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When Is the Rule of Law Not the Rule of Law?

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Answer:  When politics trumps everything else.

Today we hear that the Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act.  This blog is, of course, not about gay marriage, but there is a much, much larger issue at stake.  

The Department has a long tradition of defending an Act of Congress when any reasonable argument can be made in its behalf.  This tradition is essential lest one administration be allowed simply to nullify duly enacted laws it views as politically or ideologically unpalatable.  Such a practice would grievously undermine stability and predictability, which are at the heart of the rule of law.  It would also create a gross expansion of executive power the Founders refused to indulge, i.e., a retroactive veto.  The President is authorized under the Constitution to veto legislation that arrives on his desk.  There is no provision authorizing him to veto legislation a previous Congress passed and a previous President signed.  But that is, for any practical purpose, what President Obama did today.

If the electorate now favors gay marriage, so be it; as I say, that is not the subject of this blog.  Let Congress repeal the DOMA, and President Obama can sign the repealer.  But make no mistake about it.  What we have today is a politics-first attack on the rule of law itself, and an attack undertaken simply to pander to Obama's left wing base.  Bill Clinton's midnight pardons look good by comparison.

Incidentally, we have been down this treacherous road before.  I traveled it myself.

I was a career attorney in the Justice Department for many years, and, after that, a political appointee.  While I was in a career position, I had a case, Dickerson  v. United States, involving the getaway driver for a bank robbery.  His inculpatory statement was voluntary, but (so the district court found) not preceded by Miranda warnings.  Under Miranda's automatic exclusionary rule, the district court had no choice but to suppress it, voluntariness notwithstanding.

But that was not the end of the story.  In 1968, Congress had passed a statute, 18 USC 3501, which modified Miranda's wooden exclusionary rule and required a more nuanced analysis  --  one that gave consideralble weight to warnings, but looked to other factors as well to determine admissibility. 

I decided to appeal the district court's suppression ruling based on Section 3501, which in its 30 years had never been struck down, or even criticized, by the federal courts.  I was the chief of appeals in the USAO, and I did not regard it as my job intentionally to subvert the interests of my client or sit on an argument I knew full well the Fourth Circuit should, and would want to, hear.

That's where the fun began.  My decision was not popular with either Walter Dellinger, then the Solicitor General, or Janet Reno.  This was because Miranda was (and is) an icon of the Left.  It's the sacred cow of legal deconstructionism.

Walter pulled rank on me, withdrew my brief from the Fourth Circuit and substituted a brief that still (wanly) contested the suppression ruling, but omitted the Section 3501 argument.  I refused to present this waif of an argument the Department had put forward, and sat stony-faced at the government's table in the court of appeals while my good friend Professor Paul Cassell, as an appointed friend of the court, made the Section 3501 argument.  

To the Department's well-earned mortification, the argument it refused to present won the case for its client.  In the course of its ruling, the Fourth Circuit said --  in what would turn out to be one of the high points of my career, as well as my epitath as an Assistant US Attorney:  

Dickerson voluntarily confessed to participating in a series of armed bank robberies. Without his confession it is possible, if not probable, that he will be acquitted. Despite that fact, the Department of Justice, elevating politics over law, prohibited the U.S. Attorney's Office from arguing that Dickerson's confession is admissible under the mandate of ยง 3501. Fortunately, we are a court of law and not politics. Thus, the Department of Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it.

By an 8-5 vote, the Fourth Circuit denied rehearing en banc.

As you might expect, the case went to the Supreme Court.  With everything I had, I urged the Department to reconsider its position and get behind the judgment in its favor.  The case had become such a hot potato that Aunt Janet polled the US Attorneys (all Clinton appointees, of course) on what the Department should do.  I am given to understand that the US Attorneys overwhelmingly supported arguing in favor of Section 3501 in the Supreme Court (the results of the survey were never officially made available to me), as did many career attoreys inside DOJ.

But ideology proved too much to overcome.  On the Miranda issue, the Department sided with the bank robber. 

In the Supreme Court, Paul Cassell again presented the argument in favor of the statute.  But this time, I was not at counsel's table.  I had resigned in disgust.  Paul and I lost the case in the High Court, but each of us would have his reward.  Paul was appointed a district judge by President Bush, and I became a contributing blogger on Crime and Consequences. 

The Department's action today  --  recklessly tanking another statute  --  thus rings a certain bell with me.  More important, it should ring a bell with all those concerned that the Department keep faith with its tradition of upholding the rule of law, regardless of the inevitable, temporary swings of politics and ideology.

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The Holder Justice department has consistently had their thumb on the scales of justice. This is but the latest example.

Scalia's Dickerson dissent is an all-time fave. One rhetorical punch as beautiful as any left hook ever thrown in a boxing match:

"The issue, however, is not whether court rules are 'mutable'; they assuredly are. It is not whether, in the light of 'various circumstances,' they can be 'modifi[ed]'; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."

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