Poorer but wiser: The bar looks back at its contribution to the impeachment spectacle

Fordham Law Review

Volumn 68, Issue 3, 1999, Pages 897-913

  Richard Uviller, H ^a  

^a NONE

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EID: 0347334543     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (63)

1. See Charles Dickens, Bleak House 3-7 (Oxford University Press 1956) (1853).
2. See Jerome J. Shestack, The Independent Counsel Act: From Watergate to Whitewater and Beyond - Foreword: The Independent Counsel Act Revisited, 86 Geo. L.J. 2011, 2013 (1998) ("Public confidence in the government and in the legal profession was shaken, since virtually all of the actors, including the President, were lawyers.").
3. Philip B. Heymann makes much the same point in Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 Geo. L.J. 2119, 2120 (1998) ("Independent counsels are different from ordinary prosecutors because they lack the practical pressures and institutional standards ordinarily operating to guide the exercise of prosecutorial discretion."). Heymann served as Deputy Attorney General and Associate Special Prosecutor in the Watergate investigation. See id. at 2119.
4. I am principally indebted, as succeeding citations will testify, to Georgetown Professor Julie R. O'Sullivan, formerly on the staff of both Robert B. Fiske, Jr. and Kenneth Starr, for enlightening my contemplation of this esoterica. It should be noted, however, that the electronic shelves groan under the academic output generated by the Independent Counsel experiment. I could not, and do not, propose to attempt here to provide a survey of this literature.
5. Julie O'Sullivan, in The Independent Counsel Statute: Bad Law, Bad Policy, 33 Am. Crim. L. Rev. 463, 484 (1996) puts it this way: "The constraints upon resources generally available to 'normal' federal prosecutors ensure that the criminal process will be effectively reserved for egregious violations in which criminal rather than civil prosecution is clearly appropriate."
6. See O'Sullivan, supra note 5, at 491.
7. See The Independent Counsel Reauthorization Act of 1994, 28 U.S.C. §§ 591-599 (1994). The statute was originally enacted as the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1867.
8. Cass Sunstein writes: The original goal of the Independent Counsel Act was simple, laudable, and entirely appealing: to ensure that the decision whether to prosecute high-level government officials would not be made by high-level government officials. In the aftermath of the Watergate scandal, a genuine constitutional crisis, the Act seemed indispensable as a way of promoting public trust in government, by giving an assurance that high-level officials would be investigated by people who were not controllable by their hierarchical superiors. Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 Geo. L.J. 2267, 2271 (1998).
9. See id. at 2281. Commenting on the success of the system before the enactment of the Independent Counsel Act, Sunstein notes: "The system worked. And there was no Independent Counsel [A]ct. The true lesson of the Watergate scandal is that political safeguards and ordinary prosecutors are perfectly sufficient." Id.
10. See O'Sullivan, supra note 5, at 476 n.57.
11. Just how independent the IC actually is under the Act is reflected in the debate over the "good cause" standard for presidential removal of the IC. See John F. Manning, The Independent Counsel Statute: Reading "Good Cause" in Light of Article II, 83 Minn. L. Rev. 1285, 1290-1301 (1999). The standard is frequently viewed as distancing the IC from executive control. See id. at 1287. Manning offers a "revisionist" view. He views the standard as allowing the IC's removal on reasonably debatable matters of legal judgment. See id. at 1288.
12. See Sunstein, supra note 8, at 2279-80 (recognizing the baleful effect of the single mission, even though his emphasis is on the justice-distorting incentives in the design of the Independent Counsel Act).
13. See id. at 2273. Noting that ordinary prosecutors regularly decide which of the many violations of law deserve prosecution, Sunstein comments: "This use of prosecutorial discretion, it should be emphasized, is a major, if overlooked, safeguard of liberty under law." Id.
14. See O'Sullivan, supra note 5, at 493 (rejecting the efficacy of this sort of post facto accountability). "If 'accountability' is to mean anything, ... it seems to me to require some degree of ongoing control to address such problems [as potential abuses and inequities] at the earliest possible moment." Id. at 494.
