The broader principle at stake is whether the president himself-any president-or any other government official can ever confide in or seek advice from a government lawyer without fear of compelled disclosure of their communications.

The answer is no, says Starr. If his broad claim prevails, it would mean that any conversations today between the president and his current White House counsel, Charles Ruff, about Whitewater-related issues could be subpoenaed by Starr’s grand jury tomorrow.

Starr won an unprecedented 2-1 decision by the U.S. Court of Appeals for the 8th Circuit that the White House and other government agencies are not protected at all, in the face of a federal grand jury subpoena, by the attorney-client privilege or the related attorney work product doctrine.

The logic of Judge Pasco Bowman’s majority opinion (filed April 9 and unsealed May 2) also casts doubt, as do Starr’s briefs, on whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants, congressional committees, or (it would apparently follow) criminal defendants who seek prosecutors’ notes of interviews with FBI agents.

If the 8th Circuit decision stands, any future president who is accused (as every recent president has been accused) of possible complicity in criminal conduct will be forced either to abandon any claim to the absolute confidentiality traditionally assured by the attorney-client privilege, or to confide exclusively in private counsel at huge personal expense.

The Clintons’ own retention of private counsel, to whom they owe several million dollars in unpaid fees, was attributable primarily to the Whitewater scandal’s roots in the Clintons’ pre-White House years, and is exceptional among modem presidents. But if Starr’s position prevails, this private-counsel exception may become the rule.

I’m no fan either of the Clintons, who have a history of hiding and fudging awkward facts, or of the current breadth of the attorney-client privilege, which is sometimes used to facilitate cover-ups and evasion of the law rather than compliance with it.

Nonetheless, the 8th Circuit’s holding seems too broad. It should at least be modified by the Supreme Court, even though (as discussed below) the White House might still deserve to lose on narrower grounds.

The case involves a subpoena by Starr’s grand jury for notes taken by White House lawyers at two meetings with Mrs. Clinton and her personal attorney, David Kendall of D.C.’s Williams & Connolly. The first session, on July 11, 1995, focused on Mrs. Clinton’s planned testimony about events following the July 1993 suicide of Deputy White House Counsel Vincent Foster; the second, on Jan. 26, 1996, was a debriefing during breaks in and immediately after Mrs. Clinton’s grand jury testimony about the belated discovery in the White House of her Rose Law Firm billing records.

Starr has made no claim that these consultations were part of a criminal cover-up, or that they would be unprotected by the privilege if just Mrs. Clinton and her private counsel had been present. Rather, Starr (and the 8th Circuit) contends that meetings attended by White House (or other government) lawyers are never privileged, at least as against a federal grand jury subpoena.

While defensible in theory, this view is at odds with the most closely relevant judicial precedents and the views of all recent administrations. It is also the opposite of the position that (I suspect) would have been taken five or 10 years ago both by Judge Bowman, a Reagan-appointed conservative, and by then Judge Starr, if (for example) Independent Counsel Lawrence Walsh had subpoenaed all notes of President Ronald Reagan’s or George Bush’s consultations with their own White House lawyers about the Iran-Contra scandal.

In any event, Starr’s position smacks of changing the rules in the middle of the game to get the Clintons. Indeed, the opinions of both U.S. District Judge Richard Kopf of Nebraska, who dissented from the 8th Circuit decision, and U.S. District Judge Susan Webber Wright of Little Rock, who had initially quashed Starr’s subpoena, exude concern about the unfairness of retroactively applying a new rule of law against the Clintons.

(Kopf and Wright are Bush appointees. Judge Roger Wollman, who joined Bowman’s opinion reversing Wright, is another Reagan appointee.)

An unbroken line of lower court precedents holds that government entities like the White House can invoke the attorney-client privilege in civil cases. White House lawyers also stress that the attorney-client privilege has never been deemed any less applicable in criminal than in civil proceedings.

The White House adds that the Office of the President (like other government entities) enjoys a broad privilege for disclosures to government lawyers by the president and his aides, by analogy to a 1981 Supreme Court ruling, Upjohn Co. v. United States, that the attorney-client privilege of a corporation protects disclosures by its employees to its lawyers for corporate purposes.

Hillary Clinton is not a paid White House official, of course. But she is one of the president’s closest advisers, and every first lady functions as an official, with her own paid staff, for many purposes. Thus, the White House plausibly contends, the attorney-client privilege should protect the first lady’s communications with White House lawyers for….

The post The President and the Privilege appeared first on Stuart Taylor, Jr..

A momentary glance outward-from a taxicab, while reading a legal brief defending tobacco companies’ First Amendment right to advertise-sufficed to send the billboard’s message skipping through my synapses, sped by splashes of color.

Similar messages are everywhere-magazines, buses, drugstores, ballparks, T-shirts-pressing in on my two preteen daughters and their peers, as they careen with undue haste toward "woman things."

Can the government restrict such ads in the interest of protecting kids from getting hooked on deadly tobacco products? Or would such restrictions (if upheld) "destroy the commercial speech doctrine," as a tobacco lawyer argued earlier this year before U.S. District Judge William Osteen of Greensboro, N.C.?

This is the most important clash of constitutional principle-perhaps the most important issue of all-in the whole, vast, spreading tobacco war. It should be resolved by allowing the government reasonable latitude to restrict (though not to abolish) tobacco ads.

The First Amendment front is relatively quiescent for now. The Supreme Court declined on April 28 to review a federal appellate decision upholding Baltimore’s broad curbs on billboard advertising of tobacco and alcoholic beverages. Judge Osteen also avoided the First Amendment issue in his much-publicized April 25 decision on the Food and Drug Administration’s proposed regulations. While upholding the FDA’s jurisdiction to regulate the manufacture and sale of tobacco products, the judge blocked the agency’s proposed curbs on advertising and promotion on the ground that Congress had not specifically authorized such regulations.

But the First Amendment issue will keep coming back. The FDA will seek to reinstate its proposed advertising restrictions on appeal; the Federal Trade Commission seems poised to make its own attack on tobacco ads; New York and other cities may join Baltimore in imposing curbs; and any global settlement growing out of negotiations between the tobacco industry and its adversaries would require Congress to bless restrictions on advertising.

The tobacco companies (and others who profit from tobacco ads) are paying bundles to some of the best lawyers in the land to wrap the First Amendment around such ads. But the regulators have the better of the argument-with an assist from the lawyer who won the first Supreme Court ruling ever affording First Amendment protection to commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) .

That lawyer is Alan Morrison of the Public Citizen Litigation Group. As he and his colleagues Allison Zieve and David Vladeck contended in an amicus brief in the FDA litigation, while "commercial speech is entitled to substantial protection," the First Amendment does not mean that "a powerful seller-the tobacco industry-[may use] its resources to saturate the marketplace to promote dangerous products to impressionable minors."

The tobacco companies insist that their multibillion-dollar annual investment in advertising and promotion has neither the purpose nor the effect of hooking minors, but seeks solely to facilitate competition among rival brands for the dollars of confirmed adult smokers. Such claims are refilled by a mass of evidence.

There are internal documents, like the R.J. Reynolds marketing memorandum that stated: "If we are to attract the nonsmoker or presmoker, there is nothing in this type of product that he would currently understand or desire. Instead, we must somehow convince him with wholly irrational reasons that he should try smoking." There is also the common-sense perception that advertising aimed at enticing (say) 21-year-olds will entice teen-agers too.

And there is a large body of evidence that tobacco ads have, in fact, had a huge impact on teen-agers, whose smoking rates have soared. Camel’s share of the youth cigarette market rose from some 3 percent before its "Joe Camel" campaign to 13 to 16 percent within six years. Studies have also found a striking rise in smoking rates for teen-age girls after women were targeted by major promotional campaigns.

In any event, given the illegality in every state of selling tobacco products to minors, even the tobacco industry has had to concede the validity of curbing ads "directed at or primarily received by those under 18," in the words of tobacco lawyer Daniel Troy of D.C.’s Wiley, Rein & Fielding, during the Feb. 10 argument before Judge Osteen. "A ban on tobacco advertising in [the] Weekly Reader or Boys Life… would plainly be OK," Troy conceded. And the tobacco industry acquiesced long ago to the 1970 act of Congress that ended all cigarette advertising on television.

