Why Clinton Should Get Limited Immunity

"The entire presidency could turn on the occurrence of a trial like this" -White House Special Counsel Lloyd Cutler, May 24, on "The MacNeil/Lehrer NewsHour."

Wow. That really lets the cat out of the bag. This stuff about "temporal immunity" (as Cutler called it) is not, at bottom, about diverting President Bill Clinton from his weighty duties or wasting his time (although Cutler stressed that, too). It’s about muffling potentially ruinous publicity.

That’s why all the president’s lawyers are cooking up arguments for putting Paula Corbin Jones’ sexual-harassment lawsuit on ice for as long as seven years.

The president is worried that the American people will turn from him in disgust if they have their noses rubbed in the spectacle of Arkansas state troopers, who were the then-governor’s bodyguards, swearing that Clinton regularly sent them out to procure women and had them arrange and conceal his extramarital encounters.

Worse, Trooper Danny Lee Ferguson, Clinton’s co-defendant, has told reporters (and might testify) that the president telephoned him several times dangling possible federal jobs, perhaps in the hope of keeping him quiet, and that Clinton operatives pressured him not to tell the truth. (The White House denies this.)

Worse still would be the spectacle of the president undergoing cross-examination about whether he had ever had Ferguson bring Paula Jones to him in a hotel room (as Ferguson and Jones have both said), and if so, for what purpose. The president has said- through his private lawyer, Robert Bennett-that he "has no recollection of ever meeting this woman." Nobody I know believes that.

Sleazy In Seattle

Discovery is the bread and butter of most big-firm litigators. But the most important and ethically sensitive decisions the make-choosing when and how to avoid disclosing damming evidence to adversaries-are almost always veiled in secrecy. Now an anonymous whistle-blower in a case near Seattle has helped give as a revealing glimpse into how litigators reconcile their duties to be zealous advocates with their duties not to be whores. It’s not a pretty picture and it involves one of Seattle’s largest and most prestigious firms.

The covered-up corporate document that the whistle-blower leaked in March 1990 led to an agreement this January by Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp. to pay $325000 in sactions for discovery abuse, one of the largest such awards ever. By misleading its adversaries to avoid producing damning documents in its client’s files, Bogle provided a textbox example of the need for discovery reforms even more far-reaching than those that were adopted last year by the federal judiciary-reforms that are still under attack in Congress. (On which more below.)

What prompted the settlement was a unanimous Washington Supreme Court decision last September 16, and the prospect of an evidentiary hearing on remand that would have made Bogle’s conduct look even worse than it looks in the court’s sternly worded opinion.

The seven justices held that Bogle & Gates and its client, a British-owned pharmaceutical company with U.S. headquarters near Rochester, had used "misleading" discovery responses to hide two I "smoking gun documents" from lawyers for a 3-year-old girl who suffered permanent brain damage as a result of taking a i Fisons asthma drug in 1986, as well as from lawyers for the girl’s pediatrician, who had filed a cross-claim against Fisons.

Euthanasia Puts Its Best Foot Forward

The American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1984 as part of a special issue imagining what the legal world might look like in 2009.

Lawrence Robbins had to stretch to find support in Supreme Court precedent., but he made the most of the facts in the Court’s second active-euthanasia case involving Alzheimer’s disease. The lawyer put the monkey on the justices’ backs at the February 4 argument in Madison v. California by implicitly floating this question:

What would you have done differently if you had found yourself in my client’s position?

Robbins seemed 10 have at least four votes leaning his way throughout – Chief Justice Kathleen Sullivan and Justices Ruth Bader Ginsburg, Jose Cabranes, and Webster Hubbell. California attorney general Jim Sutton and amicus Richard Taranto, representing the National Association of Attorneys General, got a friendly reception from Justice Antonin Scalia, Clarence Thomas, Frank Easterbrook, and J. Harvie Wilkinson III. That left Justice Sandra Day O’Connor once again seeming 10 relish her role as noncommittal swing Vote.

Robbins pitched his argument to O’Connor from the opening sentence: "Only this Court now stands between m;, 68-year-old client. Florence Madison, and 20 years in prison for committing Iwo deeply moral acts of love – acts very much like those hypothesized by the concurrence [of O’Connor, in 2006] in Jackson v. New York.

"Eight years ago, in 2001, my client did what she had to do to prevent her husband from blowing out his brains with a shotgun: She promised to spare him the kind of wretched, lingering death that he had watched his mother endure. In exchange for his agreement to forgo suicide, she promised to help him die with dignity if and when he had declined into such a state of living death that – by his own reckoning – he would have nothing left to live for.

