House Pushes Tighter Ethics
for U.S. Prosecutors
By Vicki Allen
H.R. 3396 - Citizens Protection Act of 1998 - A bill to establish
standards of conduct for Department of Justice employees, and to
establish a review board to monitor compliance with such standards.
August 5, 1998
WASHINGTON (Reuters) - Charging that too many federal prosecutors -- including
independent counsels -- are abusing their powers, the House Wednesday voted to
tighten controls on Justice Department prosecutors.
The House approved a plan that would order federal prosecutors to comply with
ethical standards of the individual states in which they were operating and to
set up an independent review board for complaints on prosecutors' conduct.
A number of Democrats took the opportunity to blast independent counsel
Kenneth Starr, who was appointed by Attorney General Janet Reno to probe
accusations against President Clinton.
Rep. Maxine Waters of California called him "the poster-boy for unethical
prosecutors. What we are talking about is individuals who have run wild, who
have trampled on our rights."
"For months we have heard complaints about prosecutorial misconduct, including
leaks, by Independent Counsel Starr," said Rep. John Conyers, a Michigan
Democrat who sponsored the measure to include the independent counsel.
Conyers said he had been "frustrated by the inability to obtain a fair process
to review these allegations," and said the House "has spoken clearly and
unambiguously that such complaints should and will be heard in the future."
The House voted 249-182 for an amendment to specify that independent counsels
or special prosecutors would be under the new controls, then voted 345-82
against an amendment to strip the new ethics controls from the $33 billion
spending bill for the Commerce, Justice and State departments the House was
considering.
Critics said this plan -- opposed by Reno -- would undermine multi-state
investigations of racketeering and drug operations, hamstringing prosecutors
with conflicting state standards and the threat of the oversight board that
could make their entire cases public.
"This is a law enforcement issue. This would jeopardize our fight in the war
against drugs. The winner would be the drug cartels, fraudulent telemarketing
operations and Internet pornographers," said Arkansas Republican Rep. Asa
Hutchinson, who said law enforcement organizations such as police, sheriffs,
and drug enforcement groups oppose the change.
Tennessee Republican Rep. Ed Bryant said the under the plan, "allegations of
bringing discredit on the (Justice) department could stop a prosecution,
diverting attention from the underlaying investigation to the misconduct
investigation."
But backers offered the case of Pennsylvania Republican Rep. Joseph McDade, a
co-sponsor of the measure who was acquitted in 1996 after an eight-year legal
battle over charges he accepted gifts from defense contractors in return for
helping them get federal contracts.
"I sat beside the gentleman from Pennsylvania for eight years while he was
under under persecution" by federal prosecutors, Rep. John Murtha, a
Pennsylvania Democrat, said.
"What chance would an individual have against the Justice Department if they
would go after one of the most prominent members of Congress?" Murtha said.
Murtha claimed that federal prosecutors hounded McDade, using leaks and other
unethical methods.
On August 5, 1998, funding for this bill was discussed on the House floor. An
amendment was introduced by Mr. Hutchinson to strike funding for the bill
entirely from the DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY,
AND RELATED AGENCIES APPROPRIATIONS ACT, 1999. An amendment was introduced by
Mr. Conyers to not only retain funding for this bill, but to also include
independent and special counsel as well in it's provisions. A vote on the
Hutchinson amendment was declined, and a vote on the Conyers amendment was
returned 249 to 182 in favor. This means that the provisions of the bill should
be included in funding for the appropriations act for 1999, and will include
independent and special counsel. I've posted the floor discussion, with links
below, in 3 parts. It is quite lengthy, but will give you some idea of how
legislation is debated and decided in Congress.
DOJ Lawyers Must Obey the Law!
Congress Passes Measure Re-Establishing That Federal Prosecutors Are Bound by
Rules of Ethics
Washington, DC, October 21, 1998 -- Today's passage by Congress of the
"Citizen's Protection Act," as Section 801 of the omnibus spending bill, stops
in its tracks backdoor attempts by DOJ to hold its lawyers above the laws of
ethical conduct which apply to all lawyers.