Similar logic would presumably force the tobacco companies to accept a ban on, say, cigarette billboards at the entrances to school parking lots-whether the ads were explicitly aimed at children (with images of Big Bird or Sabrina, the Teen-Age Witch) or at the mothers who dropped them off.

So we are in the realm of line-drawing and balancing-"narrow tailoring," to borrow Supreme Court buzzwords. And in that realm, the government "is entitled to reasonable latitude, particularly where no blanket ban is involved and the industry is left numerous alternative means of communication," in the words of the Public Citizen brief. For example, it notes, "limiting advertisements that young people are likely to see to a black-and-white, text-only format required the FDA to draw a bright line, and it drew that line at publications with 15 percent minor readership or 2 million minor readers. The industry did not suggest any alternative lines that would serve the FDA’s goals in a less intrusive way."

Likewise, while attacking the FDA’s ban on outdoor ads within 1,000 feet of a school or playground, the industry has not said where else a constitutional line could be drawn- whether at the 500-foot mark, as suggested in the industry’s own voluntary code, or perhaps at the schoolhouse door.

Rather, tobacco lawyers warn hyperbolically that allowing restrictions like those proposed by the FDA would start us down a slippery slope toward censorship of advertising of cholesterol-clotted steaks, ice cream, and gosh knows what else. But in reality, the slope is not all that slippery. It is illegal to sell tobacco (or alcohol) to minors; much tobacco advertising demonstrably undermines that ban; and tobacco is the only legal product that kills its customers when used as intended and in moderation.

Defenders of tobacco ads seek to have it both ways: They attack the FDA’s comprehensive restrictions as "a dramatically overbroad ban" (in Troy’s words) that would leave open too few avenues for the industry to advertise effectively to adults. On the other hand, the Baltimore law restricting billboard ads was attacked (by advertising companies) as too narrow to be effective, because it left open so many alternative avenues for ads.

But as the Supreme Court held in Florida Bar v. Went For It (1995), "Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression."

Tobacco lawyers find more comforting some of the justices’ language in last year’s splintered ruling in 44 Liquormart v. Rhode Island. The Court’s holding, however, is inapposite to FDA-style restrictions on advertising of tobacco (or of liquor, for that matter). The holding was that an absolute state ban on liquor price advertising violated the First Amendment when the evidence showed it to be completely ineffective in achieving its only ostensible goal-to promote temperance by raising prices (not to protect children)-and when prices could be raised much more effectively by a tax increase. The FDA is not proposing to ban price advertising or other purely informational ads for tobacco, and the evidence suggests that the restrictions it has proposed would save lives.

Indeed, advertising curbs may be the best tool available to pursue the paramount goal of reducing the number of kids who start smoking-especially compared with the billions in damage awards sought by states and individuals in suits against the tobacco industry. Such a massive transfer of wealth from the merchants of death to almost anybody else (even the trial lawyers) might be a good thing. But how many kids would it prevent from smoking?

Some, surely, due to higher prices. Studies suggest however, that most kids who smoke aren’t very price-sensitive, preferring the most advertised, most expensive brands to cheaper generic cigarettes.

Advertising curbs cannot solve our tobacco problem. Even prohibition would not do that (Witness our cocaine problem.) But advertising curbs could save thousands, even millions, of lives. And the First Amendment, properly construed, can coexist very nicely with reasonable restrictions on the kind of information-free, be-cool, image advertising represented by the Marlboro Man, Joe Camel, and that Virginia Slims billboard.

The post Free Speech vs. Kids’ Lives appeared first on Stuart Taylor, Jr..

Vice President Albert Gore’s may be his mantra at his March 3 press conference: "My counsel advises me that there is no controlling legal authority or case that says that there was any violation or law whatsoever in the manner in which I asked people to contribute to our re-election campaign."

Gore’s remarkable choice of words was designed to dance around this problem: A plausible case can be made that Gore’s high-pressure fund-raising calls from his White House office amounted to federal felonies, punishable by up to three years in prison.

But a plausible case can also be made that these calls were legal, if sleazy and perhaps unprecedented. The legal question turns out to be surprisingly tricky, as does the related question (touched on in my column last week, "Janet Reno’s Burden of Proof," Page 21) of whether the attorney general should seek an independent counsel to determine whether to prosecute Gore.

The relevant statute, 18 U.S.C. §607, makes it "unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 [FECA] in any room or building occupied in the discharge of official duties by any person mentioned in section 603," which in turn mentions (among others) "officer[s] or employee[s] of the United States."

This broad language appears on its face to cover what Gore did: The vice president is (the argument goes) both a "person" and an "officer or employee of the United States"; his White House office is thus a "room… occupied in the discharge of official duties by" such an officer, he admitted on March 3 that (while using a nongovernment credit card) he had made "telephone calls… from my office in the White House [in which] I asked people to contribute to our re-election campaign"; and FECA defines "contribution" to include money given "for the purpose of influencing any election for federal office."

To make things worse, a 1979 memorandum by the Justice Department’s Office of Legal Counsel held that an earlier version of §607 applied to "solicitations of private citizens" by (among others) the president and vice president. And an April 27, 1995, memorandum to White House staffers by then White House Counsel Abner Mikva stated: "Campaign fundraising activities of any kind are prohibited in or from government buildings…. This means that… no fundraising phone calls or mail may emanate from the White House." Similar memos had been circulated by Mikva’s predecessors.

But Gore, apparently deciding that these rules did not apply to him, leaned on fat cats by phone from his White House office. In his March 3 press conference, Gore asserted that "I understood what I did to be legal and appropriate." But he has not claimed that he consulted legal counsel at the time.

Clearly, this is a man who was more than willing to cut legal corners for the sake of his own political advancement and convenience-and to say afterward that "I’m proud of what I did," even while vowing never to do it again.

But is Gore guilty of a felony? I would say no, on the grounds that no sensible prosecutor would bring a case against him, and the courts should not let such a case go forward. One reason is that Gore’s phone calls did not clearly violate the apparent intentof §607. Another is that the letter of the statute should be bent somewhat to accommodate constitutional concerns.

The least convincing of the arguments in Gore’s favor may be the one upon which Reno implicitly relied in her April 14 letter refusing to seek an independent counsel to investigate Gore (among others): that §607 technically bars only the solicitation in federal offices of "contributions" of "hard money," not "soft money." But as discussed in my column last week, this at best elevates form over substance because Gore was clearly seeking money primarily for the purpose of re-electing the Clinton-Gore ticket; that suggests it was hard money in substance, even if classified as soft money in form.

Beyond that, Gore himself has never denied asking contributors explicitly for "hard money." Even today, his press office won’t say whether he did. And five urgent memos from Harold Ickes to Clinton and Gore in the summer of 1996 stress the need for them to continue "very intensive fundraising activities," for the specific purpose of raising millions more in " ‘Federal’ dollars"-that is, hard money-from "major donors" to meet the Democratic National Committee’s advertising budget. Gore’s office won’t comment on whether (as Gore has implied) he had made all his fund-raising calls before then. Has the Justice Department looked into that? What has it done to test its assumption that Gore was dialing for "soft" dollars only?

The more persuasive arguments for Gore (unmentioned in Reno’s letter) were outlined in a March 10 New York Times op-ed by former Clinton counsel Jack Quinn, now of D.C.’s Arnold & Porter: Section 607 should not be construed to criminalize soliciting campaign money by phone (at private expense) from government offices-especially if the caller is the president or vice president.

Such an exemption is warranted because it is hard to discern any statutory purpose that would be served by construing §607 to bar making from the White House (at private expense) telephone solicitations that would be perfectly legal if made by the same official from DNC offices or, say, a Holiday Inn.

Section 607’s main objective is to protect government workers from being squeezed in their offices for contributions. A secondary objective appears to be to prevent solicitations of private individuals when they visit government offices because the majesty of such offices could be used to create a coercive atmosphere and should not itself be degraded by political fund raising.

These objectives arguably ate not offended when the solicitations are by phone and the solicitee presumably does not know where the solicitor is calling from. A bit of support for this interpretation can be derived from a 1908 Supreme Court precedent, United States v. Thayer, upholding a conviction under an earlier version of the statute on the ground that the "solicitation was in the place where the letter was received" (which was a government office). A bit more support can be derived from the Justice Department’s apparent (and appropriate) decision not to prosecute Sen. Phil Gramm (R-Texas) after he admitted making telephone solicitations from his Senate office.

