In an 18-page order, Foster ruled that “the court finds no reason to disqualify the OAG and therefore denies the defendant’s motion.”
Tmetuchl and Malsol’s arraignment is scheduled today at 9 a.m.
Malsol’s counsel Kassi Berg, filed the motion to disqualify the OAG and transfer the case to the Special Prosecutor after theOAG filed a motion to disqualify her from representing her client.
The motion to disqualify Berg was denied.
Defendant Tmetuchl also filed a joint motion to disqualify the OAG.
The defendants in their motion argued that the OAG should be disqualified because three individuals affiliated in “some manner with OAG” may be called as a material witness at trial, “thereby creating impermissible conflict of interest.”
Tmetuchl on the other hand argued that the OAG should be disqualified because, “the president of the Republic, Johnson Toribiong, does not want the OAG to prosecute Tmetuchl and Malsol and because the AG (Ernestine Rengiil) is closely related to Malsol and his brother, the president.”
The motion also pointed out that Assistant Attorney General Nelson Werner, who is also the Director of the Financial Intelligence Unit that requested the initial investigation of the suspected money laundering activity, is a material witness.
The order stated that Werner involvement in the case does not warrant disqualification of the entire OAG.
“Werner is, at most, a witness and not an advocate. He is not a lead prosecutor, nor have the defendants alleged that he has information helpful to the OAG’s prosecution or defendants’ defense which cannot be elicited from another source,” the order said.
The defendants also cited that Financial Institution Commissioner Semdiu Decherong is also material witness posing a conflict of interest because the OAG represents him.
“Decherong is not implicated in this prosecution, nor is the OAG representing an interest directly adverse to him or the Commission. Decherong is merely a potential witness who spoke to defendants concerning the transaction that led to this prosecution,” the order said.
The order also stated that disqualifying the OAG on the basis of President Toribiong’s connection to defendant Malsol is unwarranted.
Foster stated that Tmetuchl’s argument that OAG possess prosecutorial authority only to the extent granted by the president and that if the chief executive does not want to prosecute a particular individual may do so, “is a dangerous argument.”
The order stated, “ if the president is unhappy with the Attorney General’s performance in her position, he has the authority to remove her, appoint someone, and face any accompanying political and public ramifications for doing so. To hold otherwise would permit the president to stifle individual prosecutions for any number of potentially impermissible reasons.”
The order also stated that disqualifying the OAG on the basis of President Toribiong’s connection to defendant Malsol and Rengiil is unwarranted.
The order said that OAG represents the president for matters concerning his public capacity not his personal one.
“A lawyer who represents a governmental official in the person’s public capacity must conduct the representation to advance public interests as determined by appropriate government officers and not, if different , the personal interests of the occupant of the office,” the order said.
The order stated that the defendant failed to expand the closeness of the president to these two people or why these relationships would limit the OAG’s ability to fairly represent the Republic.
