[Senate Hearing 106-255]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 106-255


 
      THE EFFECT OF STATE ETHICS RULES ON FEDERAL LAW ENFORCEMENT

=======================================================================

                                HEARING

                               before the

               SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

 THE EFFECT OF STATE ETHICS RULES ON FEDERAL LAW ENFORCEMENT, FOCUSING 
 ON SECTION 530B OF TITLE 28 OF THE UNITED STATES CODE, WHICH REQUIRES 
  DEPARTMENT ATTORNEYS TO COMPLY WITH STATE LAWS AND RULES, AND LOCAL 
   FEDERAL COURT RULES, GOVERNING ATTORNEYS IN EACH STATE WHERE SUCH 
  ATTORNEY ENGAGES IN THAT ATTORNEY'S DUTIES, THE CITIZENS PROTECTION 
                   ACT, AND POTENTIAL ABUSE OF POWER

                               __________

                             MARCH 24, 1999

                               __________

                           Serial No. J-106-9

                               __________

         Printed for the use of the Committee on the Judiciary


                                


                      U.S. GOVERNMENT PRINTING OFFICE
 60-098 CC                   WASHINGTON : 1999
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel

                                 ______

               Subcommittee on Criminal Justice Oversight

                STROM THURMOND, South Carolina, Chairman

MIKE DeWINE, Ohio                    CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri              JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               PATRICK J. LEAHY, Vermont

                     Garry Malphrus, Chief Counsel
                    Glen Shor, Legislative Assistant

                                  (ii)



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Thurmond, Hon. Strom, U.S. Senator from the State of South 
  Carolina.......................................................     1
Schumer, Hon. Charles E., U.S. Senator from the State of New York     3
DeWine, Hon. Mike, U.S. Senator from the State of Ohio...........     5
Biden, Joseph R., Jr., U.S. Senator from the State of Delaware...    33
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........75, 84
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...    76

                    CHRONOLOGICAL LIST OF WITNESSES

Statement of Eric H. Holder, Jr., Deputy Attorney General, U.S. 
  Department of Justice, Washington, DC; accompanied by Zachary 
  W. Carter, U.S. attorney, Eastern District of New York, 
  Brooklyn, NY, and P. Michael Patterson, U.S. attorney, Northern 
  District of Florida, Pensacola, FL.............................    20
Panel consisting of John Smietanka, former Principal Associate 
  Deputy Attorney General, U.S. Department of Justice, Grand 
  Rapids, MI; John R. Justice, president, National District 
  Attorneys Association, Chester, SC; Richard L. Delonis, 
  president, National Association of Assistant United States 
  Attorneys, Detroit, MI; G. Andrew McKay, chair, National 
  Litigation Committee, American Corporate Counsel Association, 
  Washington, DC; and Geoffrey C. Hazard, Jr., trustee professor 
  of law, University of Pennsylvania, Philadelphia, PA...........    47

                ALPHABETICAL LIST AND MATERIAL SUBMITTED

Carter, Zachary: Testimony.......................................    26
Delonis, Richard L.:
    Testimony....................................................    57
    Prepared statement...........................................    59
Hazard, Geoffrey C., Jr.: Testimony..............................    72
Holder, Eric H., Jr.:
    Testimony....................................................    20
    Prepared statement...........................................    39
Justice, John R.:
    Testimony....................................................    53
    Prepared statement...........................................    55
McKay, G. Andrew:
    Testimony....................................................    69
    Prepared statement...........................................    71
Patterson, P. Michael: Testimony.................................    23
Smietanka, John:
    Testimony....................................................    47
    Prepared statement...........................................    48
Thurmond, Hon. Strom:
    The McDade amendment.........................................     6
    A bill S. 250, to establish ethical standards for Federal 
      prosecutors, and for other purposes........................     7
    Articles:
        The Washington Post, ``Repealing a Bad Law,'' dated Jan. 
          25, 1999...............................................    80
        The Washington Post, ``Quashing the Prosecutors,'' dated 
          Aug. 13, 1999..........................................    81
        The Washington Post, ``Hampering Law Enforcement,'' dated 
          Oct. 18, 1999..........................................    81
    Letters to:
        Senator Thurmond from The Supreme Court of South 
          Carolina, dated Mar. 22, 1999..........................    82
        The Subcommittee on Criminal Justice from David Beatty, 
          director of public policy, National Victim Center, 
          dated Sept. 28, 1998...................................    83
    The chairman and ranking member of the Committee on 
      Appropriations and the chairman and ranking member of the 
      Subcommittee on Commerce, Justice, State and Related 
      Agencies from the Senate Committee on the Judiciary, dated 
      July 21, 1998..............................................    90
    The chairman and ranking member of the Committee on 
      Appropriations from the Senate Committee on the Judiciary, 
      dated Mar. 24, 1999........................................    91

                                APPENDIX
                         Questions and Answers

Responses to Senator Leahy questions from:
    Geoffrey C. Hazard, Jr.......................................    93
    Eric Holder..................................................    96

                 Additional Submissions for the Record

Letters submitted by the American Corporate Counsel Association 
  on Mar. 31, 1999:
    To Senator Thurmond from Philip S. Anderson, the American Bar 
      Association, dated Feb. 22, 1999...........................   100
    To Senator Peter G. Fitzgerald from R.R. Atterbury, 
      Caterpillar, Inc., dated Mar. 9, 1999......................   101
    To Senator Thurmond from R. Bruce Josten, Chamber of Commerce 
      of the United States of America, dated Mar. 30, 1999.......   101
    To Senator Carl M. Levin from Thomas A. Gottschalk, General 
      Motors Corporation, dated Feb. 5, 1999.....................   102
    To Senator Ashcroft from Bill Ide, Monsanto Company, dated 
      Feb. 11, 1999..............................................   102
    To Representative Dennis Hastert from Michael E. Baroody, 
      dated Mar. 16, 1999........................................   103
    To Senator Hatch from Michael J. Oths, president, National 
      Organization of Bar Counsel, Inc., dated Mar. 10, 1999.....   103
    To Senator Ted Stevens from Arnold I. Burns, Proskauer Rose 
      LLP, dated Sept. 28, 1998..................................   106
    To the Illinois Congresspersons from Janet Langford Kelly, 
      Sara Lee Corporation, dated Mar. 23, 1999..................   108



      THE EFFECT OF STATE ETHICS RULES ON FEDERAL LAW ENFORCEMENT

                              ----------                              


                       WEDNESDAY, MARCH 24, 1999

                               U.S. Senate,
        Subcommittee on Criminal Justice Oversight,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Strom 
Thurmond (chairman of the subcommittee) presiding.
    Also present: Senators DeWine, Sessions, Schumer, and 
Biden.

 OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Senator Thurmond. The subcommittee will come to order. I am 
pleased today to hold the first solo hearing of the 
Subcommittee on Criminal Justice Oversight. This new 
subcommittee demonstrates the commitment of the Judiciary 
Committee to fighting crime in America. Of course, this 
commitment is not new. Crime was always a major interest of 
mine when I served as chairman and later as ranking member of 
the full Judiciary Committee, and it has been a primary focus 
of current Chairman Hatch.
    Oversight is a key function of this committee, and I look 
forward to taking a hard look at our Federal law enforcement, 
prosecution and incarceration efforts. I am pleased to have 
Senator Schumer as the ranking member and look forward to 
working with him.
    Our hearing today is on an issue that has the potential to 
greatly interfere in Federal law enforcement. The McDade 
amendment, which was passed late in the last Congress as part 
of the omnibus appropriations bill, subjects Federal Government 
attorneys to State laws and rules and local Federal court rules 
in any State where the attorney engages in his duties. It 
becomes effective in less than 1 month if it is not repealed or 
modified.
    Requiring Federal prosecutors to follow State ethics rules 
is generally not a problem. However, in the grand scheme of 
attorney ethics, the Department of Justice has followed a 
small, critical exception in order to prevent certain rules 
from interfering in Federal law enforcement.
    The problem arises when some States make certain 
prosecution practices and investigative techniques unethical 
that are otherwise clearly legal and constitutional. This can 
result in Federal prosecutors being disciplined under State 
ethics rules for conduct that is otherwise valid, even routine, 
and has been approved by their superiors. It can also mean that 
the evidence that is critical to a conviction is excluded from 
evidence, possibly resulting in a criminal not being convicted 
based on a legal technicality.
    Probably the most crucial example is that, based on State 
ethics rules, some States prohibit undercover investigations or 
sting operations. Of course, undercover operations are critical 
to efforts to discover the facts about an illegal enterprise. 
This is especially true in large, complex investigations such 
as organized crime or drug conspiracies. Prohibiting them could 
cripple law enforcement.
    Also, some States greatly restrict the ability of 
authorities to speak with low-level company employees who 
voluntarily wish to expose corporate wrongdoing. This could 
bring to a halt criminal or civil investigations of serious 
corporate misconduct, such as telemarketing fraud. It could 
also prevent a low-level member of a drug cartel from 
voluntarily cooperating with authorities.
    Moreover, some States attempt to interfere in traditional, 
established Federal grand jury practice, imposing their 
limitations on a Federal criminal grand jury. They may give 
attorneys special protections from grand jury subpoenas, or 
they may attempt to dictate what evidence must be presented to 
the grand jury.
    Because of the vague language of McDade, the problem 
extends beyond ethics rules. Any State law governing attorneys, 
whether substantive or procedural, arguably could apply. For 
example, some States prohibit the use of wiretaps by 
prosecutors, and defense counsel will argue that these laws now 
trump established Federal law in this regard. Indeed, the 
possibilities of McDade are limited only by the imaginations of 
defense counsel in making their arguments to the court. At the 
very least, this will divert scarce resources from the pursuit 
of justice to unnecessary litigation.
    Moreover, this new law will encourage further variance in 
State ethics rules than exists today. With State conduct rules 
clearly applying to Federal prosecutors, those who advocate for 
the interests of criminal defendants will be encouraged in 
their efforts to get States to make their rules even tougher 
for law enforcement.
    The problem is especially acute because Federal criminal 
investigations have become increasingly national in scope, 
routinely crossing State lines. Prosecutors often supervise 
investigations or grand juries in many States at the same time. 
For Federal prosecutors, the need to comply with any applicable 
State ethics rule is more important than the success of a 
particular case. An ethics violation goes against a prosecutor 
personally and can impact his or her career and livelihood.
    The McDade amendment will limit multi-State prosecutions to 
the rules of the most restrictive State involved. Indeed, 
because of the need for Federal authorities to maintain 
clarity, we could have ethics rules essentially dictating how 
all Federal investigations in the country are conducted.
    Let me state that I do not dispute that the drafters and 
supporters of the McDade legislation had the best of 
intentions. Federal prosecutors have great power and they 
should be held to high ethical standards. Prosecutorial 
misconduct should not be and cannot be tolerated.
    The Justice Department currently has an extensive process 
for uncovering and punishing unethical prosecutors. The 
disciplinary system should be as efficient and effective as 
possible, and we should always evaluate whether there is room 
for improvement. However, the problem is not that there are not 
enough rules and regulations for Federal prosecutors to follow.
    Some argue that the public will be safer if this law 
becomes effective. I cannot agree. It is my fear that this law 
will make law-abiding citizens less safe and secure, less 
protected from the criminal element. Indeed, my concern is that 
the real winners from this law will be the criminal element--
drug cartels, violent gangs, serial armed bank robbers, and 
child pornographers.
    In my view, it is critical that the Congress either repeal 
the McDade amendment or replace it with compromise legislation 
such as S. 250, the Federal Prosecutor Ethics Act, proposed by 
Senator Hatch. I look forward to the testimony of all of our 
very able witnesses today, especially the distinguished Deputy 
Attorney General and the Solicitor for the Sixth Circuit of 
South Carolina, John Justice. I hope we will learn much today 
about the effect of State ethics rules on Federal law 
enforcement.
    Senator Schumer, we would be glad if you would care to make 
an opening statement.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, sir. Well, thank you very much, 
Mr. Chairman, and I apologize for being late and I want to 
thank you for holding this hearing. I appreciate the 
opportunity to serve alongside you as ranking member of this 
subcommittee. It is an opportunity I certainly did not expect 
to have in my first term in the Senate.
    I also want to welcome today's witnesses, but particularly 
Zack Carter, the U.S. Attorney from the Eastern District, my 
home. He is a good friend and does a great job.
    Mr. Chairman, on the 21st of this month, the so-called 
McDade language is scheduled to take effect. The purpose of 
this provision was to protect citizens from over-zealous 
prosecutors. However, based on the concerns expressed by 
Federal prosecutors whom I know and I trust, who I know are 
careful and not over-zealous prosecutors, like Mr. Carter, I 
fear that it may to some extent protect criminals from valid 
law enforcement techniques.
    State ethics rules governing attorney contacts with 
represented persons typically offer prosecutors little in the 
way of a clear safe harbor for supervising undercover 
preindictment sting operations, very important particularly in 
our Eastern District, because it has our airports, for drug 
operations, and speaking to low-level corporate whistleblowers. 
Indeed, some State courts have interpreted these rules in ways 
that could chill what I think all of us would deem legitimate 
prosecutorial techniques, such as sending in investigators to 
infiltrate organized crime entities.
    Rather than spelling out a way to alleviate this potential 
chilling effect without undermining protections that Congress 
intended against prosecutorial over-reaching, the McDade simply 
enshrines the current uncertainty into Federal law. It would be 
a mistake to assume that the only price we would pay for 
discouraging prosecutors from initiating undercover 
investigations of criminal entities with counsel on retainer is 
a diminished ability to bring down drug lords or mob bosses. We 
would also lose the benefit of having prosecutors advise agents 
during the course of investigations of the legal and 
constitutional bounds of such investigations.
    So the McDade language--I realize it is well-intentioned--
also injects other uncertainties into the process of 
determining the propriety of prosecutorial conduct. Here is one 
example, and it is only one. There is already some confusion 
about whether Federal prosecutors must comply with the ethical 
rules of the district courts in which they are litigating or 
the rules of the States in which they are licensed, where those 
rules happen to be in conflict.
    The McDade would appear to supply a new element of 
confusion by directing that Federal prosecutors also comply 
with the ethical rules of each State in which they, ``engage in 
attorney's duties.'' Does this mean that prosecutors must now 
abide by the ethical rules of every State in which they conduct 
their positions or in which agents act according to their 
instructions? And what happens when those rules conflict with 
other States' ethical rules governing prosecutors? Where 
Federal prosecutors needed clear answers, the McDade language 
appears to have supplied them only with more questions.
    In addition to commenting on the substance of the McDade 
language and its implications for Federal law enforcement, I 
also want to comment briefly on how we got to this point, and I 
beg the Chair's indulgence on this.
    In part, the problem was one of, ``insufficient process.'' 
The McDade language was not marked up by either the House or 
Senate Judiciary Committees in the previous Congress; I know 
because I was a member of the House Judiciary Committee then. 
It was not included in the Senate version of the fiscal year 
1999 Commerce, State, Justice appropriations bill.
    The language was voted on by this body not separately, but 
only as part of the omnibus appropriations bill passed at the 
end of last year. Surely, an issue of this magnitude deserved 
more sustained and thoughtful consideration than it was given.
    I also believe the adoption of this language last year had 
something to do with the fact that 1998 presented us with a 
high-profile example of overreaching on the part of one 
prosecutor. In this sense, Federal prosecutors as a whole were 
punished for the sins of Ken Starr. And I want to make it clear 
today that the idea that what Ken Starr did is standard fare 
for Federal prosecutors, an idea advanced by Mr. Starr himself 
on numerous occasions, including when he testified before the 
House Judiciary Committee, is simply false.
    Federal prosecutors do not typically discuss immunity 
agreements with individuals in the absence of their counsel. 
Federal prosecutors do not typically haul targets of 
investigations before grand juries. Federal prosecutors 
typically do disclose blatant conflicts of interest that might 
at least appear to compromise their independence in pursuing 
certain matters. In short, the vast majority of Federal 
prosecutors do not do what Ken Starr did.
    And so I look forward to working with the other members of 
this subcommittee, and thank the Chair for holding this timely 
hearing toward developing a reasonable solution to the issues 
discussed today, a solution targeted specifically at the true, 
``bad apples,'' among the ranks of Federal prosecutors and 
targeted specifically at the problems the Department of Justice 
is, in fact, experiencing with the current ethics regime.
    Let me be clear. I feel very strongly Federal prosecutors 
should be held to the highest of ethical standards, and I am 
sympathetic to the concerns of those who oppose vesting the 
Justice Department with broad and exclusive authority to 
regulate and sanction its attorneys. I would accordingly like 
to see implementation of the McDade language delayed to give us 
time to find the middle ground and do right by both law 
enforcement and civil liberties. One way or the other, however, 
we cannot afford to let this language remain on the books in 
its current form.
    Thank you, Mr. Chairman. I appreciate the time.
    Senator Thurmond. Thank you, Senator Schumer.
    Senator DeWine, do you have an opening statement?

STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Just very briefly, Mr. Chairman, I want to 
say how honored I am to be serving on this subcommittee with 
you as the subcommittee chairman. You have been a leader in 
anticrime issues for so many years and I just look forward to 
serving with you.
    I want to congratulate you also for holding this hearing. 
This is a hearing that is timely. This is a very important 
issue. It is an issue that many U.S. attorneys have contacted 
me about and I have talked to them about, so I look forward to 
hearing the testimony.
    Senator Thurmond. Thank you, Senator DeWine.
    If any Senators wish to place statements in the record, I 
ask unanimous consent that they appear at this point in the 
record.
    I also wish to submit for the record a copy of the McDade 
amendment, as passed last year, and a copy of Senator Hatch's 
bill, S. 250, from this Congress.
    [The McDade amendment and S. 250 follow:]

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    Senator Thurmond. We will now turn to the witnesses. I ask 
that all witnesses keep their opening statements to 5 minutes, 
and we will submit any written testimony for the record.
    Our first witness is Deputy Attorney General Eric Holder, 
Jr. He is a graduate of Columbia University Law School and 
served as a prosecutor in the Justice Department Public 
Integrity Section. Later, he served on the Superior Court of 
the District of Columbia. In 1993, Mr. Holder became U.S. 
Attorney for the District of Columbia. Four years later, he was 
elevated to his current position of Deputy Attorney General of 
the United States.
    He is accompanied by two U.S. attorneys, Zachary Carter--
raise your hand, Mr. Carter--of the Eastern District of New 
York, and Michael Patterson of the Northern District of 
Florida.
    I see Senator Biden has come in. Senator Biden, we are glad 
to have you here.
    Senator Biden. Thank you, Mr. Chairman. I don't have any 
opening statement. I will reserve my statement and comments for 
the question-and-answer period.
    Senator Thurmond. It is my pleasure to recognize the Deputy 
Attorney General at this time.

STATEMENT OF ERIC H. HOLDER, JR., DEPUTY ATTORNEY GENERAL, U.S. 
 DEPARTMENT OF JUSTICE, WASHINGTON, DC; ACCOMPANIED BY ZACHARY 
    W. CARTER, U.S. ATTORNEY, EASTERN DISTRICT OF NEW YORK, 
BROOKLYN, NY, AND P. MICHAEL PATTERSON, U.S. ATTORNEY, NORTHERN 
               DISTRICT OF FLORIDA, PENSACOLA, FL

                STATEMENT OF ERIC H. HOLDER, JR.

