Darrell,
Did you know that Scaife's influence spread this far and this deeply??
<<<The attack judge
One federal jurist has shocked even hardened
Washington insiders by suggesting that Clinton has
declared "war" on the U.S. in his battle with Ken Starr.
BY JONATHAN BRODER | The roster of combatants
in the brawl between Kenneth Starr and President
Clinton has now expanded to include a conservative
federal judge and friend of Starr who has stunned
even battle-weary Washington insiders with his
intemperate attack on Clinton and Attorney General
Janet Reno.
As part of the federal appellate panel that refused to
hear the administration's arguments to prevent
Secret Service agents from testifying last week,
U.S. Judge Laurence H. Silberman wrote a scathing
opinion that accused Reno of acting not on behalf
of the U.S. government, but in the personal
interests of President Clinton. Then, using language
seldom seen in the federal judiciary, Silberman
questioned whether Clinton himself, by allowing his
aides to attack Starr, was "declaring war on the
United States."
The administration lost its legal battle last Friday
when Supreme Court Chief Justice William
Rehnquist cleared the way for the agents'
testimony. Clinton's chief bodyguard, Larry
Cockell, and six other Secret Service agents were
scheduled to appear before Starr's grand jury
Tuesday to answer questions about what they
know about Clinton's relationship with Monica
Lewinsky.
As the shock of Silberman's bluntly worded opinion
resonated through legal and political circles in
Washington this weekend, presidential allies
portrayed the federal judge as a conservative wolf
cloaked in judicial robes. When asked for his
reaction to Silberman's opinion last week, President
Clinton replied pointedly: "You should consider the
source."
Tapped for the federal bench in 1984, the
62-year-old Silberman is one of nearly 100
conservative judges President Ronald Reagan
appointed, and whose impact is now being felt in
the legal decisions that surround Starr's
investigation of Clinton. Another is Judge David
Sentelle, who sits on the special three-judge panel
that approved Starr as independent counsel. Starr
himself is a Reagan appointee.
But among these Reagan judicial appointees,
Silberman appears to be first among equals.
Described by legal observers as one of the most
conservative judges on the federal bench,
Silberman is perhaps best known in legal circles for
his bluntness. Supreme Court Justice Ruth Bader
Ginsberg, who once sat with Silberman on the U.S.
Court of Appeals, has called the tone of some of
Silberman's legal opinions "disrespectful." A few
years ago, amid a heated legal debate after a case
that was brought before the court, Silberman
angrily warned another colleague, Judge Abner
Mikva, "If you were 10 years younger, I'd be
tempted to punch you in the nose."
Silberman also has attacked as too liberal a number
of respected journalists who cover the federal
courts, including Pulitzer Prize-winning Linda
Greenhouse of the New York Times and National
Public Radio's Nina Totenberg, whom Silberman
once alluded to in speech as "the wicked witch of
the airwaves." He has publicly assailed the reporting
of the Times' Neil Lewis as "obviously distorted
and tendentious," failing to mention that Lewis had
written about Silberman's threat to assault Judge
Mikva.
"He seems to thrive on animosity," Lewis told the
American Lawyer magazine after that incident.
Lewis added that Silberman had tried to engage him
in a debate on another story he had written, but "I
found his letters so churlish and loopy that I
stopped responding to them."
In his opinion last week, Silberman wrote: "The
Attorney General is, in effect, acting as the
President's counsel under the false guise of
representing the United States ... I am mindful of
the terrible political pressures and strains of
conscience that bear upon senior political
appointees of the Justice Department when an
Independent Counsel (or special prosecutor) is
investigating the President of the United States.
"Those strains are surely exacerbated when the
President's agents literally and figuratively 'declare
war' on the Independent Counsel," who "stands in
place of the Attorney General and represents the
United States in any proceeding within his or her
jurisdiction."
Thus, Silberman asks provocatively, "Can it be said
that the President of the United States has declared
war on the United States?"
In the wake of last week's opinion, some of the
president's allies now charge that it is Silberman
who has crossed the line into partisanship,
suggesting (hopefully) that he may need to recuse
himself from any future decisions involving Clinton.
