JANET RENO VIOLATES ETHICS IN GOVERNMENT ACT
Serious Rebukes of Clinton Administration in Circuit Court
By Wesley
Last week the nation came as close as it has in 24 years to seeing the complete emotional and legal breakdown of a presidency. The crisis was brought about by a series of federal court rulings that Secret Service agents guarding President Clinton must testify before a grand jury convened by Independent Counsel Kenneth Starr [1]. The utter desperation of the administration was evident in the maneuverings of the Department of Justice, which explored every available avenue for keeping the agents from going before the grand jury. If the agents' testimony supports the claim that the President committed perjury or obstructed justice, it will be the death knell of the Clinton Administration. The court battle over the agents' testimony would then be the equivalent of President Nixon's battle to withhold tape recordings of Oval Office conversations during Watergate from Special Prosecutor Leon Jaworski (see U.S. v. Nixon, 1974). Most commentators seem to have missed this very important implication of the just-completed court battle.
The legal proceedings began in the court of U.S. District Court Judge Norma Holloway Johnson. On May 22, Judge Johnson became the first federal judge to rule that the 'protective function privilege' asserted on behalf of Secret Service agents by the Justice Department had no basis in federal constitutional or statutory law [2]. She also raised a very important question regarding the way the case came to her court. Section II (D) of her ruling is entitled "Who Must Assert the Privilege". The significance of her comments requires they be quoted at length:
While the Court declines to recognize a protective function privilege, it must note that even if so inclined, the privilege has not been properly invoked. The President has not himself invoked the protective function privilege nor has he instructed the witnesses to invoke it. Instead, Robert Rubin, the Secretary of the Department of the Treasury, has formally asserted the privilege. Rubin Decl. at 4. The Director of the Secret Service states that he has not consulted with the President or the White House on this issue. Merletti Decl. at 2. The OIC has requested that the President personally waive this privilege, Reply Mem. in Support of Mot. to Compel at Exh. B, but there is no known response.
Because there is no law on the protective function privilege, the issue of who must assert the privilege is not settled. The Secret Service argues that the policy reasons behind the proposed protective function privilege parallel those behind the state secrets privilege. Because the head of an agency must assert the state secrets privilege, United States v. Reynolds, 345 U.S. 1, 7-9 (1953), the Secret Service contends that the Secretary of the Department of the Treasury is the appropriate person to assert this privilege. However, no state secrets are involved in this matter. The proposed privilege most closely resembles the attorney-client privilege. The theory of the Secret Service is that, if the agency protected the confidentiality of presidential activities, the President would not hide any of his private actions from his protectors. The President's confidences are theoretically at issue under the protective function privilege, just as the client's confidences are at issue under the attorney-client privilege. For these reasons, there is a question as to whether the alleged privilege has been properly presented.
Judge Johnson is saying, in effect, she believes the appropriate party to have asserted the 'protective function privilege' was the President, not the Secretary of the Treasury. The Independent Counsel specifically asked the President to waive the purported privilege, but the President refused to respond. Thus, it seems that the manner in which the privilege was asserted was no oversight on the part of the administration, but rather part of a carefully crafted strategy.
The Justice and Treasury Departments appealed the District Court decision to the U.S. Court of Appeals for the D.C. Circuit, which unanimously dismissed their arguments on June 7 [3]. The Court of Appeals also noted the odd manner in which the privilege was asserted:
We also think the efficacy of the privilege is undermined by its being vested in the Secretary of the Treasury and not in the President, whose conduct the proposed privilege is supposed to influence; we know of no other privilege that works that way. If the person whose conduct is to be influenced knows that the privilege might be waived by someone else, the effect of the privilege in shaping his conduct is greatly diminished if not completely eliminated. Accordingly, the assertion of the White House Counsel, in a letter to the OIC, that "the privilege is not [the President's] to assert or to waive" reinforces our impression that the proposed protective unction privilege will provide only a weak incentive for the President to keep his protectors in close proximity. Letter from Charles F.C. Ruff to Kenneth W. Starr dated May 11, 1998.