    Mr. Holder. Mr. Chairman, I want to thank you and the 
members of the subcommittee for inviting me and my colleagues 
to testify before you today concerning the impact of 28 U.S.C. 
530B, what we have come to call the McDade amendment, and the 
effect that that will have on Federal law enforcement. I would 
request that the full text of my prepared statement be made a 
part of the record.
    Senator Thurmond. Without objection, it is so ordered.
    Mr. Holder. Thank you. Mr. Chairman, it seems to me that 
this is not a Justice Department issue; it is a law enforcement 
issue. I do not stand alone in believing that this statute will 
have a chilling effect on our ability to both investigate and 
prosecute crimes against the United States. There have been 
many other groups who have expressed similar concerns about 
this statute.
    Before addressing the specifics of the problems associated 
with the implementation of McDade, I would like to take a 
moment to express my support for the many dedicated men and 
women who sacrifice more lucrative careers in private practice 
for the honor of serving the Nation through their work at the 
Justice Department.
    Because of the outstanding reputation the Department of 
Justice has earned over the years, we are able to attract the 
best and the brightest to the Department. We have been able to 
attract, I believe, highly ethical professionals who represent 
the United States and its citizens with great distinction 
everyday in the courts throughout this country.
    Having said that, I also want to assure members of this 
subcommittee that the Department has a zero level of tolerance 
for misconduct by its employees. Those who misuse their offices 
or who abuse the public trust have been and will be swiftly and 
appropriately punished. The Department of Justice enforces the 
civil and criminal law of the United States without fear or 
favor, and its attorneys are expected--our attorneys are 
required to adhere to the highest standards of conduct in 
carrying out their duties.
    The Department is involved in thousands of civil and 
criminal actions every year. In only a small percentage of 
those cases are there even allegations of misconduct. In even 
fewer cases are actual instances of misconduct found. In those 
few instances, the Department, the courts, and, yes, even State 
bars take action to punish the wrongdoing.
    While those voting for the McDade amendment were well-
intended, I believe the process, as Senator Schumer indicated, 
was flawed. It was added to an appropriations measure without 
full hearings before the Judiciary Committee, without the 
Department of Justice having had an opportunity to thoroughly 
discuss its potential pitfalls with you. And we are very 
pleased to finally have that opportunity now.
    Let me be very clear about my position. I believe that if 
this provision should take effect on April 19, it is my strong 
view and considered professional judgment that it will have a 
very serious and very negative effect on Federal law 
enforcement activities across the country. And I would just 
like to share with you some concrete examples in that regard.
    First, with regard to undercover operations, they are 
critical to many major investigations, including the 
investigation of major drug trafficking rings, terrorist 
groups, and traditional organized crime. The Committee on 
Professional Ethics of the Florida State Bar Association, 
however, has opined that under the Florida version of the 
contacts rule, attorneys and agents working with the attorneys 
may not communicate with anyone who claims to have a lawyer 
with respect to a particular matter.
    The Florida bar has minimized the obvious harm to law 
enforcement that this rule would cause by observing that the 
target would likely be unaware of the undercover operation and 
so would not be represented in the matter even if the target 
had counsel. But this completely ignores the realities of 
modern Federal law enforcement.
    Would the Florida bar really believe that John Gotti, for 
instance, did not know that he was under investigation? Under 
the Florida bar rule, Mr. Gotti's lawyer might have been able 
to write to the U.S. attorney stating his knowledge of the 
investigation, announce his representation of Mr. Gotti, and 
thereby preclude the Government from wiring an undercover FBI 
agent to try to elicit incriminating information from Mr. 
Gotti.
    Second, with regard to investigations after arrest, 
investigation of criminal activity that continues after arrest 
could also be seriously hampered. For example, in a recent case 
investigated by a U.S. attorney's office, defendants in a 
securities fraud case were released on bail following their 
arrest. In the course of interviewing victims, prosecutors 
learned that one elderly victim had been contacted by a 
defendant seeking $250,000 based on the same fraud. Prosecutors 
arranged for the victim to tape record ensuing conversations 
with the defendant, producing evidence of ongoing fraud by the 
defendant and by others. Prosecutors must be able to 
investigate such ongoing conduct in order to ensure that 
indicted defendants are not able to continue their illegal 
conduct.
    A similar and even more dangerous situation occurs when 
prosecutors become aware that a defendant is trying to arrange 
for the murder of a witness. Under the Department's regulation 
and Federal case law, prosecutors can place a wire on a 
cooperator with instructions to try to get the defendant to 
talk about such plans. A rigorous no-contact rule would prevent 
prosecutors from using this essential investigative technique, 
with potentially disastrous consequences.
    And this is not a hypothetical circumstance. In a recent 
case, a U.S. attorney's office was told by an informant that an 
indicted defendant was seeking to murder a witness against him 
and a law enforcement officer involved in the investigation. 
The office consulted with the State bar counsel about the issue 
of an undercover contact of the defendant by the informant. The 
State bar counsel said that the contact would violate the 
State's ethics rules, although it was unlikely that the 
prosecutor would be disciplined.
    The problems presented by State bar contacts rules are by 
no mean limited to criminal law enforcement. Attorneys 
representing corporations often claim to represent all 
employees of the company, and sometimes even former employees. 
The U.S. attorney in San Francisco received a letter from 
counsel for a corporation under criminal investigation who 
asserted that California's contact rule prohibits contacts with 
employees, ``even in situations where the corporation's and the 
employee's interests may not be the same.'' Under the more 
expansive State contact rule, Department attorneys might not 
even be able to speak to employees such as whistleblowers who 
want to speak to the Government and who have no interest in 
being represented by corporate counsel.
    Although I have focused on State rules on contacts with 
represented persons, which pose the most serious challenge to 
effective law enforcement, many other bar rules threaten to 
interfere with legitimate investigations. For example, in 
Oregon a State bar rule prohibiting deception has been 
interpreted to prohibit government attorneys' participation in 
undercover operations. A Federal prosecutor conducting an 
investigation of a drug organization would thus be prohibited 
from authorizing an undercover purchase of drugs. A prosecutor 
could not supervise a sting operation intended to lure burglars 
and thieves into selling their ill-gotten proceeds to an 
undercover FBI agent posing as a fence. A prosecutor could not 
authorize law enforcement agents to pose as children to fool 
pedophiles using the Internet in order to sexually exploit 
minors.
    The response of the Oregon bar to criticism of its 
interpretation of its rule is that law enforcement agents are 
not bound by ethics rules and can continue to conduct 
undercover operations without attorney involvement.
    Mr. Chairman, I see my time has expired. If I could just 
have another minute to just finish my remarks, I would 
appreciate that.
    Senator Thurmond. Oh, you say you want another minute? Go 
ahead.
    Mr. Holder. Thank you, Mr. Chairman.
    Senator Thurmond. Your time is up, but we will give you 
another minute.
    Mr. Holder. Thank you very much.
    The Oregon view, we believe, reflects a completely 
unrealistic view of contemporary law enforcement, and is 
terrible public policy to boot. Prosecutors conduct 
investigations because they have to. In addition, prosecutors 
should be involved in investigations. Prosecutors can help 
ensure that investigations are conducted in accordance with the 
Constitution, and are in a better position to decide what 
additional investigation is necessary to prove a case in court 
and to decide whether a case should be prosecuted or dropped.
    Before concluding my remarks, I just want to thank Senator 
Hatch and other members of this committee who have introduced 
legislation to revise the McDade language in order to prevent 
what I believe will be the inevitable damage it will have on 
our ability to properly investigate and prosecute Federal 
crimes.
    I believe, as you indicated, Mr. Chairman, that this should 
be a nonpartisan issue, and we stand ready to work with you and 
all members of the committee on both sides of the aisle to find 
an appropriate legislative solution. Working together over the 
past 6 years, we have seen a very dramatic drop in crime. It is 
our view that section 530B poses a serious threat to our future 
progress.
    We must not impede the legitimate work of our Federal 
prosecutors, and I would urge this committee and Congress to, 
at a minimum, extend the implementation of the McDade amendment 
for 6 months in order to provide the subcommittee, the Congress 
and the Department of Justice sufficient time to fashion an 
appropriate bipartisan legislative remedy.
    Thank you very much.
    Senator Thurmond. Mr. Patterson, do either you or Mr. 
Carter want to make a brief statement?

               STATEMETN OF P. MICHAEL PATTERSON

    Mr. Patterson. Yes, Mr. Chairman. I would like to thank the 
subcommittee for the honor of appearing before you.
    28 U.S.C. 530B subjects Federal prosecutors to State laws 
and rules in each State where the prosecutor engages in his 
duties. This law is fundamentally flawed because the underlying 
concept fails to recognize the incompatibility of applying 
portions of a complex system to a different and equally complex 
system of criminal justice.
    Each State's system of criminal justice has developed an 
intricate structure of checks and balances between grants of 
authority to State prosecutors and ethical and legal restraints 
on the exercise of that authority. Though many of the State 
systems bear significant similarities, virtually none are 
identical and few, if any, are identical to the Federal system 
of criminal justice.
    Each State has developed a criminal justice structure in 
which prosecutors and police are authorized to investigate and 
prosecute violations of that State's criminal laws. Within each 
State's system, prosecutors and law enforcement personnel are 
restrained by legal and ethical rules. However, these rules 
relate to and are intertwined with that State's grant of 
authority to its prosecutors. Federal criminal practice is 
governed by a different sovereign jurisdiction, and the needs 
of Federal prosecutors and Federal law enforcement played no 
part in the development of these State rules, nor was their 
impact on Federal practice weighed or considered.
    In Florida, for example, the chief prosecutor in each of 
the State's 20 circuits is the State attorney. Under chapter 27 
of the Florida statutes, the State attorneys are authorized to 
issue subpoenas to compel the attendance of individuals and the 
production of documents to the office of the State attorney. 
This power is further enlarged by authorizing the issuance of 
instanter subpoenas by State prosecutors in Florida.
    Thus, Florida's prosecutors can require an individual to 
immediately come to the prosecutor's office for the purpose of 
providing investigative information to the prosecutor. Each 
prosecutor is authorized to administer the oath to the 
witnesses appearing before him or her. State prosecutors in 
Florida can formally charge individuals with serious crimes by 
information signed only by the prosecutor. Florida prosecutors, 
by signing an information, can charge offenses including those 
requiring mandatory life sentences.
    These extensive powers are not enjoyed by Federal 
prosecutors. The necessity for restraints on the exercise of 
Federal prosecutorial authority is thus substantially different 
from that of Florida state prosecutors. Yet, section 530B would 
impose the same limitations on Federal prosecutors as are 
imposed on State prosecutors. In a very real sense, Federal 
prosecutors have the worst of both worlds--substantially 
different and in many respects less authority than Florida 
prosecutors, but the same legal and ethical constraints.
    The potential for section 530B to interfere with grand jury 
investigations in Federal practice is very real. Unlike 
Florida, where crimes are charged by information, the U.S. 
Constitution requires all serious Federal charges to be brought 
by grand jury indictment. Florida rules, which give witnesses 
the right to legal representation within the grand jury, are 
thus less likely to interfere with State law enforcement 
because that system utilizes grand juries very differently from 
Federal grand jury practice.
    Similarly, Florida rules regarding grand jury secrecy are 
significantly more restrictive than Federal grand jury secrecy 
rules. Under Florida law, witnesses appearing before the grand 
jury are prohibited from disclosing the nature of their 
testimony or the inquiries of the grand jury. No such 
prohibition exists under the Federal rules.
    The development of the legal and ethical restraints on the 
exercise of prosecutorial authority are inextricably 
intertwined with the authority and power granted to the 
prosecutors within that specific criminal justice system. To 
apply those restraints without limitation to a wholly different 
criminal justice system is illogical and self-defeating.
    As a State prosecutor, on numerous occasions I effectively 
utilized the subpoena power granted to Florida prosecutors, 
including the instanter provisions of that authority. While 
investigating the homicide of a patient in a secure mental 
health facility, the necessity for acquiring information 
regarding the location and identities of patients arose. This 
information was needed immediately. Unfortunately, the facility 
was unwilling to cooperate with law enforcement and, in fact, 
had refused to provide any information despite the fact that 
much of the requested information did not relate to patients or 
patient care.
    Within a few minutes of being notified by law enforcement 
of the problem, the director of the facility personally 
appeared before me, pursuant to subpoena, and was required to 
respond to the inquiry. The information thus obtained 
significantly contributed to the successful conclusion of the 
investigation and ultimately to the conviction of the defendant 
for first-degree murder. The specific procedure utilized in 
this State prosecution is unavailable to Federal prosecutors.
    Further compounding the problem for Federal prosecutors is 
the fact that they would be subjected to very restrictive 
ethical covenants regarding contacts with represented persons 
in Florida. Florida bar rule 4-4.2, in essence, makes it 
unethical to communicate with a represented person without the 
consent of the individual's lawyer. On its face, this is a very 
reasonable rule. However, when applied to the public necessity 
for undercover investigations, it has the very real potential 
to substantially impact on the public safety.
    A recent case in my office is illustrative of the necessity 
for the use of undercover investigations against represented 
persons. A $100 million-a-year drug distributor was arrested in 
Hong Kong and extradited to the Northern District of Florida in 
March 1994. He pled guilty and agreed to cooperate in the 
prosecution of the other members of his worldwide organization 
and to forfeit the proceeds of his drug trafficking. This 
defendant did identify and forfeit nearly $100 million, but he 
chose to hide additional assets.
    According to an indictment returned in the Northern 
District of Florida in 1998, this drug trafficker, with the 
help of one of his lawyers, conspired to launder some of his 
hidden assets to finance a scheme to bribe the district judge 
responsible for his sentencing.
    Senator Thurmond. Mr. Patterson, your time is up. Are you 
about through? Just put the rest in the record.
    Mr. Patterson. Yes, sir, if I could have 30 seconds.
    Senator Thurmond. OK; we will limit you to 30 seconds.
    Mr. Patterson. In closing, I am very grateful for the 
opportunity I have had to serve as a prosecutor in both the 
State of Florida and as U.S. attorney for north Florida. I am 
deeply humbled by the authority entrusted to me. I left private 
practice in 1983, when my oldest son was old enough to 
understand what my work was all about. I became a prosecutor so 
that I could tell him that his father's job, indeed his 
father's duty, was to do the right thing and to seek justice. I 
am as proud of the innocent people that I have exonerated as I 
am any conviction I have obtained.
    Thank you, Mr. Chairman.
    Senator Thurmond. Thank you, Mr. Patterson.
    Mr. Carter.
    Mr. Carter. Thank you, Mr. Chairman. Thank you for the----
    Senator Thurmond. Excuse me just a minute. Now, these 
lights are not to be just looked at because they are pretty. As 
long as it is blue, you can talk. If it turns yellow, your time 
is about up, so arrange to stop quickly. The red means it is up 
and you must stop.
    OK, go ahead.
    Senator Biden. Otherwise, you will be indicted. [Laughter.]
    Mr. Carter. I will try to avoid that.
    Senator Schumer. The rules of the Capitol.

