Category Archives: Major Print Outlets

Stuart Taylor, Jr.’s media appearances in print publications.

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Crawling All Over the Presidency

by Stuart Taylor, Jr.

If the Clinton administration has accomplished nothing else, it has at least sensitized Democrats- with a vengeance-to the dangers of the system of court-appointed independent counsel that they used for so long to harry Republican presidents.

President Bill Clinton, and his wife, and his closest White House aide (Bruce Lindsey), and Commerce Secretary Ronald Brown, and Housing and Urban Development Secretary Henry Cisneros, and former Agriculture Secretary Mike Espy, and others now are (or are about to be) squirming under microscopic scrutiny by independent counsel. And suddenly, onetime champions of the statute that mandates such investigations, like Clinton and White House Counsel Abner Mikva, are sounding more like critics.

It’s easy to make fun of the hey-those-are-our-oxen-being-gored timing of such Democratic misgivings, and I’ve done so. But "|w]isdom too often never comes, and so one ought not to reject it merely because it comes late," in the words of Justice Felix Frankfurter.

And the Clintonites’ current travails provide perspective- especially for those of us whose hearts did not bleed for the likes of Oliver North and Michael Deaver-on the risk that the current independent counsel regime will have a debilitating effect on the presidency for many years to come.

Governments are not, and never have been, run by paragons of ethical purity. After all, just about every elected official in Washington, and many a Cabinet officer, owes his or her position in large part to success at the legalized corruption of wheedling campaign contributions from special interests seeking political payoffs. It’s a dirty business, but somebody has to do it. And some people steeped in sleaze have done it rather well. Like the first Mayor Richard Daley of Chicago. And like Ron Brown.

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The Court Is Not a Right-Wing Nut

by Stuart Taylor, Jr.

Something about the timing of United States v. Lopez-"just a week after a bomb exploded in Oklahoma, killing more than 100 people," as reporter Nina Totenberg put it on National Public Radio-struck a lot of us (at least at first) as a bit much.

Here was the Supreme Court of the United States sending paroxysms of joy through the states-righters and the gun-lovers by holding (on April 26) that Congress had unconstitutionally exceeded its power to regulate interstate commerce, and had thus usurped the powers of the states, when it banned possession of guns within 1,000 feet of a school.

Here, in other words, was a 5-4 gift from the Court’s conservative bloc to the folks who listen to Justice Clarence Thomas’ buddy. Rush Limbaugh, who gives aid and comfort to fellow radio talk-showman G. Gordon Liddy, who, in turn, broadcasts pointers on how to kill (in self-defense, of course) federal law enforcement officials, like the ones who were targeted by the bombers and others on the right-wing lunatic fringe.

Perhaps these atmospherics-plus the fact that this was the first Court decision since 1935 striking down an act of Congress as exceeding its commerce power-were part of what inspired Yale Law Professor Bruce Ackerman to tell Totenberg that "this could well be one of the opening cannonades in the coming constitutional revolution." And Hofstra Law Professor Leon Friedman to assert that the Court’s holding that Congress may use its commerce power only to regulate activities affecting commerce "is an astonishing requirement to lay on Congress." And a giddy conservative, Professor Douglas Kmiec of Notre Dame Law School, to proclaim Lopez "the most important case in a half-century."

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Courage, Cowardice on Drug Sentencing

by Stuart Taylor, Jr.

This is a story about how the U.S. Sentencing Commission finally did something wise and courageous, only to have its legs chopped off by Attorney General Janet Reno and Assistant Attorney General Jo Ann Harris.

First, some background:

A seller of powder cocaine gets a federal mandatory minimum sentence of five years only if caught with more than 500 grams.

But a first-time seller (or even a simple possessor) of crack cocaine gets the same five-year sentence if caught with just five grams-about one-sixth of an ounce.

And lots of small-time crack users, sellers supporting their habits, couriers, lookouts, minor accomplices, girlfriends, and other bit players-many of whom have no record of violence, and might be salvaged by short-term, shock incarceration and by drug treatment-are currently serving five-year sentences.

Lots more such people have been slammed with 10-year mandatory minimums for getting caught with 50 grams (less than two ounces) of crack. That’s one one-hundredth of the amount of powder cocaine (5,000 grams) that would bring the same sentence.

This 100-1 quantity ratio is especially absurd in light of the fact that powder cocaine can easily be converted into crack by cooking it up with a bit of baking soda and water. It is perhaps the most irrational aspect of the grotesquely unfair sentencing scheme-deplored by federal judges, including Reagan and Bush appointees, almost without exception-that Congress has ordained for drug offenders in statutes passed in 1986, 1988, and 1994.

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How Not (and How) to Drug-Test Out Kids

by Stuart Taylor, Jr.

Chief Justice William Rehnquist and Justice Ruth Bader Ginsburg offered two seductive rationales, at a March 28, 1995, oral argument in Veronia School District v Acton, for allowing public schools to require all students who want to play on school sports teams to submit to random testing of their urine for traces of illegal drugs.

