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State & Local News Vol. 21, No. 3, Spring 1998 Otto J. Hetzel is a professor of law emeritus at Wayne State University and practices law in Washington, D.C.
By Otto J. HetzelControversial Actions of Independent Counsel Increase Sentiment for Restricting Authority or Abolishing Office When Act Must Be Re-Enacted Next Year. "Inside the beltway" it's not been possible to escape the turmoil caused by independent counsel Ken Starr's investigation of the White House and President Clinton on several fronts. His prosecutorial tactics have been strongly criticized by a wide spectrum of commentators. The negative reactions some see as his excessive zeal have put the independent counsel statute at risk of being significantly limited or even abolished when current authority lapses in 1999. Defenders of Starr point out that the prosecutorial methods being used are normal, although whether they are appropriate for the nature of the possible crimes being investigated and their underlying sexual context can be questioned in comparison to the crimes involving government operations at issue in the Watergate and Iran-Contra investigations. What has made the job more difficult for Starr, aside from reactions to his tactics, is the media's intense scrutiny of the current proceedings, which first ravaged the President and now fuel criticisms of Starr. Numerous talk shows have taken on all of the over-analyzed conjecture to which the O. J. Simpson trial was subject. In such an atmosphere, it is no wonder that the fairness of the investigation has suffered. Starr's actions, moreover, have not helped. There is a perception of a parade of persons before the grand jury, many with little apparent contributions to relevant fact gathering (appearances that often impose a $10,000 sanction for costs of legal representation). Starr's investigation has been characterized as a $40 million vendetta rather than an even-handed approach. Twitch or talk with anyone involved, and you may get subpoenaed. Overly Aggressive Prosecution Tactics Reduce Legitimacy. Use of hard-nosed prosecutorial techniques to develop an obstruction of justice prosecution over not revealing sexual relationships has turned public opinion strongly against the investigation, regardless of the ultimate result. Starr's personal approval rating recently sank to 11 percent. Illustrative of what many lawyers are saying privately, ABA President Jerome J. Shestack, at a symposium on the Independent Counsel Act, asked, without naming Starr, whether prosecutorial zeal could justify sting operations and unauthorized wiretapping to turn noncriminal, alleged sexual indiscretions into criminal obstruction of justice. He also questioned the propriety of any prosecutor over a number of hours pressuring a witness without her lawyer present to accept immunity and testify. Others have questioned basing a case on illegally taped phone conversations. Various selection criteria and responsibilities of independent counsels have also been challenged, including whether prior political activity should be a disqualification, whether retaining conflicting client relationships was acceptable, and whether continued financial association with partisan groups should be countenanced. Violation of these norms undercuts the legitimacy of the independent counsel's actions and are inconsistent with the Act's objective for an investigation independent of the administration and opposition partisan interests as well. Other Starr tactics criticized have included: calling a White House aide before Starr's grand jury to inquire into contacts with the press to inhibit derogatory information being released about Starr's staff (this did not help Starr's relationships with the fourth estate); his limited perception of First Amendment guarantees as subject to "the search for truth" when he was challenged on it; calling witnesses without relevant factual knowledge, apparently culled from press conjecture; and, subjecting Monica Lewinsky's mother to several days of painful questioning as to what her daughter told her. The leaks of secret grand jury testimony and of the President's deposition in the Jones matter have further undermined the legitimacy of the investigation. Those outside the United States are totally mystified with the thought that covering up a sexual relationship, if there was one, could be grounds for incapacitating a sitting President. Indicative of many of the harsh judgments of Starr's investigation were the comments from the original Special Counsel in Watergate, Archibald Cox, who referred to the current proceedings as "a hunt, not an investigation." Others have termed it "an inquisition," supported by conservatives, including Starr, who feel they have a moral purpose-to topple Clinton. Not dissimilar moral justification was given at the time of the Spanish Inquisition from 1480-1834. Hopefully, the present activities will terminate more quickly. The public's abhorrence of prosecutorial excesses appears to be at the heart of the public discontent being expressed by what is happening. Few are not distressed by