Hello yellow brick road

The Washington Post story on the planned briefing of the FISA court continues the New York Times story on the NSA surveillance program authorized by the president: “Judges on surveillance court to be briefed on spy program.” Confidential intelligence sources stoke the fire. A FISA judge bravely speaking on condition of anonymity suggests that the FISA judges might consider disbanding the court. Lions and tigers and bears! Oh, my!

The premise of the briefing called by presiding FISA Judge Colleen Kollar-Kotelly seems to be that the legality of warrants previously issued by the FISA court is called into question by the NSA program. Judge Kollar-Kotelly, by the way, first came to our attention through her decision requiring the Federal Election Commission to regulate Internet communications.

If the NSA eavesdropping program was unconstitutional, the thinking must go, and if the FISA court authorized warrants in part on the basis of information gathered from the program, the warrants may have been improperly authorized: “Warrants obtained through secret surveillance could be thrown into question.” I wonder if the briefing might include a tutorial on the president’s constitutional powers as commander-in-chief to order warrantless surveillance.

The story also touches on the resignation of Judge Robertson from the FISA court; Judge Robertson continues to hold onto his gig as a United States district court judge. Students of ancient history may recall Judge Robertson’s membership in “the Magnificent Seven” on the District of Columbia district court. In March 2000, George Mason University Foundation Professor of Law Ronald Rotunda wrote a memorable “Rule of Law” column for the Wall Street Journal on “the Magnificent Seven.” The column was headed “Another Clinton Victim: The Integrity of the Federal Courts.” It may provide a little context for Judge Robertson’s return to the news this week:

Justice is supposed to be blind, deciding the law without favoritism. But there is a gradual accumulation of evidence that points in a contrary direction — that when criminal cases important to President Clinton were assigned and decided in the federal district court in Washington, D.C., Justice lifted her blindfold and politics controlled. The cloud of suspicion can be removed only if the D.C. federal court system and Congress thoroughly investigate and make public their findings. Let’s look at some of the facts.

When I was a special consultant to Kenneth Starr’s Office of Independent Counsel, the OIC often found its investigation delayed and disadvantaged by lower-court rulings subsequently reversed on appeal. When the Department of Justice brought its campaign-finance prosecutions, it also ran into a series of adverse rulings, also reversed on appeal. The trial judges who made a series of errors were all members of “the Magnificent Seven,” a label the Clinton appointees gave themselves (until Mr. Clinton added an eighth judge in 1998).

Normally, criminal cases are supposed to be assigned randomly. However, we now know that when criminal prosecutions were brought against Webster Hubbell and others with close ties to Mr. Clinton, Chief Judge Norma Holloway Johnson of the U.S. District Court in Washington, D.C., secretly bypassed the traditional random assignment system, passed over more experienced judges, and assigned the cases to the Magnificent Seven. When her colleagues discovered what she had done, some of them disclosed this information to the press. In a stunning rebuke, they last month took away her power to tamper with judicial assignments. But the damage was already done.

Judge Johnson assigned the Hubbell case to Judge James Robertson. She assigned to Judge Paul Friedman the campaign-finance case against Charlie Trie, the campaign-finance case against Democratic fund-raiser Maria Hsia, and the false-statements case against Thai lobbyist Pauline Kanchanalak. These Clinton- appointed judges then issued rulings that crippled the prosecution; in all these cases, various panels of the D.C. Circuit reversed. Do you detect a pattern here?

In the case of Ms. Hsia, Judge Johnson asked the Justice Department to ask her to assign the case to Judge Friedman. Then she used that request as her justification to make the special assignment. Some people launder money; others launder requests. I have never heard before of a judge playing such cat-and- mouse games in an apparent effort to hide her motives.

Judge Johnson assigned the case against Democratic fund-raiser Howard Glicken to Judge Henry H. Kennedy Jr., a 1997 Clinton appointee, claiming that it was “complicated or protracted,” although Mr. Glicken’s lawyer announced, when Mr. Glicken was charged, that he would plead guilty. She assigned the case against Miami fund-raiser Mark Jimenez to Judge Emmet G. Sullivan, a 1994 appointee.

One case in particular stands out, the prosecution of Webster Hubbell for income tax evasion. Parties not particularly close to Mr. Hubbell — but close to the president — paid Mr. Hubbell nearly $1 million. In return, Mr. Hubbell, who was in prison at the time, appeared to do no work. A cynic might call the payments hush money.

Judge Robertson, who presided over this case, had worked in and donated money to, President Clinton’s 1992 campaign. In the Hubbell tax-fraud prosecution, Judge Robertson ruled that he could ignore the ruling of the three-judge panel of the D.C. Circuit and hold that the OIC did not have jurisdiction to prosecute Mr. Hubbell and the other defendants, and that it could not use tax documents subpoenaed from Mr. Hubbell. Judge Robertson used incendiary language, calling the OIC’s tactics (which other circuits had approved) “scary.” The D.C. Circuit agreed with these other circuits and reversed.

At the time, the OIC did not know that Judge Johnson had manipulated the assignment to get the case before Judge Robertson. I went back to the transcripts after this information became public and saw Judge Robertson’s comments in a new light. The transcript reads as if Judge Robertson had decided that the case was not going to trial; he just had not decided why.

At the hearing of May 8, 1998, OIC counsel asked Judge Robertson to set a trial date, which is standard operating procedure. The judge responded that he normally does that but it would be “arbitrary” to do so here, “when we’re looking at the kinds of motions that I’m sure are coming.” In other words, the judge refused to set a trial date because of motions not even filed; that is not standard operating procedure. The OIC attorney replied that he had already talked to defense counsel and they were prepared to find a mutually agreeable date, to which Judge Robertson answered, apparently in surprise: “Oh.” He still refused to set a date.

At the June 2, 1998 hearing, the judge again questioned whether “it makes sense for us to set a trial date,” and he volunteered that any date will be written “in sand here if there are, heaven forfend, interlocutory appeals.” The defendants are not entitled to interlocutory appeals but the prosecution is, so once more it appeared that the judge had already decided that there would be no trial.

On July 1, three business days after oral argument, Judge Robertson issued a lengthy written opinion. This is an extraordinarily brief time in which to formulate a decision and write it up, unless the judge had made up his mind in advance.

Perhaps it was happenstance that Judge Johnson secretly assigned the Hubbell case to Judge Robertson, a Clinton appointee. Perhaps Judge Robertson’s statements in the transcript do not indicate that he, from the very beginning, had prejudged the matter and decided there would be no trial. But then another eyebrow-raiser occurred: It was discovered that Clinton-appointed judges on the D.C. district court were holding monthly caucuses from which other federal judges were excluded.

Four non-Clinton judges in the D.C. court, appointed by both Democrats and Republicans, were so upset that they anonymously told the press they questioned the propriety of these caucuses. One was quoted as saying: “We all come with political viewpoints but we try to leave politics behind. Unfortunately, the Clinton appointees have gone off on their own.”

Monica Lewinsky and Linda Tripp have been called victims of the Clinton presidency. Perhaps the Clinton presidency will claim as its greatest victim the reputation of the federal courts for integrity and impartiality.

UPDATE: Mac Owens also provides some useful context in yesterday’s Standard column: “War and peace.”

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