The Dinosaur Artist

by Paige Williams

  Elbegdorj went on pitching his country as a stable, pro-America democracy “deserving of more attention.” For the past twenty years, the United States had been sending Mongolia among the largest, if not the largest, aid packages per capita in the world, but Elbegdorj pushed for more. He briefly considered making the nation a player in the global uranium fuel business, then “abruptly pulled the plug,” Marin Katusa wrote in The Colder War: How the Global Energy Trade Slipped from America’s Grasp. What Elbegdorj appeared to want was a trade deal with the United States. He was sipping from an American flag mug in June 2011 when he told the Washington Post, “Maybe if we caused problems—if we hid bin Laden or atom bombs—America would pay more attention.”

  By now, Robert Painter, the Houston lawyer, represented various Western business interests in Mongolia. He set up another company, Mongolia Research Group LLC, then changed the name to Bellwether Mongolia, echoing that of his nonprofit. The company’s website consisted of a static single page that offered the address and phone number of the Painter Law Firm, and read only, “Bellwether Mongolia invests in mining and infrastructure projects in Mongolia.” The United States was also lobbying for mining rights, pushing for Peabody Energy, a private company based in St. Louis, to win the right to develop Tavan Tolgoi, a southern Gobi deposit that held enough coking coal to fuel China’s insatiable industry for the next half century. To prevent the Chinese from buying a majority interest in Tavan Tolgoi, the government hurriedly passed the Strategic Foreign Investment Law, what the New York Times called “the latest step in the complicated political choreography aimed at appeasing a rising nationalist fervor while encouraging foreign investment.” In short, mining was a mess. But many citizens, young urbanites in particular, saw Elbegdorj as the politician who could navigate the boom in natural resources. To his supporters he represented stability and moral courage in the face of rampant corruption because he had launched investigations into the national airline and the customs agency, among other entities. Elbegdorj’s critics, meanwhile, argued that he had failed; some still blamed him for the election riots of 2008, in which at least five people were killed.

  On the day Elbegdorj captured the presidency, Painter was there to see it. He watched the victory speech as a VIP and afterward joined the president-elect for lunch at Bellagio, a Vietnamese restaurant at the Bayangol Hotel. At one point Elbegdorj turned to him and asked, “What’s next?”

  “For you? For me?” Painter said.

  “For us,” Elbegdorj said.

  Voting machines, they decided.

  “Mr. President, if you go forward with this it’ll cut out most of the fraud and we’ll see the Democratic Party sweep the [next] elections,” Painter said he told Elbegdorj. “You’ll already have the presidency. You’ll have a working plurality of parliament. You’ll even win mayor of UB.”

  Over the next several years, Painter brokered a deal for Mongolia to buy voting machines. The contract ultimately went to Dominion Voting Systems, a private company based in Toronto. Dominion’s premiere system featured a hybrid of optical scanner and paper, providing a hard-copy backup of the digital tally. Dominion’s founder and CEO, John Poulos, said publicly that it would be extremely difficult to rig the company’s machines, but there were skeptics of electronic voting in general. Machines were known to misplace or erase votes, attribute votes to the wrong party, and tally “yes” for “no.” It was happening across the United States alone. “Our entire governing system is based on the sanctity of the vote,” noted Bev Harris, a Seattle writer who had become known for documenting voting-machine snafus. The vote, she said, “is the underpinning for our authorization of every law, every government expenditure, every tax, every elected person. But if we don’t trust the voting system, we will never accept that those votes represent our voice.”

  Mongolia ordered what today would be $10 million worth of Dominion machines. Painter later said he was paid for his assistance by a U.S.-based nonprofit, which he declined to name. He never registered under the U.S. Foreign Agents Registration Act (FARA), which requires people acting on behalf of foreign principals in a “political or quasi-political capacity” to disclose the relationship along with activities, receipts, and disbursements. He said he thought he didn’t have to, though FARA experts disagree. Despite his friendship with the president, and the president’s position on Bellwether Forum’s advisory board, and the president’s intentions to run for reelection, Painter had no ethical concerns about helping Mongolia buy voting machines. “I thought it would be good for the country—I even thought it would be good for democracy—to have a new system,” he said. Painter made nearly a dozen trips to Mongolia to help work out the details as everyone hurried to get the new voting system in place before the crucial parliamentary elections of June 2012.

