A Terroristic Divorce

Extracted From LEGISLATORS AS THE “AMERICAN CRIMINAL CLASS”: WHY CONGRESS (SOMETIMES) PROTECTS THE RIGHTS OF DEFENDANTS by
Craig S. Lerner

Citizen Protection Act

The McDade Amendment, also grandiosely known as the Citizen Protection Act (CPA), has been described as “Joseph McDade’s swan song—and a parting shot at the Department of Justice . . . .” The law requires that “[a]n attorney for the Government shall be subject to [s]tate laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Simply put, the CPA imposes state ethics rules on federal prosecutors. However equitable that may sound, it has in practice proven highly problematic, and has been the subject of substantial academic criticism. Prior to 1998, for at least a decade, state and federal courts, as well as the local bar associations, had grappled with the problem of developing ethical rules for federal prosecutors. The CPA stunted any possibility of gradual development, neglected the panoply of conflicting interests at stake, and shackled federal prosecutors with a law that has proven difficult and costly to administer.

It originated just weeks after McDade’s acquittal, when he introduced the original version of a bill that would eventually become law. In a subcommittee hearing, Representative McDade was the first and principal witness, summoning his “first-hand knowledge of the overzealousness and excessiveness of federal prosecutors.” Although McDade alleged that the “problem” of prosecutorial misconduct was “serious,” he provided virtually no evidence to support this claim, other than anecdotal claims based on his own experience. Why, then, should the members of the House heed his words? Because, said McDade, he spoke “with the authority of one who has had his life turned upside down . . . .” He added:

So I come to you today with a bias borne of hard personal experience. I used to blindly trust that our system worked. Now I have learned that our law enforcement community has to some extent lost its way, strayed from its mission.

The Department of Justice dispatched the Solicitor General, Seth Waxman, to Capitol Hill to respond to McDade and to urge the House of Representative to reject his proposal, and the executive branch won a temporary victory when the subcommittee buried the bill. Undeterred, McDade reintroduced the bill in the next Congress. The bill made it out of subcommittee, but the House Committee on the Judiciary then failed to take any action.

McDade soldiered doggedly on. In March 1998, he introduced an expanded version of the legislation in the Committee on the Judiciary. At this point, the bill had thirty-three sponsors, virtually all of whom were, like McDade himself, Republicans. Yet a few members of the House crossed the political aisle. They included: Representative Murtha, whose run-in with the law during the Abscam investigation has already been noted; Representative Traficant, who had been indicted two decades earlier and would be indicted again in a few years; and Representative Ford, Jr., whose father (also a member of Congress) had been indicted for bank fraud and tax evasion. Although the bill claimed thirty-three sponsors, the House Judiciary Committee declined to take action on it.

At this point, the progress of the CPA becomes murky. It seems that McDade convinced the House Appropriations Committee to include his proposed legislation in an appropriations bill. After a perfunctory hearing, the Committee passed the appropriations bill, with McDade’s provision included, in July 1998. The McDade provision found its logical place in an appropriations bill, nestled immediately between a provision allocating $17 million for the maritime administration and a section amending the National Whale Conservation Fund Act. Support for the McDade provision swelled in Congress when it emerged that Independent Counsel Starr had engaged in allegedly questionable tactics during the Lewinsky investigation, including the questioning of a suspect outside of the presence of her counsel.

The bill was then collapsed into an Omnibus Consolidated and Emergency Supplemental Appropriations Bill, and presented to the Senate on August 31, 1998. Although the House had been a congenial place for McDade’s law, the Senate accorded it a relatively chilly reception. Senator Leahy (D.-Vt.), the Chairman of the Senate Judiciary Committee, spoke out on the floor against the CPA, noting that the provision placed “unnecessary and ill-advised obstacles in the path of effective interstate and international prosecutions.” The ranking minority member of the Senate Judiciary Committee, Senator Hatch (R.-Utah), also criticized McDade’s measure as harmful to the legitimate interest of law enforcement. In addition, noting the remarkably unified opposition to the measure inside and outside the administration, Hatch and Leahy expressed displeasure that the Judiciary Committee had been bypassed, and they sent a letter to the Senate Appropriations Committee urging removal of the provision from the conference report.

Indeed, far from there being any groundswell of support for the measure, most outside observers were critical. Here again, as with the Hyde Amendment, Congress proved itself determined to enact a measure that satisfied no real constituency, and that few in the general public considered to be in the public interest. The Washington Post, for example, hardly a bastion of law-and-order conservatism, ran an editorial critical of the CPA. Although acknowledging that steps should be taken to check federal prosecutors, the editorial pointed out that the measure was too blunt to accommodate the countervailing interests in effective law enforcement. The Post editorial noted that “[o]ne might expect that criminal justice legislation that is opposed by the president, the attorney general and the chairman and ranking member of the Senate Judiciary Committee would not be blithely slipped into the statute books.” But that was precisely what happened. And when push came to shove, Leahy and Hatch declined to hold up the entire appropriations because of their opposition to the measure.

Gloating over the act’s passage in his final days in office, McDade scorned even the veneer of even-handedness, and spoke of his handiwork in the tones of a caricature of a crusading ACLU lawyer: “The Department of Justice today is engaging in the most immoral activity I can imagine,” McDade pronounced. “They charge any citizen that they can get, and as it was once said, they don’t throw the book at them, they throw the library.” Ironically, if McDade’s concern was the prosecutorial penchant to “overcharge” in the drafting of indictments, a legitimate concern that does indeed warrant scrutiny, his measure does absolutely nothing to address this problem.

But what has the CPA accomplished? To their credit, Senators Leahy and Hatch have tracked the real-world consequences of the McDade Amendment, and urged its repeal. Indeed, even before the September 11, 2001 attacks on the Pentagon and World Trade Center, the two leaders of the Senate Judiciary Committee cataloged how the application of the vagaries of state ethics rules, and in particular the rule prohibiting contact with represented parties, have sabotaged one federal investigation after another. For example, Senate Leahy took to the floor of the Senate and described how the McDade Amendment worked in actual practice in an FBI child-murder investigation. Having obtained a reliable tip that an individual, who was in a county jail after conviction on an unrelated charge, was the culprit, the FBI sought to wire one of the suspect’s trusted accomplices. But prosecutors, fearful that this might run afoul of the state’s ethics rules prohibiting contact with represented parties, sought guidance from the State Bar Disciplinary Counsel. The Counsel, interpreting the state ethics rules, concluded that the suspect was still a “represented person” and, therefore, prohibited any direct contact by an agent of the police. Such a prohibition, one should add, is in no way required by the U.S. Constitution, nor any federal regulations, but the effect of the McDade Amendment here was to short-circuit a federal murder investigation.

The September 11th attacks have prompted a reappraisal of the costs of the McDade Amendment. FBI agent Colleen Rowley, the celebrated whistleblower who excoriated FBI headquarters for its refusal to approve a warrant application to search Zacarias Moussaoui’s laptop computer, specifically urged Congress to reconsider the McDade Amendment, precisely because of the hindrance it might pose in terrorism investigations. Indeed, it is relatively easy to imagine how investigations into terrorist cells stretching across states, and involving parties who may have had brushes with the law in the past, might be delayed or even jeopardized by the McDade Amendment. In response, as noted earlier, Senator Leahy included a proposal in the Patriot Act to overhaul the McDade Amendment. But the House steadfastly rejected the Senate’s call for its replacement with a more measured provision. Responsible for creating this monster, and apparently attached to its own handiwork, the House would not consent to its destruction.