In reversing the convictions of three once-powerful Reagan administration officials-Lyn Nofziger, Oliver North, and, last month, John Poindexter-the U.S. Court of Appeals for the D.C. Circuit has consistently cleaved along straight party lines.
Each of the eight Reagan-appointed and Bush-appointed judges (including now-Justice Clarence Thomas) has voted to reverse each of the convictions that he or she has reviewed.
And each of the four Carter-appointed judges has voted to affirm (at least in part) each of the convictions he or she has reviewed.
In all, Reagan/Bush judges have cast a combined total of 12 votes for reversing these three convictions, and Carter-appointed judges have registered a combined total of seven dissents.
Nofziger, North, and Poindexter are the only high-ranking Reaganites who have appealed convictions to the D.C. Circuit. Each was prosecuted by an independent counsel.
(In a fourth case, which did not lead to criminal charges, two Reagan appointees in 1988 struck down the law providing for such independent counsel, over a Carter appointee’s dissent. The Supreme Court reversed that decision by 7-1.)
Why have the Reagan/Bush judges-far more likely than the Carter appointees to side with prosecutors in the ordinary run of criminal cases-been such vigilant guardians of the procedural rights of the accused in these cases?
Why have they so unanimously found inadmissible evidence of unchallenged reliability that proved North and Poindexter had committed serious federal crimes?
Conversely, why have the Carter judges- usually so solicitous of the rights of criminal defendants-voted to spurn the appeals of these defendants?
Why have they rejected the arguments of, among others, the American Civil Liberties Union (in amicus briefs) that the North, Poindexter, and Nofziger prosecutions offended important constitutional principles?
Could something political be going on here?
Perish the thought. Judge Harry Edwards, a Carter appointee to the D.C. Circuit, declared in a 1985 law-review article that "the increasingly popular image of the federal appellate courts as political bodies is a myth," and that it was "demonstrably wrong" for commentators to suggest "that most judicial judgments are significantly affected by the personal political views of the judges.
But the North-Nofziger-Poindexter voting pattern can hardly be attributed to random chance. While most of the positions taken by most of the judges on both-sides of these cases have been plausible enough-they were, after all, hard cases-statistical probabilities suggest that their legal conclusions were significantly shaped by their political ideologies.
And Reagan judges Douglas Ginsburg and David Sentelle made such strange law in one portion of their Nov. 15 decision in the Poindexter case that a cynic might suspect them of naked political animus.
Fully half of Judge Ginsburg’s 37-page opinion was devoted to eviscerating a key portion of the federal law that bars "corruptly" obstructing a congressional Investigation.
The prosecution proved that; in 1986, Poindexter had told the House and Senate intelligence committees several clear lies, in addition to making other misleadingly ambiguous statements, to cover up evidence that President Reagan had traded arms for hostages. In particular, the evidence suggested, Poindexter lied to conceal (and later destroyed) the secret December 1985 "finding" in which President Reagan had retroactively authorized an arms sale to Iran to get its help freeing U.S. hostages in Lebanon.
But Judges Ginsburg and Sentelle threw out two counts charging Poindexter with obstruction, on the ground that the word "corruptly" in the statute did not give Poindexter fair notice that it would be illegal to lie to the intelligence committees for the purpose of obstructing their investigations.
Concocting a convoluted distinction between the "transitive" and "intransitive" meanings of "corruptly," they emerged with the bizarre conclusion that those who induce others to lie can be prosecuted for obstruction, but those who lie themselves cannot. Chief Judge Abner Mikva (a Carter appointee) dissented, saying that the majority’s reasoning "strikes me as odd."
Odd, indeed. As former prosecutor Ralph Drury Martin demonstrates in the commentary that begins on Page 25, hardly anyone had thought before now to suggest that the word "corruptly"- integral to federal criminal law for more than a century-was void for vagueness.
Perhaps the explanation is that Judges jGinsburg and Sentelle share the conservative gospel that Congress has gone overboard in criminalizing its policy disputes with the executive. Perhaps they agree with Poindexter’s assertion that it was "political" to prosecute him just for telling a few fibs. Perhaps they think his was a noble cause.
And perhaps their constitutional hackles are more easily aroused when they see the congressional/independent-counsel juggernaut bearing down upon some poor, pin-striped, executive-branch wretch than when they, encounter, say, random searches by gun-toting police of ordinary citizens on buses.
Reagan judges are not the only ones, however, who might be suspected of peeking to see who the players are before they set the rules.
Judges Sentelle and Laurence Silberman had much the better of the argument, for example, in ruling last year that Oliver North’s Fifth Amendment privilege against self-incrimination had been violated by the prosecution’s use of witnesses who had previously been exposed to-indeed, marinated in-congressional testimony that North had been compelled to give under a grant of immunity.
Carter-appointed Judge Patricia Wald wrote a powerful dissent. But it was surprising to see a civil libertarian like her arguing that a defendant’s Fifth Amendment privilege could be so easily balanced away.
And the majority was more convincing in ruling that the Constitution requires a virtual guarantee that witnesses’ testimony be in no way "shaped, altered, or affected" by an immunized defendant’s earlier compelled testimony, to ensure that the defendant will not be prejudiced in any way.
(Judge Ruth Bader Ginsburg, another Carter appointee, voted to grant rehearing en bane in the North case, but on an unrelated issue; Mikva and Edwards did not participate; and the eight Reagany/ Bush judges then on the court all yoted to deny any rehearing en bane.)
One may wonder why the Reaganites’ solicitude for the privilege against self-incrimination-not exactly a favorite of tough-on-crime conservatives-seems to have reached its zenith in the Iran-Contra cases.
But whatever their motives, they did the right thing in the North case. Judges Ginsburg and Sentelle also did the right thing on the analogous issue in the Poindexter case, holding that-aside from the vagueness issue involving the two obstruction charges-all five of Poindexter’s convictions were fatally tainted by the prosecution’s use of witnesses who had been exposed to his compelled congressional testimony.
(Independent Counsel Lawrence Walsh is considering whether to seek further review of the Poindexter ruling.)
Nofziger was convicted of violating statutory restrictions on lobbying by former executive-branch officials of their former agencies. Judges James Buckley and Stephen Williams (Reagan appointees both) reversed, in a 1988 Buckley opinion, over a dissent by Judge Edwards.
The majority construed the ambiguously drafted statute as requiring proof that Nofziger had known all the facts that would bring his lobbying within the prohibition. There had been no such proof.
Judge Edwards trashed the decision as "little more than ‘judicial nullification’ of a clear congressional enactment." He suggested it was "perhaps the most dangerous form of judicial activism." Judges Wald, Mikva, and Ginsburg (guess which) later joined him in calling the Nofziger ruling "clearly wrong."
In fact, it’s far from clear which side was right in Nofziger’s case. The surprising thing was to find Reagan judges straining so hard to throw out a conviction and Carter judges so cavalierly dismissing a substantial appeal. It’s also less than clear which group of judges has been more prone, overall, to letting political preferences skew their legal judgments. Most of them advance plausible legal rationales most of the time. But it does seem that hard cases make for ideologically driven law.