Contrary to some reports, the provision simply reaffirms longstanding principles
which in recent years have been brushed aside by the Department. DOJ lawyers,
like all other lawyers, are and historically have been answerable to the high
court of the state or states by which they have been granted a license to
practice law. But since 1989, DOJ has claimed that its lawyers can ignore the
fundamental ethical prohibition against contacting represented persons without
their lawyers (ex parte contacts), in order to intimidate and interrogate
employees of corporations and small businesses, and individual citizens, under
criminal or civil (regulatory) investigation.
The Department's refusal to abide by the fundamental rules of ethical attorney
conduct has been roundly condemned by state and federal courts, including a
unanimous resolution of the Conference of State (Supreme Court) Justices. Most
recently, the Eighth Circuit U.S. Court of Appeals soundly rejected the DOJ's
position, in a case concerning a government regulatory investigation of major
defense supplies company McDonnell Douglas. United States v. McDonnell Douglas
Corporation, 132 F.3d 1252 (8th Cir. 1998).
Now, following an overwhelming bi-partisan 345-82 House vote in August, the full
Congress has put a stop to Justice Department attempts to evade the rules by
which all lawyers are supposed to abide, as required by the State Supreme Courts
granting those lawyers their licenses. The measure also covers independent
counsels. It affords the Attorney General 180 days from the date of enactment to
make and amend DOJ rules to assure compliance with the section.
"No one, not even a federal prosecutor, is above the law," NACDL President Larry
S. Pozner, of Denver, said today. "Congress has set the record straight and put
an end to the Department's arbitrary policy of deciding which ethical rules it
will obey or disobey -- a policy that has squandered scarce tax dollars and
abused citizens' rights."
"It only makes sense for Congress to condition its allocation of citizen tax
dollars to DOJ operations on principles of fundamental fairness -- specifically,
that federal prosecutors employed through the public purse abide by the rule of
law," Pozner said.
FACT SHEET:
"Congress Is Right to Reject DOJ Attempts to Hold Itself Above the Law, and
Insist That Prosecutors and Regulatory Lawyers Abide by Basic Rules of Attorney
Ethics."
"[The prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore . .
. is not that [he] shall win a case, but that justice shall be done . . . . He
may prosecute with earnestness and vigor -- indeed, he should do so. But, while
he may strike hard blows, he is not at liberty to strike foul ones." Berger v.
U.S., 295 U.S. 78, 88 (1935) (Sutherland, J.).
Nor should his boss, the nation's Top Prosecutor, be able to make it otherwise.
Far from "constitut[ing] an unwarranted and unnecessary interference with the
lawful and effective functioning of federal attorneys and law enforcement
agents" -- as greatly over-stated by the Department of Justice -- the "Citizens
Protection Act," passed by Congress as a condition of the allocation of citizen
tax dollars to DOJ operations, ensures that the conduct of federal lawyers is
lawful.
DOJ's claim, that Section 801 applies the State Supreme Court rules of attorney
ethics to Department of Justice lawyers for the first time, is entirely false.
Before 1989, DOJ did not claim, as it now does, that it is above the law. The
Department successfully investigated and prosecuted plenty of organized crime,
drug trafficking, money laundering, and terrorist cases, and all federal
criminal cases, before 1989. But in a 1989 internal memorandum and a 1994
regulation, DOJ has asserted the untenable position that its lawyers are above
the law of ethical attorney conduct -- that federal lawyers need not abide by
the fundamental rules of appropriate attorney conduct by which all lawyers are
supposed to abide; DOJ will make up its own rules of ethics and "police its
own."
Specifically, since 1989, DOJ has asserted that its lawyers alone can ignore the
laws against interrogating citizens, employees of corporations and small
businesses under criminal or civil (regulatory) investigation, outside the
presence of counsel. This is one of the most fundamental attorney ethics rules,
adopted by State Supreme Court law-licensing authorities and the federal courts:
the rule against ex parte contacts with represented persons.
