Tag Archives: U.S. Department of Justice

A Professional Responsibility Exam Question?

Don (“D”) serves in the District of Columbia as Counsel to the President of the United States.  On January 26, Sally (“S”), the senior federal law enforcement official, contacted D and requested a meeting.  He agreed and they met privately.

In the meeting, S explained to D that:

  • a senior adviser to the President has misled the Vice President of the U.S., and perhaps other government officials as well, about the substance of the adviser’s private communications with a foreign government official;
  • the foreign government is aware of this misleading through its public and private sources of information; and
  • this situation makes the senior adviser extremely vulnerable to influence by the foreign government.

In follow up meetings, S showed D the substantive information underlying her concerns.  D became convinced that this was a serious situation that the President needed to address, probably by dismissing the senior adviser.

During the next few weeks, D discussed this situation a number of times with the President and other officials.  (We do not know what the President responded, including whether he directed D to take any subsequent action.)

On February 17, D arranged for a local reporter to learn that, back in January, S had warned the White House through D that the senior adviser had misled the Vice President and perhaps others, and that this made him subject to influence by the foreign government.  The next day, the reporter’s newspaper published this information.  Public outcry ensued, leading the President to dismiss the senior adviser.

Assume that the foregoing comes to light, and that appropriate authorities are now working to determine if D should be subjected to professional discipline for his conduct.

The question:  Please discuss whether D should be disciplined under D.C. Rule of Professional Conduct 1.6.  Please include assessments based on various assumptions, which you should state explicitly, about what the President decided, ordered, or authorized at various times, including with regard to the D-arranged transmission of information to the reporter.

Extra credit:  If times permits, please also discuss whether, on any set of assumed facts, D and/or whoever transmitted the information to the reporter deserves recognition and praise as a patriot.

 

Respecting Respectful Janet Reno (1938-2016)

The New York Times Magazine, in its December 25th annual selection of “The Lives They Lived,” highlighted dozens of this year’s departed.

Among all the greats remembered there, only one, Janet Reno, was the subject of two reports.

One showed her rough-hewn Florida bedroom, photographed shortly after her death on the eve of Election Day last month.

The other remembered her during her 2002 near-miss campaign for Governor of Florida, two years after she had finished serving for nearly eight years as Attorney General of the United States.

In 1993 and 1994, as a Main Justice lawyer, I got to see AG Reno in action in a few big-crowd meetings.  She was decency personified, attentive to detail, and concerned only that she and everyone in the Department of Justice was doing their jobs well.

And she was charmingly not hip.  For example, at one of those meetings, held around the time when “dissing” became a word and a thing, the AG began to state her disagreement with someone’s point as follows:  “I don’t want to be ‘dis,’ but…”  (The room then froze for a second, and then exploded in laughter.  The AG, puzzled but knowing she’d said something funny, joined in.)

Janet Reno wasn’t “dis.”  She was exactly, authentically, entirely the opposite.  And her personal goodness moved and lifted people, including throughout the Department of Justice—she led the excellent people of federal law enforcement to do better, including in some hard passages, than they would have without her to follow.

Public life, in Florida and nationally, was better for it.

 

Jackson List: An Invitation to Join in Thanksgiving (1941)

In war-besieged London in September 1940, Harold Laski, a professor at the London School of Economics and a leading Socialist party official, thinker, and writer, penned a letter to Robert H. Jackson, Attorney General of the United States.  Laski knew Jackson through their mutual friend, U.S. Supreme Court justice Felix Frankfurter.  Laski wrote Jackson to introduce another friend, Professor Hersch Lauterpacht of the University of Cambridge:

15.ix.40

My dear Jackson,

I should like to introduce to you my

friend Professor H. Lauterpacht, the Whewell

Professor of International Law at Cambridge.

You well know of his outstanding work in

his own field.  I should like only to add

that there are few people for whom I care so

much.

I think we stand up well to our siege; and

we have complete confidence in the outcome.

Few things will help so much as a third term [for President Franklin D. Roosevelt].

                                    Yours very sincerely,

                                    Harold J. Laski

The Hon. Robert Jackson.

     Attorney-General’s Office.

          Washington. D.C.

Laski wrote his letter not to be mailed, but for Lauterpacht, who was spending Fall 1940 in the U.S., to use when he had an opportunity to introduce himself to Jackson.

That moment arrived at the end of the year.  On December 23rd, Lauterpacht, living in the Bronx, wrote to Jackson in Washington to request a meeting:

            Trinity College,

               Cambridge.

              [crossed out]

                                    5444 Arlington

                                                Avenue

                                    Riverdale on Hudson

                                         New York City

Dear Mr. Attorney-General,

I hope to be in Washington

between January 6-9, prior to my

departure for England.  If you

can spare the time, I should

very much appreciate an oppor-

tunity of calling on you

and paying my respects.

            I enclose a letter of introduction

from Professor Laski.

                                    Yours very truly,

                                    H. Lauterpacht

The Hon. Robert Jackson.

     Attorney-General’s Office.

          Washington. D.C.