what society is doing to itself and its institutions by allowing for such unfettered investigations. A Shaky Legal Foundation for Initiating the Investigation. Adding fodder to the criticism of Starr's tactics is the perception that the legal justification for the investigation is invalid. A number of legal commentators have pointed out that Starr used Linda Tripp's illegally taped phone conversations, originating in Maryland, to justify his investigation. These are not only illegal there, but the law invokes "the fruit of the poisoned tree" doctrine to invalidate any other use of such recordings. Starr, however, tried to justify putting a microphone on Linda Tripp based on these tapes to generate new evidence to support the allegations in them so he could then request approval from the Attorney General and the three-judge panel for him to undertake the investigation. If the evidence is barred, it cannot form the justification for an investigation related to its contents. The interplay of federal and state laws has some impact here as to the legality of the taping, but bringing Lewinsky to Virginia reflects knowledge that the original Maryland conduct was impermissible. The telephone tapes have now been played to the grand jury, further tainting that process. Starr's access to the FBI from his ongoing investigations is the only reason that he could divert these resources to this purpose. His justification was that Vernon Jordan was also a suspect in Whitewater for having helped his golf buddy, Webster Hubbell, find a job to support his family. Similar efforts by Jordan on behalf of Lewinsky, Starr claimed, tied the two matters together. This is a slim reed to justify the actions taken and subjects Starr to criticism for a vendetta mentality. As a Practical Matter Can "Independent" Investigations of the White House Escape Politics? Many have criticized the leaks in grand jury secrecy and release of transcripts subject to restricted access under court order as indications of inordinate media and political pressures to which such high profile investigations will always be subject. At that level, aside from serious crimes affecting national interests, many believe that instilling confidence that the matter is being handled fairly and independently cannot be achieved. The handling of this investigation is likely to fuel opposition to re-enacting the statute when it terminates next year. Senate Majority Leader Trent Lott (R-Miss.) has called for the investigation to be wrapped up expeditiously. He has expressed his distaste for the Independent Counsel concept, while criticizing the President's failure to disclose facts. With no meaningful restraints upon his actions, Starr is perceived by many as a prosecutor "out of control." Commentators have noted that Starr's credibility and the independence of the inquiry at the heart of the Act have been damaged permanently. Professor Cass Sunstein of the University of Chicago Law School recently questioned whether such investigations were ever feasible in current climates of tabloid mentality where sensational allegations and conjecture abound. The media seem fixated on scooping the competition with little concern for validation of rumors. Justice Scalia's dissent in the case upholding the Independent Counsel Law has renewed force when he warned of the dangerous and novel kind of prosecutor it had created, one who was essentially accountable to no one and who was entirely focused on a single person. Independent Counsel Proceedings Already Have or Are Likely to Affect a Number of Legal Doctrines Between the Executive and Judicial Branches. A variety of important legal questions has arisen in the context of the Independent Counsel's search for evidence. As with the Watergate request for a judicial order for release of Nixon's tapes, the scope of executive privilege has been an issue for a number of subpoenaed presidential aides caught in Starr's efforts to obtain documents and depositions. Litigation on executive privilege is unlikely to arise (or be cost realistic) except when high profile cases are created in an Independent Counsel investigation unfettered by financial restraints. Indicative of what some see as the unseemly, all-out aggressive nature of Starr's investigation are the following attempts to invade the attorney-client relationship, destroy the relationship between the Secret Service and the President, and significantly limit the scope of executive privilege:
