obama was president, Kobach promoted the racist "birther" conspiracy theory — which claimed, with zero evidence, that Obama wasn't really born in the U.S. and was really born in Kenya. Obama's birth certificate made it abundantly clear that he was born in Hawaii and is a life-long U.S. citizen, contrary to what Kobach and other birthers claimed.
In addition to embracing birtherism, Kobach is known for his anti-immigrant views and for promoting voter suppression. But Kobach's xenophobia couldn't get him past the finish line in Kansas' 2018 gubernatorial race. Even in a deep red state, Kobach lost to the Democratic nominee, Laura Kelly, by 5% — and Kelly is now governor or Kansas.