Attorney General Joey Patrick San Nicolas is scheduled to meet with U.S. Attorney Alicia Limtiaco today, two days after sending a letter designating Office of the Public Auditor legal counsel George Hasselback as special prosecutor to assess the criminal charges against former attorney general Edward T. Buckingham and determine whether the interests of justice require the latter's extradition to the CNMI.
In designating Hasselback as special prosecutor, San Nicolas cited “potential and perceived conflicts of interest” that surround the Buckingham case.
Hasselback accepted the designation on Monday. Public Auditor Michael Pai concurred.
San Nicolas asked that Hasselback's analysis and recommendation be submitted to the governor “by no later than Jan. 10, 2013.”
Press secretary Angel Demapan confirmed that San Nicolas left for Guam yesterday and is scheduled to meet with Limtiaco today, although no further details were available as of press time.
“I understand that AG San Nicolas is leaving the determination for extradition to the special prosecutor,” he said.
The Guam meeting comes days after Delegate Gregorio Kilili C. Sablan (Ind-MP) informed San Nicolas that the U.S. Department of Justice is willing to pursue Buckingham but a request from San Nicolas to Limtiaco “would be necessary to initiate Mr. Buckingham's capture.”
Incoming House Speaker Joe Deleon Guerrero (IR-Saipan) said yesterday he looks forward to the result of today's meeting between San Nicolas and Limtiaco, although he noted that the meeting-which he expects to be about Buckingham's extradition-comes after delegating the special prosecution power to somebody else.
“I hope the governor does sign a recommendation on extradition and get the process moving. It would be meaningless if the governor refuses to sign that memo recommending extradition,” Deleon Guerrero told Saipan Tribune.
However, it may not only be the Office of the Attorney General and San Nicolas that have potential and perceived conflicts of interest surrounding the case, but Fitial as well, given that the governor had several phone calls to Buckingham shortly after the former AG left the CNMI on the morning of Aug. 4.
That was a day after Buckingham and Fitial signed a no-bid, $190.8-million diesel power purchase agreement with Saipan Development LLC.
It was also on Aug. 3 when OPA filed criminal charges against Buckingham in connection with his alleged hosting of a political campaign in 2010 for the governor's delegate candidate, and approval of a sole-source ARRA management contract, among other things.
The complaint was later amended to include obstruction of justice after Buckingham allegedly used police and ports police officers to shield himself from being served a penal summons. An FBI agent successfully served the penal summons on Buckingham minutes before the plane took off.
The courts declared Buckingham a fugitive from justice.
Senate floor leader Pete Reyes (IR-Saipan) said yesterday that it is “wonderful news” that San Nicolas designated a special prosecutor in the Buckingham case.
“It is on its way to restoring trust and confidence in the AG himself and the office,” he added.
Conflicts of interest
San Nicolas, in his Dec. 17 letter to Hasselback, said he was recently queried repeatedly about Buckingham's possible extradition to answer the charges he faces in a criminal case.
He said as AG, it is his statutory duty to evaluate cases where an individual is facing criminal charges before CNMI courts, but is absent from the CNMI and determine whether extradition is in the best interests of justice.
San Nicolas said upon making such a determination, it is his further duty to forward his recommendation on the matter to the governor.
But San Nicolas said in this matter, he has determined that there are potential conflicts of interest that would prohibit him from performing these statutory duties without risking violation of the applicable ethical rules that govern the practice of attorneys in the CNMI.
He cited in particular the fact that the Office of the Attorney General, through Civil Division chief Gilbert Birnbrich, previously represented Buckingham in this matter, and it may owe him a duty of loyalty as a former client and may not be permitted to represent any party-including the CNMI-in an adversarial capacity against him in the same matter.
San Nicolas added that he has not been able to determine that any steps were taken to prevent the imputation of this conflict to the entire OAG.
“Therefore, I am unwilling to permit my office, or any of the attorneys who work for my office, to represent any party whose interests are potentially adverse to Buckingham's in Criminal case No. 12-0134B. Furthermore, considering the difficulty in determining how pervasive this conflict is within the OAG, I am unwilling to seek waiver of the conflict from Buckingham and risk the Commonwealth's ability to properly prosecute the charges brought.” he said.
As former CPA staff attorney
San Nicolas said he also perceived a potential conflict that could impact his ability to have any involvement in the Buckingham criminal case.
Prior to becoming AG, San Nicolas served as staff attorney for the Commonwealth Ports Authority.
“Considering that the criminal case against Buckingham will likely involve testimony of CPA employees, it would be inappropriate if I had any involvement with the criminal trial. I cannot, with any accuracy, predict the exact nature of the conflicts that could potentially develop because of my former representation of CPA,” he said.
The AG said the mere possibility of perceived conflicts of interest in the operations of the OAG while under his leadership-let alone manifestation of an actual conflict-would undermine his goal to re-establish public trust in the OAG.
“I cannot tolerate this. I must take steps to eliminate any possibility of conflict in every aspect of the prosecution in Criminal Case No. 12-0134B so that both Buckingham's rights are protected and the Commonwealth's interest in seeing its laws enforced is preserved,” he said.
During his Senate confirmation hearings and upon assuming the office, San Nicolas made it a top priority to restore public trust in the OAG. He pledged to make his term as AG one of transparency and professionalism.
The AG said he has chosen to place the trust in Hasselback because he believes that the OPA legal counsel will appreciate the degree of confidence that he as AG has on Hasselback's ability to handle the matter professionally and prudently.
“Additionally, your involvement in Criminal Case No. 12-0134B as the prosecuting attorney strongly suggests that you are the most appropriate candidate to consider the difficult issues surrounding the possible extradition of Buckingham,” San Nicolas told Hasselback.