Supreme Court Accused of Bungling Clinton v. Jones Decision and Contributing to the Current Crisis at the White House. In a just published book, No Island of Sanity, Vincent Bugliosi (author of Outrage, which accused Simpson case prosecutors with not handling that matter competently) charges the Supreme Court with being naive and producing a shallow and shortsighted decision because of its failure to grasp what opening up a sitting president to a harassment charge could create. The results are now apparent. At the heart of the current circus atmosphere at the federal courthouse in D.C. is the interaction between the Paula Jones lawsuit against the President and the Independent Counsel's investigation of him. Bugliosi claims the Court addressed the issue as one of separation of powers and ruled as if the issue involved judicial deference to executive obligations. On the basis of prior precedents and historical commentaries, many constitutional authorities (and this correspondent) had anticipated a result more consistent with Justice Joseph Story's comment that a President, "while he is in the discharge of the duties of his office . . . must be deemed, in civil cases at least, to possess an official inviolability." Allowing the President to be distracted by potentially humiliating civil litigation at the obvious expense of running the government, Bugliosi argues, fails to balance the country's interests and the plaintiff's. The Court's rationale, that no citizen is above the law, was a non-issue, he suggests, since the President never contended he was above the law, but only argued for postponement until he was out of office. The situation presents difficult issues on how to balance potential loss of evidence if discovery is delayed against the high potential that such testimony will be leaked, as has now been clearly demonstrated. The potential of such politically motivated lawsuits has now increased for Clinton's successors unless Congress enacts legislation providing for tolling of liability during the President's tenure in office. Legislation has already been introduced to that end. Of course, for Clinton it is too late. Line-Item Veto Struck Down: Supreme Court to Hear Argument in April, Rule by July. District Court Judge Thomas Hogan found that allowing the President to cancel funds for individual projects in an appropriations bill was inconsistent with the President's obligation to sign or veto an entire bill under the "presentment" clause of the Constitution and was an unlawful delegation of congressional legislative power "to permanently shape laws and package legislation." The bill allows the President, within five days after signing a measure, to "cancel" specific dollar amounts of discretionary spending or tax benefits with less than 100 beneficiaries. The line item veto was supposedly aimed at "wasteful spending," often characterized as "pork." One man's pork, however, may be another's legitimate response to a public, local concern. The White House has also found that using this power was more difficult than originally anticipated. Clinton exercised his disputed power eighty-three times in eleven appropriation bills, "saving" $937 million over five years, but congressional overrides reduced this to $569 million. After his disastrous excursion into military appropriations that Congress has now re-enacted over his initial vetoes, the President took more care in what he vetoed, but not enough. Some have suggested that his failure to obtain renewal of fast-track trade authority was a result of having canceled too many provisions that members, including his supporters, had secured in appropriation acts. These are usually the result of hard-fought allocations to local needs, based on negotiations in Congress essential to allow for passage of an entire act, as columnist George Will has observed. Will points out that the item-veto concept should be particularly obnoxious to conservatives since it gives an inflated executive moral power to "cleanse" legislation of legislator's pork, and the veto involves a top-down concept of government, not the popular will. Several lawsuits were consolidated for the litigation. One was filed by the City and State of New York, hospital associations, and health advisors, while the other affected Idaho potato growers who had been provided tax breaks that the President invalidated. The earlier Supreme Court decision rejected jurisdiction on lack of standing of members of Congress, but the challenge this time is presented by those who can show they have been harmed by the denial of funds. Polarizing the Legal Profession: HUD Acts to Prevent Lawyers from Representing both HUD and Private Clients Who Use Its Programs. In a contract between HUD and the law firm of Holland & Knight LLP to provide legal services in connection with HUD's mortgage loan sales and property disposition program, HUD's contract permitted the law firm to continue to represent private parties before HUD; HUD approval for a representation would be required only where it would conflict with the specific work under the firm's contract. A Memorandum of Understanding incorporating that position, under which the firm operated with HUD's knowledge for two years, was abruptly repudiated by HUD's Office of General Counsel in 1997. HUD insisted that Holland & Knight could not represent any private parties before HUD unless with HUD's consent. This interpretation was challenged by the firm as inconsistent with the contract language and could have the effect of limiting the firm's work in the housing field to HUD alone. The firm offered to withdraw from its representation of HUD, especially given that the work involving some $400,000 in fees under the $1 million contract had been completed and the contract would expire by its own terms in March 