Category Archives: Legal Times

Stuart Taylor, Jr.’s Legal Times media appearances.

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Coercive Encounters of the Worst Kind

by Stuart Taylor, Jr.

It’s after midnight. You are hurrying through the airport with a carry-on bag, impatient to get home from a business trip, looking around for a phone booth to call ahead.

A man keeps pace with you, staying close. He makes eye contact. You look away. Another man hovers nearby. You walk faster. The first man closes in from the side. The other circles behind you. Your heart is pounding.

"Excuse me." He flashes a badge. "Can I talk to you? I’m a narcotics interdiction officer, and we’re trying to stop drugs from coming in here.”

You know you’ve done nothing wrong. But suddenly you’re a suspect. Your hands are shaking.

He asks for your ticket. He asks for identification. He asks where you came from. He asks where you’re going. He asks whether you have any illegal drugs. He asks whether he can look through your bag.

All the while, his partner stands behind you, attentively.

Pop quiz: (1) Are you free to treat the officer like a panhandler, tell him you’re in a hurry and walk away? (2) If you answer his questions until he asks to search your bag, can you then stop, say you’ve had enough of being treated like a criminal, and leave? (3) If you do that, what will the cops do?

To courts such as the U.S. Court of Appeals for the D.C. Circuit, the answers to the First two questions raised by this increasingly familiar scenario are crystal clear: Of course you are free to leave. It’s so obvious that any "reasonable person" would know it.

It follows, these courts say, that such "encounters" are in no way coercive. As long as the police are polite and do not overtly restrict their quarry’s movement, they may ask anyone to consent to be questioned and searched. The strictures of the Fourth and Fifth Amendments do not apply: no need for a warrant, no need for any reason to suspect the targeted individuals of criminality, no need to tell them their rights.

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White Lies in the White House

by Stuart Taylor, Jr.

Poppy Bush is going to take his ball and go home.

He has seen news accounts comparing some of his statements with subsequent disclosures intimating he was not exactly telling the truth. Some have been so gauche as to suggest that President Bush’s passion for secrecy has spawned a penchant for fibbing.

The president was not amused.

"I think we’ve had too many press conferences," he told reporters Feb. 15, aboard Air Force One. "It’s not good. It’s overexposure to the thing…. We’ve got a whole new relationship. It will be pleasant. It will be fun. It will be fun. But it will be different."

Henceforth, the president announced, there would be "a new thing, a new approach" when he is pestered with questions about affairs of state: "I’m not going to discuss it," he said. "I’m not gonna be burned for holding out or doing something deceptive."

By the end of his little display of pique, the president, grinning at his own cleverness, was no-commenting even on whether he had a good night’s sleep, "because some will think it is too much sleep and some will think it’s too little sleep."

This presidential fencing with the White House pressies, some of whom have feasted at state dinners and cavorted at Camp David, has a clubby, intramural flavor that tends to obscure how casually George Bush and his aides are wont to mislead the American people.

The pattern of deception goes back at least a decade. It includes politically expedient false denials both of plans the president has for the future and things he has said and done in the past.

We are not talking, here about deceptions motivated by imperatives like protecting the security of a military operation or the life of a hostage.

A Kick Out of Surprises

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Panamanian Pandemonium

by Stuart Taylor, Jr.

A simple assassination would have been a lot cleaner. Instead, President George Bush launched a 25,000-person military invasion that killed hundreds of Panamanians and 26 U.S. citizens, left thousands maimed or homeless, brought condemnation in world opinion, and climaxed with the unprecedented spectacle of a foreign ruler flown in shackles to stand trial in the United States.

Why not just send a hit squad after the despised Gen. Manuel Antonio Noriega? Because that would be immoral? Come now, what’s immoral-killing one murderous despot or hundreds of innocent young soldiers and civilians?

No, the reason we don’t assassinate foreign tyrants any more is Realpolitik: It would set a precedent for our enemies, the baleful consequences of which a U.S. president can readily appreciate.

So, in hopes of hitting Muammar al-Qaddafi, then President Ronald Reagan sends 18 bombers that miss Qaddafi but kill his 15-month-old adopted daughter and others. To get Noriega, President Bush opts for deaths by the hundreds.

And among the president’s justifications, he lists putting this one man on trial-not in Panama for crimes against his own people, but in Florida for the same drug trafficking that the CIA condoned when Noriega was a U.S. "asset."

The policy against assassinations is sound. And the reasons for it should give pause to those who so contemptuously brush aside concerns about the casual trampling of international law that attended the president’s glorious little war.

Violations of international law set precedents, too, for every tinpot dictator or demagogue with aggressive designs against neighbors or U.S. citizens abroad. Witness Iran’s aping of a Justice Department legal opinion last year, when that country authorized the arrest anywhere in the world of Americans who damage Iranian interests.

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Fending Off ‘Fighting Words’

by Stuart Taylor, Jr.

When Sen. Jesse Helms last year proposed restrictions on government support for offensive speech, liberals quickly branded him a Neanderthal right-wing censor.

