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Sally Yates and Me

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I was never Deputy Attorney General or Acting Attorney General or anything close. But a long time ago, in my days in the US Attorney's Office, I had my Sally Yates moment.  As a mostly obscure, but in that one instance somewhat prominent, federal prosecutor, I disagreed with the White House about the proper litigating position in a high profile case, one that was on its way to the Supreme Court.

Ms. Yates chose her path.  I chose a different one.  
The case was Dickerson v. United States, 530 US 428 (2000).  It was on certiorari from the Fourth Circuit's judgment and opinion, 166 F.3d 667 (4th Cir. 1999).http://www.leagle.com/decision/1999833166F3d667_1764/U.S.%20v.%20DICKERSON.  

The case concerned one of the mysteries of Miranda:  What, exactly, was the constitutional basis for Miranda's prescription of specific warnings the police are required to give and, even more importantly, its rule of automatic exclusion of a defendant's statement given without the warnings, even in a case where it was established or conceded that the statement was voluntary.

I'll try to be quick in summarizing the background.  Congress was unhappy with what it viewed as Miranda's overreach, and, in a subsequent statute, 18 USC 3501, significantly changed its automatic rule of exclusion. The statute restored the Fifth Amendment's voluntariness test, but required the trial court carefully to weigh whether warnings had been given in making the voluntariness determination. 

Of course, mere legislation cannot alter protections required by the Constitution itself.  The question, then, was whether Miranda's rules were, indeed, requirements of the Fifth Amendment, or were instead  --  as the Court had said repeatedly up to then  --  merely prophylactic measures designed generally to safeguard the Fifth Amendment, but not more than that.

The district court suppressed Dickerson's statement.  It found that the statement was voluntary, but had not been preceded by the warnings, and therefore had to be excluded under Miranda.

The line attorney on the case asked me, as the head of appeals for that Office, if I could get this turned around.  I knew about Section 3501, and, although I had never seen it used in the roughly 30 years of its existence, I said I would give it a go.

I did this not simply because I wanted to help out a colleague or enable our Office to use Dickerson's statement at trial.  I did it principally because, as an officer of the executive branch, it was my duty to defend an act of the political branches (i.e., Congress's adoption and the President's signing Section 3501) if there were any colorable basis upon which I could do so.  

I had doubted for years that Miranda had a proper constitutional grounding, and I was fortified in this belief, not only by the "prophylactic only" dicta in several cases, but by New York v. Quarles (the "emergency exception" case), which made it logically impossible to think that the prior rendition of warnings was a constitutional prerequisite to admissibility.  I also knew about a Henry Monaghan article (I think  in the Harvard Law Review) that persuasively explained Miranda as constitutional common law  --  common law that, like all other such law, can be displaced by statute.  That, in my view, was what Congress had done in adopting Section 3501.

In other words, I knew I had a colorable argument in favor of the statute.

To make a long story short, so did a divided panel of the Fourth Circuit.  I was a happy man to say the least when its opinion came down.  My happiness was not shared at Janet Reno's Justice Department, which now had to decide what to do when Mr. Dickerson filed his cert petition.

The ensuing ruckus at DOJ was something to behold.  Most of the career people were for me.  My boss, the US Attorney, Helen F. Fahey, an appointee of Bill Clinton, courageously backed me up, at no little cost to her. The big shots at Main Justice were, so I was told, divided.  The rumor was that then-Deputy Attorney General Eric Holder was on my side, but I have never been able to confirm that.

Ultimately,  Miranda, the single most important liberal icon of the Warren Court, was too important for a Democratic Administration to give up on.  DOJ decided to line up with the defendant, Dickerson, and walk away from the Section 3501 argument that had won the case for the government in the Fourth Circuit.

What I should do when the case went to the Supreme Court presented my Sally Yates moment.  

I had a choice.  I could defy my superiors on a question where I was quite sure I was right (and equally sure I was doing the right thing to defend the public interest, both in bringing a guilty man to justice and providing the full truth to the jury).  Or I could accept my subordinate status and resign.

After a career of almost 25 years at Main Justice and then the US Attorney's Office, I resigned the next day. We have one President at a time, and it wasn't me. 

There is, as you might imagine, a postscript to this.  The case was a big deal.  It got national attention, including a front page headline in USA Today.  Once I left the government, I was interviewed about it on Sixty Minutes.  After years in total obscurity, that was the beginning of my public advocacy, which later would expand quite a bit.

When I wrote my letter of resignation to the US Attorney, I copied several of the bigshots at DOJ.  I got a number of responses.  The one I remember best was from the Solicitor General, Seth Waxman.  It might be the most generous and gracious letter I have ever received.  He in essence thanked me for sacrificing my career for a principle I believed in.  I have regarded him as a friend ever since.

My departure of DOJ would prove temporary.  The Republicans noticed this episode.  After George W, Bush was elected, I was asked to accept a political appointment as Counselor to the head of the DEA.   

I'll just close by saying this:  I think Sally Yates did exactly the wrong thing.  An attorney for the United States has to understand that he (or she) holds power, not to give voice to his beliefs, no matter how urgently and sincerely felt, but to represent a sovereign put in place by electoral processes that are more important than you are.  

1 Comment

A fascinating story, Bill. Thanks for sharing it and for your service to the country.

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