The development two weeks ago in the Upper Big Branch criminal investigation — in which former Massey Energy official David Hughart implicated longtime Massey CEO Don Blankenship — certainly caused a stir (see here and here). As we reported at the time, Blankenship, through his lawyer, denies any wrongdoing at Upper Big Branch — or any other Massey mines, for that matter.
But in the wake of Hughart’s allegation, I thought readers might want to check out the entire exchange between Hughart and U.S. District Judge Irene Berger. So here it is, based on a transcript that just became available. We’ll jump in at a point in the hearing after Judge Berger had just explained to Hughart one of the charges against him, conspiracy to defraud the United States by using advance notice of inspections to thwart federal Mine Safety and Health Administration enforcement efforts:
Judge: Tell me in your own words, Mr. Hughart, what it is you did that makes you guilty of violating that provision.
Hughart: I knew that we had made pre-notification underground when we had mine inspectors on site. And I knew that had happened and that I was part of it.
Judge: All right. I want you to tell me what you did that makes you guilty of this offense as though you’re telling the facts to someone who does not know. Start at the beginning and tell me exactly what you did and what procedures you are referring to.
Hughart: At my operation, when the mine inspectors would come on-site, a person would notify underground that we had mine inspectors on site, and I knew that that practice was happening.
Judge: And what part did you play in that?
Hughart: I condoned it and seen it happen and knew it was going on.
Judge: When you say you condoned it, knew it was happening, what do you mean? What did you do, if anything?
Hughart: I allowed it to happen.
Judge: What was your position at the company?
Judge: And as president, what were your duties?
Hughart: I was responsible for the whole operation.
Judge: And what company was this?
Hughart: Green Valley Coal Company.
Judge: And where was it physically located?
Hughart: It’s in Nicholas County, Leivasy, West Virginia.
Judge: Am I to understand that there was a practice or policy there to give pre-notifications of inspections when MSHA investigators appeared on the property?
Hughart: Yes, your honor.
Judge: And as the president, did that policy come from you or through you to others on the site?
Hughart: Yes, ma’am, absolutely.
Judge: And, in other words, you had an agreement, I take it — and if I’m wrong, you tell me. I don’t want to put words in your mouth — with other officers and employees there that this type of notification would be given if an MSHA investigator came onto the site. Is that accurate or not?
Hughart: Yes, agreements with higher-ups and people lower.
And then there’s the big moment:
Judge: And when you say agreements with higher-ups, what officers are you talking about or people involved with this corporation?
Hughart: The chief executive officer.
Judge: Any other officers?
Hughart: No, ma’am.
Judge: And when you say people lower, what offices or personnel are you referring to?
Hughart: Superintendents, mine foremen.
Judge: All right. Were there meetings, Mr. Hughart, where this practice was discussed?
Judge: All right, and I take it that you were part of that, those discussions?
Judge: And having had those discussions with the folks that yo have stated, did one or more of you actually give or take a step to give such pre-notification when an MSHA inspector arrived?
Judge: You — over what time period did this practice occur, Mr. Hughart?
Hughart: Approximately probably 12 years.
Now, if you fast-forward in the hearing, this interesting incident occurs, when Assistant U.S. Attorney Steve Ruby stands up and gets the judge’s attention:
Ruby: Your Honor, if I may, I hesitate to do this because of the inconvenience. But before we move too far from the factual basis, I think there may have been a misunderstanding by the witness of one of the questions. For the sake of the record, I’d like to clear that up. And, if possible, because it bears on the on-going investigation of this matter, it would be helpful to do so at the bench.
Judge: All right. Come on up. Mr. Hughart, you should join your counsel.
At that point, the lawyers and Hughart crowded around the judge’s bench. Judge Berger turned on a courtroom “white noise” machine so the rest of us couldn’t hear what was said. The transcript of the hearing notes:
(Whereupon, a bench conference was held on the record, which was sealed by order of the Court, after which the following occurred:)
Judge: All right. The record will reveal that we’ve had a discussion here at the bench about the facts in relation to an on-going investigation and I want to proceed with this plea.
In a two-paragraph order sealing that part of the transcript, Judge Berger cited no statutes or case law that allowed her action, and explained the secrecy only by saying she was sealing that part of the discussion “for reasons appearing to the court.” So other than the judge’s vague comment about “facts in relation to an ongoing investigation,” we don’t really know what it was that Steve Ruby wanted to clear up about Hughart’s answers.
Stay tuned …