Tag Archives: Legal Ethics

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Iraqgate: A Goof or a Felony?

by Stuart Taylor, Jr.

Before Attorney General William Barr-spoiled the symmetry on Friday, we had a near-perfect Washington triangle: FBI Director William Sessions was investigating the Central Intelligence Agency and the Justice Department. The CIA was investigating itself. And the Justice Department was investigating Sessions, his assistant, and his wife.

And now comes Frederick Lacey, a retired federal district judge from New Jersey whom Barr-named as "independent counsel"-but not the normal, court-appointed kind-to investigate Justice’s "Iraqgate" investigation.

It was a wise move by Barr, although it’s unclear whether Lacey’s probe will carry the same credibility as would one by a court-appointed independent counsel. (Lacey’s assignment includes advising Barr on whether to seek a court-appointed independent counsel later.) Barr-said that his subordinates "deserve to be exonerated," but that "in the current political climate, I have regrettably concluded that if I determine that they have done nothing wrong, they will not receive that exoneration.”

That’s one of the reasons why Iraqgate is a textbook illustration of the need for some kind of mechanism-not necessarily the one we have now, which will expire on Dec. 15-for referring such politically charged matters to prosecutors genuinely independent of the incumbent administration. Barr’s solution of making the appointment himself may get him past this crisis, but for the long term it’s not good enough.

What gave this scandal legs was the flap over the submission by Justice and the CIA of a misleading-or, at best, incomplete-Sept. 17 CIA letter to U.S. District Judge Marvin Shoob, who was presiding over a case involving billions of dollars in allegedly illegal loans to Iraq that were funneled through the Banca Nazionale del Lavoro in Atlanta.

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Prosecutors Playing a Broken Record

by Stuart Taylor, Jr.

What do former CIA official Clair George, the four Los Angeles cops who beat up Rodney King, Clark Clifford, his co-defendant Robert Altman, and E. Robert Wallach have in common?

Each is threatened with multiple criminal trials on essentially the same charges. That may be legal, under various judge-made loopholes in the double-jeopardy clause. But it’s not fair. And it illustrates pervasive prosecutorial disregard for the spirit of the constitutional guarantee.

Prosecutors, armed with the awesome machinery of the criminal law, should be satisfied with one clean shot at a defendant, even if they miss. But more and more we see them forcing their quarry to spend years of their lives and millions of dollars to defend themselves even after winning acquittals, or near-acquittals.

Many in the press seem to see double-jeopardy rules as mere technicalities to be circumvented when they get in the way of a good show. And even the American Civil Liberties Union, understandably loath to let police brutality go unpunished, is waffling on its opposition to successive state and federal prosecutions.

But as the Supreme Court said in 1957, in Green v. United States, successive prosecutions undermine liberty by subjecting the defendant to "a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

The potential for oppression by multiple prosecution is all the more apparent in white-collar and other complex cases. With trials grinding on for weeks or months, the million-dollar defense has become a routine necessity, leaving even acquitted defendants in financial ruin after a single trial, let alone two.

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A Primer on the Washington

by Stuart Taylor, Jr.

Item: The pending Iran-Contra trial of Clair George, the former third-ranking official at the Li Central Intelligence Agency, will soon revisit a curious scene, through the words of a key prosecution witness:

George’s subordinate Alan Fiers (the witness) is summoned to an October 1984 meeting in the office of the late CIA Director William Casey. George and Oliver North are there. "Ollie," says Casey, "Alan tells me you’re operating in Central America. Is that true?" "No, sir," responds North. "Good," says Casey. "I want you to understand that you’re not to operate in Central America." Later, George tells an incredulous Fiers, "What you saw going on in there was a charade." The implication: North would continue operating in Central America, with Casey’s blessing.

Item: A Nov. 24, 1986, White House meeting is described as follows in Independent Counsel Lawrence Walsh’s indictment of former Defense Secretary Caspar Weinberger:

President Reagan and his top seven aides are discussing how to respond to the rapidly breaking Iran-Contra scandal. Attorney General Edwin Meese III tells the group that his investigation has concluded that the president had not been told of a possibly illegal 1985 arms shipment. Some or all of those present know this to be false. But nobody corrects Meese, who tells the nation a similar story the next day, at a nationally televised news conference.

Item: Toward the end of an April 15, 1973, meeting with President Nixon, White House Counsel John Dean was surprised when Nixon "got up out of his chair, went behind his chair to the corner of the Executive Office Building office, and in a barely audible tone said to me he was probably foolish to have discussed [E. Howard] Hunt’s clemency with [Charles] Colson." This led Dean to suspect that the office was bugged. (It was.)

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A Step Toward a Jury of One’s Fears

by Stuart Taylor, Jr.

"We have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death."

Justice Clarence Thomas, who has often condoned unfairness to defendants, has it right this time. His was the most telling point in the fiveopinions generated by the Supreme Court’s unfortunate June 18 decision to bar criminal defendants and their lawyers from talcing account of race in jury selection.