                  STATEMENT OF ZACHARY CARTER

    Mr. Carter. Thank you for this opportunity to share my 
concerns regarding the probable impact of section 530B on 
Federal law enforcement in the Eastern District of New York.
    Nowhere is the distinctive role of Federal law enforcement 
more prominently implicated than in the New York metropolitan 
area. The Eastern District of New York covers the New York City 
boroughs of Brooklyn, Queens and Staten Island, as well as the 
suburban counties of Nassau and Suffolk on Long Island.
    As host to both John F. Kennedy International Airport and a 
major seaport, the Eastern District is one of the Nation's 
busiest centers of national and international commerce. Like 
many of this Nation's major ports of entry for both goods and 
travelers, our district is afflicted by major trafficking in 
narcotics, customs and immigration violations, thefts from 
interstate and international shipments, and a myriad of other 
distinctly Federal offenses associated with busy commercial 
hubs.
    Investigations of criminal enterprises across State 
boundaries are not the exception for our office, but the rule. 
If you were to visit our office on a typical day, you would 
observe most of our assistant U.S. attorneys on the phone 
issuing long-distance direction to Federal law enforcement 
agents assigned to field offices across the various States to 
interview witnesses, engage in undercover operations, 
electronically monitor conversations of suspected criminals, 
and take other investigative steps in support of ongoing 
investigations into narcotics trafficking, thefts from national 
and international commerce, alien smuggling, and trafficking in 
illegal firearms.
    It is not the multi-State character of most Federal 
investigations that makes Federal law enforcement missions 
unique. The fact is that the Federal Government is charged with 
the primary responsibility to investigate complex crimes 
committed by multilayered organizations. Whether the enterprise 
under investigation is a drug cartel, an organized crime 
syndicate, a health maintenance organization, or a publicly 
traded corporation, Federal law enforcement depends on its 
capacity to identify and interview witnesses within these 
organizations in order to fulfill our law enforcement 
responsibilities.
    Currently, the assistant U.S. attorneys supervising these 
important investigations are guided by ethical rules of the 
States where they are admitted and the courts before whom they 
practice, unless those rules are inconsistent with Federal laws 
or regulations. As a result, insofar as the performance of 
their Federal law enforcement responsibilities are concerned, 
Department attorneys can be secure in the knowledge that their 
conduct will be guided by largely consistent principles, even 
where investigations touch several different States.
    To date, the Federal courts have generally recognized the 
special nature of law enforcement, and specifically Federal law 
enforcement, by interpreting ethical rules in a way that 
carefully balances the civil liberties interests of all 
individuals against the special challenges of Federal law 
enforcement. If Section 530 of Title 28 is permitted to take 
effect, however, this situation could fundamentally change.
    Permit me to offer a few examples of how section 530B may 
impact on important investigations conducted under the 
supervision of assistant U.S. attorneys in my office. Virtually 
by definition, major narcotics investigations touch multiple 
jurisdictions. While individual transactions may be intrastate, 
for the most part major Federal law enforcement investigations 
of major cartels' responsibilities for trafficking in narcotics 
span both international and national boundaries.
    Typically, significant investigations commence with the 
seizure of a substantial shipment of narcotics either at the 
border or during its transshipment across the United States. 
Individuals arrested in possession of substantial quantities of 
drugs often cooperate with law enforcement agents and agree to 
initiate electronically monitored conversations with their co-
conspirators. These conversations often lead to the 
introduction of an undercover officer or confidential informant 
into the drug organization under investigation. The undercover 
investigation, in turn, may present further opportunities for 
electronic monitoring, and the development of additional 
accomplice witnesses as participants in the scheme are 
discreetly arrested and persuaded to cooperate.
    If section 530 is permitted to take effect, the 
availability of any or all of these standard investigative 
techniques may turn on whether ethics rules of one of the many 
States touched by a major drug trafficking enterprise permit 
their use. There are States in which the surreptitious 
recording of conversations, even in the course of criminal 
investigations, are prohibited by the State's ethics rules. 
Imagine the irony of a single investigation where consensual 
monitoring of conversations of suspected drug traffickers 
conducted in one State is permissible, but consensual 
monitoring of conversations by their co-conspirators in another 
State is not.
    Consider the dilemma for Federal law enforcement when a 
major drug cartel, suspecting a pending investigation, retains 
an attorney who declares that he now represents a broad range 
of persons not yet under indictment or other charged. In 
certain States, Federal law enforcement agents could be safely 
directed by Department attorneys to interview potential 
witnesses. In others, however, such contacts may be prohibited 
by State ethics rules. In still others, the interpretation of 
relevant State ethics provisions might be uncertain.
    Particularly in the area of narcotics enforcement, section 
530B can be expected to undermine the effectiveness of major 
investigations. At the very least, Department attorneys will be 
inhibited from undertaking the kind of investigative 
initiatives that have been repeatedly approved by the Federal 
courts as consistent with constitutional principles and civil 
liberties concerns, but may be inconsistent with State ethical 
provisions that have been enacted without due regard for the 
legitimate imperatives of law enforcement.
    All of the problems that I have described can recur with 
equal force in major securities fraud and healthcare fraud 
cases, most of which are national in scope. In reviewing my 
district's docket of cases and investigations, I was hard-
pressed to find more than a handful of matters that were not 
multi-State in character.
    A Federal system that is unified by its substantive 
criminal laws, its rules of procedure and its sentencing 
guidelines should be unified as well by a consistent set of 
ethical rules governing the conduct of Department attorneys in 
the enforcement of Federal laws. Such a system honors the 
unique role of Federal law enforcement and continues to 
preserve the liberties of the people we are sworn to protect.
    Thank you.
    Senator Thurmond. Thank you.
    Now, Mr. Holder, either you can answer these questions or 
turn to one of your assistants if you would rather have them 
answer.
    Mr. Holder. If the question is too difficult, I will let 
them answer.
    Senator Thurmond. The first question, Mr. Holder, is many 
proponents of the McDade amendment have said that it is needed 
to deter prosecutorial misconduct. Will adding more rules and 
regulations for Federal prosecutors to follow help eliminate 
isolated instances of impropriety, and what efforts has 
Attorney General Reno undertaken to address prosecutorial 
misconduct?
    Mr. Holder. Well, Mr. Chairman, I don't think that there 
are needs for additional mechanisms. There are, I think, 
sufficient mechanisms in place. Attorneys who represent the 
United States already have to follow the ethical rules that are 
set by the States in which they are admitted. We follow the 
rules of the courts in which we practice. And in addition to 
that, there are internal Justice Department guidelines.
    With regard to what the Attorney General has done, she has 
tripled the size of the Office of Professional Responsibility. 
We have gone from 10 to 35 FTE, from 7 to 22 lawyers, and we 
have had a budget increase from $1.4 million to $4.3 million. 
It seems to me that given what the Attorney General has done, 
her commitment to continue that kind of effort, and the kinds 
of things that are in place already, there is really not a need 
for the McDade amendment.
    Senator Thurmond. Mr. Holder or one of your assistants, it 
seems to me that the variance in some States' rules from 
established Federal practices could be very unfair for a 
Federal prosecutor. For example, can you foresee a possible 
situation where one prosecutor involved in a multi-State 
investigation could be disciplined under his State's ethics 
rules for conduct that another prosecutor from another State 
who is also a member of the same team could be commended for?
    Mr. Holder. I think Mr. Carter will handle that one.
    Mr. Carter. Certainly, particularly in large-scale 
narcotics investigations, and even in a recent alien smuggling 
investigation that occurred in my district, the directions that 
were given by the assistant U.S. attorney who was coordinating 
the investigation at that time could have resulted in different 
consequences for her ability to practice, depending on where 
she was giving the direction at a particular time.
    In this particular case, the assistant U.S. attorney from 
my office was admitted to practice in the State of Florida. She 
was coordinating an investigation of a number of Mexican aliens 
who were being held in involuntary servitude in Queens, NY. She 
coordinated a series of arrests and interviews and other 
investigative steps that spanned several jurisdictions. She 
coordinated that investigation, curiously, from her cell phone 
at her high school reunion in Miami, FL.
    She caused the arrest of individuals in California, in 
Illinois, in North Carolina. And depending on what the ethics 
rules were with respect to contacts with represented persons, 
with respect to electronic consensual recording of 
conversations, there could have been different levels of 
jeopardy or praise with respect to her conduct of that 
investigation.
    Senator Thurmond. Mr. Holder or an assistant, you stated in 
your testimony that you expect the McDade amendment to 
discourage the now common practice of Federal prosecutors 
supervising Federal agents in ongoing investigations. What do 
you think the consequences of that will be?
    Mr. Holder. Well, we have great faith in those people who 
work in the FBI, the DEA, and the Federal agencies that work 
with us in the Justice Department. But I think that the 
involvement of Federal prosecutors in investigations and at an 
early stage is an important way in which to conduct 
investigations. It is kind of a trend that has been continued, 
I would say, for the last 50 years or so.
    If lawyers are involved in investigations at an early 
stage, we can ensure in a way that you would not expect 
investigators to make that all constitutional protections are 
being followed while the investigation is going on, to make 
sure that only constitutionally appropriate things are being 
done while an investigation is ongoing. It does not mean to 
say--and I don't mean to criticize in any way agents who work 
for us. It is just that that is the responsibility; it is what 
we are schooled at doing as Federal prosecutors. And our 
involvement in these kinds of cases, I think, can only be of 
benefit.
    Senator Thurmond. Mr. Holder or one of your assistants, 
given the vague wording of the McDade amendment, are you 
concerned that courts may apply it outside of the area of 
ethics rules and to substantive State law and procedure, such 
as wiretaps or Federal grand jury practices?
    Mr. Holder. We certainly do not view the McDade amendment 
that way. It is our belief that it only applies to ethical 
rules and not substantive rules. And yet we certainly expect 
that there will be satellite litigation. In fact, there have 