Rehnquist’s point was that, at least for student athletes, being required to urinate, into a cup, on demand, with a school official watching and listening from behind, was not much of an invasion of privacy.

"How much privacy is there in a boys locker room, with a bunch of urinals lined up against the wall, and guys walking naked from the shower to the lockers?" Rehnquist asked Thomas Christ, an American Civil liberties Union lawyer representing the parents whose 12-year-old son, James Acton, had been kicked off his school’s football team in 1991. The boy’s offense was not drug use, or even suspected drug use, but rather refusing (with his parents) to consent to the drug testing required by the schools in his Oregon logging town.

Ginsburg’s point was that such random testing seemed more benign than the alternative-which would apparently be constitutional under the Court’s 1985 decision in New Jersey v. T.L O. -of singling out students to be tested for drug use, based on suspicion.

"Isn’t the risk [in a suspicion-based program] that the teacher is going to pick out the kid he doesn’t like?’ Ginsbuig asked. "I frankly would find it much more shameful," added Justice Antonin Scalia, "to be picked out and sent to have a drug test because I’m suspected of using drugs."

These are good points. And the evidence suggests both that student drug abuse is a very serious problem- in Veronia and across the nation-and that random urine testing may well be the most effective deterrent.

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Witch-Hunt or Whitewash?

by Stuart Taylor, Jr

The American Lawyer

There are three ways of trying to make sense of the Federal Communications Commission’s much-publicized probe into whether Rupert Murdoch’s Fox television network gulled the FCC, for nearly nine years, into overlooking the fact that 99 percent of Fox’s equity was foreign-owned, possibly in violation of federal law:

(1) The multi-lawyered Murdoch team cleverly (or perhaps unwittingly) has hidden the ball since 1985 by stressing that Murdoch (who became a U.S. citizen in 1985) would control Fox – while burying, in the moral equivalent of fine print, and in documents filed at different times that were unlikely to be read with care, some fragmentary disclosures from which a careful reader would have inferred that most of Fox’s equity would be owned by Murdoch’s Australia-based News Corp.

(2) The FCC was really dumb – or so eager to help the politically connected Murdoch crack the ABC-CBS-NBC oligopoly that it averted its eyes from awkward details-when it found in 1985 that Fox’s proposed $1.6 billion purchase of six big-city television stations complied with a stature restricting foreign ownership or control of over 25 percent of any broadcaster.

(3) The FCC is being really dumb now – if not grinding Clintonite political axes against the archconservative Murdoch and his Clinton-bashing New York Post – by harassing Murdoch for no good reason, and thereby stalling, at a critical time, his Fox network’s remarkable push toward parity with ABC, CBS and NBC.

Murdoch, Fox, their current FCC lawyers at Washington’s Hogan & Hartson, and some others are pushing hypothesis three – a theory that also draws some credence from the FCC’s peculiar handling of this investigation. "All this is another way of [FCC staffers] saying, ‘If we screwed up, it must be because you misled us,’ " says a source familiar with the investigation.

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Witch-Hunt or Whitewash? – Sidebar

by Stuart Taylor, Jr

The American Lawyer

The question of whether Rupert Murdoch’s Fox network and its lawyers have been candid with the FCC over the past decade about the facts relating to Fox’s claimed compliance with restrictions on foreign ownership turns in part on what one supposes the FCC needed to know. In particular, did it need to know that News Corp., an Australian company, would (and does) own over 99 percent of Fox’s equity?

While stressing that they have told the FCC everything, from day one, about News Corp.’s interest in Fox, Murdoch and his men have also contended that even if the FCC somehow lost sight of the fact that News Corp.’s equity interest was above 25 percent, it’s legally irrelevant anyway. But is it?

The primary purpose of the restrictions, which date back to the Radio Acts of 1912 and 1927 and took their current form in the Communications Act of 1934, was to protect national security, especially in wartime, in part by preventing interests that might spread foreign propaganda from exercising control over any U.S. broadcaster. But both the detailed statutory provisions and the FCC’s interpretations over the past ten years have imposed broad, prophylactic restraints even on some relatively passive forms of foreign investment, arguably including noncontrolling equity interests like News Corp.’s interest in Fox.

The provision at issue in the FCC’s pending investigation of Fox, section 310(b)(4) of the Communications Act, states: "No broadcast … station license shall be granted to or held by … any corporation directly or indirectly controlled by any other corporation of which any officer or more than one-fourth of the directors are aliens … [or] more than one-fourth of the capital stock is owned of record or voted by aliens … if the commission finds that the public interest will be served by the refusal or revocation of such license." (Emphasis added.)

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The Clinton-Cisneros Web of Deception

by Stuart Taylor, Jr.

Q: At any point did you lie to the FBI?

A: No, I did not.

With that, Henry Cisneros lied again, this time (March 15) to USA Today. Fortunately for Cisneros, who is secretary of housing and urban development, and for President Bill Clinton, lying to the news media (and the American people) is not a crime.