The majority’s bizarre holding in Georgia v. McCollum was that defense lawyers violate prospective jurors’ equal-protection rights-and do so on behalf of the state-when they use their peremptory challenges to strike people they suspect might be less sympathetic to the defendant because of their race.

This does violence both to the fairness of the criminal-justice process and to the integrity of the state-action doctrine. It also, paradoxically, vindicates the symbolic appearance of racial inclusion at the expense of the concrete interest of black defendants in choosing black jurors.

McCollum has been welcomed by some as a logical and benign corollary of the Court’s 1986 decision in Batson v. Kentucky to bar prosecutors from using peremptories to remove blacks from juries.

But the reality is that Justice Harry Blackmun’s majority opinion is a classic example of good intentions gone wrong and step-by-step extensions of legal doctrine gone too far.

The notion of curbing race-based peremptories by defendants may seem momentarily attractive to liberals in the wake of the acquittal of four white Los Angeles cops, who beat black motorist Rodney King, by a Simi Valley jury that included no blacks.

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The Shame of the Southern Democrat

by Stuart Taylor, Jr.

Imagine a big, big case in which prosecutors in the proudest U.S. attorney’s office in the land are presented in midtrial with strong evidence of perjury by their star witness.

Imagine the witness then privately admitting to the prosecutors that he has just told a false cover story and offering them a revised story so preposterous that a child could see through it.

Imagine the prosecutors putting the witness back on the stand to tell this story while omitting the details most devastating to its plausibility. Imagine them persuading the rabidly pro-prosecution judge to bar the defense from putting before the jury records that conclusively proved the witness’s perjury. Imagine them vouching for the witness’s truthfulness in their summations.

That is essentially what Assistant U.S. Attorneys Baruch Weiss and Elliott Jacobson of the Southern District of New York did three years ago-with what Weiss claims was high-level approval-to convict E. Robert Wallach (former Attorney General Edwin Meese III’s close friend) on charges involving the Wedtech Corp.

And that is what prompted the U.S. Court of Appeals for the 2nd Circuit last year to overturn Wallach’s conviction as tainted, holding that "the prosecutors may have consciously avoided recognizing the obvious"-that former Wedtech official Anthony Guariglia was lying about his gambling activities.

But it didn’t end there. Now Weiss and Jacobson are pressing with self-righteous zeal to try Wallach again. And despite-or perhaps because of-the questions this case raises about the institutional integrity of his office, U.S. Attorney Otto Obermaier defends the handling of Guariglia as "fully consistent with the high ethical standards I expect" and the reprosecution of Wallach as "the right thing to do."

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Enough of the Grand-Jury Sham

by Stuart Taylor, Jr.

"The grand jury . . . historically has been regarded as a primary security to the innocent against hasty, malicious and oppressive prosecution; it serves the invaluable function in our society of standing between the accuser and the accused."

Hogwash.

There was not much left of the grand jury’s role as a check on prosecutors when Chief Justice Earl Warren wrote these words 30 years ago, in Wood v. Georgia. There is almost nothing left of that role now, as Justice Antonin Scalia made clear in his little-noticed opinion on May 4, in United Stales v. Williams. The 5-4 Supreme Court decision strongly suggested that courts may never dismiss an indictment on the ground that the prosecutor refused to share exculpatory evidence-no matter how compelling-with the grand jury.

Scalia’s categorical assertion of "the grand jury’s functional independence from the judicial branch" also bespeaks a broader agenda of locking the grand jury into its modern role as the docile tool of executive-branch prosecutors by foreclosing any possibility of meaningful judicial supervision.

The Williams decision makes it clearer than ever that Congress should act to make the grand jury a real check on prosecutors-or, if it won’t, that all of us should put an end to the grand-jury charade.

By this I mean the habit of lawyers, judges, journalists, and others of routinely using the "grand jury" prefix to lend a false patina of solemn, communitarian legitimacy to investigations, subpoenas, and indictments that are, in fact, essentially unilateral decisions by prosecutors.

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Special Journalist Indicts Special Counsel

by Stuart Taylor, Jr.

Judge Malcolm Wilkey, Retired "Special Counsel" c/o Attorney General William Barr Department of Justice Washington, D.C. 20530

Dear Judge Wilkey:

By open letter of April 20, 1992, the Office of Special Journalist notified you of our self-appointment to investigate your investigation of the so-called House Bank.

You are hereby notified that our grand jury (a rubber stamp, like yours) has returned an indictment charging you with four counts of prosecutorial misconduct:

(1) knowingly presenting the House of Representatives with a grotesquely overbroad subpoena for financial records of all 435 members;

(2) smearing the Congress with a false aura of criminality, for the purpose and with the effect of coercing members to abandon their constitutional rights to challenge said subpoena;

(3) betrayal of your own first principles;

(4) false pretense of impartiality, while acting like a ventriloquist’s dummy for your very partisan former law clerk. Attorney General William Barr.

Our investigation continues into whether you may have committed more serious offenses. These may include conspiracy to abuse the Justice Department’s authority to help President Bush and other Republican candidates under the guise of non-partisan criminal investigation.

