JUDGE'S GAVEL COMES DOWN HARD ON CLINTON
By Naftali Bendavid
Chicago Tribune
Washington Bureau May 29, 2000
WASHINGTON -- When a federal judge recently declared that
President Clinton had violated the Privacy Act and committed a
crime by releasing personal letters written to him, Clinton noted
acidly that the judge had "somehow acquired a significant
percentage of the cases involving the White House." A Clinton
adviser called the judge a "loose cannon."
It is highly unusual for a president to take on a judge this way,
but Royce Lamberth is hardly a typical judge. The flamboyant
56-year-old Texan in recent years has aimed a series of
well-publicized jabs at the Clinton administration--penalizing
high-level aides, challenging presidential initiatives,
questioning administration motives and lambasting Clinton
officials in cutting, colorful language.
Lamberth's reputation for nettling the president, who also faces
a humiliating recommendation by an Arkansas disciplinary panel
that he lose his law license because of untruthful testimony in
the Paula Jones case, is such that one user of the anti-Clinton
Web site Free Republic recently posted the message, "U.S.
District Judge Royce Lamberth is WAY Cool! An unsung hero in my
book." Replied another, "YES WAY COOL!!!!!!!" A third wrote that
Lamberth "is just hammering the Clinton Admin."
Those familiar with Lamberth, including many of the lawyers who
practice before him, say he is highly suspicious of the
government and appears to strongly dislike the Clinton
administration. That, combined with an affinity for publicity,
has prompted Lamberth to issue a string of provocative--his
critics would say questionable--rulings against Clinton and his
associates.
"The substance of some of his rulings has been, to be polite,
suspect," said Stanley Brand, a prominent Democratic attorney.
"The ruling on the Privacy Act was outrageous. To conclude in a
civil case that the president committed a crime, which would
mostly be a jury issue, seemed inappropriate and unfounded and
unnecessary."
An appeals court Friday added fuel to such criticisms with an
unusual rebuke of Lamberth for declaring Clinton had criminally
violated the Privacy Act by releasing personal letters written to
him by Kathleen Willey. "It was inappropriate for the district
court gratuitously to invoke sweeping pronouncements on alleged
criminal activity that extended well beyond what was necessary to
decide the matter at hand," the court wrote.
Lamberth's equally fervent defenders respond that he is
justifiably skeptical of a heavy-handed government and an
administration that has been known to cut corners. Before being
appointed by President Ronald Reagan, Lamberth was a government
lawyer, and some say that helps him see through government
stonewalling.
"He knows what is going on in the courtroom, and he doesn't take
kindly to pretenders," said former U.S. Atty. Joseph diGenova, a
Clinton critic and Lamberth's former boss. "He was a real
litigator before he became a judge. He knows prevaricators and
people who fool around with the system and people who are
dilatory and charlatans."
In an interview in his office--something many judges would not
grant--Lamberth was philosophical about the criticism. "It comes
with the territory, especially if you have cases like I've had,"
he said. "What do you expect? There is no way that these kinds
of cases will not be criticized by somebody. You can't have a
thin skin."
Lamberth has a friendly, open demeanor and a gentle Texas accent.
Virtually every surface in his office, including chairs, is piled
several feet high with court documents. The walls feature a
sketch of Lamberth presiding over a trial and a framed flag of
Texas given to him by a group of clerks.
"When lawyers do things that are wrong, a judge's obligation is
to call them to account," Lamberth said. "Many judges would
rather say, `Go settle this yourselves. Go work this out. Don't
bother me.' I don't think that's the right approach. But my
reputation bothers me. I'm not seeking to have a reputation
either that I'm harsh on lawyers or that I'm hard on the
government."
Yet in the eyes of some, Lamberth has taken on a role as
Clinton's judicial nemesis. He has issued a striking series of
tough decisions against the administration. Among them:
Lamberth in 1993 said the health-care task force headed by First
Lady Hillary Rodham Clinton broke the law by meeting in secret, a
stinging blow to the new president's first major initiative. An
appeals court overturned Lamberth, saying the task force had no
obligation to meet in public.