Near the end of its argument the Circuit Court indirectly raised another issue, which had escaped the notice of the District Court: what is the appropriate role of the Attorney General in the dispute? Although the three-judge panel of the Circuit Court failed to appreciate the full implications of this issue, it came to the forefront when the Department of Justice appealed for a rehearing of the panel's decision by the full Circuit Court.
On July 16 the Circuit Court issued its opinion on the Department of Justice's request for a rehearing. In a concurring opinion to the per curium decision, Judge Silberman focused on the great flaw in the legal action, which had been present from its beginning at the District Court level. That flaw rests in the relationship of the Independent Counsel to the Attorney General. As Judge Silberman pointed out, once an Independent Counsel has been appointed, the role of the Attorney General in the proceedings ceases. Before we turn to Judge Silberman's specific comments in the case, it will be helpful to revisit what the Supreme Court said in Morrison v. Olson. Morrison is the controlling case on the Ethics in Government Act, which allows for the appointment of an Independent Counsel [5].
In its decision in Morrison, the Supreme Court first explained the mechanism by which the Attorney General seeks the appointment of an Independent Counsel by the Special Division. The Court then discussed in detail the jurisdiction of the Attorney General and the Independent Counsel, once the Independent Counsel has been appointed:
WITH RESPECT TO ALL MATTERS WITHIN THE INDEPENDENT COUNSEL'S
JURISDICTION, THE ACT GRANTS THE COUNSEL "FULL POWER AND
INDEPENDENT AUTHORITY TO EXERCISE ALL INVESTIGATIVE AND
PROSECUTORIAL FUNCTIONS AND POWERS OF THE DEPARTMENT OF
JUSTICE, THE ATTORNEY GENERAL, AND ANY OTHER OFFICER OR
EMPLOYEE OF THE DEPARTMENT OF JUSTICE." 594(a).6 The
functions of the independent counsel include conducting grand
jury proceedings and other investigations, participating in
civil and criminal court proceedings and litigation, and
appealing any decision in any case in which the counsel
participates in an official capacity. 594(a)(1)-(3). Under
594(a)(9), THE COUNSEL'S POWERS INCLUDE "initiating and
conducting prosecutions in any court of competent
jurisdiction, framing and signing indictments, filing
informations, and HANDLING ALL ASPECTS OF ANY CASE, IN THE NAME OF THE UNITED STATES." The counsel may appoint employees, 594(c), may request and obtain assistance from the Department of Justice, 594(d), and may accept referral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as defined by the Special Division, 594(e). The Act also states that an independent counsel "shall, except where not possible, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws." 594(f). IN ADDITION, WHENEVER A MATTER HAS BEEN REFERRED TO AN INDEPENDENT COUNSEL UNDER THE ACT, THE ATTORNEY GENERAL [487 U.S. 654, 663] AND THE JUSTICE DEPARTMENT ARE REQUIRED TO SUSPEND ALL INVESTIGATIONS AND PROCEEDINGS REGARDING THE MATTER. 597(a). [emphasis added]
The Supreme Court in 1988 could not have spoken more directly to the recent battle over Secret Service testimony if it had written its opinion last week. We may ascertain from the Court's statement three things pertinent to recent events: 1. The Independent Counsel exercises all powers of the Attorney General and Justice Department with regard to any case within the counsel's jurisdiction; 2. The Independent Counsel handles all matters within his or her jurisdiction in the name of the United States; and 3. The Attorney General and Justice Department must suspend all activities related to any investigations and proceedings carried out by the Independent Counsel. Words cannot be clearer. Meanings cannot be more certain. Janet Reno had no business as a litigant before the federal courts regarding Secret Service testimony to Starr's grand jury.