been instances where defense attorneys, citing McDade, have 
indicated that substantive rules are covered by the McDade 
amendment.
    So we would expect that we would have to deal with those 
kinds of motions. I think we should win them because I think 
the law itself is relatively clear, but I think there is at 
least a basis for an argument for a defense attorney to make 
such a contention.
    Senator Thurmond. And one more question. Mr. Holder, I 
understand that the ABA is currently reviewing its model rules. 
Even if the ABA were to satisfactorily address all of the 
Department's concerns, which is probably unlikely, would having 
acceptable ABA model rules alleviate all of your concerns about 
the McDade issue?
    Mr. Holder. No, it would not, Mr. Chairman. We continue to 
work with the ABA on rule 4.2. In fact, the Attorney General 
and I, along with the Associate Attorney General, met with the 
leadership of the ABA. We had lunch at the Justice Department 
just a couple of days ago, and we have pledged to work to try 
to resolve those differences. But if that were resolved, that 
would not minimize the impact of the McDade amendment.
    We have the problem, as you just mentioned in your previous 
question, about satellite litigation that would be a continuing 
concern. And it seems to us that there just has to be a limit 
on the number of ethical rules that we can expect prosecutors 
to have to follow, and at the same time be as aggressive as we 
want them to be in pursuing these interstate cases that are the 
essence of what we do as Federal prosecutors. So I do not think 
that a resolution of rule 4.2 with the ABA would completely 
make the need for amending the McDade amendment go away.
    Senator Thurmond. My time is up.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. Many of your 
questions were the ones I was going to ask, so they are right 
on point. So I just have a few more.
    First, just to summarize to my friend and U.S. attorney 
from my home of Brooklyn, NY, to Mr. Carter, I guess in summary 
what you are saying is if the McDade rule were in effect, or 
the McDade language stays in effect, it would put a major crimp 
in many of your investigations, particularly narcotics 
investigations.
    Mr. Carter. That is correct.
    Senator Schumer. And one of the main reasons for that, I 
guess, would be the multi-State nature of so many of the things 
that you do.
    Mr. Carter. It is because of the multi-State nature of the 
things that we do, and it is also because inherent in our 
unique Federal responsibility is a responsibility for 
investigating complex enterprises that not only span State 
boundaries, but also have layers of organizational structure 
that can only be penetrated by interviewing and soliciting the 
cooperation of people who are members of these organizations, 
whether criminal or not.
    Senator Schumer. OK; to Mr. Holder, as I understand it, the 
Justice Department is trying to sort of find a compromise 
approach to regulating contacts with represented persons, and 
you have been talking to the Conference of Chief Judges about 
this.
    Mr. Holder. That is correct.
    Senator Schumer. Could you tell us a little about that?
    Mr. Holder. Yes; we have had ongoing conversations with the 
Conference, and in particular with Chief Judge Vesey from 
Delaware. We have been at this for some time. Our positions 
were substantially farther apart than they are now. I could not 
predict, very honestly, that we are going to resolve these 
matters or reach an agreement within a set period of time, but 
I think we have been making progress. And I think that is one 
of the reasons why I think it would be important for us to have 
this 6-month extension to allow us to continue those 
conversations, as well as the conversations that we have 
started with the ABA.
    And for the record, Senator Schumer, I am from Queens.
    Senator Schumer. You know, I would say to my good friend 
and our Chair, Senator Thurmond, and my colleagues I still 
regard that as my district. When someone says ``Congressman,'' 
I turn right around. When someone says ``Senator,'' I just walk 
right by. So I am glad to have two people from my congressional 
district.
    Mr. Holder. I thought I would play that for all it was 
worth, yes. [Laughter.]
    Senator Schumer. Great. Thank you. I think that really does 
it for me, and I appreciate very much all three of your very 
comprehensive and strong testimony. I look forward to working 
with our chairman in terms of trying to get some kind of 
extension.
    Thank you, Mr. Chairman.
    Senator Thurmond. Thank you very much.
    Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Holder, as I think you know, I am very sympathetic to 
your testimony and the concerns that have been raised. Let me 
play the devil's advocate, though, on the other side and just 
get your reaction. You talked about Florida and what they 
prohibit. How do the State prosecutors get along with that kind 
of prohibition?
    I mean, it would seem to me you could argue that if it was 
such a horrible, horrible thing that the State of Florida would 
have been faced with a very serious problem. Is there a public 
outcry about the problem? For example, if Attorney General Reno 
was back in Florida, she would be, I assume, under those rules 
that you just talked about.
    Mr. Holder. Well, actually, that is a very, very good 
question, Senator DeWine, and why don't I let Mr. Patterson 
answer it, only because I think I know the answer, but he, as a 
person who is very well-versed in the Florida rules----
    Senator DeWine. Well, you said you were going to give him 
the hard questions.
    Mr. Holder. This is actually not too hard, but I----
    Senator DeWine. We just didn't know whether you were going 
to go to Mr. Carter or Mr. Patterson.
    Mr. Patterson. For a couple of reasons, the application of 
that rule to State prosecutions is somewhat different. First of 
all, the practice, in general--as I said in my statement, the 
grant of authority to State prosecutors is substantially 
different than it is to Federal prosecutors. In the way they 
conduct their business that way, the use of investigative 
subpoenas obviates some of the problems with regard to 
contacts. Also, many of the kinds of cases that State 
prosecutors do don't run into the more complex issues with 
regard to contacts. They are less----
    Senator DeWine. I appreciate that, Mr. Patterson, but I 
have some familiarity with this. I was a prosecutor, and I 
still have friends who are county prosecutors in Ohio and some 
of those cases do get a little complex. I mean, they do involve 
undercover agents and they do involve the same type operations. 
They may not be as complex as what you all are doing, but it 
seems to me some of those same basic principles apply.
    Mr. Patterson. I agree. I think they do.
    Senator DeWine. With all due respect, sometimes there is a 
tendency on U.S. attorneys to think that they only get the 
complicated and tough cases.
    Senator Sessions. I have heard that before.
    Mr. Patterson. I was a State prosecutor for 10 years.
    Senator DeWine. Thank you. You qualify, then. You are all 
right. [Laughter.]
    Mr. Carter. As was I.
    Senator DeWine. The credibility just went up. Thank you.
    Mr. Patterson. I do think there is a significant difference 
in the practice. And some of it may be subtleties, but the way 
investigations are conducted by the State prosecutors in 
Florida is just substantially different. They are given 
different tools with which to accomplish those investigations 
and it impacts on the contacts issue in a different way than 
with Federal prosecutors.
    The other reason it is different, and it is not a matter of 
doing complex or more important--I look over at my State 
colleagues now and suggest to them that many of the cases in 
their offices are probably more difficult, more complex, and 
some of the ones that are mine probably ought to be in their 
offices. I don't know that we always sort that out exactly 
right. But the fact of the matter is with regard to contacts, 
Florida takes the position that the represented person, as 
opposed to party, has to pertain to the same matter, and that 
applies to State practice in a different way than it applies to 
Federal practice.
    Senator DeWine. I appreciate your answer.
    Mr. Holder, let me turn to a related issue, but a different 
question. The public in the last several years, because of the 
investigation of the President, because of the high profile of 
not just one independent counsel but numerous independent 
counsels, I think has had a look into some questions. Some 
questions have been raised, right or wrong, about prosecutorial 
practices, and Senator Schumer made reference to that.
    I don't want to get into the merits of any of that today, 
but my question, though, is because of the spotlight on these 
issues, is your Department doing any recent review of 
prosecutorial practices? I am not talking about the independent 
counsel, I am not talking about any one prosecution in your 
Department or independent counsel. I am just talking about in 
general. This issue is now much higher profile than it has been 
before.
    Mr. Holder. Yes; the Attorney General, as I indicated, I 
think, earlier, has really given this special attention in that 
she has tripled, I think, the size of the force, increased the 
budget of our Office of Professional Responsibility. We have 
also, in an attempt to calm the fears of people of what Federal 
prosecutors do, made public in a way that we have not in the 
past the results of OPR investigations, subject to the Privacy 
Act limitations that we have.
    I believe in 1997, we completed roughly--OPR completed 
roughly 100 full investigations, found professional misconduct 
in about 20 cases----
    Senator DeWine. Mr. Holder, my time is almost up, and you 
know the chairman does enforce the rules. I want to make sure I 
get my question answered that was at least in my mind. I am not 
talking about specific cases. I am talking about broad, general 
policy. We do this, we don't do that. I mean, that is what the 
public is looking at. Do we do certain things, interviewing of 
witnesses, the procedure that is followed, all the things that 
have come out in the last several years that clearly have been 
high-profile? Are you looking at those issues? I am not saying 
you should change one thing. I just want to know, are you 
looking at them.
    Mr. Holder. Yes; we do these things on an ongoing basis in 
a variety of fora. I mean, our Attorney General's Advisory 
Committee looks at these things. That is a group of U.S. 
attorneys who come in once a month. There are about 15, 17 of 
them there. Our Criminal Division has ongoing reviews with 
regard to issues that come up specifically.
    It is the responsibility of the Deputy Attorney General to 
kind of coordinate all of these things, and so we have at any 
one time people in my office interacting with people in the 
AGAC, people in the Criminal Division, people in other parts of 
the Department on the civil side as well--and we tend to forget 
people on the civil side--always asking questions about things 
that we either read about in the newspapers or general policy 
questions that we have just to make sure that we are doing 
things in appropriate ways.
    And to be very honest with you, there have been questions 
raised about independent counsels that we then consider to see 
whether or not we are doing things in similar ways. If an 
independent counsel is being criticized for something, that 
raises the issue in the Justice Department and we ask questions 
about that, sometimes finding that we have done things in a 
similar way that an independent counsel has done, sometimes 
not.
    Senator DeWine. I appreciate it. Thank you very much.
    Senator Thurmond. Senator Biden.
    Senator Biden. Mr. Chairman, thank you very much. I would 
ask unanimous consent that my statement be placed in the record 
as if read, if I may.
    Senator Thurmond. So ordered.
    [The prepared statement of Senator Biden follows:]