In addition, a respectable argument derived from the Constitution’s separation of powers can be made that §607 should be construed as inapplicable to the president and vice president, who are explicitly exempted from the related civil provisions of the Hatch Act. (Mikva stresses that his memo was applicable only to the staff.)

The president and vice president are the only executive branch officials who run for re-election; they must raise campaign funds somehow; they live in government buildings, and would be put to some inconvenience if required by law to go elsewhere to make fund-raising phone calls; and they should be protected from undue congressional interference with their fund-raising efforts.

While the 1979 Justice Department memo says the president and vice president are covered by the statute, that conclusion is of questionable validity today, in light of subsequent statutory changes and the Supreme Court’s holding in a somewhat analogous 1992 case, Franklin v. Massachusetts, that the Administrative Procedure Act’s curbs on all federal "agenc[ies]" should be construed (contrary to that act’s plain meaning) as inapplicable to the presidency: "Out of respect for the separation of powers and the unique constitutional position of the President…, [w]e would require an express statement of Congress before assuming it intended the President’s performance of his statutory duties to be reviewed" under that law.

Would such considerations warrant a refusal by the attorney general to seek an independent counsel to investigate Gore’s phone calls even if he was seeking hard money? That’s a close call because it mixes an issue of law (what §607 means) that is properly within the attorney general’s purview with an issue of prosecutorial discretion (what cases to bring) that has been removed from her purview by the independent counsel statute.

Perhaps Reno should resolve the matter by stating, as a matter of policy, that Justice never has prosecuted (or so it appears)-and never will prosecute-anyone solely for being in a government office while making a fund-raising phone call, on the ground that such calls do not clearly violate §607. Such a policy statement, which, would be binding on any independent counsel, might make it pointless to seek one.

Amid these complexities, two things seem clear: Any good prosecutor (independent or otherwise) would quickly conclude that no §607 case should be brought on the basis of Al Gore’s phone solicitations. And Gore should not be proud of himself.

The post Gore: Lame But Legal? appeared first on Stuart Taylor, Jr..

The record to date suggests that the Clinton campaign’s desperate search for money reached a level of sleaziness unrivaled since Watergate. A no-holds-barred prosecutor might be able to make a plausible legal case that crimes were committed, perhaps involving people at the top.

But no such high-level officials should be prosecuted, barring the emergence of more smoking guns than we are likely to see. Among the reasons are that many of the alleged crimes are too difficult to distinguish from the access-peddling that has long been practiced by most candidates for federal office; that some of the same theories that could be used against Clinton campaign officials (including the president) could also be used against Dole campaign officials (perhaps including Dole) and many members of Congress; that the campaign finance laws are nightmarishly complex and riddled with First Amendment problems; and that the resulting tangle of rules and loopholes often does not draw clear lines between what is legal and illegal.

A wise prosecutor, sensitive to such considerations, would err on the side of lenity and bring the matter to closure as quickly as possible. But is that what we would get from the special three-judge court, headed by D.C. Circuit Judge David Sentelle, that chooses independent counsel? The track record does not inspire confidence.

For these reasons, I would love to be persuaded by Attorney General Janet Reno’s April 14 letter to Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), explaining her reasons for spurning (thus far) the chorus of demands from Hatch and others that she seek an independent counsel to probe possible crimes by the Clinton campaign.

But Reno’s 10-page letter is pretty weak. It brushes breezily past the hardest questions; implicitly rests on legal interpretations that effectively gut all campaign finance laws for presidential elections; neither articulates nor justifies these interpretations in any detail; implicitly resolves disputed factual issues in favor of the president and his aides; and appears to construe the independent counsel statute more narrowly than Reno has done in the past.

None of this begins to justify House Speaker Newt Gingrich’s contemptible comparison of Reno to her predecessor John Mitchell, who was convicted of felonies. Nor does it make it entirely clear that Reno is legally or ethically obliged to seek an independent counsel. But all in all, Reno’s letter is less persuasive than the detailed April 15 rebuttal by Sen. Hatch, who likened the Reno letter to "a defense brief too clever by half."

Three of the weakest points in Reno’s reasoning:

(1) Perhaps the most cogent case for triggering the independent counsel statute is the copiously documented allegation (by Common Cause, former Reno deputy Philip Heymann, and others) that top officials of both the Clinton and Dole campaigns (including Clinton and perhaps Dole) may have directed and participated in deliberate, multimillion-dollar violations of both the campaign spending and contribution limits, by using the Democratic and Republican national committees as totally controlled cash conduits to finance television ads promoting their respective presidential candidates. They thereby mate a mockery of laws, including the longstanding ban against using corporate and labor union money in federal election campaigns and the post-Watergate ceilings on total spending by presidential candidates who accept public funding. (See my "Scandal Hidden in Plain View," Legal Times, March 17, 1997, Page 27.)

Reno’s response on this front boils down to a conclusory assertion that "at the present time, we lack specific and credible evidence that these activities violated" the campaign finance laws. In so saying, she truncates the language of the independent counsel statute, which turns on whether there is specific and credible evidence "sufficient to constitute grounds to investigate whether any person [covered by the statute] may have violated" criminal laws. (Emphasis added.)

Reno notes, by way of explanation, that the campaign finance laws allow some coordination of fund raising and spending by presidential candidates and their parties. She also contends that parties can legally use "soft money" (including corporate and union money) for issue advertisements "that do not contain an ‘electioneering message.’ "

What Reno’s letter does not do is respond directly to the claims-supported by a host of internal administration documents and statements by current and former Clinton aides-that the president and the White House orchestrated, directed, and controlled every aspect of the soft-money advertising campaign for the primary purpose of re-electing the president. The notion that these were DNC issue ads was at least arguably a sham, devised to flout the laws purporting to curb presidential campaign spending.

Reno’s conclusion apparently rests on a reading of those laws so narrow as to make them virtually unenforceable, and thus meaningless. Perhaps she’s right. But that is surely debatable. She should at least articulate and justify in detail the basis for her interpretation.

(2) Reno appears to rely on a similarly narrow interpretation in suggesting that there is no "specific and credible" evidence that Vice President Al Gore may have violated the statute banning solicitation of campaign contributions on federal property (18 U.S.C. §607) when fee made phone calls from the White House pressing fat cats for big bucks.

The main basis for Reno’s conclusion is that §607 "specifically applies only to contributions as technically defined by the Federal Election Campaign Act (FECA)-funds commonly referred to as ‘hard money.’ " True. But while Gore purported only to be raising "soft money" for the Democratic Party, his own public statements suggest that much or all of his dialing-for-dollars was (to quote FECA’s definition of "hard money") "for the purpose of influencing" the presidential election.

Reno’s implicit, interim exoneration of Gore must therefore rest either on an exceedingly narrow and formalistic definition of "hard money"-one at odds with the plain language of FECA-or on highly exculpatory factual assumptions, or on both. As in: Gore was asking people to give the DNC more than $20,000 each; it would be illegal to give that much in hard money; therefore it must have been soft money; so the asking was legal. Q.E.D.

It seems clear to me that criminal charges should not be brought even if Gore violated the letter of §607. That’s because its main intent is to prevent shakedowns of federal workers, and because criminal liability should not turn on where Gore was sitting when he made phone calls. But the independent counsel statute does not authorize the attorney general to rely on such prosecutorial discretion in cases involving covered officials like Gore.

(3) On the explosive question of whether Clinton aides knowingly sought illegal foreign contributions from China and elsewhere, Reno provides little justification-given the obvious need to determine whether the president or his top aides condoned such efforts-for failing to invoke her discretion to seek an independent counsel in any matter that "may result in a personal, financial, or political conflict of interest" for her.

Consider John Huang, the Clinton-connected former executive of the Clinton-connected Riady family’s Lippo Group, who jumped from there to the Commerce Department (amid large Riady-to-Clinton/DNC contributions) and then to the DNC. Huang is under investigation by the Justice Department for collecting massive amounts of allegedly illegal foreign contributions. As Sen. Hatch points out, news reports suggest that Huang received a $788,750 severance package from Lippo, whose executives boasted of having "placed" him in the administration; that Huang made at least 78 visits to the White House; that he "had his transfer to the DNC orchestrated at a curious September 13, 1995 Oval Office meeting attended by the president, Bruce Lindsey, James Riady, and … Joseph Giroir"; and that, according to notes by former Clinton aide Harold Ickes, Huang targeted "overseas Chinese" as potential donors.