We have been so impressed (though hardly pleased) by the boldness of your drift-net fishing expedition into House members’ financial affairs that we are using your subpoena as a model. Accordingly, we hereby demand that you supply the Office of Special Journalist, by Thursday, May 7, with:

A. All extant banking, credit-card, investment, gambling, speech-honoraria, and other financial records; all tax returns; and all professional and personal correspondence, telephone records, and medical records, for you since birth, and for your wife since you were married.

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From the Files of a ‘Special Journalist’

by Stuart Taylor, Jr.

Judge Malcolm Wilkey, Retired

Special Counsel
c/o Attorney General William Barr
Department of Justice
Washington. D.C. 20530

Dear Judge Wilkey:

 

I have appointed myself "Special Journalist" to investigate your investigation into whether any crimes were committed by members of the House of Representatives in connection with the so-called House Bank.

This is your formal notice of investigation and first set of interrogatories.

The issue under investigation by the Office of Special Journalist is whether any crimes, abuses of prosecutorial power, or sleazy political stunts have been, are being, or may in the future be committed in connection with your inquiry.

I. Factual Predicate

The factual predicate of the investigation includes allegations that your inquiry is being exploited for partisan political advantage by the Attorney General and/or other members of the Bush Administration.

Anonymous informants no less reliable than the Justice Department witnesses in the Manuel Noriega case have reported to this Office that such a political conspiracy may exist; that its members may include the Attorney General, U.S. Attorney Jay Stephens, and others; and that you may have been its witting or unwitting tool.

Among the allegations are the following:

(1) That public disclosures to date contain not a shred of evidence that any serious prosecutor would consider a reasonable basis for suspecting criminal activity by any House member.

(2) That while a handful could conceivably owe back taxes for any overdrafts large enough to be considered interest-free loans, that’s no crime, as you well know.

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On Appeal, KO the Tyson Verdict

by

Stuart Taylor, Jr.

A prediction: Mike Tyson’s rape conviction will be reversed on appeal.

It certainly should be. The trial judge denied Tyson a fair trial by unjustifiably excluding important defense evidence, including testimony that would (if true) have shown Tyson’s accuser lied when she denied necking in his limousine.

Judge Patricia Gifford may also have violated due process in using Indiana’s rape shield law to bar evidence of a possible motive for Tyson’s accuser to fabricate the rape charge.

And the judge erred egregiously in refusing to tell the jury that the prosecution must prove that Tyson did not reasonably believe that Desiree Washington had consented to sex.

These flaws in Tyson’s trial in Marion County Superior Court, in Indianapolis, were so palpable that on the merits, at least, this date-rape appeal should be like shooting fish in a barrel.

So please, when the Feb. 10 conviction is reversed, spare us another self-promoting movie a la "Reversal of Fortune" about Harvard law Professor Alan Dershowitz (Tyson’s new lawyer) brilliantly riding to the rescue.’

And conversely, if the Indiana courts prove unwilling to correct this clear injustice, let’s not blame Dershowitz. This appeal will turn on the quality of the judging, not of the lawyering.

That’s not to say Tyson is innocent, or Washington is lying. He has a long, ugly history of brutal conduct towards women, and the excluded evidence doesn’t prove he did not rape the 18-year-old beauty contestant. It just casts grave doubt on the credibility of the only witness who says he did.

Tyson is entitled to a new trial at which the jury gets to hear all the relevant evidence and gets a proper instruction on the prosecution’s burden of proving criminal intent.

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Lies, Damn Lies, and Sex Lies

by Stuart Taylor, Jr.

Bill Clinton, Clarence Thomas, and Charles Robb have more in common than ill-starred acquaintanceships with women.

Their problems raise a question gnawing at our body politic: Is it ever justifiable, or at least forgivable, for one who holds or seeks high office to lie to the public to protect himself?

My gut tells me no. In a political culture increasingly polluted by mendacity of all kinds, it’s tempting to call for a zero-tolerance attitude toward political lying.

But recent experience suggests an exception: We should not judge too harshly those who lie (or whom we suspect of lying) to deflect the ever more shameless intrusions by news media into deeply private matters.

The issues are framed by the Clinton and Thomas cases. We should, of course, be reluctant to judge either of them guilty of deception without very strong proof. But suppose we had conclusive evidence that they lied. Would that alone demonstrate unfitness for high office?

The answer, I submit, should be yes in Thomas’ case and no in Clinton’s.

If I am right, then the judgment of the nation on Thomas and the conventional wisdom on Clinton are both wrong.

Thomas was confirmed even though. I am convinced, a majority of both the Senate and the public did not really believe he had told the truth, the whole truth, and nothing but the truth in his blanket denials of Anita Hill’s charges.

While many who sided with him may have believed every word of his testimony, many others-enough, probably, to account for his margin of victory-did not. They (and I) found it difficult to believe that Hill had made up her story out of whole cloth. And therefore they found it difficult to credit Thomas’ assertions that he had never once asked Hill for a date, or mentioned pornography to her, or said any of the things she alleged.