Weeks after a judge denied her original request, lawyers for Democratic Baltimore State’s Attorney Marilyn Mosby are trying again to have perjury charges against her dismissed.
In court papers filed late Wednesday evening, Mosby’s lawyers asked U.S. District Court Judge Lydia Kay Griggsby to allow them to present new arguments for her charges to be dismissed, after Griggsby rejected their original attempt.
“It is not an effort to surprise or sandbag the government or the Court, and it is not a second bite at the apple,” Mosby’s lawyers wrote.
Specifically, Mosby is asking Griggsby to dismiss counts 1 and 3 of her indictment, which have to do with her claiming a financial hardship to withdraw money from her city retirement account. The assertions she made to secure those withdrawals go to the heart of the government’s case.
A two-term incumbent, Mosby is running for reelection in the July 19 primary and she has maintained her innocence throughout.
Mosby’s lawyers, in Wednesday’s filing, called the claim of perjury against her the “first of its kind,” saying no one else in the United States has been prosecuted for wrongly withdrawing money from their retirement accounts under the federal CARES Act.
Unlike retirement accounts for private-sector employees, state and city employees cannot access their retirement accounts before retiring unless they stop working for the government or experience an “unforeseeable emergency.” But under the CARES Act, the first pandemic relief bill, Congress loosened those rules temporarily. Government workers could draw those funds if they claimed a business they owned had closed or taken a loss, or if they had suffered “adverse financial consequences” because of COVID-19.
Mosby’s lawyers argue the phrase “adverse financial consequences” is fundamentally ambiguous, and as a result, someone cannot be prosecuted for perjury under that language. Further, her lawyers suggest it does not matter whether the financial consequences she claimed are true, because checking a box saying you suffered financially has “no probative weight” and is not “capable of influencing” a plan into making a coronavirus-related disbursement.
Mosby’s request for a retirement account withdrawal is included as an attachment to her motion, and her signature is under the portion where it asks the requester to affirm “under the penalties of perjury” that the statements made in the request are true.
For 2020, the year in question, Mosby received her full salary, roughly $250,000, but her lawyers say that doesn’t matter, arguing she could have dealt with inflation, lack of child care, having to order food in more or because a planned business venture didn’t work out.
“The government’s tethering of ‘adverse financial consequence’ solely to a person’s salary has no foundation in law or reality and cannot be used as the basis for prosecuting State’s Attorney Mosby under Counts 1 and 3,” her lawyers wrote.
Prosecutors allege Mosby lied in 2020 about experiencing financial hardship during the pandemic so she could withdraw $81,000 from her City of Baltimore retirement savings account to make down payments on two Florida homes: an eight-bedroom rental near Disney World and a condo on the state’s Gulf Coast.
“Without those two withdrawals, she would not have been able to make the down payment on either of the two Florida vacation homes she purchased in September 2020 and February 2021,” federal prosecutors wrote in a separate filing. “Simply put, the defendant’s perjury allowed her to leverage $90,000 in funds she should not have had access to in order to get two vacation homes.”
In the past, Mosby’s lead defense attorney, A. Scott Bolden, had mentioned Mosby’s travel and consulting businesses as a possible explanation for why she sought the retirement money.
“Remember, Marilyn Mosby has businesses, if you will,” Bolden said in a January appearance on Roland Martin’s YouTube show. “And so, those businesses were in the travel space and they were affected by [the coronavirus] and her accountant urged her to take that money.”
However, at the same time she made her 2020 withdrawals, Mosby asked Baltimore Inspector General Isabel Mercedes Cumming for an investigation into her businesses to prove they existed in name only and weren’t actually operable.
“I ask that you verify that I have not taken on a single client for these companies, nor have I taken in any money,” Mosby wrote in a July 2020 letter to Cumming. “Any insinuation to the contrary is false, misleading, and unethical.”
Should Griggsby deny Mosby’s request to file a new motion for dismissal, her lawyers said they like to receive another key piece of the case against her: the government’s instructions to the grand jury. The instructions would show exactly what hardship prosecutors suggested Mosby claimed, and would help them better prepare a defense, according to the filings.
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Wednesday’s filing marked a shift in Mosby’s defense, as her lawyers look for seemingly the first time to defeat the charges against her using a legal argument, rather than personal attacks against the U.S. Attorney’s Office in the District of Maryland.
Previously, Bolden and company had labeled Assistant U.S. Attorney and lead prosecutor Leo Wise a racist, and said U.S. Attorney Erek Barron was prosecuting Mosby for political reasons.
Griggsby didn’t buy those arguments, calling them “problematic” in an April 14 hearing where she denied their first motion to dismiss the charges.
Mosby herself conceded after the hearing that she didn’t expect that set of motions to work, saying she was looking forward to her day in court. Since then, Mosby has added even more lawyers to her already large defense team. Baltimore-based attorney Gary Proctor and Lucius Outlaw from Washington are now representing her pro bono, or for free, according to court filings.
Outlaw represented prominent defense attorney Kenneth Ravenell at Ravenell’s December money laundering trial. He was convicted of one count of money laundering but found not guilty of several others.
Mosby’s trial is set for Sept. 19.
Baltimore Sun reporter Alex Mann contributed to this article.