"In short," asks Hatch, "isn’t there sufficient information at least to investigate whether any of these top-level White House advisers were aware of or involved in Huang’s and the Riadys’ far-reaching [alleged] scheme to launder foreign funds into Democratic campaign coffers? Does the attorney general expect the public to have confidence that she can …investigate individuals among the president’s closest advisers without any conflict?"

Reno may have a good answer. I haven’t heard it.

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Here are some of the choicer quotes uttered in the video by Jack McMahon, who has been a defense lawyer since 1990:

"The blacks from the low income areas are less likely to convict. There’s a resentment for law enforcement There’s a resentment for authority. And as a result, you don’t want these people on your jury."

"In selecting blacks, you don’t want tie real educated ones."

"Young black women are very bad."

McMahon also described having ducked a jury he did not want by feigning illness and lying to die judge.

He dispensed his racially tinged advice to his fellow law enforcers just months after the Supreme Court’s landmark 1986 decision, in Batson v. Kentucky, that the Constitution bars prosecutors from using peremptory challenges to exclude blacks from juries because of their race.

McMahon can, however, claim to have teen an equal opportunity stereotypes because he also said that prosecutors should bounce rich, white jurors and that "I don’t think you can ever lose with blacks from South Carolina. They are dynamite. They are law and order. They are on the cops’ side."

Is the McMahon video an egregious example of prosecutorial lawlessness? Or is it (as he has suggested) a rare insight into what is routinely done-although never acknowledged-by prosecutors across the nation?

It is some of both. It is also a vivid illustration of two critical-but largely fixable-problems with the jury system as we know it: (1) the unavoidable tensions between Batson and the duties of trial lawyers (including prosecutors) to their clients to shape the most sympathetic juries they can, and (2) the deplorable tendency of the selection process to purge the best-informed people from juries.

Batson was a wise and necessary decision. The widespread, all-but-overtly race-based prosecutorial practice before Batson of using peremptories to purge blacks from juries stacked the deck against black defendants and implicitly branded African-Americans as second-class citizens.

Some of the Court’s language might suggest that the problem was that prosecutors were simply wrong to suppose that black jurors might be more likely than whites to acquit back defendants. But the real problem was, and remains, rather the opposite: Jurors of all races often are more likely to identify and sympathize with people like them. Give that-and given the guesswork and stereotyping inherent in the use of peremptory challenges;-prosecutors have often had strong incentives to exclude blacks when the defendant is black, much to the disadvantage of the defense.

In part for this reason, the Batson rule-which the Court has also extended to bar all race-based peremptories, by defense lawyers as well as prosecutors and by both sides in civil cases-is difficult for judges to administer. Lawyers almost never admit to acting on the basis of race and can almost always articulate (or concoct) race-neutral reasons (or pretexts) for striking particular jurors, as the McMahon video advises.

Imagine, say, an armed robbery case against a black, 21-year-old, unemployed high school dropout.

The prosecutor peremptorily challenges (among others) all three blacks on the jury panel-two other black, young, unemployed high school dropouts, who like "gangsta rap" music, and a distinguished, 50-year-old, black psychiatrist, who prefers Bach When the defense lawyer objects that this violates Batson, the prosecutor explains that she was not animated by race, but rather struck the first two on a hunch that they might identify with the defendant, and the third because many psychiatrists tend to see anti-social acts as evidence of a malady to be treated rather than as crimes to be punished.

Is the prosecutor’s explanation sincere or pretextual? It’s very hard for a judge to tell. Indeed the prosecutor herself may not know for sure. For when she is required (by Batson) to articulate (even to herself) the impressions underlying her sense that a particular juror may be pro-defendant, race will rarely be the only reason, and there will be a natural tendency to focus on the others.

Deciding whether Batson has been violated is thus an extremely subjective process and some judges will be far more willing than others to take the prosecutor at her word. McMahon’s video suggests that in Philadelphia, at least, some prosecutors think (or thought) that they could get away with cynically circumventing Batson. On the other hand, a judge who is too ready to assume the worst when a prosecutor strikes black jurors-while giving the benefit of the doubt to the defense lawyer’s striking of white jurors-may end up stacking the deck in favor of the defense. This is especially true when many defense lawyers seek to divert jurors’ attention from the evidence to the alleged racism of die authorities.

The less publicized aspect of the McMahon video is his argument for keeping intelligent, highly educated, well-informed people off juries: "Smart people will analyze the hell out of your case. They have a higher standard. They take those words ‘reasonable doubt’ and actually try to think about them. You don’t want those people." McMahon also dismissed as "ridiculous" Supreme Court holdings that the goal "is to get a competent, fair, and impartial jury." He stressed: "The only way you’re going to do your best is to get jurors that are unfair and more likely to convict than anybody else in that room."

Batson provides no remedy here. Nothing in the Constitution bars discrimination against smart or fair-minded people in jury selection. Bet it is a serious problem. Evidence abounds that our current selection process systematically pushes the best-qualified potential jurors.

Many of them seize upon any excuse they can to avoid jury service, whether because they are busy at work or al home or because they are exasperated by the delays and other annoyances to which jurors are routinely subjected. Others in highly publicized cases, are often removed for cause by judges too ready to presume that any juror who has been exposed to pretrial publicity will be biased by it.

The dumbing down of juries is greatly aggravated by the operation of peremptory challenges. Indeed, if the nature of a case is such that a cagey prosecutor wants smart jurors, chances are that an equally cagey defense lawyer will want to get rid of them. And vice versa. The result will often be a jury like the one that acquitted O. J. Simpson, which included not one college graduate and not one regular newspaper reader.

Fortunately, a ready remedy is available, both for the use of covertly race-based peremptories and for the purging of smart people: Reduce the number of peremptory challenges from the 10 to 20 now available to each side in a criminal case in many jurisdictions to about three per side.

Abolishing peremptories outright, as some jury reformers have long advocated, would probably go too far. Often a lawyer can accurately sense that a prospective juror would probably not give her side a fair shake, even when the lawyer lacks the kind of hard evidence that would support removal for cause. Peremptory challenges provide each sick with some protection against biased jurors.

But the whole system is premised on the assumption that such biased jurors are the exception, not the rule. Three peremptory challenges per side should thus be sufficient protection. When each side has 10 or 20 peremptories, the process becomes less an effort to remove jurors with apparent biases than a fishing expedition for jurors predisposed in favor of one’s side. It often degenerates into a speculative and reductive search by each side for ignoramuses with prescribed sets of presumed biases.

Cutting down the number of peremptories should also greatly reduce the use of covertly race-based strikes. A lawyer with only three peremptories is more likely to save them for people who appear to exude actual bias in some way, rather than to exhaust her strikes on the basis of crude and inherently speculative group stereotypes. And limiting the number of peremptories would obviously limit the opportunities of prosecutors (and defense lawyers) to exclude all members of whichever raccial group is in the minority of the jury pool. At the same time, it would be easier for judges to assess whether the reasons given for excluding minority jurors were plausible or pretextual.

There will always be lawless lawyers like Jack McMahon who will try to circumvent the rules. But the rules can and should be changed to make it harder for them to succeed.

The post Selecting Juries: Dumb and Dumber appeared first on Stuart Taylor, Jr..

The hard part is agreeing on exactly what is wrong and how to fix it. Indeed, while reform proposals abound, the problems are so daunting that it’s unclear whether the system can be fixed, by even the most brilliantly drafted law-let alone one with a chance of getting through Congress.

The polar positions espoused by libertarian conservatives (encouraging candidates to sell themselves to the highest bidders) and Utopian liberals (pressing a doomed effort to purge private money from politics) both seem deeply flawed. So does the bill co-sponsored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), which has won endorsements from President Bill Clinton and a gaggle of editorialists less because they love it than because it’s the only game in town with even a patina of bipartisan support.

But in a penetrating cover story ("Blow It Up") in the March 29 National Journal, Jonathan Rauch makes an intriguing, ideologically eclectic proposal for a simplified system of "public financing plus private deregulation."

Rauch begins with the perception that the current system of labyrinthine regulations, "understandable only to lawyers, and sensible not even to them,… is founded on a naive faith in rules, an discriminating disgust for money and a belief that political spending can be meaningfully distinguished from political expression. All of those premises are unsupportable, and doom any system built upon them."

