Tighter Ethics for U.S. Prosecutors

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


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


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


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.


"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


"[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


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


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


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


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


Media Coverage of U.S. v. Singleton.

United States Code, Title 18, Section 201©(2) - The Bribery Statute.


supports bribery interpretation. (U.S. v. Lowery - Full Text of


Media Coverage of U.S. v. Lowery.

Michigan Decision Supports the Status Quo.


Bar Association.


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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