One legal issue that remains to be resolved is
whether Starr can compel testimony from White
House Deputy Counsel Bruce Lindsey, who is
claiming attorney-client privilege.
The judge's critics note Silberman is a personal
friend of Starr and that both are members of the
Federalist Society, a legal organization dedicated to
advancing a conservative interpretation of the law.
Moreover, they note, Silberman's wife, Rosalie, is
the founder of the Independent Women's Forum, a
conservative organization heavily funded by
Pittsburgh billionaire and fierce Clinton critic
Richard Mellon Scaife. Mrs. Silberman hired Starr
to write an amicus brief for her organization in the
Paula Jones sexual harassment suit against Clinton.
"Silberman and his wife are a political couple," says
one presidential ally. "At the very least, there is an
appearance of a conflict of interest."
The canons of legal ethics say a judge should
recuse himself when his impartiality reasonably
might be questioned, including instances where he
or she has a personal bias or prejudice against a
party or a party's lawyer. There is also a judicial
body that oversees questions about a federal judge's
ethics. But legal ethicists note that in most cases, it
is the federal judge who assesses the reasonable
objective standard under which he or she should
operate.
"Silberman has made the decision that his
sentiments and his friendship with Starr and others
aren't such that a reasonable person would question
his impartiality," says Bruce Green, a legal ethics
professor at Fordham University Law School in
New York. "There's not that much you can do
about it."
Moreover, Green says, there are no particular rules
that say it violates judicial ethics to write opinions
with a certain degree of vigorous language. "When
you become a judge, at some point you're subject
to your own sense of propriety," he says. "But
there's nobody there who can say -- particularly at
Judge Silberman's level -- that this is intemperate,
injudicious or creates an appearance of impartiality
... When it comes to opinions, there's no consensus
about how nice you have to be."
And as far as Silberman's politics are concerned,
Green says they aren't relevant. "Everybody on the
bench has political views," he says. "Some will love
the president, and some will hate him. You have to
presume that whatever their personal or
philosophical views, they all take the oath to uphold
the Constitution and will do their best to call it as
they see it."
How Silberman calls them is another issue. One of
the most extraordinary aspects of Silberman's
opinion last week is not his provocative rhetoric but
his judicial reasoning, which goes back 10 years.
Writing in the Washington Post, legal expert
Benjamin Wittes notes that in an "elegant" 1988
decision, Silberman ruled that the independent
counsel's statute -- the law that created the post
Starr now occupies -- violated the Constitution's
guarantees of separation of powers. Silberman held
that since the powers of the executive are vested in
the president, any executive branch officer who
operates independently of the president detracts
from the chief executive's powers and is therefore
unconstitutional.
The Supreme Court, however, overturned
Silberman's ruling later that year, establishing that
an independent counsel is a constitutionally kosher
"inferior officer" of the executive branch. The
independent counsel's powers are legitimate, the
Supreme Court ruled, as long as this "inferior
officer" is appointed by a court, obligated to follow
Justice Department policy and removable by the
attorney general.
"Starr, in other words, can exist constitutionally
only as long as he remains such an 'inferior
officer,'" Wittes writes. "The moment he becomes
anything grander, his independence from the
president would render him constitutionally
defective."
But in his most recent opinion, Silberman holds that
the independent counsel legally has the "full power
and independent authority to exercise all
investigative and prosecutorial functions and
powers of the Department of Justice [and] the
Attorney General." In such cases, he says, Starr
replaces Reno as attorney general. Wittes notes that
Silberman's description of Starr's power "hardly
sounds like an inferior officer. Quite the contrary."
Silberman's opinion "would inflate the balloon of
Starr's authority well past the point where his
constitutionality would burst," he writes.
Which brings the debate over Silberman back to the
question of his judicial independence. In one
breath, Wittes observes, the judge savages the
administration's honesty and integrity, while in the
next, he puts forward a legal opinion that would
ultimately render Starr -- and all the trouble he has
caused Clinton so far -- illegal.
Someone once said, "If you like the law and you
like sausage, don't watch either of them being
made." But in the continuing drama over Starr and
his powers, this seems to be one legal sausage --
and sausagemaker -- well worth watching.
SALON | July 21, 1998 >>> |