But lying to the Federal Bureau of Investigation is. It’s a federal felony, punishable by up to five years in prison. And people have gone to the slammer for lies less blatant (and less "material") than those that Henry Cisneros told his FBI background checkers in late 1992 or early 1993.

Cisneros’ lies, made in pursuit of the high office he now holds, were, to be sure, pretty petty: He understated (vastly) the amounts of-and perhaps the motivation for-his more than $150,000 (as of 1992) in payments to his former mistress. Whether lies of that nature are serious enough to warrant prosecution is a "close and difficult" question, as Attorney General Janet Reno said in her March 13 application for appointment of an independent counsel to consider whether Cisneros should be indicted for his false statements and for conspiring with the former mistress to deceive the FBI.

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Making Litigation Not Pay

by Stuart Taylor, Jr.

Republican rule on Capitol Hill has put new wind in the sails of some dubious proposals for striking at the very real problem of wasteful and abusive litigation tactics.

"Reforms" like the English "loser pays" rule and numerical caps on damages, which are in the House Republicans’ Contract With America, would surely stop some unwarranted suits, but they would also thwart many injured people with legitimate claims.

There are some better ideas in the hopper-ideas aimed at slashing billions in wasteful litigation costs rather than shielding business from liability to injured individuals. One of the most intriguing, endorsed by an impressive array of legal luminaries, seems well-designed to help deserving plaintiffs get swifter, surer compensation and to ease the litigation burden on business (as well as on plaintiffs)-and all without limiting any plaintiff’s right to seek full redress.

What’s the trick? You guessed it: Take it out of the lawyers’ hide.

But this proposal is not the kind of crude, probably counterproductive fee cap that some states have passed. It is an ingenious, largely self-executing mechanism aimed at restricting contingent fees to cases in which lawyers really earn them, while promoting early settlements in the many cases in which liability is easy to establish.

Here’s how it would work:

Any plaintiffs lawyer seeking a contingent fee in a personal-injury case would have to notify each defendant of the claim and provide routinely discoverable information about the plaintiff’s injuries, medical costs, and the like. The defendant could then make a settlement offer within 60 days, also accompanied by relevant discoverable information.

If such an early offer were made and accepted, the plaintiffs lawyer-having done little work-would be limited to hourly fees, capped at 10 percent of recoveries up to $100,000 and 5 percent of any additional amount.

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Iraqgate: Mother of All Phony Scandals

by Stuart Taylor, Jr.

"This is a bigger cover-up than Watergate ever was… It involves the decision by George Bush to arm Saddam Hussein."

–Vice President nominee Albert Gore Jr., Oct. 25,1992

‘We did not find evidence that U.S. agencies or officials illegally armed Iraq…. We also considered whether the Justice Department’s earlier work…. was subverted for political purposes, and found that it was not…. I found no evidence of corruption or incompetence…. On the contrary, the work of the Department and other agencies has by and large been thorough, persistent, and careful."

–John Hogan, counselor to Attorney General Janet Reno, in final report of special task force investigating alleged Bush administration crimes involving Iraq, made public Jan. 23, 1995

So the last word is in. At least, it will be the last word for all but the looniest of conspiracy theorists. The great "Iraqgate" scandal of 1992-a cavalcade of claims democrats and big-shot journalists that the Bush administration secretly and illegally armed Saddam Hussein’s Iraq, then lied to Congress and obstructed justice to cover it up-has been found phony, by none other than the Clinton administration.

John Hogan, a longtime close aide to Attorney General Janet Reno, whom Reno chose in June 1993 to get to the bottom of Iraqgate, has now issued a carefully documented 119-page report, summarizing the work of nearly 20 prosecutors and investigators over 15 months.

The bottom line: no evidence of Bush administration crimes, no evidence of a cover-up, no evidence of a "decision by George Bush to arm Saddam Hussein," no evidence of obstruction of justice.

As Hogan notes, with admirable understatement, "Neither I nor the Justice Department have any stake in protecting earlier administrations from embarrassment."

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Outrages and Curmudgeonly Complaints

by Stuart Taylor, Jr.

In the spirit of the season, and in the hope of a fresh start-with malice toward none, with charity for all-in the new year, I hereby purge myself of various vexations left over from the old year.

LEFT-WING CLALAP

• The dangerous demagoguing of the Medicare issue by President Bill Clinton and other Democrats, who seek profit from big lie that the Republicans would destroy the program-when, in fact, they would not cut much more than the president himself has proposed. The Democrats’ tactics may make it politically impossible to avoid budget deficits that are so huge, for so long, as to risk fiscal disaster.

• The Sept. 29 suggestion by Willie Brown-the former speaker of the California Assembly who was elected mayor of San Francisco this month-that students should "terrorize professors you don’t like" to demonstrate displeasure when those professors support the "racist" and "crazy" idea that university admissions should not be based on race.