The libertarian conservatives (or many of them) agree with Rauch on this, while dismissing public financing as "food stamps for politicians." Disputing the conventional wisdom that the big problem is the corrupting influence of money, conservatives say the problem is the post-Watergate effort to put campaign finance under a regulatory yoke that has done more harm than good.

History lends support to the conservative diagnosis in at least one respect The worst feature of our current political culture as compared with that of the nation’s first 180 years-the felt need of our elected leaders to invest a huge percentage of their time and energy hustling special-interest money (or to possess vast personal wealth) in order to win re-election- seems largely an unintended consequence of such rules as the ban on individual contributions over $1,000 to any candidate. Politicians have always depended on special-interest money, they have not always been so preoccupied with raising it that many of our best people recoil at the very thought of running for office.

The conservatives’ prescription is unsatisfying, however. By abolishing most or all campaign finance legislation (excepting public disclosure requirements), they would give an insuperable advantage to politicians bankrolled by fat cats and special interests. This might well increase (and surely would not shrink) the corrupting influence of private money. It hardly seems likely to revive sagging public confidence in the integrity of the system.

The most fashionable view among liberal reformers is that campaign spending must be strictly restricted and regulated. The central obstacle to reform, in this view, is the Supreme Court’s line of decisions (beginning with Buckley v. Valeo in 1976) decimating the post-Watergate limits on campaign expenditures by protecting as political speech the use of money by candidates, independent interest groups, and others to disseminate their political messages.

House Minority Leader Richard Gephardt (D-Mo.), who wants to amend the First Amendment to overrule Buckley, has made the case with amazing (and perhaps unintended) candor "What we have is two important values in conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can’t have both."

But the fundamental holding of Buckley was correct Unless the rights of media barons to run as many political editorials as they please are to be preferred over the rights of candidates and other citizens to buy as much political advertising as they please, curbs on political spending infringe the freedom of speech in a very direct way. And in any event, Buckley is not about to be overruled.

Most or all of the proposals by liberals to get around Buckley appear to be unconstitutional, because they would use public money or resources to pressure candidates to observe ‘voluntary" spending curbs in ways so coercive as to make the voluntariness a fiction; they would also seek to cancel out constitutionally protected "independent expenditures" by interest groups and individuals with offsetting grants of public money to the candidates against whom the expenditures are made.

The McCain-Feingold bill (which many literals consider a diversionary exercise in tokenism) is itself riddled with First Amendment problems, including a ban on political action committees. It also includes a set of rules of mind-boggling, unadministrable complexity for regulating both candidates and broadcasters. In an awkward approximation of partial public funding of campaigns, the latter group would be required to give free and cut-rate advertising time to qualifying candidates.

This approach of "reforming" the post-Watergate reforms by piling rules on top of rules is like trying to chase a hangover by having a few more drinks. The rules could be effectively enforced only by a regulatory agency endowed (unlike the currently toothless Federal Election Commission, a monument to partisan deadlock) with dangerously broad discretionary power over the entire political process. Discriminatory enforcement and partisanship (or at least the perception thereof) would be inevitable.

And by pressuring challengers to honor the same "voluntary" curbs on total campaign spending as incumbents, McCain-Feingold would give a big advantage to incumbents, who have a huge head start over challengers in name recognition and other respects before the first dollar is spent.

To be realistic, any proposed reform must recognize that in a capitalist society in which freedom of speech is a paramount value and in which moneyed interests are hugely affected by government policies, it is impossible (and undesirable) either to purge the influence of private money from politics or to give every voter as strong a voice as that of a billionaire.

The most that can be hoped for is to limit the compacting influence of money and the amount of time candidates feel compelled to spend grubbing for And the best way to do that is not to micromanage flow of private money, but to give voters the information and opportunity to punish candidates who wallow in it and reward those who do not.

Enter Jonathan Rauch "[C]onsider a regime built three basic elements. First full public financing for federal candidates who agree not to take or seek private money. Second, full, rapid and strictly enforced public disclosure of private spending in politics. Third, and at least as important as Nos. I and no other rules. Apart from voluntary public financing and full disclosure, get rid of all controls on private political giving. Jettison the 1970’s system."

(Well, there would be some rules, including necessarily complex ones to determine who has sufficient threshold support to qualify for public financing, and-in my view, though not necessarily Rauch’s-rules banning contributions of both "hard" and "soft" money by corporations and labor unions, which for most of this century have been subject to broad restrictions on funding campaigns.)

The distinctive feature of Rauch’s proposal is that it would rely not on the imposition of complex regulatory curbs on all candidates, but on the abilities voters to distinguish between publicly and privately financed candidates. Rather than seeking to use public financing as a bludgeon to curb private campaign spending, or to equalize the resources of publicly and privately funded candidates, Ranch proposes a genuinely voluntary public funding system "generous enough to let participating candidates break through to the public The idea is that even if publicly funded candidates could not match privately financed opponents dollar for dollar or ad for ad, they could campaign as "clean money" candidates and could make "the acceptance of special- interest money an issue in every campaign."

Rauch’s plan is no panacea, ad a gaggle of objections can be raised. (His article outlines and responds to some of them in more detail than is possible here.) In particular, it’s true that public financing is widely viewed as unpopular with voters. But some polls suggest surprisingly broad public support for the public financing, as distinguished from schemes to let candidates take both taxpayer money and private money.

The post Can Campaign Finance Be Fixed? appeared first on Stuart Taylor, Jr..

It was my Internet-cruising, 12-year-old daughter, Sarah. She burst in while I was rereading the part about how the best way to protect our kids from wandering into the pit of Internet smut is not government censorship or regulation, but the sort of parental control software that you can install on your home computer or get for free through services like America Online.

"Dad," demanded Sarah, "what have you done to America Online?"

Uh-oh. What I had done, inspired by the litigation, was to activate the "parental controls," by clicking on various boxes that did things I little understood.

"You’ve ruined it," Sarah complained. "I need the IMs. That’s the funnest part. Dad, you can trust me."

IMs? Huh? I turned off the IMs? What the hell are IMs, anyway? (Instant messages, it turns out.) In any event, it seems that the "parental controls" had not only slammed the door on the smut peddlers, and the art museums displaying racy nudes by Mapplethorpe and classy ones by Michelangelo, and the like; they had also shut Sarah off from private, real-time discussion groups with her online buddies. (Here’s hoping they’re all really kids, like they claim to be.) So now there will be no peace in my home until I undo the parental controls (pending further study of whether I can fine-tune them), swinging the doors open to the whole vast, anarchic, wonderful, variegated, democratic, interactive, participatory Internet-porn and all.

In doing so, Deputy Solicitor General Seth Waxman had suggested that morning in his well-crafted oral argument for the government in Reno v American Civil Liberties Union, I will be giving my kids "a free pass to the equivalent of every adult bookstore and video store in the country"-a veritable cornucopia of sex, bestiality, S&M (not to be confused with IMs), filth, scum, trash, and worse, just a few clicks of the mouse down the information superhighway.

That’s why, Waxman suggested, the Court should uphold the Communications Decency Act (CDA), which is Congress’ best effort (so far) to keep Internet pornography and other "indecent" materials away from kids whose parents cannot or will not do the job themselves.

It’s nice of Congress to want to help. And the arguments for some sort of governmental regulation to shield kids from Internet smut are stronger than most of the CDA’s legion of libertarian critics like to admit.

One of those arguments turns First Amendment values against the First Amendment champions: "Much of the Internet’s vast potential as an educational and informational resource will be wasted," the government’s brief contends, if parents fear that letting the Internet into their homes will expose their kids to a world of online smut.

But Congress has a way of overdoing things. And this slapdash, sloppily drafted, vague, overbroad blunderbuss of a statute, which was adopted without even a hearing to explore its far-reaching chilling effects on constitutionally protected speech, is a prime example. In making it a crime to post "indecent" speech anywhere on the Internet that kids might roam, the act makes it risky not just to peddle porn, but also for libraries, advocacy groups, and other nonprofits to display sexually explicit art or graphic sex-education materials; for individuals engaged in spirited online debate to toss in a four-letter word; for kids to gossip among themselves about sex; and much more.

Consider the four-letter word that got me in trouble with America Online’s in-house cybercops. My 12-year-old, while being flamed in a chat room by some other kid, rashly resorted to the raunchiest retort that came to mind: "fart-nugget." This I discovered to my horror (tinged with amusement) when I received a warning in my e-mailbox that my America Online "account" had been observed engaging in unacceptable indecency.