But what about those liberals with censorial tendencies of their own? Are they Neanderthals, too-or some other, more sensitive, species?

It was Jesse Helms, the North Carolina Republican, who pushed through the Senate last summer a ban on use of federal arts money for "material which denigrates, debases, or reviles a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national origin." (His more widely publicized provision would have cut off money for "obscene or indecent" materials.)

The president of the University of Pennsylvania denounced the Helms proposal as an effort "to cleanse public discourse of offensive material."

But in strikingly similar language, his own university forbids as harassment "any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin … and that… creates an … offensive academic, living or work environment."

The urge to censor campus speech is prompted by dozens of ugly racist incidents that have fouled campuses around the nation. These have included the posting of racist epithets, jokes, and caricatures on signs and bulletin boards, and shameful physical and verbal attacks on minority students and homosexuals.

Vandalism and physical assaults or threats can of course be punished without free-speech qualms. But even purely verbal attacks can also inflict great trauma, especially on minority group members who feel isolated, conspicuous, and unwelcome on overwhelmingly white campuses.

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Client Cash Cows Sacred No More

by Stuart Taylor, Jr.

The flashily dressed young man walks into a defense lawyer’s office, seeking representation in a drug-smuggling case. The tastefully dressed lawyer notes that this sort of thing can get expensive. The young man smiles, opens his satchel, and dumps $20,000on the desk Cash.

Assume for the moment the lawyer can take the money. Should he-unlike, say, a doctor or a car dealer-also be entitled to refuse to tell the government whom it came from? Should he be permitted to ignore the federal tax forms that most businesses are required to file every time they receive more than $ 10,000 in cash?

The Internal Revenue Service and the Justice Department have started bringing court actions to force lawyers to name clients on these forms. Respected criminal-defense attorneys-like Gerald Lefcourt of New York-say that enforcement of the reporting requirements conscripts lawyers as "informants against their clients" in derogation of their ethical duties and, in many cases, of the attorney-client privilege and the Sixth Amendment right to counsel. Hundreds of lawyers have filed the forms with blanks in place of the payer’s name.

These lawyers warn that the new cash-reporting push-together with the government’s efforts under forfeiture laws to seize drug and racketeering money paid out as attorney fees-threatens to poison the attorney-client relationship and destroy the criminal-defense bar.

The best will be driven out, warns Lefcourt. They will go to big firms where they can labor to make the world safe for "companies that put cancer-causing agents in pajamas, and everybody will think they are great."

Lefcourt and his colleagues have a point. A prime reason for a vigorous defense bar is to deter the government from bringing criminal charges in the absence of strong evidence. The system works pretty well in that regard: The vast majority of defendants are proved guilty of something because few innocents are charged.

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Thrift Thuggery-Business as Usual

by Stuart Taylor, Jr.

Whoever…being a public official…directly or indirectly, corruptly…accepts…anything of value personally or for any other person or entity in return for…being influenced in the performance of any official act…shall be fined…or imprisoned for not more than 15 years, or both.

-U.S. Code, Title 18. §201(b)(2)(A) [bribery]

Whoever…being a public official…otherwise than as provided by law for the proper discharge of official ditty, directly or indirectly…accepts…anything of value personally for or because of any official act performed or to be performed…shall be fined under this title or imprisoned for not more than two Years, or both.

–U.S. Code, Title I8. §201tc)(l)(B) [illegal gratuity]

Charles Keating Jr. is that rarest of creatures in the world of political fund-raising-a man who publicly avows what everyone knows to be true.

The Arizona financial executive is now at the center of Senate and FBI investigations involving $I .4 million in political contributions he arranged for five U.S. senators and associated groups. These contributions were made before and after the senators put the arm on federal thrift regulators in 1987 on behalf of Keating’s now-insolvent Lincoln Savings and Loan of Irvine. Calif.

At a press conference last April. Keating said: "One question among the many raised in recent weeks had to do with whether my financial support in any way influenced several political figures to take up my cause. I want to say it in the most forceful way I can: I certainly hope so."

Keating’s contributions to the senators-including four Democrats with whom he. a conservative Republican, had no ideological affinity that might account for his generosity-were clearly things "of value."

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Drug War’s Non-Economic Costs

by Stuart Taylor, Jr.

This drug war is getting kind of expensive.

When it comes to health, safety, and environmental regulations, conservatives like President George Bush are acutely attuned to the danger of unforeseen harmful consequences, of costs outweighing benefits.

But little is heard these days about the non-economic costs of mobilizing ever more government regulation for Drug War III, the Bush sequel to the wars declared by Presidents Richard Nixon and Ronald Reagan.

Among these costs are the incipient wreckage of the federal court system, the dismantling of the Sixth Amendment right to counsel, the decline of the presumption of innocence, the demise of the Fourth Amendment, the dilution of property rights, the blighting of entire lives for youthful mistakes, the litmus-testing of public officials, and the entrenchment of the escapist fantasy that such police-state methods can cure our national maladies.