Sanus Inc. Bets the Company on the Blame-the-Moms Defense

American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1984 as part of a special issue imagining what the legal world might look like in 2009.

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been "caused" by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

What To Do With The Microsoft Monster

The American Lawyer

Bill Gates, the second-richest man in America, was working through his second round of visits this past summer at the Federal Trade Commission, a place as creaky and antiquated as Gates’s Microsoft Corporation is sleek and dynamic.

Gates had a potent lobbying team along: Microsoft’s chief in-house counsel, William Neukom; former FTC commissioner Patricia Bailey; and partners from New York’s Sullivan & Cromwell and from Preston Thor-grimson Shidler Gates & Ellis, the big Seattle-based firm where Gates’s father is a senior partner.

But in his visits to each of the four participating com¨missioners on two clammy July days, the 38- (then 37-) year-old Microsoft chairman did much of the talking himself. And at times he got a bit carried away-just as his company sometimes does in the heat of battle against competitors. Like when he barked, "You don’t know what you’re talking about," at an FTC official in a meet¨ing in the chairman’s office.

Or when Commissioner Dennis Yao, a soft-spoken former Wharton business school professor, floated a line of hypothetical questions suggesting possible curbs on Microsoft’s growing monopoly power, including disclo¨sure to competitors and the public of technical data about its dominant personal computer (PC) operating systems, MS-DOS and Windows.

Gates was vexed. "He started by calling Yao’s ideas socialistic," recalls a source familiar with the July 15 meeting, "and as he got angrier and angrier and louder and louder, he got into calling them Communistic."

Battling The Bomb

The American Lawyer

A nuclear device "not much more than twice the size of this table," Thomas Graham, Jr., notes over lunch one day, "could level Washington from here past the Beltway, in all directions."

It was a table for two, looking across a grassy square at the White House. "I’ve held one in my hand, about the size of a basketball," Graham adds. That one, a crude nuclear land mine, could wipe out ten square blocks or so.

Graham has been using the tools of the law to keep that sort of thing from happening for 23 years at the Arms Control and Disarmament Agency, including 14 years as ACDA’s general counsel. Most recently, since becoming acting director when the Bush administration left office in January, he has steered the agency with signal success through two high-stakes battles.

The arms control job is not getting any easier, what with thousands of warheads rattling around in a Russia threatened by anarchy and racked by organized crime, with thousands more in Ukraine and Kazakhstan, with Pakistan already boasting nuclear weapons, with North Korea and Iran seeking to build them or buy them on the black market.

"Americans should feel more threatened now than they were during the Cold War," Graham explains in another conversation, in his office. "Whereas a full-scale thermonuclear war is now unlikely in the extreme, it never was very likely. On the other hand, the prospect of some terrorist group or criminal organization acquiring a nuclear device and smuggling one or more into an American city is much greater than it was during the Cold War." Take note, New Yorkers.

Graham drove home this deadly danger of nuclear proliferation during two policy debates this year, in which he and more powerful allies in Congress prevailed over high-level Clinton political appointees at the Defense and State Departments.

DOJ Nominee’s Authentic Black Views

Starting in 1981, the Reagan administration adopted the civil-rights agenda of the Republican right wing. It was a cheap way to appease a key constituency. The Justice Department’s Civil Rights Division was put under William Bradford Reynolds, whose policies were skewed by preoccupation with the threat of quotas and reverse discrimination against white males: He adopted a tone of self-righteous ideological certitude that polarized debate and obscured the strengths of his own position.

Now it appears that the Clinton administration may be starting down a similar road by adopting the civil-rights agenda of the Democratic left wing-including a proclivity for pushing the use of thinly veiled racial quotas. The best evidence is President Bill Clinton’s nomination of Lani Guinier, an impressive litigator-scholar with some alarmingly radical views, to head the Civil Rights Division.

Guinier sees white racism as an evil so pervasive and persistent as to require the most drastic of remedies-like junking "American majoritarianism" in favor of court-ordered allocation of "proportionate power" among racial blocs in legislative bodies. She says that civil-rights enforcement is and must be "a result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal." She suggests black legislators are "authentic representatives" only if they "are politically, psychologically, and culturally black."

And she has reviled Reynolds, six Supreme Court justices, and others with a bitterness and stridency that makes Reynolds’ rhetoric seem almost mild by comparison.