  Elbegdorj’s most vocal critic was his predecessor, Enkhbayar, who planned to run for parliament and possibly again for president. So some thought it curious when Enkhbayar was unexpectedly charged with corruption in the early spring of 2012, accused of wrongly privatizing a hotel, misappropriating TV equipment intended for a Buddhist monastery, and illegally shipping eight copies of his autobiography to South Korea. Calling the charges bogus, he refused to acknowledge a court summons. On the night of April 12, 2012, officers from the Independent Agency Against Corruption (IAAC), which Elbegdorj had recently created, tried to arrest Enkhbayar as he arrived at his apartment. After he fled inside, riot police converged on the building. At dawn, officers forced their way inside and hauled the former president out of his home, shoeless, with a black bag over his head, live on national television.

  Enkhbayar’s allies were quick to point to Elbegdorj as the culprit of a “naked attempt” to “vanquish a political foe.” On the day of the raid, “Mr. Enkhbayar had released internal government documents finding Mr. Elbegdorj responsible for inciting deadly violence” by alleging voter fraud after the last parliamentary elections, The Economist reported. The Guardian noted that some of the complaints against him seemed “rather picayune.” The New York Times wrote, “Mongolia… has been widely lauded by American officials as a bastion of democracy in a region where the rule of law and due process are rare. That reputation is now being called into question.” The arrest appeared to be a “dangerous regression to practices honed during the Soviet era.” Enkhbayar’s lawyer told the press, “Everyone had hoped Mongolia had broken away from the Soviet chain. But this is Soviet stuff.” Some noted that the arrest had been carried out by an intelligence officer named Bat Khurts. Elbegdorj had recently appointed Khurts deputy director of the new anticorruption agency, despite Khurts having once been wanted in Germany on charges related to the kidnapping, torture, and forced extradition of a Mongolian suspect in the murder of Zorig, the famous democratic revolution leader, who had been stabbed to death by masked assailants as he rose in national politics.

  When Enkhbayar began a hunger strike and his health deteriorated rapidly, human rights watchers in the United States, Australia, and Britain lobbied for fair treatment, a worrying development that suggested the “demise of democracy in Mongolia.” After appeals from UN Secretary-General Ban Ki-moon and others, Enkhbayar was released on bail and hospitalized. Western reporters found him fragile and gaunt after ten days without food or water. The courts, historically among the most corrupt of Mongolia’s institutions, set his trial for June 4, effectively blocking him from running for office. “Their task was to make me a criminal before parliamentary elections next month and the presidential election in 2013,” Enkhbayar told the New York Times, saying, “Mining is the reason they’re so cruel and antidemocratic in trying to prosecute me. Copper and gold have made people crazy.” Mongolia was now a “pawn in a global game involving China, the United States and Russia.”

  Enkhbayar’s opponents alleged that it was he who wanted to make his own grab for Mongolia’s mineral fortune. One of Elbegdorj’s defenders was his aide Oyuna, Bolor Minjin’s ally in the fight to preserve Mongolian dinosaurs. “This
is really a case of [Enkhbayar] finally being brought to justice after years of the people being too afraid to file complaints,” she told the New York Times, calling the manner of Enkhbayar’s arrest a positive sign: “When they came to arrest him, nobody was beaten, and the press could broadcast openly. Those are marks of democracy in action.”

  By mid-May, the matter was attracting criticism from high-profile leaders of the country Elbegdorj valued most. U.S. Senator Dianne Feinstein, a Democrat from California, issued a statement about Enkhbayar’s health and the importance of due process, saying, “It has been deeply troubling to follow the way in which he has been treated.” Elbegdorj, in turn, put out a press release saying Enkhbayar had been treated fairly and humanely, and reminding everyone that Secretary of State Hillary Clinton had recently commended Mongolia on its commitment to human rights.