In the same case, Lamberth asserted that top Clinton aide Ira
Magaziner lied under oath and the judge asked prosecutors to
investigate Magaziner for perjury. The prosecutors cleared
Magaziner, but Lamberth reprimanded Magaziner anyway, calling the
government's behavior "shocking" and fining it $285,864 for
Magaziner's statements. The appeals court found that ruling
"clearly erroneous" and threw it out.
Lamberth last year cited Interior Secretary Bruce Babbitt and
Treasury Secretary Robert Rubin for contempt of court, the only
modern occasion in which Cabinet secretaries have been found in
contempt. Few deny that the government botched the case, which
involved Indian trust funds, but some believe Lamberth was
needlessly provocative in citing the secretaries instead of their
subordinates. Lamberth insisted in his opinion that he had
little choice.
Lamberth sentenced Ronald Blackley, a top Agriculture Department
aide convicted of making false statements, to 27 months in
prison, even though the federal Sentencing Guidelines recommend
six months or less. These guidelines are considered quite stiff,
and judges exceed them in less than 1 percent of cases, but an
appeals court upheld the sentence.
On March 29, Lamberth unilaterally declared that Clinton had
violated the Privacy Act when the president released a series of
chatty letters written to Clinton by Willey, a former White House
volunteer. The president released those letters, after Willey
accused him of sexually assaulting her, to show she had remained
friendly with him.
Lamberth found Clinton guilty of this crime even though: the case
at issue had nothing to do with Willey; the Privacy Act has
traditionally not applied to the White House; many believe the
act does not cover personal letters such as Willey's; Lamberth
did not need to declare Clinton guilty to reach the finding he
wanted; and Clinton had not been charged with anything.
The controversy surrounding Lamberth reflects in part the
enormous and sometimes unrecognized influence of individual
judges over national events.
"Individual district court judges, for good or for bad, have
incredible power," Brand said. "That is what people don't
realize until they see these kinds of cases. That irascibility
and lack of judgment [on the part of a judge] can be exercised
for good or bad."
Few cases have provided as much fuel for Lamberth's detractors or
his defenders, as two lawsuits filed by Larry Klayman, an ardent
Clinton critic who heads the watchdog group Judicial Watch.
Klayman's politics and style can be gleaned from a recent press
release headlined "Gutless Republican Wimps," chastising the GOP
for being too soft on Clinton.
Klayman has filed dozens of lawsuits targeting the Clinton
administration or its members, and two of the most explosive are
before Lamberth. Klayman's 1996 Filegate case seeks $90 million
in damages for individuals whose FBI files were mishandled by the
White House.
In the course of this 4-year-old lawsuit, Lamberth has allowed
Klayman to explore several other subjects in an attempt to show a
pattern of White House privacy violations. To Clinton
supporters, Lamberth has given an anti-Clinton zealot free rein
to explore anything he deems suspicious. He has interrogated a
host of Clinton allies, and the connection between his questions
and the FBI files is not always clear.
Klayman grilled former aide Paul Begala, for example, about a
Begala quip from a recent speech: "There are some good
Republicans out there--which is not something I would have known
just from reading their FBI files." Begala strained to assure
Klayman he was kidding and had in fact never read anyone's FBI
files.
"It is an absurd statement designed to elicit humor," he
explained. "It is a joke."
But Klayman bored in: "What is funny, Mr. Begala, about looking
into the FBI files of Republicans?"
Klayman's questioning of former White House staffer George
Stephanopoulos also wandered into unrelated territory, as Klayman
asked about speeding tickets and other seemingly random
transgressions.
Judicial Watch also has sued the Commerce Department, seeking
documents to prove that former Secretary Ron Brown, who died in
1996, illegally favored Democratic donors with slots on overseas
trade missions. The case has dragged on five years and spawned
31 volumes in the D.C. federal courthouse, as Klayman has
questioned one Commerce Department official after another.
In this case, too, Lamberth has often granted Klayman's requests
to delve into ever broader areas. An attorney for the Democratic
National Committee, which became entangled in the case, at one
point wrote in a brief, "DNC feels compelled to ask, like [George
Bernard] Shaw's St. Joan, `How long, O Lord, how long?'"