  Prepared Statement of Joseph R. Biden, Jr., a U.S. Senator From the 
                           State of Delaware

    Mr. Chairman, thank you for holding this hearing on an issue that 
has triggered much debate. I do not believe that anyone questions the 
importance of fairness to the proper functioning of our legal system. 
This is particularly true when we talk about how prosecutors behave and 
what effect that behavior has on citizens.
    We talk about this in terms of ``ethics.'' But what we are really 
talking about is power, the potential abuse of power, and what limits 
are or are not appropriate on how prosecutors do their jobs.
    One reason I am pleased that this hearing is being held today is 
that it is an opportunity for us to talk, and to listen, to all points 
of view. Too often we talk at each other or past each other. Perhaps in 
our zeal to make the other understand our point of view, we overstate 
our case. I hope we can avoid that today.
    What I believe is at the root of the debate here is a fundamental 
feeling many people increasingly have in their gut that they are 
vulnerable to exercises of Federal power in every part of their lives.

          Vulnerable to losing their privacy.

          Vulnerable to losing their reputation.

          Vulnerable to losing their liberty.

    In saying this, I do not mean to suggest that there are thousands 
of prosecutors running around with a total disregard for citizens' 
privacy, reputations, or liberty. Nothing could be further from the 
truth.
    But we have some recent experience with just how far a prosecutor 
without limits can go--and most likely few of us would ever have 
thought that some of the things we have seen individuals suffer in the 
name of vigorous prosecution could or would ever happen. But they did.
    And so, we are having today's discussion in an atmosphere in which 
we look for what the appropriate limits are to a guard against 
potential abuses of power in the future. That debate is healthy and 
good.
    But we must also look at the reason why limits, or sometimes a rule 
that appears to relax those limits, exists in the first place. I have 
learned that sometimes what seems to be relaxation of accountability is 
in fact only a way to level the playing field.
    No one here today will argue that State ethics laws should not 
apply in many ways to Federal prosecutors. They have before, they do 
today, and they will in the future--with or without the McDade law 
going into affect. But, as I believe we will hear today, different 
States have different rules that govern how their State criminal 
prosecutors operate. Sometimes those rules allow substantial 
flexibility to the State prosecutors--even to allowing a single 
prosecutor to decide whether or not someone should be indicted! That a 
prosecutor can do so just by signing his or her name to a piece of 
paper is a very broad discretion indeed.
    And so it is no surprise that in those States there may be ethics 
rules that impose restraints on prosecutor conduct. Should those rules 
equally apply to a federal prosecutor who does not have so broad a 
power? Maybe yes. Maybe no. That is a question we need to explore 
today.
    It is important so that the rights of all parties are properly 
protected. It is important because without it, faith in our system of 
laws and courts will erode. It is important because in the long run it 
ensures that our laws are effectively enforced and our courts function 
properly.
    I believe that the vast majority of lawyers--and especially those 
who are privileged to serve the Nation as Federal prosecutors--conduct 
themselves consistently according to the highest standards of ethical 
conduct. However, I also believe that it is important to our system of 
laws and justice that there be an effective check on possible lapses 
from that general rule. This protects everyone--prosecutors, 
defendants, and the courts.
    In my view, the debate here must focus not on speculation as to 
potential ``chilling effects'' but should be based on real life 
examples. And I should say that ``chilling effects'' are not always a 
bad thing. I am interested in hearing about the facts and about the 
types of situations that are of concern to prosecutors, to State 
courts, and to counsel for defendants.
    In particular, I am interested in hearing from the witnesses their 
suggested solutions for the question of contact with represented 
parties, the narrow area that I understand is at the core of this 
debate. For example, what kind of changes to model ethics rules are in 
the works that could resolve this problem without overreaching?
    In finding a solution to the concerns that I am sure we will hear 
much about this afternoon, I suggest that we all look for a middle 
ground--a way to accommodate both the legitimate needs of prosecutors 
to build their cases fairly and the interests of the judicial system as 
a whole in ensuring that those who have the privilege of practicing law 
do so consistently in accordance with the highest ethical standards.
    I think this matter is really more simple than it looks. It is 
about the potential for abuse of power and the proper constraints to 
prevent that from happening. We need balance, but we also need to be 
sure that we avoid unintended consequences in our search for that 
balance. I look forward to hearing from the distinguished witnesses 
before us regarding their various perspectives, based on their wealth 
of experience. And, I look forward to hearing some suggestions for how 
we can come to a solution that can take into account the range of 
important interests at stake here.