15. In fact, I did so report shortly after exchanging my badge for a cap and gown. See H. Richard Uviller, Commentary, The Virtuous Prosecutor in Quest of an Ethical Standard: Guidance from the ABA, 71 Mich. L. Rev. 1145, 145 (1973).
16. As the husband of a state court judge of general felony jurisdiction, I should hastily note that I am not at present intimately acquainted with any judges of this description.
17. Taping is illegal in the state of Maryland (where it occurred) without the consent of both parties. See Md. Code Ann., Cts. & Jud. Proc. § 10-402 (1973); Adams v. State, 406 A.2d. 637, 642 (Md. Ct. Spec. App. 1979). Under federal law, one consenting conversant takes the recording out of the category of eavesdropping. See 18 U.S.C. § 2511 (1994). Perhaps the IC, ignorant of the local law, thought himself on solid ground. Still, the upshot was that a private and frightened citizen, Linda Tripp, was required not only to violate the obligations of personal loyalty, but the law of the jurisdiction.
18. See Clinton v. Jones, 520 U.S. 681, 691-92, 705 (1997).
19. See Jones v. Clinton, 36 F. Supp. 2d 1118, 1121 (E.D. Ark. 1999).
20. See id. at 1121 n.5; infra note 22.
21. Depositions are normally taken before a clerk or a person appointed by the court and empowered to administer the oath. See Fed. R. Civ. P. 28(a).
22. She defined "sexual relations" as follows: "For the purposes of this deposition, a person engages in 'sexual relations' when the person knowingly engages in or causes . . . contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person." Jones, 36 F. Supp. 2d at 1121 n.5. The definition allowed the President, there and later before a grand jury, steadfastly to deny that he had engaged in the sexual relations - thus defined - with Monica Lewinsky. See id. at 1129-30.
23. Indeed, the President was asked if he had ever had an "extramarital sexual affair" or "sexual relationship" with Monica Lewinsky. See id. at 1129-30. The president answered he had not. See id.
24. When asked at his January 17th deposition if he had had an "extramarital sexual affair" with Monica Lewinsky, the President's answer was, "I have never had sexual relations with Monica Lewinsky." Id. at 1129. During his August 17th grand jury appearance, the President continually refused to answer questions concerning any specific sexual activity with Monica Lewinsky. See id. at 1130. He stated '"sexual relations' as defined by himself and 'most ordinary Americans' means, for the most part, only intercourse." Id. The President concluded "he did not engage in intercourse . . . [or] any other contact . . . that would fall within the definition of 'sexual relations' used at his deposition." Id.
25. The President stated that he had not had "sexual relations" with Monica Lewinsky because he had not engaged in "directly touching those parts of her body with the intent to arouse or gratify." Id.
26. See id.
27. See 18 U.S.C. § 1621 (1994).
28. Rule 404(a) of the Federal Rules of Evidence provides in pertinent part: "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . ." Fed. R. Evid. 404(a).
29. See Jones, 36 F. Supp. 2d at 1122 n.7.
30. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides in pertinent part: "The information sought [by deposition] need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). This language may be contrasted with Rule 30(c), which provides that, with two trivial exceptions, examination and crossexamination of witnesses by deposition "may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence." Fed. R. Civ. P. 30(c).
31. See Fed. R. Civ. P. 26(b)(1); see also Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (stating that "[n]o one would suggest that discovery should be allowed of information that has no conceivable bearing on the case.") (quoting 8 Charles Alan Wright et al., Federal Practice and Procedure § 2008 (2d ed. 1994)).
32. See Jones, 36 F. Supp. 2d at 1121-22.
33. Id. at 1127-28.
34. See Office of the Independent Counsel, Referral to the United States House of Representatives Pursuant to 28 U.S.C. § 595(c), H.R. Doc. 105-310 (2d. Sess. 1998), reprinted in [Forum ed. 1998] at 15.
35. In the ordinary case, of course, the perjury trap is sprung on the suspected malefactor against whom substantive evidence has failed to materialize (or, in the classic Alger Hiss case, prosecution on the substantive charge is barred by the statute of limitations). See United States v. Hiss, 107 F. Supp. 128, 129 (S.D.N.Y. 1952). If the witness declines - as expected - to fill the gap in the evidence against him, he is immunized and the questions narrow, eliciting denials that can be disproved.
