The attack judge

One federal jurist has shocked even hardened Washington insiders by suggesting that Clinton has declared "war" on the U.S. in his battle with Ken Starr.

Published July 21, 1998 7:00PM (EDT)

The roster of combatants in the brawl between Kenneth Starr and President Clinton has now expanded to include a conservative federal judge and friend of Starr who has stunned even battle-weary Washington insiders with his intemperate attack on Clinton and Attorney General Janet Reno.

As part of the federal appellate panel that refused to hear the administration's arguments to prevent Secret Service agents from testifying last week, U.S. Judge Laurence H. Silberman wrote a scathing opinion that accused Reno of acting not on behalf of the U.S. government, but in the personal interests of President Clinton. Then, using language seldom seen in the federal judiciary, Silberman questioned whether Clinton himself, by allowing his aides to attack Starr, was "declaring war on the United States."

The administration lost its legal battle last Friday when Supreme Court Chief Justice William Rehnquist cleared the way for the agents' testimony. Clinton's chief bodyguard, Larry Cockell, and six other Secret Service agents were scheduled to appear before Starr's grand jury Tuesday to answer questions about what they know about Clinton's relationship with Monica Lewinsky.

As the shock of Silberman's bluntly worded opinion resonated through legal and political circles in Washington this weekend, presidential allies portrayed the federal judge as a conservative wolf cloaked in judicial robes. When asked for his reaction to Silberman's opinion last week, President Clinton replied pointedly: "You should consider the source."

Tapped for the federal bench in 1984, the 62-year-old Silberman is one of nearly 100 conservative judges President Ronald Reagan appointed, and whose impact is now being felt in the legal decisions that surround Starr's investigation of Clinton. Another is Judge David Sentelle, who sits on the special three-judge panel that approved Starr as independent counsel. Starr himself is a Reagan appointee.

But among these Reagan judicial appointees, Silberman appears to be first among equals. Described by legal observers as one of the most conservative judges on the federal bench, Silberman is perhaps best known in legal circles for his bluntness. Supreme Court Justice Ruth Bader Ginsberg, who once sat with Silberman on the U.S. Court of Appeals, has called the tone of some of Silberman's legal opinions "disrespectful." A few years ago, amid a heated legal debate after a case that was brought before the court, Silberman angrily warned another colleague, Judge Abner Mikva, "If you were 10 years younger, I'd be tempted to punch you in the nose."

Silberman also has attacked as too liberal a number of respected journalists who cover the federal courts, including Pulitzer Prize-winning Linda Greenhouse of the New York Times and National Public Radio's Nina Totenberg, whom Silberman once alluded to in speech as "the wicked witch of the airwaves." He has publicly assailed the reporting of the Times' Neil Lewis as "obviously distorted and tendentious," failing to mention that Lewis had written about Silberman's threat to assault Judge Mikva.

"He seems to thrive on animosity," Lewis told the American Lawyer magazine after that incident. Lewis added that Silberman had tried to engage him in a debate on another story he had written, but "I found his letters so churlish and loopy that I stopped responding to them."

In his opinion last week, Silberman wrote: "The Attorney General is, in effect, acting as the President's counsel under the false guise of representing the United States ... I am mindful of the terrible political pressures and strains of conscience that bear upon senior political appointees of the Justice Department when an Independent Counsel (or special prosecutor) is investigating the President of the United States.

"Those strains are surely exacerbated when the President's agents literally and figuratively 'declare war' on the Independent Counsel," who "stands in place of the Attorney General and represents the United States in any proceeding within his or her jurisdiction."

Thus, Silberman asks provocatively, "Can it be said that the President of the United States has declared war on the United States?"

In the wake of last week's opinion, some of the president's allies now charge that it is Silberman who has crossed the line into partisanship, suggesting (hopefully) that he may need to recuse himself from any future decisions involving Clinton. One legal issue that remains to be resolved is whether Starr can compel testimony from White House Deputy Counsel Bruce Lindsey, who is claiming attorney-client privilege.

The judge's critics note Silberman is a personal friend of Starr and that both are members of the Federalist Society, a legal organization dedicated to advancing a conservative interpretation of the law. Moreover, they note, Silberman's wife, Rosalie, is the founder of the Independent Women's Forum, a conservative organization heavily funded by Pittsburgh billionaire and fierce Clinton critic Richard Mellon Scaife. Mrs. Silberman hired Starr to write an amicus brief for her organization in the Paula Jones sexual harassment suit against Clinton.

"Silberman and his wife are a political couple," says one presidential ally. "At the very least, there is an appearance of a conflict of interest."

The canons of legal ethics say a judge should recuse himself when his impartiality reasonably might be questioned, including instances where he or she has a personal bias or prejudice against a party or a party's lawyer. There is also a judicial body that oversees questions about a federal judge's ethics. But legal ethicists note that in most cases, it is the federal judge who assesses the reasonable objective standard under which he or she should operate.

"Silberman has made the decision that his sentiments and his friendship with Starr and others aren't such that a reasonable person would question his impartiality," says Bruce Green, a legal ethics professor at Fordham University Law School in New York. "There's not that much you can do about it."

Moreover, Green says, there are no particular rules that say it violates judicial ethics to write opinions with a certain degree of vigorous language. "When you become a judge, at some point you're subject to your own sense of propriety," he says. "But there's nobody there who can say -- particularly at Judge Silberman's level -- that this is intemperate, injudicious or creates an appearance of impartiality ... When it comes to opinions, there's no consensus about how nice you have to be."

And as far as Silberman's politics are concerned, Green says they aren't relevant. "Everybody on the bench has political views," he says. "Some will love the president, and some will hate him. You have to presume that whatever their personal or philosophical views, they all take the oath to uphold the Constitution and will do their best to call it as they see it."

How Silberman calls them is another issue. One of the most extraordinary aspects of Silberman's opinion last week is not his provocative rhetoric but his judicial reasoning, which goes back 10 years.

Writing in the Washington Post, legal expert Benjamin Wittes notes that in an "elegant" 1988 decision, Silberman ruled that the independent counsel's statute -- the law that created the post Starr now occupies -- violated the Constitution's guarantees of separation of powers. Silberman held that since the powers of the executive are vested in the president, any executive branch officer who operates independently of the president detracts from the chief executive's powers and is therefore unconstitutional.

The Supreme Court, however, overturned Silberman's ruling later that year, establishing that an independent counsel is a constitutionally kosher "inferior officer" of the executive branch. The independent counsel's powers are legitimate, the Supreme Court ruled, as long as this "inferior officer" is appointed by a court, obligated to follow Justice Department policy and removable by the attorney general.

"Starr, in other words, can exist constitutionally only as long as he remains such an 'inferior officer,'" Wittes writes. "The moment he becomes anything grander, his independence from the president would render him constitutionally defective."

But in his most recent opinion, Silberman holds that the independent counsel legally has the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." In such cases, he says, Starr replaces Reno as attorney general. Wittes notes that Silberman's description of Starr's power "hardly sounds like an inferior officer. Quite the contrary." Silberman's opinion "would inflate the balloon of Starr's authority well past the point where his constitutionality would burst," he writes.

Which brings the debate over Silberman back to the question of his judicial independence. In one breath, Wittes observes, the judge savages the administration's honesty and integrity, while in the next, he puts forward a legal opinion that would ultimately render Starr -- and all the trouble he has caused Clinton so far -- illegal.

Someone once said, "If you like the law and you like sausage, don't watch either of them being made." But in the continuing drama over Starr and his powers, this seems to be one legal sausage -- and sausagemaker -- well worth watching.

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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