The question arises: Was it a federal crime for Sarah to transmit "fart" to another kid? Probably not. They don’t prosecute 12-year-olds, do they? But suppose that Sarah were 17 and had used a somewhat stronger Anglo-Saxon monosyllable, or a bunch of them. The legislative history of the CDA indicates that Congress intended to cover things like comedian George Carlin’s "seven dirty words" monologue, which the Supreme Court had found to be "indecent" in FCC v. Pacifica Foundation (1978); the Court upheld an FCC rule banning radio broadcasts of such stuff during daytime hours, when lots of kids would likely be listening. "Fart" was not one of Carlin’s seven dirty words, but it was in his top 20. How dirty is too dirty?

Or take the question that Justice Stephen Breyer asked Waxman at oral argument, hypothesizing a bunch of high school kids who get together in one of those private Internet chats and boast about their sexual exploits, "real or imagined." Are they all committing federal crimes? Breyer asked.

Waxman’s answer was not exactly no, honest fellow that he is. Breyer seemed not to find that reassuring. Nor, apparently, did Justice David Souter, who tossed in a hypo about a parent allowing his teen-ager to use the parent’s computer to access possibly "indecent" Internet materials. "The parent would also go to prison, I take it?" Souter asked. Waxman didn’t think so, but he couldn’t deny that a literal interpretation of the statute could theoretically support such a prosecution.

The oral argument, however, was not exactly a slam-dunk for Waxman’s equally adept adversary, D.C. lawyer Bruce Ennis of Jenner & Block, representing a broad coalition including the American Library Association, the ACLU, America Online, Microsoft, nonprofit health and educational groups, and some 40 others. While Ennis stressed the uniquely "democratizing and speech-enhancing" potential of an uncensored Internet, justices peppered him with analogies to Court decisions upholding restrictions of "indecent" speech in other media-bookstores, cable, and dial-a-porn services, as well as broadcast-So protect children.

Ennis central point was that the CDA would operate essentially as a ban on a wide range of constitutionally protected but arguably "indecent" speech on the Internet-excepting, ironically, the large percentage of Internet smut that comes from abroad, which the CDA apparently would not touch. His factual premise was that it is either technologically impossible or prohibitively costly for the vast majority of Internet speakers to check the ages of visitors to their sites and thus to exclude children.

But that conclusion-albeit accepted by the lower court in its findings of fact-may or may not hold true for very long. Waxman suggested that inexpensive age-verification options are becoming available. And Justice Antonin Scalia, stressing the rapid pace of change in computer technology, told Ennis that the factual record on which the lower court’s findings were based may already be obsolete, and that "this case depends on who has the burden of proof" on how broadly the CDA would in fact chill protected speech in the long run. Scalia suggested that the burden should be on Ennis and others who claim that the statute would in practice amount to an unconstitutionally broad regime of censorship, and that they have not carried it.

Scalia seems wrong about that. When Congress enacts a censorship regime with heavy criminal penalties for violating an extremely vague prohibition of "indecency," without taking the trouble to explore what its effects might be or to create a factual record; and when the best currently available evidence suggests that this regime will in fact banish a wide range of constitutionally protected speech from most portions of a vast, rapidly expanding, dynamic new communications medium frequented by millions of adults; and when Congress stated goal of keeping kids away from smut will apparently be undermined by a flood of easily accessible smut from abroad; and when home-based parental controls are available, even to those of us who have trouble using them, then the Court’s job is to strike down that regime of censorship.

In doing so, the justices should not close the door to more narrowly tailored legislation to shield kids from Internet smut, especially the kind peddled by commercial enterprises, which already obtain credit card numbers from viewers for their own purposes and thus can easily satisfy the CDA’s age-verification provisions.

But the Court should also make it clear that the kind of "uninhibited, robust, and wide-open" debate that it found to be protected in New York Times v. Sullivan (1964), in all of its (sometimes "indecent") forms, cannot be banished from what one of the judges on the panel below, U.S. District Judge Stewart Dalzell, aptly called the "never-ending worldwide conversation" that the Internet has the potential to be.

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Pause, for a moment, in the search for smoking-gun evidence about how they raised the money, and focus on how they spent it The evidence of high-level lawlessness has been sitting in front of us for months, hidden in plain view.

As detailed by Common Cause, it consists of essentially undisputed accounts of what look very much like deliberate, multimillion-dollar violations (or at least evasions) of campaign spending and contribution limits, directed by President Clinton personally and by others at the highest levels of both the Clinton and Dole campaigns.

The presidential candidates and their agents used the Democratic National Committee and the Republican National Committee as totally controlled cash conduits to finance unprecedentedly costly television advertising promoting Bill Clinton and Bob Dole. They thereby smashed, by tens of millions of dollars, the post-Watergate ceilings on spending by publicly funded presidential candidates, while also flouting (among other laws) the much older ban on using corporate and labor union money in federal election campaigns.

In so doing, the president, his aides, and their Republican counterparts relied upon legal ratiocinations that-while not without support in the convoluted campaign finance case law, and while perhaps sufficient to ward off prosecution for ”knowing and willful" crimes-make a complete mockery of the campaign finance laws.

Common Cause laid out the facts and the law last October, in a cogently reasoned, 41-page letter to Attorney General Janet Reno, calling for appointment of an independent counsel to decide whether criminal prosecutions were warranted by "the most massive violations of the campaign finance laws since the Watergate scandal." The group asserted that:

the Clinton and Dole [campaign] committees massively violated the primary election spending limits they had each agreed to as a condition of receiving taxpayer funds [and] massively violated the contribution prohibitions and limits by financing their ad campaigns in part with millions of dollars of ‘soft money’ funds … includ[ing] corporate and labor union contributions, and large contributions from individuals in excess of federal contribution limits.

Among those who concur with this analysis is Harvard law professor Philip Heymann, who was President Clinton’s own first deputy attorney general. He and Common Cause base their legal conclusions on essentially undisputed reports by Bob Woodward (in The Washington Post and his mid-1996 book, The Choice) and by others about how the Clinton and Dole campaigns raised and spent millions in soft and hard money alike through the DNC and the RNC. These reports have now been confirmed-especially as to the president’s personal role in directing DNC spending-by Dick Morris, who masterminded the president’s re-election strategy, in his book, Behind the Oval Office:

[T]he key to Clinton’s victory was his early television advertising [starting in July 1995]… In 1996, the Clinton campaign and, at the president’s behest, the DNC spent upwards of $85 million on ads… The president became the day-to-day operational director of our TV-ad campaign. He worked over every script, watched each ad, ordered changes in every visual presentation, and decided which ads would run when and where.

Under the laws providing for partial public funding of presidential campaigns, both Clinton and Dole agreed in writing, as a condition of receiving public funds, to abide by overall spending limits of $37 million (obtained through individual contributions of up to $1,000 and federal matching grants) during the primary period, and $62 million (all public money) during the general election period.

In addition, it has long been illegal for any candidate for the presidency or Congress to accept money from any corporation or labor union to be spent "in connection with" any election. It is also illegal for any candidate to accept more than $1,000 from any individual for any federal primary or general election, or for a national political party to accept more than $20,000 a year from any individual.

These limits have been circumvented over the years by ever bolder exploitation of the "soft money" loophole, which allows state and local political parties to use unlimited corporate, union, and individual contributions to finance party-building activities (as distinguished from election campaigns), and by supposedly "independent" spending by political parties (among others) in support of their candidates. Some circumvention may be inevitable in light of the artificiality of the statutory requirement that parties segregate their activities from the campaigns of their leaders.

In 1996, both the Clinton and Dole campaigns expanded loopholes to new extremes, effectively wiping out all limits on presidential campaign spending, and pouring corporate, union, and huge individual contributions into the campaign without restraint.

To finance his unprecedented early advertising campaign during the primary period, Clinton and his campaign shattered the $37 million limit to which he had agreed and spent at least $34 million more, including at least $22 million in soft (mainly corporate and union) money, according to Common Cause.

Similarly, the Dole campaign, which had spent almost all its $37 million allotment for the primary period long before the general election campaign began, stayed on the air in the interim by using the RNC and state parties to spend at least another $14 million, including $9 million in soft money, on ads that were light on issues and heavy on Dole’s background and character.