Section 801, the Citizens Protection Act, simply re-establishes the historical
and ethical status quo before the Department of Justice unilaterally claimed the
power to evade the State Supreme Court licensing rules of attorney conduct, and
local federal court rules of appropriate attorney conduct without any actual
authority to do so.
The State Supreme Courts have always borne the exclusive responsibility for
admitting attorneys to the bar and for their discipline. As the U.S. Supreme
Court has said: "Since the founding of the Republic, the licensing and
regulation of lawyers has been left exclusively to the States and the District
of Columbia within their respective jurisdictions. The States prescribe the
qualifications for admission to practice and the standards of professional
conduct. They also are responsible for the discipline of lawyers." Leis v.
Flynt, 439 U.S. 438, 442 (1979). Local federal courts often adopt at least some
of the rules of appropriate attorney conduct required by the highest court in
the State in which the federal court exists, as the local federal court rules of
attorney conduct.
The Department's position has been roundly condemned as unconstitutional by
state and federal courts, including a unanimous resolution of the Conference of
State Courts. Most recently, the Eighth Circuit U.S. Court of Appeals rejected
DOJ's untenable position, in a case concerning a government regulatory
investigation of the McDonnell Douglas Corporation, U.S. v. McDonnell Douglas
Corporation, 132 F.3d 1252 (8th Cir. 1998).
Indeed, Congress has consistently declared that each Department of Justice
lawyer employed through the public purse must be "duly licensed and authorized
to practice as an attorney under the laws of a State, territory, or the District
of Columbia." Department of Justice Appropriation Authorization Act, Fiscal Year
1980, Pub. L. No. 96-132, 93 Stat. 1040 (1979) (this provision has been
reenacted in successive years). The courts have held that this statute requires
prosecutors to comply with the attorney ethics rules of their respective states
of admission. See e.g., U.S. v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd,
54 F.3d 825 (D.C. Cir. 1995). In passing the Citizens Protection Act as a
condition of Department of Justice appropriations, Congress has simply and
wisely reasserted that federal government lawyers are not above the law, but
must indeed abide by the state licensing authorities' rules of ethics (and the
local federal court) rules of attorney conduct -- just as Congress has always
intended and as the courts require.
This Congressional curbing of the Department's unethical conduct rightly
recognizes that legitimate law enforcement concerns cannot justify DOJ's
self-creation of less demanding ethics rules for its own prosecutors and
regulatory lawyers. The judiciary has consistently read the rule against contact
with represented persons, and other ethics rules, to permit federal prosecutors
reasonable leeway to perform their duties -- e.g., in the "in-house mob lawyer"
hypothetical DOJ so often cites. In exceptional cases like these, government
lawyers should, as they have historically, simply seek judicial authorization
for an exception to the rules, just like with warrant or wiretap requests. A
judicial authorization according to the applicable laws and rules of conduct, by
the neutral judicial authority, would meet the well-recognized "authorized by
law" exception to the legal rules against interrogating persons outside the
presence of their lawyers. Indeed, neither DOJ nor any other law enforcement
group has cited an actual ethics case placing an unreasonable restraint on law
enforcement.
As to the Department's assertion that Section 801 might threaten multi-district
prosecutions, the reality is that very few federal government attorneys ever
practice in more than one state. And those who do can seek judicial
authorization reconciling any claimed disparity in rules of conduct, just like
lawyers in private practice who are involved in multi-district litigation.
Again, the judiciary has consistently read the rule against contact with
represented persons, and other ethics rules, to permit federal prosecutors
reasonable leeway to perform their duties. And DOJ has cited no actual ethics
cases placing even an arguably unreasonable restraint on multi-state law
enforcement.