1998. No response was forthcoming from HUD until January 8, 1998, when the Department exercised its option under federal government contract provisions to terminate for convenience. Unfortunately, this matter must have appeared grist for HUD's new enforcement program, because the Wall Street Journal carried a report that HUD had terminated the contract because of the firm's conflict of interest created by its representation of private parties whose positions were inconsistent with HUD policies on unrelated matters. HUD now includes precatory language in all its requests for proposals relating to legal services that would effectively prevent legal counsel experienced in these matters who have private clients using HUD programs from participating in HUD contracts. These restrictions require advance disclosure of all relationships and allow HUD to deny representation of private clients where the engagement could involve espousal of policies inconsistent with those of HUD. Presumably, one would have to clear all client positions in advance with HUD potentially impacting on the scope of representation possible. While HUD clearly can set whatever terms it desires on such relationships with outside legal counsel, its position is likely to discourage experienced firms with existing housing clients from advising HUD. The idea of a divided bar, on one side those supporting HUD and sharing in its legal work and on the other those who represent clients who may subsequently come into conflict with HUD requirements and policies, seems likely to undercut professionalism and create an insular perspective by denying representation of diverse client interests within the same professional area of practice. The Continuing Battle over Using Sampling for the Census: Allocation of Congressional Seats Between States at Issue Along with Distribution of Federal Funds. House Republicans have filed a federal court challenge to the Administration's use of statistical sampling for the year 2000 census, claiming that the Commerce Department will be violating the Constitution's requirement for an "actual enumeration." The lawsuit was authorized as part of a compromise to fund preparation for the census while allowing Republicans expedited review of their challenge to the legality of sampling. Republicans also intend to exercise close control over the Census Bureau's handling of the census by beefing up the investigative capacity of the House Committee that oversees it. Control of the House could be affected by whether statistical sampling can be used either with or in place of enumeration, a process that previously has undercounted minorities and the poor. Sampling is backed by the National Academy of Sciences. The 1990 census is estimated to have missed at least 10 million persons in its person-to-person count. The Commerce Department argues that sampling produces "the most accurate census possible." Proceeding with sampling, however, now means a court challenge and tight oversight committee hearings as well. Campaign Funding Control Proposals, While Supported by a Majority in Congress, Fail to Obtain the Sixty Votes Needed to Cut Off Debate. Just before release of the majority and minority reports on hearings held by Senator Fred Thompson's (R-Tenn.) committee on campaign funding abuses, which split along political lines, the Senate failed to get enough senators to favor McCain-Feingold legislation addressing many of the abuses. Mindful of the election impact of failing to restrict campaign finances, Democrats plan to continue to bring the issue up throughout the year. Probably it was getting too close to this year's elections for some to accept campaign funding limits now. Opposition Firms Up as Senate Committee Approves Federal Court Jurisdiction for Property Owners' Suits Opposing Property Takings by State and Local Governments. Following up on House action last year, the Senate Judiciary Committee has approved similar legislation involving property rights. Likely to have profound effects on state zoning proceedings and environmental regulations, the bill was supported by Senate Judiciary Committee chair, Orrin G. Hatch (R-Utah), but the vote was by straight party line. The President has committed to veto it and several Democratic senators have vowed to filibuster it. Democratic opposition is focused on the bill's potential for weakening environmental protection regulations. The bill impacts disputes over local zoning and other regulations on land use. Proponents claim it would achieve faster resolution of disputes over land-use regulation through expanded federal court jurisdiction. The bill would allow property owners immediate access to federal court jurisdiction in challenges to local regulations and abrogate the doctrine of abstention that allows federal courts to defer to state courts where state claims are involved. It would also provide for Court of Federal Claims jurisdiction in cases where plaintiffs either seek monetary damages, to invalidate federal laws and regulations, or to enjoin federal regulatory actions. Your correspondent
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