In both cases, the DNC and the RNC technically received the contributions and sent them to their state and local counterparts, which wrote the checks, for what they called "issue advertising." But the money was raised in large part by the presidential candidates (and Vice President Gore); the content, timing, and placement of the ads were directed by the presidential candidates and their own campaign staffs; these "party" ad campaigns were managed by the same consultants who were on the presidential campaign payrolls; they were targeted to presidential battleground states; the content focused on Clinton and Dole; and the overriding purpose was to win the presidential election.

As Woodward wrote of the Clinton operation: "Of course the distinction between Clinton-Gore money and Democratic Party money existed only in the minds of the bookkeepers and legal fine-print readers. It was all being raised and spent by the same people-Clinton, Gore, Morris and the campaign apparatus."

What all this boils down to, according to Professor Heymann (a member of the Common Cause board), is this: If the tens of millions of dollars raised and spent by the party committees were [presidential] campaign contributions and expenditures, a number of laws were flagrantly and indisputably violated. And these were [presidential] campaign contributions and expenditures, because it’s clear that the [Clinton and Dole] campaigns solicited money to be given to the national parties for the presidential campaigns, and then directed and controlled the expenditure of that money, in terms of designing ads and placing and timing them. The fact that the parties received the checks from contributors and paid and wrote checks to ad agencies doesn’t affect the result.

Morris’ book does suggest that, while the ultimate goal was Clinton’s re-election, the advertising served other purposes too: "The key was to advertise on legislative issues only, not to promote Clinton’s candidacy." Morris adds that Clinton campaign and DNC lawyers "said the law permitted unlimited expenditures for such issue-advocacy" ads."

Attorney General Reno’s oblique comments on all this intimate that she may be receptive to such legalistic dodges. But in Heymann’s words, "To accept the claim that these were issue ads or independent expenditures, when the control by the presidential campaigns was so complete, would mean that we will never be able to prevent corrupting influences in presidential elections." That’s because presidential candidates could always exploit the same rationales to take taxpayer dollars while essentially ignoring their own commitments to limit their spending, as well as virtually all other limits on the raising and spending of private money.

The ineluctable lesson is that one of three things should happen: The laws should be taken seriously and enforced, via criminal prosecutions by an independent counsel; they should be junked as a sham, and the goal of limiting the corrupting influence of money on politics should be abandoned as an illusion; or they should be overhauled to impose realistic limits with real teeth.

The post Scandal Hidden in Plain View appeared first on Stuart Taylor, Jr..

Both are proud of what they did-and promise not to do it again.

On March 3, Gore said he would not make any more fund-raising calls from the White House. That same day, The News-in the wake of its spectacular report that Timothy McVeigh had told his defense team that he bombed the Oklahoma City federal building in daytime to maximize the "body count"-filed the following statement with U.S. District Judge Richard Matsch in Denver:

"The Dallas Morning News …has no further plans to report unpublished information from material used as the source for the previous articles.

"The information … has been placed in the exclusive possession of [two outside law firms]…. Counsel will not thereafter provide The News access to the information for news reporting purposes. The News has placed the information with its counsel to preclude attention focused on Mr. McVeigh’s fair trial rights if it made further use of the material."

I especially like the part about the need "to preclude attention focused on Mr. McVeigh’s fair trial rights."

In fairness to The News, its intent was not to confess error, but to avoid being slapped with a gag order-just as its apparent intent in breaking its story on the Internet on the afternoon of Feb. 28, rather than waiting for the next day’s paper, was to get it out before defense lawyers could seek a gag order.

The hard question presented by the McVeigh article is whether-assuming that The News got its information lawfully and ethically, and that it was unquestionably accurate-the article should have been held anyway, to avoid grave damage to McVeigh’s right to a fair trial. But before we get to die hard question, those assumptions bear examining.

First, while The News has stressed (plausibly) that it did not steal the defense documents, it has not ruled out the possibility that its source stole them. And in any event, such documents could only have reached the newspaper through a grievous breach of the attorney-client privilege by someone, possibly a careless or dishonest member of the defense team.

The First Amendment may (or may not) bar imposition of criminal liability for "receiving stolen goods" (or privileged documents) when what’s involved is newsworthy information. But journalists should at least hesitate to publish the fruits of theft, or of a breach of privilege, unless the story serves some important public purpose. The Pentagon Papers, yes; Chelsea Clinton’s diary, no.

Second, the accuracy of the newspaper’s article now appears to be in question.

To be sure, McVeigh attorney Stephen Jones has confirmed that the documents quoted by The News were created by a defense investigator. And, to be sure, it seems very likely (and Jones has not denied) that McVeigh has in some way confirmed to his lawyers hat he did the bombing.

But Jones now claims to have learned-after The News rushed to publish its article-that the purported McVeigh statements were fabricated by a defense investigator for the purpose of coaxing a reluctant witness to talk. And bizarre as that scenario seems, reporters, including Lois Romano of The Washington Post, have discovered some corroboration for it.

Did The News give Jones an adequate opportunity to investigate and explain before it ran with the story? And should it have been more suspicious of a defense document that reads more like a work of pulp fiction than a standard account of a client interview? (Example: "Mr. McVeigh looked directly into my eyes and told me, ‘…We needed a body count to make our point.’")

According to Jones, a reporter for The News first confronted him with the supposed defense document by phone about 3 p.m. on Feb. 28; Jones did not recognize the statements attributed to McVeigh and said this was "not a legitimate defense document" and "not a confession by McVeigh." Jones asked to see the documents, and the reporter refused. The News sent the story out on the Internet that same afternoon.

While Jones’ meandering succession of statements since then has not enhanced his credibility, and while The News may disbelieve him, wouldn’t it have been wiser to give him more time to offer a better-informed response?

Let’s assume for the sake of argument, however, that The News has (and had) irrefutable proof that McVeigh in fact made the statements that it quoted. Should it have held the story to avoid a nationwide flood of pretrial publicity, at a time when 1,000 prospective jurors in the Denver area had already been placed on alert, with the trial date set for March 31?

No way, say a lot of newspeople. "I think they did the right thing," Paul McMasters, a former newspaper editor who is now First Amendment ombudsman for the Freedom Forum, said on "The News Hour With Jim Lehrer." He stressed the "absolute right of the American people to know about a significant event and to give the kind of detail that helps them make up their mind." McMasters and others, including Floyd Abrams, a leading media defense lawyer, also claim that no real harm was done, and that (in Abrams’ words) "there’s no reason to believe that we can’t find a fair jury."

I doubt that. A nationally headlined report of a dramatic confession, to his legal team, by the defendant in the worst mass murder case in the nation’s history is about the most devastating conceivable pretrial publicity. It is clearly inadmissible at trial, and (if believed) it clearly establishes McVeigh’s guilt.

Imagine that you are on the McVeigh jury, and that based on all the trial evidence (including attacks on the reliability of the FBI crime lab), you are pretty sure that he did it, but have a reasonable doubt. But you also recall media reports of defense documents quoting a boastful confession by McVeigh to his own defense team that he wanted a big "body count" Could you put that out of your mind? Would you want to?

The system will muddle through somehow, of course. The search for ignoramus jurors can be carried to new extremes (although some may well feign ignorance to get on the jury); jurors will be duly instructed to put pretrial publicity out of their minds; and in the end, the courts will pronounce that McVeigh received a fair trial. What else can they do? Turn him loose?

My heart doesn’t bleed for McVeigh, because I have little doubt of his guilt. But the integrity of our constitutional system suffers when journalists decide that-since they know the guy is guilty anyway-it’s OK to obliterate his chance for a fair trial.

Journalists do not normally perform cost-benefit analyses before running stories; the presumption is and should be that, in a free society, if a story is true and important, it should be published. But that cannot be an absolute rule. Sometimes the costs are so high that we should hold back. Who would argue for running a story about, say, a hostage rescue mission in progress if it would likely result in the deaths of hostages and rescuers alike?

Of course, the article in The News does not threaten such a disastrous result. That makes it a far closer question. And-if accurate-the article does serve an important public purpose by, among other things, giving the public vital information about the identity and thought process of the monster who murdered 168 people. But the only way for our constitutional system to act on that information is through the same legal process that The News has now compromised.