The federal court system is already so overwhelmed by drug cases that it is hard-pressed to discharge its traditional responsibilities of protecting civil rights and civil liberties, resolving complex antitrust disputes, and the like.

Morale in the federal judiciary is low and sinking lower, in part because many judges now spend more than half their time processing routine drug busts. The number of drug cases filed in federal District Courts jumped 270 percent from 1980 to 1989. In each of the last two years, the number rose more than 15 percent. This tidal wave is swamping not only the courts but public defenders, prisons, and probation offices as well.

It will get worse. At the urging of the Reagan and Bush administrations, Congress has increased the number of assistant U.S. attorneys by more than 50 percent in a little over a year, mainly to throw new bodies into the drug war.

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Read His Flips: The Abortion Thing, 1992

by Stuart Taylor, Jr.

Miracle of modern science: We have collected every statement President George Bush has ever made on abortion and fed them into a computer. The machine has been able to peer three years into the future and project the questions on abortion and the president’s answers when he debates the Democratic nominee in October 1992:

Q: Mr. President, early in 1980, you said Roe v. Wade, the Supreme Court decision legalizing abortion, "was right." And you supported federal funding for poor women to have abortions in cases of rape and incest.

A few months later, after becoming Ronald Reagan’s running mate, you joined him in calling for a constitutional amendment to ban abortion. And in 1984, you denied having ever supported federal funding for abortions in rape or incest cases.

In the 1988 campaign, you supported a right to abortion in rape and incest cases. In 1989, your administration urged the Supreme Court to overrule Roe v. Wade, and you vetoed federal funding for abortions in rape and incest cases, saying poor women might fake rape or incest.

Ever since then, anti-abortion candidates have been defeated in droves at the polls and you have refused to discuss the subject.

Could you clarify your position and respond to your opponent’s charge that you have flip-flopped in unprincipled pursuit of political advantage?

President Bush: Well, as I’ve said before, my position has always been the same as it is now, which is to say it has been evolving.

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Deciphering Congressional Code

by Stuart Taylor, Jr.

No corner of the law, it seems, is too arcane to become a front in the ideological battle between liberals and conservatives over the federal judiciary.

Witness the hot debate developing over the extent to which courts should use legislative history as a guide to interpreting acts of Congress.

A few years ago, this subject could hardly have warmed the heart of a fledgling law professor scrounging for a tenure piece. Now, with the rise of a new conservative jurisprudence, the tectonic plates underpinning the law may be starting to move.

The longstanding consensus that courts should discern congressional intent through liberal use of legislative history-committee reports, floor debate and the like-is breaking down. And the issues now surfacing could be "of enormous consequence, in a vast number of cases," in the words of Justice Antonin Scalia.

He is the philosophical leader of a movement to focus almost exclusively on the meaning of the statutory text in interpreting legislation and to reduce or even abandon judicial reliance upon legislative history.

In several opinions Justice Scalia has assailed what he considers the profligate use by courts in recent decades of staff-written legislative history-which he has called "judicial abdication to a fictitious legislative intent."

His approach is sometimes called "textualism." Warning that "the textualists are on the march," Chief Judge Patricia Wald of the U.S. Court of Appeals for the D.C. Circuit launched a counterthrust last month in a speech criticizing the Scalia-led assault on the judiciary’s "basically sensible approach."

Justice Scalia, Chief Judge Wald, and their leading allies frame their arguments in terms of legal principle, not politics or ideology, and build on rich intellectual traditions replete with quotations of Oliver Wendell Holmes, Learned Hand, and Felix Frankfurter.

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Justice Powell’s Predicament

by Stuart Taylor, Jr.

Like most Americans, Lewis Powell Jr. had never given much thought to the death penalty.

Then, in 1972, he joined the Supreme Court. Since then Justice Powell, who retired in June 1987 at the age of 79, has thought about it quite a bit.

He has adhered to his view that nothing in the Constitution bars governments from putting vicious murderers to death. But he has pondered what happens after all the appeals have been litigated and the stays of execution have run out and the prisoner’s head has been shaved.

"I just can’t imagine having the job of pulling the switch on someone in the electric chair," Justice Powell said in an interview last week in his Supreme Court office.

He also has come to believe, contrary to his initial assumption, that "capital punishment has not deterred murders." They have continued at a "shocking" 20,000-a-year pace, he notes, since he helped reinstate the death penalty in 1976.

"It’s perfectly clear that if I were in the legislature now, in view of the extended litigation and the ineffectiveness of the way the system operates, I would vote against the death penalty," Justice Powell concludes. "I would be inclined to vote against it in any event. We are the only Western democracy that still retains the death sentence… We have a system that isn’t working, and I doubt very much whether you could ever by law create a system that would work at the present stage of our civilization."

He adds that he has "moral concerns as well as legal.” Asked to elaborate, he pauses, groping for the right words, and says quietly, "The taking of human life is something that I’d rather leave to whomever one thinks of as God.”