Likewise, contrary to recent Department of Justice statements, there is no
"haphazard patchwork" of state bar and local federal court rules of attorney
ethics. They are all essentially the same. In fact, the rules of ethics are a
required course of study in all law schools and are tested on all bar exams. All
attorneys are expected to know these rules and abide by them. All other
attorneys, including state prosecutors (who prosecute the vast majority of
criminal cases in this country), manage to do so.
The measure passed today by Congress was the subject of hearings in the House
Judiciary Committee in September 1996. A comprehensive hearing record is
available, which includes the DOJ's unpersuasive attempt to justify its
position. See Ethical Standards for Federal Prosecutors Act of 1996, Hearing
Before the Subcommittee on Courts and Intellectual Property, Committee on the
Judiciary, U.S. House of Representatives, Serial No. 109 (104th Congress). House
Judiciary Committee Chairman Henry Hyde is among those wise leaders supporting
this measure.
Since the House Judiciary Committee's hearing, DOJ has actually stepped up its
unlawful campaign to thwart state laws on the ethical conduct expected of those
lawyers to whom the states have granted a license to practice law. DOJ started
squandering its congressionally-appropriated tax dollars by instigating federal
lawsuits against the states. The Department has forced the states to spend their
tax dollars in these federal cases defending their right under the fundamental
constitutional principle of Federalism (state prerogatives and
responsibilities), to ensure that the lawyers to whom they grant a license to
practice law (a core state function) actually abide by the states' standards of
ethical attorney conduct. A case in point is the one recently brought by DOJ in
federal court against Louisiana in December, 1996. The Department soaked up the
scarce resources of the Louisiana Supreme Court, represented by the Louisiana
Attorney General -- and squandered congressionally-appropriated federal tax
dollars -- for over seven months before the case was dismissed. There was no
actual or potential interference with any federal investigation even claimed,
along the lines of the hypothesized horrors DOJ has presented. The Department
simply asserted its roundly condemned argument that it is "supreme" in its
ability to self-exempt itself from the basic state supreme court law licensing
rules of attorney ethics.
The rule of law is the bedrock of our democracy. Lack of accountability, and
special exemptions from the law for federal employees engenders a crisis in
citizen confidence in our democracy. It only makes sense for Congress -- the
people's representative body -- to ensure that its allocation of money from the
public purse to DOJ operations is conditioned on the basic requirement that
lawyers employed through such tax dollars abide by the rule of law, as required
by the independent state and federal judiciary. The chief sponsor of this
important measure, Representative Joseph McDade, and the entire Congress are to
be commended for re-establishing this fundamental protection of the citizenry
against excessive conduct by federal prosecutors and regulatory lawyers.
Escalation of the Debate Over Abuse of Prosecutorial Powers:
Federal Court Rejects Leniency Promises - 10th Circuit U.S. Court of
Appeals rules that promising lighter sentences in exchange for damaging
testimony is tantamount to bribery. (U.S. v. Singleton - Full Text of
Decision)
Media Coverage of U.S. v. Singleton.
United States Code, Title 18, Section 201©(2) - The Bribery Statute.
11th CIRCUIT LEGAL RULING FUELS PLEA BARGAIN DEBATE - Judge Zloch
supports bribery interpretation. (U.S. v. Lowery - Full Text of
Decision)
Media Coverage of U.S. v. Lowery.
Michigan Decision Supports the Status Quo.
STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION - from the American
Bar Association.
RECENT IDENTIFIED INSTANCES OF PROSECUTORIAL MISCONDUCT
S. 2311 - Effective Prosecution and Public Safety Act of 1998
H.R. 3396 - Citizens Protection Act of 1998 - A bill to establish
standards of conduct for Department of Justice employees, and to
establish a review board to monitor compliance with such standards.
House Pushes Tighter Ethics for U.S. Prosecutors - by Vicki Allen,
Reuters News Service - Commentary on H.R. 3396.
For further commentary, visit these criminal law web sites:
The National Association of Criminal Defense Lawyers (NACDL)
Punch and Jurists - The Cutting Edge Guide to Federal Criminal Law
We the Sheeple - A Criminal Justice Bulletin Board
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