  All of this happened just before the T. bataar went to auction—Enkhbayar’s scandalous arrest, U.S. admonishments about human rights, the entrenched corruption, the mining controversy, the rising inflation, the pressure for Elbegdorj’s party to both win the parliamentary elections in June and retain the presidency in 2013, and the growing concern among some Western diplomats that Mongolia appeared to be losing its tenuous hold on democracy. Elbegdorj needed a victory.

  Oyuna went to him with an opportunity that in the moment barely made sense: dinosaur… auction… New York. She told President Elbegdorj, “Win T. bataar for Mongolia and you will be the hero.”

  Like most lawyers, Robert Painter had never handled a case involving a dinosaur. But he approached the matter as he had learned to do at Baylor: “Assess the big picture, formulate a strategy, prepare as much as humanly possible, then swing with the punches.” A temporary restraining order seemed like a solid first move. As evidence, he used the letters to Heritage from Mark Norell and Bolor Minjin; the auction listing; an English translation of Mongolian laws on natural history; and a May 16 article from a U.K. newspaper that flat out said the skeleton had been “found in Mongolia,” was “owned by a fossil collector in Dorset,” and had been shipped to Florida for preparation and sale. Painter then scrambled to find a judge who would sign the order, forbidding the T. bataar sale until the question of ownership could be resolved. Carlos Cortez, a state district judge in Dallas, agreed to do it. Painter flew to Dallas and got the signature Saturday morning, the day before the auction, then notified Heritage and jumped on a plane to New York.

  On Sunday, he made his way into the auction venue, past Bolor Minjin and a few other Mongolians protesting the sale with a banner reading RETURN OUR STOLEN TREASURE. Surely Heritage would stop him entering, Painter thought, but no one approached him. As he waited for the auction to begin, he browsed the merchandise, at one point bidding on and winning a wristwatch made of meteorite.

  After a German sea-lily fossil sold for $40,000, Heritage’s president, Greg Rohan, who had been standing near the lectern murmuring into his cell phone, handed the auctioneer a note. The auctioneer scanned it and announced, “The sale of this next lot will be contingent upon a satisfactory resolution of a court proceeding.” Largely intact dinosaur skeletons of any species are not easily found, and this one had been advertised as 75 percent complete, the auctioneer told the audience, saying, “It can fit in all rooms ten feet high, so it’s also a great decorative piece.”

  Painter couldn’t believe Heritage would defy a court order and go through with the sale. As the bidding opened at $875,000, he dialed Judge Cortez in Dallas, then held his BlackBerry aloft and announced to the room, “I hate to interrupt this, but I have the judge on the phone.”

  The auctioneer eyed Painter but never broke patter. He called for $900,000.

  As Painter started up the aisle toward the auctioneer, Rohan met him halfway, and for five seconds they squared off in a silent little dance, four arms waving, Painter trying to stop the sale and Rohan trying to stop Painter.

  “Come with me, just come with me,” Rohan said.

  A security guard stepped in and told Painter, “Sir? Sir, you need to walk—”

  “I have the judge on the phone,” Painter told her.

  “Okay, well, you need to walk outside,” the guard said, pointing him toward the back of the room.

  Heritage’s attorney materialized and Painter handed him his BlackBerry. As the attorney apologized to the Texas judge, the dinosaur skeleton sold.

  CHAPTER 17

  UNITED STATES OF AMERICA V. ONE TYRANNOSAURUS BATAAR SKELETON

  AS FAR BACK AS MEDIEVAL TIMES, LAW ENFORCEMENT authorities seized property believed to be a tool or the fruit of wrongdoing. America’s approach dates to English maritime law of the seventeenth century, when “the English Crown issued ‘writs of assistance’ that permitted customs officials to enter homes or vessels and seize whatever they deemed contraband,” Sarah Stillman reported in The New Yorker. The writs, she wrote, “were ‘among the key grievances that triggered the American Revolution.’” The Bill of Rights protected citizens against “unreasonable searches and seizures” and promised that they wouldn’t be deprived of life, liberty, or property without due process, fair treatment in the judicial system. But “Congress soon authorized the use of civil-forfeiture actions against pirates and smugglers,” Stillman wrote. “It was easier to prosecute a vessel and seize its cargo than try to prosecute its owner, who might be an ocean away.”