The Commerce Department became so dismayed with Klayman's assault
that in 1997 it took the unprecedented step of asking for a
judgment against itself--offering to pay all of Klayman's legal
fees and conduct an unusually thorough document search to satisfy
him. But Lamberth denied the request, allowing Klayman to
continue his investigation.
Lamberth's critics say the judge is letting Klayman act as a sort
of mini-independent counsel. "Judge Lamberth is such a guardian
of the Privacy Act, but he let Larry Klayman ask questions way
afield of the subject matter of the lawsuit. I think it's
schizophrenic," said Nancy Luque, a defense attorney who has
represented Democrats such as former Rep. Dan Rostenkowski
(D-Ill.).
Lamberth refuses to comment on specific cases. But there is
little doubt that the Commerce Department has conducted its
document search sloppily or worse, often failing to turn over
documents as required, and that this has infuriated Lamberth and
left him unwilling to rein in Klayman.
"This is not a case of a mere `fishing expedition,'" Lamberth
wrote at one point. "Even if it were, however, [Judicial Watch]
has now caught some fish, and the court is unwilling to suddenly
post a `No Fishing' sign."
Klayman insisted all his interrogations have had a solid legal
basis. "Judge Lamberth has been very restrictive in the areas we
can get into," Klayman said.
Clinton is not alone in wondering whether Lamberth has gotten an
unusually large number of cases affecting the administration, and
some Democrats have asked if Clinton adversaries have managed to
steer their cases to Lamberth.
That does not seem to be the case. If Lamberth has overseen more
than his share of Clinton-related cases, that has been luck,
because cases are randomly assigned to judges except under
unusual circumstances.
As one of 12 judges on the federal court in Washington,
Lamberth's influence is far-reaching. More than its counterparts
across the nation, the D.C. court handles cases of
constitutional importance. Litigants not infrequently include
such entities as the White House or House of Representatives.
Few miss the coincidence that Lamberth was a longtime government
lawyer, representing the same agencies he now often skewers.
Lamberth, born in San Antonio, served in Vietnam as part of the
Judge Advocate General corps, handling courts-martial in the
field, often in dangerous territory. After his service, Lamberth
came to Washington and soon took a job as an assistant U.S.
attorney, rising quickly through the ranks until he caught
Reagan's attention.
Instead of making him more sympathetic to the government,
Lamberth's federal experience seems to have left him more
suspicious of it. Where others see bureaucratic foul-ups,
Lamberth is more likely to see wrongdoing, according to some of
those who appear before him.
Few would deny that the government is guilty of serious
ineptitude and corner-cutting in some of Lamberth's cases. The
question is whether he has severely overreacted to shenanigans
that are, after all, confronted by all judges.
A group of Native Americans brought a case in 1996, for example,
charging that the U.S. has been startlingly sloppy in its
handling of a trust fund for Indians whose lands were taken.
After ordering the government to produce various documents,
Lamberth found it had omitted "a vast universe" of the papers,
kept no record of the process and destroyed records.
Government lawyers say a complex search involving millions of
documents was just bungled. But Lamberth saw something worse, as
he made clear in pillorying the government for "a shocking
pattern of deception of the court" and adding, "I have never seen
more egregious misconduct by the federal government."
Lamberth then cited Babbitt and Rubin for contempt of court,
though any misconduct was attributable to their underlings.
Lamberth insisted he had no other option legally, but others
involved dispute this.
"The lawyers did not act with the alacrity he wanted, but it was
outrageous the way he sanctioned people," said one attorney
involved in the case, who asked not to be named.
Lamberth conceded that he holds government lawyers to a higher
standard. "I do expect more of government lawyers, but I think
all judges do," Lamberth said. "We approach things with the
notion that ultimately the government lawyer is not out just to
win the case at any cost, but to help the court in seeing that
justice is done."
Lamberth added that he does not mind his rulings being
questioned, as long as it is done on the merits.
"Judges should expect that we're going to be criticized for what
we do," Lamberth said. "I don't think the criticism should be
personal, and I don't like personal criticism. But if people
disagree with the way I've ruled in a case, they're perfectly
free to express that."
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