Lauterpacht’s letter, with the enclosed vouching letter from Laski, worked.  Jackson wrote back promptly, telling Lauterpacht to contact Jackson’s secretary to schedule the meeting.

Robert Jackson and Hersch Lauterpacht met at the U.S. Department of Justice on January 8, 1941.  They discussed Nazi Germany’s bombing attacks on the United Kingdom, U.S. military assistance to the U.K., and domestic and international law issues.  And obviously they hit it off.

Over the next week, Lauterpacht stayed in downtown Washington and, at Jackson’s request, wrote him a thorough memorandum on international law issues.  It addressed, in twenty-one pages, what Jackson had described in their first meeting as “the philosophy, in international law, of the policy of aiding the [anti-Nazi U.S.] Allies by all means short of war.”  Lauterpacht sent the memorandum to Jackson on January 15th, and then they met the next day to discuss it.

Lauterpacht argued, then and later, that Nazi Germany’s military aggression, on the European continent and against the U.K., violated international law embodied in its own and in many nations’ treaty commitments.  These arguments fit with and advanced Jackson’s own legal thinking.  In the months ahead, Lauterpacht’s input contributed to some of Attorney General Jackson’s and then Justice Jackson’s—he joined the U.S. Supreme Court in July 1941—major public addresses attacking Nazi lawlessness.

And more than four years later, in circumstances that neither Jackson nor Lauterpacht could have envisioned when they first met in Washington, they worked together, in the U.K. and then in Nuremberg in the Allied-occupied former Germany, to hold Nazi leaders accountable for their illegal war-waging.

*          *          *

Justice Jackson and Professor Lauterpacht corresponded during the World War II years.  They also saw each other occasionally, when Lauterpacht was visiting the U.S.

One such occasion was November 19, 1941, seventy-five years ago, when Lauterpacht visited Justice Jackson at the Supreme Court.  Jackson asked Lauterpacht to stay over in Washington on that Wednesday night, and to join Jackson and his wife Irene the next day for Thanksgiving dinner at their home, Hickory Hill, in McLean, Virginia—“It will give Mrs. Jackson and me great pleasure if you will have dinner with us,” Jackson wrote when he communicated this invitation a few days beforehand, as he and Lauterpacht were finalizing their plans.

Alas, and to Lauterpacht’s regret, he could not accept this invitation.

He and Jackson did have later occasions to share meals, and to give thanks, including in Nuremberg.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

RIP, David Margolis

Margolis

“Career federal prosecutor,” a phrase that appears in many discussions of crime, justice and law enforcement issues, is a hefty credential.  It refers to someone who was hired by the United States Department of Justice as a young or young-ish lawyer, who then, over many years, worked and was promoted up the line, assigned to and in time handling numerous, increasingly complicated, often controversial, investigations, trials, appeals, and other federal criminal law matters.

Career federal prosecutors are distinguished—descriptively, if in fact not much in their skills, honesty and dedication—from DOJ political appointees, who are appointed and selected by presidential election winners and their nominees, and who often have political party identities and stay in office only as long as their party’s president holds office.  (And “career” prosecutors are also distinguished from non-political appointees who serve as prosecutors for a while but then move on to other employment.)

David Margolis, who just died at age 76, was the quintessential career federal prosecutor.  He worked in the Department of Justice for more than 50 years.  He saw it all and did it all.  He worked closely with and was revered by hundreds, maybe thousands, of DOJ colleagues (I was once one) and others across law enforcement and other government agencies.  He worked well with political appointees from both parties.  They valued his law-smarts, his life-knowledge, and his justice-wisdom; his guidance and criticisms; his guff and his praise; his toughness and courage.  He helped all of them to stand up and perform their responsibilities, as he took the load, and sometimes the heat, of performing his own.

Margolis stories and lessons are and will be, and should be, many.  A personal one is his “death” (heart stoppage) twenty years ago in his DOJ office, and then the miracle of his fall to the floor restarting his heart—Jim McGee & Brian Duffy described that, and a lot of David’s work, in their 1996 book Main Justice.

More of David is captured in this 2011 profile in the Brown University (his alma mater) alumni magazine, and in this Washington Post profile one year ago.

And here are the statements issued today, at this sad moment, by Attorney General Lynch and Deputy Attorney General Yates.

David Margolis, a great guy in addition to being a skilled lawyer, handled big public responsibilities. He worked forward, from matter to matter, giving each his best, usually doing excellent work, maybe sometimes screwing up, staying honest and apolitical, and showing up the next day to give Justice everything he had.

I hope that public service, and especially federal prosecution, continues to see his likes.

Jackson List: Department of Justice Farewell to F.D.R. (1945)

This post, with some footnotes added, now is on the Jackson List archive site in “book look” PDF file form.

Jackson List: Gordon Dean, DOJ & AG Jackson’s “Federal Prosecutor” Speech (1940)

This post, updated with some footnotes and a photograph of Robert Jackson and Gordon Dean in Nuremberg in 1945, now is on the Jackson List archive site in “book look” PDF file form.