  After a somewhat dormant period, the practice returned as actions known as in rem cases, Latin for “against a thing.” Because the process required prosecutors to pursue an object instead of a person, the cases tended to have curious names, like United States of America v. Approximately 64,695 Pounds of Shark Fins. Asset forfeiture laws gave police agencies the power to take a person’s property without filing criminal charges, and to keep it indefinitely on the hunch that the seized goods were connected to a crime. Almost anything could be confiscated: cash, cars, tractors, homes, kegs of Coca-Cola. In the 1970s, the federal government began using the law to prosecute criminal organizations, such as drug rings, expanding asset forfeiture’s reach. The pace really quickened after 1984, when Congress created the Assets Forfeiture Fund under the Justice Department; the government could sell seized property and keep the proceeds if there were no identifiable victims of the crime in which the property had allegedly been involved. The fund grew rapidly as the government confiscated items believed to have been procured with tainted money, and cooperating states received portions of the proceeds. As many states amended their laws to give local police seizure powers similar to those of the federal government, critics complained that innocent people, who were often too poor or too daunted by their immigration status to fight back, were being systematically and unjustly relieved of their belongings. Congress attempted reform in 2000, but state statutes continued to proliferate and revenues to climb. The Justice Department’s forfeiture-related revenues spiked from $27 million in 1985 to $556 million in 1993. By the summer of 2012, as the T. bataar skeleton went to auction, the DOJ was claiming almost $4.2 billion a year in forfeitures, much of which reportedly had been returned to victims such as swindled investors.

  The Southern District of New York’s asset forfeiture unit was, by far, the most successful at what then U.S. Attorney Preet Bharara called “taking the profit out of crime.” Bharara, whose staff worked out of the Daniel Patrick Moynihan United States Courthouse in downtown Manhattan, once told the New York Times, “Asset forfeiture is an important part of the culture here and an example of the government being efficient and bringing home the bacon.” In 2012 alone, the unit was on its way to seizing $3 billion in tainted property, a record amount for a single U.S. attorney’s office, and 68 percent of the national take. Usually, the “defendant” object was surrendered, and the suspect associated with it walked away rather than risk a protracted, expensive legal battle, or prison.

  The assistant U.S. attorney who ran asset forfeiture at the Southern District of New York (SDNY), or “Southern,” was Sharon Cohen Levin. A Chicago nativ
e in her early fifties, she had worked in the DOJ’s civil division in Washington before moving to New York. Since 1996, she had run Southern’s anti–money laundering and asset forfeiture unit, overseeing billions in seizures and restitution. Her favorite case had happened only recently, involving the return of a 1912 painting by Egon Schiele, Portrait of Wally, which the Nazis had looted in 1939. The painting had wound up in an Austrian museum and then on exhibit at the Museum of Modern Art in New York, where SDNY seized it after its ownership came into question. The case ultimately yielded a $19 million settlement for heirs of the Vienna art dealer who had left Wally behind when fleeing the war. The lawsuit “rocked the foundations of the art world,” Variety reported. “How could they function, museum officials tried to argue, if stolen art was going to be seized by American authorities?” Levin pointed out that she had used the law to “correct a historical injustice.”

  The National Law Journal had named Levin one of the seventy-five “most accomplished female attorneys in the legal profession today.” Of all the federal prosecutors in all the jurisdictions of the United States, she was an officer of the court whose attention you did not want to attract if you hoped to get away with something. Hearing about the contested dinosaur in the news, Levin called Robert Painter, reaching him on the tarmac at LaGuardia Airport as he headed home to Texas.