Does the public really need to know this now? Steven Brill, chairman and CEO of American Lawyer Media (which owns this newspaper) and Court TV, says that he would "give long and hard consideration to waiting until the jury is impaneled," in order to get the information to the public without risking "the possible damage done by reporting it before."

I would argue for waiting until the verdict is in, because of the likelihood that such big news would leak into even a sequestered jury (and so far, this one is not to be sequestered). In the words of Bill Kovach, a former New York Times Washington bureau chief who is now curator of the Nieman Foundation at Harvard University:

"The press’s role in monitoring institutions that have power over people’s lives is to act as a watchdog-not as a lap dog, not as an attack dog. And the role of a watchdog is to bark when things are not as they should be. Here, the system seems to be working just fine….

"If the press begins to short-circuit the process or push the process out of the way, by saying, ‘Hey, the man is guilty,’ that weakens democratic institutions,…and then the press has become a serious problem. And I don’t say that lightly; I’ve spent most of my life in investigative journalism, and I believe in it…. But we need to think a little more about the impact of what we do on the society that we’re serving and that we benefit from….Our constitutional rights carry a responsibility to the Constitution that gave us the rights, and that set up these processes that we monitor."

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"Oh, no." I sense you groaning, "enough is enough!"

Well, perhaps. But let’s think it through. A Feb. 6 Wall street Journal editorial urged California’s attorney general to explore a perjury prosecution even if Los Angeles County District Attorney Gil Garcetti won’t. And in the words of Eugene Volokh, an associate processor at UCLA Law School, "The fact that you’re acquitted for murder doesn’t give you a license to lie in court in future cases."

There is ample evidence that Simpson lied rampantly and shamelessly under oath in his civil trial and deposition. Indeed, the evidence is so strong and so widely known that a decision not to prosecute might teach the deplorable lesson that lying- even under oath-is both expected and condoned.

There would be no apparent legal impediment to a perjury prosecution. It would not be double jeopardy: The alleged crimes-lying under oath in 1996 and 1997 about facts material to the civil case-took place after the criminal jury’s 1995 acquittals of Simpson for the 1994 murders.

To be sure, the criminal jury’s acquittals would bar a perjury prosecution of Simpson for denying that he committed the murders. This conclusion flows from the principles of Ashe v. Swenson (1970) , in which the Supreme Court held that the double jeopardy clause gives rise to a collateral estoppel rule that a defendant cannot be prosecuted for perjury (or any other crime) based on allegations that are necessarily inconsistent with a previous jury verdict acquitting that defendant.

But that rule would not bar a perjury prosecution based on Simpson’s denials, for example, that he ever hit or slapped his former wife, or that he ever received his girlfriend Paula Barbieri’s message breaking up with him the day of the murders, or that he ever owned "ugly ass" Bruno Magli shoes of the type that left bloody footprints at the murder scene.

That’s because the factual allegations and evidence on which a perjury prosecution would be based-that Simpson did hit Nicole Brown Simpson, and did get the Barbieri phone message, and did own Bruno Magli shoes, and so on-would not necessarily be inconsistent with the first jury’s findings in Simpson’s favor on the murder charges.

The Supreme Court has made it clear that not every link in the prosecution’s evidentiary chain in a trial that ends in acquittal is foreclosed from being used in a subsequent prosecution for a different crime. In Dowling v. United States (1990) , for example, the defendant had been acquitted of breaking into a woman’s house, but the Court allowed the use of evidence that he had been inside the house at the time in a subsequent prosecution, reasoning that the acquittal could have rested on a finding that the defendant had been there with the occupant’s consent.

But while there would be no legal bar to a perjury prosecution of Simpson, what about public perceptions? Would it create so strong an appearance of double jeopardy, especially to the many black people who say Simpson was framed by corrupt police, as to be an unwise exercise of prosecutorial discretion?

This is a serious concern. Indeed, a lot of people even have trouble understanding why it was not double jeopardy to put Simpson through a civil trial for wrongful death after his murder acquittals. That should be easy enough to understand: Both the Fifth Amendment double jeopardy clause and the precedents make clear that a civil suit following a criminal acquittal is not double jeopardy, in part because our law properly makes it far easier to impose civil liability than criminal punishment.

A perjury prosecution would surely give rise to even louder complaints of double jeopardy. But prosecutors should be wary of too readily accepting erroneous public perceptions as a basis for giving a pass to a perjurer.

This is all the more true here because OJ. Simpson’s partisans tend to apply a race-based double standard: Not many of them complained of double jeopardy when the Clinton Justice Department prosecuted four police officers for beating Rodney King after their acquittals by the state court jury in Simi Valley.

Such successive state and federal prosecutions are, of course, allowed by the Supreme Court’s longstanding (if anachronistic) "dual sovereignty" end run around double jeopardy principles. But the federal prosecution of the Rodney King cops was in some ways more offensive to the spirit of the double jeopardy clause, and thus a more troublesome exercise of prosecutorial discretion, than a perjury prosecution of Simpson would be. The federal prosecution was based on exactly the same conduct and incorporated exactly the same allegations of excessive force that had driven the state prosecution leading to the Simi Valley acquittal.

Nor is it clear that there was anything corrupt or fundamentally flawed about the Simi Valley trial. It was unfortunate that such a racially charged case ended up before a mostly white jury. But even assuming that a mostly black jury would have returned guilty verdicts, the Simi Valley acquittals were hardly a case of race-based jury nullification. Indeed, the Simi Valley jury’s deliberations were a model of cool rationality compared with those of the jury that acquitted O.J. Simpson after three hours.

(On the Simi Valley trial, see Roger Parloff, "Maybe the Jury Was Right" The American Lawyer. June 1992. Page 7. and D.M. Osborne. "Reaching for Doubt," The American Lawyer. Sept. 1992. Page 62.)

Part of a prosecutor’s job should be to educate the public through reasoned argument, rather than yield to public prejudices. But prosecutors have to pick their battles. And despite my intense desire to see Simpson punished, I doubt that a perjury prosecution would be a smart battle to pick, for several, cumulatively weighty reasons:

• It might smack of selective prosecution because perjury-although extremely common-is rarely prosecuted, and perjury in civil trials is hardly ever prosecuted. Part of the reason is that (unfortunately, in my view) most people, including jurors and even prosecutors and judges, simply don’t see lying to save one’s own skin (or fortune) as a very serious moral offense. Part of the reason may be that if prosecutors went after all suspected perjurers, they would have time for little else.

Tempting as it might be to make an example of Simpson in order to teach the public a lesson about the seriousness of perjury, a lot of people might take away the wrong lesson and see the murderer as the victim of a vendetta.

• The perception of selective prosecution would be especially strong in this case, in the wake of the no-jail plea bargain that the California attorney general gave former Detective Mark Fuhrman last October for his perjury at Simpson’s criminal trial. For denying that he had called anyone a "nigger" in the past 10 years, Fuhrman got probation and a mere $200 fine. While the cases are distinguishable- Simpson’s lies were clearly "material." and Fuhrman’s arguably were not-the distinction would seem legalistic to many.

• Even a conviction might bring a relatively trivial sentence. California Attorney General Dan Lungren explained Fuhrman’s sentence by saying that "the few persons who are actually convicted of perjury typically do not receive prison sentences or jail time."

• There would be something a bit incongruous about prosecuting an acquitted murderer for lying about his shoes or about whether he ever had beaten his wife.

• To the extent that the real impetus for a perjury prosecution would be to punish Simpson for the murders, that truly would conflict with the spirit of the double jeopardy clause. And the Justice Department’s politically tinged decision to put the Rodney King cops through a second prosecution is not, by itself, a reason to do the same to Simpson. Two wrongs don’t make a right.

• Perjury is notoriously hard to prove. While the evidence of some lies by Simpson (like the one about the shoes) seems overwhelming, he might be able to wriggle around other charges by hiding behind alleged lapses of memory or ambiguities in his testimony-like his admissions that he had "wrestled" with Nicole and was "responsible" for her injuries even though he denied "hitting" her.

• For these and other reasons, any prosecutor who brought perjury charges against Simpson would run some risk of acquittal. And that would be a disaster, inviting further distrust of and derision for the legal system.

• Yet another O.J. Simpson circus-perhaps preempting yet another State of the Union address-would be too much to bear.

• Simpson deserves to be prosecuted for perjury. But the social costs of such a prosecution, and the risk of an acquittal, may simply be too high.

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