A dark cloud of FBI cases lingered over Cliff Rosenberger’s head for six years. How it happened.

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David Axelrod is a partner at Shumaker Law Firm, a defense attorney, and a former federal prosecutor. He represented Cliff Rosenberger in the FBI investigation discussed in this piece.

Cliff Rosenberger first became aware that he was under criminal investigation in March 2018 when, as then speaker of the Ohio House of Representatives, he learned that the FBI had interviewed several members of his staff.

It eventually became clear that the investigation focused on whether Rosenberger had impeded the progress of a payday lending reform bill, House Bill 123, in exchange for payday lenders sponsoring an official trip to London, with legislators from other states, to attend a leadership seminar. (He did nothing of the kind, and in fact supported payday lending reform.)

A House Speaker is under attack

The investigation spawned a torrent of publicity. 

On April 9, the government served a grand jury subpoena on the House of Representatives for records concerning Rosenberger’s official travel, including calendars, travel schedules, travel companions, emails, methods of travel, methods of payment, meeting schedules, daily schedules and itineraries. 

Concerned that the investigation would distract the House from important business and interfere with the performance of his duties, Rosenberger announced his resignation on April 10

The following month, the government executed search warrants at Rosenberger’s home and offices, seeking comparable information based on federal statutes which criminalize bribery of public officials. 

Information about the search warrants leaked in advance, and both television and print media were present when the FBI executed the warrant at Rosenberger’s home. The contents of the warrants were widely reported, but the affidavit establishing probable cause for the searches was (and remains) sealed, so no one outside the court and law enforcement communities knows their basis.

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Cliff Rosenberger faced humiliation

No charges have ever been filed against Rosenberger, or for that matter, anyone else connected with House Bill 123, which was eventually enacted into law. A convincing case can be made that the investigation resulted from a “set up” by political enemies

On May 22 — more than six years after the investigation began — the government acknowledged in a letter to counsel that the investigation had finally been closed.

The anxiety and stress created by such an investigation are incalculable and nearly impossible to describe.

 Imagine each day and sleepless night, facing the prospect of being arrested and prosecuted for something that you didn’t do, and of being hauled into federal court to answer charges in an indictment headed “UNITED STATES OF AMERICA vs. [YOUR NAME].” 

Imagine, too, being an elected official, driven from office by an investigation, and the humiliation of having to face your colleagues and constituents while under such a dark cloud. Imagine having to seek new employment under such circumstances.

Why was the government allowed to do this?

Why did it take so long for the government to acknowledge that the investigation had ended, especially when the five-year statute of limitations on the potential offenses expired more than a year ago?

The simple answer is that the government is not required ever to acknowledge the end of an investigation, and very rarely does so. 

The Department of Justice Manual says that discontinuation of target status “may” be appropriate when a criminal investigation “has been discontinued without an indictment being returned charging the target.” It is clear, however, that this sort of notification is purely discretionary, and that no explanation need be provided for declining to issue such a “closing letter.”

In other words, the government is free to remain silent despite massive publicity surrounding a particular investigation and serious collateral damage to the uncharged target of a discontinued investigation.

I am a “true believer.” After 40 years of practice as both a prosecutor and defense lawyer, I believe that federal prosecutors virtually always do what they think is right, even when they disagree. 

In this case, we are grateful that the U.S. Attorney for this district exercised his discretion to provide written acknowledgment that the Rosenberger investigation indeed ended, so that former Speaker Rosenberger can finally turn the page and move forward with his life.

David Axelrod is a Partner at Shumaker Law Firm, a defense attorney and former federal prosecutor.  He represented Cliff Rosenberger in the FBI investigation discussed in this piece.