Let us turn now to Judge Silberman's statements in his concurring opinion. Silberman began by saying, "This is the first time in 13 years on this Court that I have seen a petition for rehearing or an appellant's brief that does not state the identity of the party petitioning or appealing in the caption of the brief. There is a good reason." The reason, as the judge pointed out, is that the Independent Counsel alone can claim to act on behalf of the United States in the matter before the court. The Attorney General was aware of this problem, and so artfully avoided stating in her petition the name of the party she was representing. However, she slipped on the very first page of her petition and claimed to represent the United States. As Silberman noted with impeccable deductive reasoning, it is impossible for a controversy to come before a court where opposing counsel represent the same party. The result is that "Unless the Independent Counsel agrees in writing to permit the Department of Justice to continue its involvement in the case, the Attorney General is permitted to file only an amicus brief in such a proceeding." Further, if the Attorney General is unable to represent the government (Treasury Department), no other government lawyer may do so either. The result is the Independent Counsel has the sole power to accept or reject the 'protective function privilege' asserted by the Secret Service.
If the Attorney General may not legally represent the government (Treasury Department) in the case, who in fact was she representing? Silberman had little problem figuring that out:
"The Attorney General is, in effect, acting as the President's counsel under the false guise of representing the United States, contrary to the whole purpose and structure of the Ethics in Government Act." The judge then accused the Treasury and Justice Departments of "declaring war on the Independent Counsel." He concluded by saying, "The [Ethics in Government Act] limits the options that the Attorney General can legally (and honorably) pursue. Litigating against the Independent Counsel in this case is not among them."
Judge Silberman's words were ridiculed by Presidential spokesmen Mike McCurry and Geraldo Rivera. They will doubtless be condemned by talking heads on various television 'news' programs. But, when compared to the relevant case law, they are irrefutable.
We now come to the question of why the administration's attempt to get the courts to create a new privilege was handled in such a legally questionable way. Why was the privilege asserted on behalf of the Secretary of the Treasury, and why were the petitions filed by the Department of Justice? Was this merely a case of those dozens of administration lawyers incompetently choosing the worst way to enter the proceeding? Reading between the lines of the court decisions, we can say with little hesitation that the attempt would have had a much greater chance of success if it had been filed by President Clinton's personal lawyers in Clinton's own name. United States v. Clinton. Hmmm. Isn't there a historical parallel for that somewhere?
NOTES
1. A partial timeline of events surrounding the court decisions follows:
May 22, 1998: Chief U.S. District Judge Norma Holloway
Johnson rules that the 'protective function privilege'
asserted on behalf of Secret Service agents by the Justice Department had no basis in federal constitutional or statutory law.
June 2: Kenneth Starr asks the Supreme Court on an emergency basis to consider the claim of a 'protective function privilege' which would prevent Secret Service agents from testifying before the grand jury. Starr's made the request in order to short-circuit months of potential court appeals, which could delay his investigation.
June 4: The Supreme Court turns down Starr's plea to issue a fast-track decision on Secret Service testimony.
Jun 17: A brief filed in the U.S. Court of Appeals for the D.C. Circuit by the Department of Justice on behalf of the Treasury Department (Secret Service) is unsealed.
June 19: Kenneth Starr files a brief with the Circuit Court in response to the Justice Department brief.
July 7: A three-judge panel of the D.C. Circuit Court flatly rejects the 'protective function privilege'.
July 14: The Justice Department files an appeal with the U.S. Court of Appeals for the D.C. Circuit, asking it to reconsider its July 7th ruling.
July 16: The full Court of Appeals unanimously upholds the previous ruling by the three-judge panel.
July 16: The Justice Department requests Chief Justice Rehnquist to stay the ruling of the Court of Appeals.
July 17: Chief Justice Rehnquist declines to stay the lower court's ruling.
2. The full text of Judge Johnson's ruling is available at:
http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/order052298.htm
3. The full text of the three-judge panel's decision is available
at:
http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/decision070798.htm
4. The text of Judge Silberman's concurring opinion is available
in the Verbatim section of this issue, at
http://www.federal.com/jul20-98/Opinion
5. The full text of Morrison v. Olson is available at:
http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=487&invol=654
Wesley Phelan is Associate Professor of Political Science at Eureka College. Dr. Phelan specializes in Constitutional Law and American Government.
Published in the July 20, 1998 issue of The Washington Weekly Copyright 1998 The Washington Weekly (http://www.federal.com)
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