36. See Richard A. Posner, An Affair of State 265 (1999) (stating that "we do not need an independent counsel law").
37. The scope of executive privilege is unclear post-Watergate. See Dawn Johnsen, Executive Privilege Since United States v. Nixon: Issues of Motivation and Accommodation, 83 Minn. L. Rev. 1127, 1141 (1999) (stating that Nixon's actions compromised the privilege); Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1185 (1999) (advancing the debate on the scope of executive privilege by offering reasons for questioning the privilege's constitutionality); Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 Minn. L. Rev. 1069, 1072 (1999) (stating that a reestablishment of executive privilege based on constitutional original intent rather than through statute is warranted).
38. The scope of executive privilege is unclear post-Watergate. See Dawn Johnsen, Executive Privilege Since United States v. Nixon: Issues of Motivation and Accommodation, 83 Minn. L. Rev. 1127, 1141 (1999) (stating that Nixon's actions compromised the privilege); Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1185 (1999) (advancing the debate on the scope of executive privilege by offering reasons for questioning the privilege's constitutionality); Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 Minn. L. Rev. 1069, 1072 (1999) (stating that a reestablishment of executive privilege based on constitutional original intent rather than through statute is warranted).
39. The scope of executive privilege is unclear post-Watergate. See Dawn Johnsen, Executive Privilege Since United States v. Nixon: Issues of Motivation and Accommodation, 83 Minn. L. Rev. 1127, 1141 (1999) (stating that Nixon's actions compromised the privilege); Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1185 (1999) (advancing the debate on the scope of executive privilege by offering reasons for questioning the privilege's constitutionality); Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 Minn. L. Rev. 1069, 1072 (1999) (stating that a reestablishment of executive privilege based on constitutional original intent rather than through statute is warranted).
40. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 913 (8th Cir.), cert. denied, 521 U.S. 1105 (1997).
41. See id. at 913-14.
42. See id.
43. See id.
44. See id.
45. See id.
46. See id.
47. See id.
48. See id.
49. See id.
50. See id. at 914, 923. The Court of Appeals reversed this conclusion, stating that it knew of "no authority, and Mrs. Clinton has cited none, holding that a client's beliefs, subjective or objective, about the law of privilege can transform an otherwise unprivileged conversation into a privileged one." Id. at 923.
51. See id. at 915.
52. See id. at 915-18.
53. See 8 John Henry Wigmore, Evidence in Trials at Common Law § 2192 (4th ed. 1961).
54. See Grand Jury Subpoena, 112 F.3d at 913, 918, 920; supra note 51.
55. Id. at 920 (citation omitted); see 28 U.S.C. § 535(b) (1994).
56. Grand Jury Subpoena, 112 F.3d at 921 (emphasis added).
57. See Stephen Gillers, Hillary Clinton Loses Her Rights, N.Y. Times, May 4, 1997, § 4, at 15.
58. I have recently written, in another context, of the issue of the allocation of responsibility for tactical and strategic decisions between client and counsel. See H. Richard Uviller, Calling the Shots: The Allocation of Choice Between the Accused and Counsel in the Defense of a Criminal Case, 52 Rutgers L. Rev. (forthcoming Apr. 2000) [hereinafter Uviller, Calling the Shots].
59. See Jeffrey L. Bleich, Executive Privilege and Immunity: The Questionable Role of the Independent Counsel and the Courts, 14 St. John's J. Legal Comment. 15, 32 (1999) ("Justice Departments under both Democrats and Republicans have taken the position that a sitting President cannot be indicted."); see also Posner, supra note 36, at 265 ("We do not need to be able to sue our Presidents during their term of office.").
60. The Model Rules of Professional Conduct defines a "normal client-lawyer relationship" as one that is "based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters." Model Rules of Professional Conduct Rule 1.14 cmt. 1 (1999).
61. For an example of this assertive approach, see United States v. Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998) (holding that it is not ineffective assistance - indeed, it is counsel's professional duty - to raise with the court the defendant's possible incompetence despite the defendant's wishes not to do so).
62. See Uviller, Calling the Shots, supra note 56.
63. See id.