Justice Byron White: The Consistent Curmudgeon

The thumbnail sketch that has taken hold in commentary about Justice Byron White over the years goes something like this: Started as a Kennedy Democrat when appointed to the Supreme Court in 1962, moved to the right, ended as a crusty Rehnquistian conservative.

The 75-year-old White’s announcement on Friday that he would retire at the end of the current Court term provides an occasion for revisionism

Crusty he is, with a vengeance. This is a man of whom it was said, when he was the nation’s best college football player 56 years ago, that he was fast enough to run around defenders, but mean enough to prefer running through them instead and blasting them out of the way with his forearms. A lot of lawyers who have been bullied from the bench by White’s coldly penetrating questions would say he hasn’t changed much. So would a lot of former law clerks who have tasted White’s el-bows while going up for rebounds. ("The basketball court’s the only time I’ve ever really see him get close to people," says one.)

Nor has White’s ideology changed much, if at all. He never was the kind of liberal that the Kennedy name has come to stand for. (Nor was JFK, for that matter.) And he is not really a full-dress Rehn-quistian conservative now, except on a bunch of high-profile issues that have come to dominate headlines about the Court over the past two decades.

White’s jurisprudence has been characterized by the independence of a self-made, small-town Coloradan who grew up poor; the hard, hands-on work of a man who is at his desk at 7 a.m.; a dogged, unflashy consistency that bespeaks fundamental integrity; and the judicial self-restraint of a man who told the Senate Judiciary Committee during his 15-minute confirmation hearing in 1962: "I feel the major instrument for changing the laws in this country is the Congress of the United States."

Clinton Flouts the Rule of Law

President Bill Clinton’s embrace of a policy that candidate Clinton had unambiguously denounced is immoral and "illegal" is a discouraging sign for those of us who have looked to him to restore executive-branch respect for the rule of law.

Last July 29, Clinton said: "The [U.S.] Court of Appeals [for the 2nd Circuit] made the right decision [today] in overturning the Bush administration’s cruel policy of returning Haitian refugees to a brutal dictatorship without an asylum hearing."

But on March 2, President Clinton sent a Justice Department lawyer to the Supreme Court to urge reversal of the 2nd Circuit and to bless his perpetuation of the Bush policy, which critics have aptly dubbed a "floating Berlin Wall."

President Clinton, like President George Bush before him, is blocking Haitians from fleeing their island prison for the United States or anywhere else, by seizing them on the high seas and forcibly returning them to their persecutors, without even a cursory hearing for those seeking refuge from political terror.

Here’s how the president explained this flip-flop, on March 2: "I mean, you know, something that was never brought up before , but is now painfully apparent, is that if we did what the plaintiffs in the court case want, we would be consigning a very large number of Haitians, in all probability, to some sort of death warrant." Many would swamp and drown after setting sail in rickety boats, he suggested.

President Clinton’s claim that the danger of drownings "was never brought up before" is simply false; the Bush administration had proclaimed that danger since the May 24 executive order that created the floating Berlin Wall.

Inside The Whirwind

Zoe Baird and her husband Paul Gewirtz, were sitting alone in a small conference room at the Washington, D.C., office of Melveny & Myers about 8 P.M., splitting a sandwich left over from lunch. Their "illegal alien" problem had burst onto the front page of The New York Times that morning, January 14. Another cold blast of bad press was on its way.

"They both looked white as sheets," says a lawyer who saw them there that evening. "The were having a small conversation, a little chitchat, and the two of them mustered a smile. I was struck by how small they looked, with this huge tide about to roll over them, looking very white and very small and very sad. And there wasn’t a damn thing they or anyone else could do.

"You can’t know what it means until you have seen that happen to a human being," this lawyer continues. "It just hit me in the stomach. These are good people who got hit with this thing, and they didn’t deserve it."

The impossible dream – first woman attorney general! brightest new star in the Clinton cabinet! – was beginning to turn into a nightmare. It would unfold over the next seven days with all the cold, capricious cruelty of fate. And it would do lasting damage to our polity by unleashing furies of selective ethical puritanism that will disable or deter many people of integrity, like Baird, from pursuing public service. The casualties – Kimba Wood, Charles Ruff, and more – mounted rapidly as Bill Clinton’s search for an attorney general degenerated from tragedy to farce.

Just 20 days before, on Christmas morning, Baird’s nomination had dominated the news. There were glowing profiles and front-page pictures of her and President-elect Clinton beaming at each other. "You might as well resign right now," a friend recalls telling Baird that day, "because it’s never going to get any better than this."