    Senator Biden. Gentlemen, if I can give you just one 
Senator's view, this is not about ethics. This is about power 
and the abuse of power. And I think there is a heightened 
awareness on the part of the American people, unrelated and 
related to Federal prosecutors, about their vulnerability to 
invasions of their privacy; the abuse of power, whether it is 
by you, a special prosecutor, a State prosecutor; about a whole 
range of things that have taken this in a direction different 
than if we had this hearing 3, 4, 5, 6, 10 years ago.
    If 10 years ago you came up, Mr. Carter, and could make the 
case, which in my view you made, that this would diminish the 
ability of Federal prosecutors to get the bad guy, you would 
have everybody up here saying, oh, we don't want to do that. 
But now we are all aware when we look at out there--and I don't 
want to get into an argument about Mr. Starr or any special 
prosecutor, but about special prosecutors' apparent abuse of 
power, or if it is not a technical abuse in the minds of the 
public--gee, he went too far--all the way to issues where they 
turn on ``20/20'' and find out how a hacker can get access to 
their bank account and their medical records, having nothing to 
do with the Federal Government. So there is this heightened 
awareness.
    And what I don't think, if I may be so blunt, that you have 
all explained in the past--you began, Mr. Patterson, to do it 
today, in my view--is this balance of power, the power that is 
available to a prosecutor, and the constraints on the abuse of 
that power. And let me be very specific.
    As I understand it, in the State of Florida, when you were 
a State prosecutor you had a power that far exceeded the 
individual power that you have as a Federal prosecutor. If you 
wanted to call me in as a potential target or to indict me, you 
could as a State prosecutor call me before you, swear me in, 
and based upon your signature on an information, the equivalent 
of an indictment, you could bring me to trial. Is that right? 
Is that a fair statement?
    Mr. Patterson. That is correct, with one possible 
exception. The issuance of the subpoena in the State of Florida 
grants use immunity. So I couldn't subpoena you in, ask you 
questions that I then use to charge you. But I could subpoena 
you in, I could question you and charge you based on my 
signature, yes.
    Senator Biden. All right. Now, as a Federal prosecutor, can 
you do that?
    Mr. Patterson. No, sir.
    Senator Biden. So that in order for you to indict me, you 
have got to go to a grand jury. You have to get a whole group 
of folks out there who are citizens in the State of Florida to 
be convinced when you go before them or your assistant goes 
before them that there is enough information on which to indict 
me to take me to trial. Is that right?
    Mr. Patterson. Yes, sir.
    Senator Biden. And when you were a prosecutor in the State 
of Florida, you had certain limitations on you based on the 
State ethics rules, which are, in a sense--my phrase--the 
ethics are more restrictive in the State of Florida, but then 
again the power you have as a prosecutor is broader, right?
    Mr. Patterson. Yes, sir.
    Senator Biden. Now, the Federal ethics rules, if you will, 
are a little less restrictive on a Federal prosecutor, but you 
have less power. Is that right?
    Mr. Patterson. Yes, sir.
    Senator Biden. So it seems to me we should think about 
either giving you the power that a State prosecutor has if we 
are going to hold you to the ethics rules of the State of 
Florida or if we are not going to give that power, not hold you 
to the same ethics rules. And I don't think most people get 
that.
    What we are all after here is how to balance out power 
because we know all power is abused, all power is abused. There 
has never been a grant of authority given to anybody, not 
individually, but generically, that ultimately somebody hasn't 
abused--Senators; Presidents; prosecutors, Federal, State, and 
so on.
    So I think in order for us to be able to get a handle on 
this, Mr. Holder--there are a lot of people very upset, and the 
reason they are upset is not just because of Congressman 
McDade's amendment. You saw the investigation that the 
Pittsburgh Post Gazette did. You have seen other 
investigations. There are a lot of people around here who 
think--and I am going to end; I see the amber light, Mr. 
Chairman.
    What I think we have got to do here, in my view--and I am 
going to suggest this as just one Senator--we have got to have 
a time-out here. I think we should have a breather, a delay of 
6, 8 months for McDade to go into effect, have you continue 
your negotiations, which I think did not start early enough, 
with the ABA, as well as the State chief justices.
    And I think, Mr. Carter, if you could for the committee 
submit a specific example of how one prosecutor working you 
could be found in violation of a State ethics code and another 
prosecutor working for you, because they are licensed in a 
different State, could be praised for the same action, two 
different people--you gave an example of one woman in three 
States.
    Find me an example, Mr. Holder, where you can show me one 
investigation, two prosecutors involved in the same 
investigation, each prosecutor a member of a different bar, 
where the one bar were to hold them accountable under that 
State ethics laws and another bar would not, because that is 
the kind of information Senators need. They need to understand 
that because we are worried about you abusing power, not you 
personally, but we are worried about abusing power.
    And I will close, Mr. Chairman, by saying you have 
appointed more judges, you have appointed more U.S. attorneys 
than any man in American history. I have recommended to the 
President judges and U.S. attorneys. I take a whole lot less 
time deciding who I want to recommend as a judge than I do as a 
U.S. attorney because a U.S. attorney is more powerful. A U.S. 
attorney, if they don't have an ethical equilibrium, can do 
great damage--the most dangerous people in America if they are 
off, the best people in America if they are on. You have got to 
convince us here that this notion that seems on its face so 
reasonable--why shouldn't you be held to the strictest 
standard, why that is not a good idea. It is not a good idea 
because they have a lot more power when the standard is 
stricter. You have got a lot less power and you have got more 
hoops to go through so that we can guarantee that you don't get 
out of whack.
    Thank you, Mr. Chairman.
    Senator Thurmond. There is a vote on in the Senate, so we 
will have to take a recess and allow the Senators to go and 
vote.
    Do you want to go ahead?
    Senator Sessions. I can do it briefly, yes, sir. I believe 
we would have time to finish my little bit.
    Senator Thurmond. Do that, and take charge.
    Senator Sessions. All right, sir.
    Senator Thurmond. And then call a recess until we get back.
    Senator Sessions. Thank you. Thank you, Mr. Chairman.
    Senator Thurmond. Senator Sessions, of Alabama.
    Senator Sessions [presiding]. Mr. Chairman, thank you for 
conducting this hearing. I do believe this is a very important 
issue, and Mr. Holder and I have talked about it a number of 
times and I share his concern.
    I really agree with Senator Biden in all of what he said 
and I think it is a question of power, but it strikes me, 
Senator Biden, it is also a question of power as to whether or 
not the Federal Government, the U.S. Government, will allow 
perfectly legal, legitimate law enforcement techniques to be 
declared illegal by a bar association in some State. They 
weren't elected to set techniques or rules of behavior, and 
then they would just turn around and say, well, it may be legal 
for you to do that in Federal court, but we are going to disbar 
you, Assistant U.S. Attorney.
    Mr. Holder, am I exaggerating the danger we are dealing 
with here?
    Mr. Holder. No; that is a major concern. I mean, Oregon, 
for instance, talks about the inability of prosecutors to 
engage in undercover activities, which is something that we 
want our assistant U.S. attorneys to be involved in, in 
response to what Senator Biden was saying.
    Senator Sessions. You want them monitoring because there 
less violations of civil rights occur when lawyers are involved 
with the investigators and supervising or monitoring an 
investigation. Is that correct?
    Mr. Holder. Right, exactly. Somebody who was subject to the 
Oregon rules might be disciplined for doing the same kind of 
thing that somebody in Brooklyn following New York rules would 
get praised for, and that is the concern that we would have.
    Senator Sessions. And one of the unintended consequences--
correct me if I am wrong, but one of the unintended 
consequences could well be that the agents would say, let's 
don't talk to the prosecutor because he bound by all those 
rules; this is a perfectly legal technique; let's just do it on 
our own and not talk to the lawyer. Do you agree with that, Mr. 
Patterson?
    Mr. Patterson. I think that is one of the most pernicious 
and likely effects of this Act going into effect. I think that 
is exactly right.
    Senator Sessions. Mr. Carter, do you agree with that?
    Mr. Carter. Yes.
    Senator Sessions. You know, we learned one thing in the war 
of Northern aggression. One of the things is that the Federal 
law is supreme, and we are really subjugating legitimate 
Federal power to a State or local bar association who is not 
elected by anybody of significance, except for a few members of 
the bar. And I am a member of the ABA and I respect it greatly. 
But, in truth, a rarified group are on the national ABA 
criminal law committees and the local criminal committees. They 
are not even typical of lawyers, and some of them have strange 
ideas about what is ethical and what is not. I just really 
think that would be a serious thing.
    Let me read you this little matter from a case I think you 
cited earlier. The 11th circuit case of Lowry highlighted this 
problem, I think. The court recognized that ethics rules can, 
in effect, be not much different or really the same as 
evidentiary rules. That is your circuit, Mr. Patterson.
    Mr. Patterson. Yes, sir.
    Senator Sessions. The 11th circuit rejected the notion that 
Congress, ``intended to turn over to State supreme courts in 
every State the authority to decide that otherwise admissible 
evidence can't come into Federal court.'' Do you think that is 
a legitimate point the 11th circuit made?
    Mr. Patterson. I think many of the expressions in Lowry are 
right on point. I think they also go on to suggest that there 
are only a few ways you can exclude evidence from Federal 
court, and one of the primary ones is through Congress and the 
other is through the Federal courts, and not through State bar 
associations. But that is a very real concern.
    The practice of the grand jury, which is near and dear to 
my heart, because of the differences in State and Federal 
practice in Florida--in Florida, you are permitted to have an 
attorney in the State grand jury, inside the grand jury. Are we 
now going to get into ethical concerns if a Federal prosecutor 
keeps a witness' lawyer out of the grand jury, that somehow he 
has violated ethically that person's right to counsel because 
the State law permits them to be in there? There are many of 
those kinds of rules that are very problematic.
    And, Senator, I would just like to say that I am not from 
New York, but many of the people in my district call it 
``L.A.,'' ``lower Alabama.''
    Senator Sessions. Lower Alabama, next door, I guess.
    One more thing. Mr. Holder, I appreciate your increasing 
the OPR section, although sometimes I think just money isn't 
necessarily a strengthening of any institution. Are you 
satisfied that you have an effective system that takes 
complaints of prosecutorial misconduct seriously and that 
attorneys can and will be sanctioned if they violate the 
highest standards of ethics?
    Mr. Holder. Yes, I am very confident of that. And I think 
you are right; it is not just a question of money. We have a 
person there now whose name is Marshall Jarrett, who has been 
the head of OPR now for just a few months, a person whom I have 
worked with over a good number of years who I think is an 
aggressive prosecutor who will do a good job at OPR.
    Let me be very honest with you. When the Attorney General 
took over, there was a huge backlog in the number of cases in 
OPR that had just not been resolved. We got in people from the 
field to look at those cases, to reduce that backlog, to make 
sure that these cases were being done as quickly and as 
efficiently as they could. We were criticized by members of the 
judiciary for the length of time we were taking to conduct 
these investigations, and frankly I think some of that 
criticism was justified.
    I think we have in place now a system that does the 
appropriate job, that can do a good job at looking at these 
matters and making sure that in those instances where our 
people engage in misconduct or make mistakes that they are 
appropriately disciplined.
    Senator Sessions. Well, I think we need to go cast our 
vote. Thank you so much, and we will have the next panel as 
soon as we can get back. We will be back in probably 10 
minutes. Thank you.
    Mr. Holder. Thank you.
    [The prepared statement of Mr. Holder follows:]

   Prepared Statement of Deputy Attorney General Eric H. Holder, Jr.

    I want to thank the members of the Subcommittee for permitting me 
to testify concerning section 530B of title 28 of the United States 
Code. Section 530B requires Department attorneys to comply with ``state 
laws and rules, and local federal court rules, governing attorneys in 
each State where such attorney engages in that attorney's duties, to 
the same extent and in the same manner as other attorneys in that 
State.'' Section 530B will take effect on April 19, 1999, absent action 
by the Congress, and this provision will cause significant problems for 
federal civil and criminal law enforcement.
    I will give you specific examples of the kinds of problems that 
section 530B creates, but I want to say at the outset that the 
Department of Justice demands that its attorneys carry out their law 
enforcement responsibilities in conformity with the highest ethical 
standards. And they do so. That is what the American public expects of 
its government attorneys, that is what the Congress expects, and I can 
assure you, as a federal prosecutor and former judge, that is what 
federal judges expect. Indeed, federal judges hold Department attorneys 
to a higher standard than anyone else who appears before them.
    I also want to emphasize that the Department has no desire to oust 
states of disciplinary authority or to exempt Department attorneys from 
the reach of state ethics rules. The Department's policy is that its 
attorneys conform in general to the ethical rules of the jurisdictions 
in which they are licensed and the rules of the courts in which they 
appear. In addition, the Department has volumes of regulations to which 
its attorneys must conform upon pain of disciplinary action. Moreover, 
Department attorneys are subject to discipline not only by state bars 
and federal courts, but also by the Department's Office of Professional 
Responsibility, which Attorney General Reno has more than tripled in 
size during her tenure. And, these attorneys are subject to the code of 
conduct set by the Office of Government Ethics for all executive branch 
employees. See 5 C.F.R. Part 2635, Standards of Ethical Conduct for 
Employees of the Executive Branch.
    Given this background, one might ask--what's wrong with the McDade 
amendment? The answer to that question requires a look at some of the 
state bar rules themselves and the quandary that many federal 
prosecutors will face if the amendment goes into effect. The McDade 
amendment has two principal flaws. First, the amendment subjects 
federal prosecutors to all rules in all jurisdictions, whether or not 
those rules were drafted with the nationwide practice of federal 
prosecutors in mind. Oftentimes, state bar rules, which developed in 
the particular circumstances of a single state's legal system, do not 
fairly address the complex work of federal prosecutors, who supervise 
wide-ranging national investigations and enforce public law to the 
benefit of everyone. Second, the McDade amendment's vague directive to 
comply with rules in each state where an attorney engages in that 
attorney's duties leaves prosecutors unsure about what rule applies to 
particular conduct. There is one certain result of this confusion--
cautious attorneys will simply refrain from taking critically important 
investigative steps or will leave agents to make their own decisions 
about whom and how to investigate. This turns back the clock on the 
salutary development of the last 50 years during which attorneys have 
become much more involved in investigations, a development that helps 
assure that citizen's rights are respected during federal 
investigations. In addition, section 530B will result in significant 
satellite litigation that will have nothing to do with ethics, but 
rather will serve as a weapon to delay or deter legitimate law 
enforcement. I will discuss each of these problems in turn.
    The bottom line is that there should be no mistake about the effect 
of Section 530B. It will undermine the ability of federal attorneys to 
serve the public interest through use of legitimate techniques to 
investigate crime and fraud against the United States.

     state ethics rules that interfere with federal law enforcement

    Codes of professional responsibility for attorneys developed over 
the past century as codes designed to promote honesty and integrity 
among attorneys. State rules with this focus--for example, rules 
requiring honesty to the court and opposing attorneys and parties, 
governing conflicts of interest, and regulating trust accounts--are 
straightforward and even--handed in their treatment of different 
categories of attorneys. More recently, however, state bar rules have 
expanded into areas that are more the province of courts and 
legislatures--for example, rules governing the investigative steps 
prosecutors are permitted to take, what evidence must be presented to 
grand juries, and what procedures must be followed to subpoena non-
privileged information from attorneys. Such rules, rather than simply 
regulating honesty and integrity, purport to supplement, if not 
replace, federal rules of procedure and present problems for federal 
attorneys that more traditional ethics rules never did. Moreover, 
because state codes of professional responsibility contain such rules, 
placing the authority to set these rules in state bars becomes much 
more problematic. State bars are unlikely to consider federal interests 
in setting their bar rules. Indeed, state bar rules often reflect the 
interests and priorities of the private bar.
    These problems are illustrated by the recent application of state 
bar rules governing contacts with represented parties to federal law 
enforcement. Contacts rules were developed to govern private attorneys 
in civil litigation. Beginning in the late 1980s, defense attorneys 
made increasing efforts to have these rules applied to federal 
prosecutors investigating federal criminal cases. In 1994, faced with 
different interpretations of Model Rule 4.2 in each state and very 
restrictive interpretations in some, the Department promulgated its own 
ethics rule to provide a uniform, national rule on this issue, which is 
fundamental to so much of what federal prosecutors do. That regulation 
was not an attempt to exempt Department attorneys from ethics rules--
rather, the regulation sets forth explicit rules for Department 
attorneys, provides sanctions for their violation, and contemplates 
state bar discipline for intentional violations. Since that time, the 
Department has been working with the Conference of Chief Justices and 
others to develop a new Model Rule that would ensure that prosecutors 
can participate in traditionally accepted investigative, techniques 
without undue fear of ethical sanctions. Although we continue in these 
efforts, we are still faced with many different interpretations in the 
different jurisdictions, and the ABA's Model Rule is even more 
restrictive today than it was in 1994.
    Here are some concrete examples of the problems we will face if the 
McDade amendment goes into effect:

    Undercover operations are critical to many major investigations, 
including investigation of major drug trafficking rings, terrorist 
groups, and traditional organized crime. The Committee on Professional 
Ethics of the Florida State Bar Association, however, has issued an 
opinion that leaves this basic law enforcement technique in doubt. Most 
state contacts rules have an exception for contacts ``authorized by 
law.'' Florida's rule has no such exception, and the Florida state bar 
apparently considers the rule to be absolute--attorneys and agents 
working for Attorneys may not communicate with any person who claims to 
have a lawyer with respect to a particular matter. Accordingly, the bar 
opined that federal prosecutors are, not permitted to conduct 
undercover operations against a target who is represented by counsel. 
Fl. Eth. Op. 90-4 (1990 WL 446959) (Fla. St. Bar Assn.). Thus, for 
example, a federal prosecutor would not be permitted to supervise an 
undercover operation to infiltrate an organized crime enterprise if the 
targeted mob boss was represented by counsel. The Florida bar minimized 
the obvious harm to law enforcement that this rule would cause by 
``observing'' that the target would likely be unaware of the undercover 
operation and so would not be represented in the ``matter,'' even if 
the target had counsel. But this completely ignores the realities of 
modem federal law enforcement--would the Florida bar really have 
believed that John Gotti did not know he was under investigation? 
Criminal organizations are often perfectly well aware that they are 
being investigated--they just do not know exactly what the government 
is doing. Under the Florida bar rule, Mr. Gotti's lawyer might have 
been able to write to the United States Attorney, stating his knowledge 
of the investigation, and most likely even of the existence of a grand 
jury probe, announce his representation of Gotti, and thereby preclude 
the government from wiring an undercover F.B.I. agent to try to elicit 
incriminating statements from Gotti.
    A recent case in Minnesota presents the same problem. In State 
v.Roers, 520 N.W.2d 752 (Ct. App. 1994), the court held that 
Minnesota's contacts rule was violated by undercover communications 
with someone represented by an attorney. If the court really meant that 
any such contact, even those prior to arrest or indictment, is 
prohibited by the rule, undercover investigation of ongoing criminal 
activity could be seriously hampered.
    The pre-indictment, undercover activities that would appear to be 
prohibited by these rules are exactly the types of legitimate, 
traditionally accepted activities that federal courts have routinely 
approved. See, e.g., United States v. Balter, 91 F. 3d 427 (3d Cir. 
1996) (allowing an informant to tape a suspect in a murder-for-hire 
investigation); United States v. Powe, 9 F.3d 68 (9th Cir. 1993); 
United States v. Ryans, 903 F. 2d 731 (10th Cir. 1990). Under section 
530B, a federal prosecutor in those states will be unlikely to 
authorize or participate in such activities--not because they are not 
legitimate, fully constitutional investigative techniques, but because 
they have been questioned or prohibited by state bars. This will 
seriously interfere with major undercover operations in those states 
with the most restrictive rules.
    Investigation of criminal activity that continues after arrest 
could also be seriously hampered. In general, prosecutors cannot 
communicate with a represented defendant about the ``matter'' for which 
the individual is being represented, but may communicate with the 
defendant about another ``matter.'' Oftentimes, U.S. Attorney's offices 
learn that defendants under indictment are continuing their criminal 
conduct, such as by making new drug sales, or are seeking to avoid 
conviction through obstruction of justice or witness tampering. For 
example, in a recent case investigated by a United States Attorney's 
office, defendants in a securities fraud case were released on bail 
following their arrest. In the course of interviewing victims, 
prosecutors learned that one elderly victim had been contacted by a 
defendant seeking $250,000 based on the same fraud. Prosecutors 
arranged for the victim to tape record ensuing conversations with the 
defendant, producing evidence of ongoing fraud by the defendant and 
others. Prosecutors must be able to investigate such ongoing conduct in 
order to ensure that indicted defendants are not able to continue their 
illegal conduct.
    A similar, and even more dangerous situation, occurs when 
prosecutors become aware that a defendant is trying to arrange for the 
murder of a witness Under the Department's regulation, prosecutors can 
place a wire on a cooperator with instructions to try to get the 
defendant to talk about his plans. A rigorous no-contact rule could 
prevent prosecutors from using this essential investigative technique, 
with potentially disastrous consequences. This is not a hypothetical 
circumstance. In a recent case, a United States Attorney's office was 
told by an informant that an indicted defendant was seeking to murder a 
witness against him and a law enforcement officer involved in the 
investigation. The office consulted with state bar counsel about the 
issue of an undercover contact of the defendant by the informant. The 
state bar counsel said that the contact would violate the state's 
ethics rules, although it was unlikely that the prosecutor would be 
disciplined.
    Of course, a state bar might decide that such contacts are 
permissible because investigation of the new offense is not the same 
``matter'' under the contacts rule. This is the position taken in the 
Department's contacts rule and by the federal courts. Most states, 
however, have no law on point and the contacts rules themselves provide 
little guidance. The result is that prosecutors will have to put their 
licenses to practice law on the line in order to do their jobs.
    This fact--that the consequence to prosecutors of mistaken 
predictions of the direction of state ethics rules is professional 
discipline--is one of the major problems with section 530B. When 
prosecutors are faced with contacts issues, they do not have time to 
solicit opinions from state ethics authorities. Consider the 
predicament of a federal prosecutor licensed by the state of Virginia 
who faces a situation similar to that one of my prosecutors when I was 
the United States Attorney for the District of Columbia faced. That 
prosecutor learned from a witness that an incarcerated defendant was 
trying to convince the witness to leave town before trial. The 
prosecutor received information from another source that the defendant 
was going to have the witness killed if she did not leave. On the day 
the prosecutor learned this information, he sent the witness, equipped 
with a hidden tape recorder, to talk to the defendant about his desire 
that she leave town. Immediately after the visit to the jail, the 
United States Marshals Service took the witness out of town for her 
protection. The prosecutor obviously did not have time to seek advice 
from bar counsel.
    In Virginia, the prosecutor might have been deemed to have 
committed professional misconduct. In Gunter v. Viriginia State Bar, 
385 S.E.2d 597 (Va. 1989), the Virginia Supreme Court held that 
recording conversations between third parties by a lawyer, or with his 
or her authorization, without the consent of all parties to the 
conversation is unethical. Despite the fact that the court relied on an 
American Bar Association ethics opinion containing an explicit 
exception for law enforcement, the Virginia bar recently distributed 
continuing legal education materials that suggested that, the 
prohibition was absolute. When a federal prosecutor in Virginia made 
inquiries of the Virginia bar ethics authorities, he was told that the 
prohibition contains no exceptions for prosecutors. When the prosecutor 
asked how Virginia state prosecutors cope with this rule, he was told 
that the police conducted these sorts of activities without any 
involvement by prosecutors. Perhaps the bar would arrive at a different 
conclusion if an actual case presented itself. But an actual case will 
present itself only when a federal prosecutor licensed in Virginia 
faces professional discipline. Federal prosecutors carrying out their 
duties to enforce the law should not have to place their professional 
licenses at risk in this way.
    The problems presented by state bar contacts rules are by no means 
limited to criminal law enforcement. One of the most significant 
problems posed by these rules is in the corporate context, involving 
both civil and criminal law enforcement. Attorneys representing 
corporations often claim to represent all employees of the company, 
perhaps thousands of employees, and sometimes even former employees, a 
group that might include employees fired for whistle-blowing 
activities. Corporate counsel is often, even usually, aware when the 
company is under investigation by the government. The Model Rule has 
been criticized for being vague on this point, and this vagueness has 
led to different interpretations in many states--even where the, state 
rules themselves are identical. Some state contacts rules are extremely 
broad, covering not only senior management but any employee whose 
statements can be imputed to the corporation. Some state rules may even 
cover former employees. Compare Public Service Electric & Gas Co. v. 
AEGIS, 745 F. Supp. 1037 (D.N.J. 1990) . (prohibiting all contact with 
former employees except through formal discovery) with Curled v. 
Cumberland Farms, Inc., 134 F.R.D. 77 (D.N.J. 1991) (permitting 
contacts with former employees).
    These rules make it very difficult to investigate corporate 
wrongdoing. Government attorneys might not even be able to speak to 
employees, such as whistle-blowers, who want to speak to the 
government, who have no interest in being ``represented'' by corporate 
counsel, and who initiate contact with the government. United State's 
Attorneys offices regularly receive letters from corporate counsel 
stating that counsel represents all employees of the company and 
purporting to forbid the government from speaking to any of them 
without counsel's permission. Indeed, the United States Attorney's 
office in San Francisco received such a letter from counsel for a 
corporation under criminal investigation who asserted that California's 
contact rule prohibits contacts with employees ``[e]ven in situations 
where the corporation's and the employee's interest may not be the 
same.'' The contacts rule attempts to ensure that corporations are not 
deprived of the benefit of counsel, but it is not intended to shield 
wrongdoing or to allow corporate counsel to avoid conflicts when 
individual employees have interests different from the corporation.
    A recent decision in California shows how significant this problem 
could be if state ethics rules apply across the board to Department 
attorneys. In United States v. Talao, No. Cr. 97-0217-VRW (N.D. Cal. 
1998), the United States initiated a criminal investigation as a result 
of allegations and information in a qui tam action. The qui tam action 
was based on allegations of wage and hour violations and kickbacks 
against a closely-held corporation and its owners. The company and the 
owners were represented by one attorney. An employee of the company was 
subpoenaed to testify in the grand jury. The owners of the company 
learned of the subpoena and instructed their attorney to accompany the 
witness to the grand jury. On the day of her grand jury appearance, the 
employee met with the company and owners' attorney prior to going to 
the courthouse. However, the employee went to the courthouse and met 
the prosecutor without the attorney. The employee told the prosecutor 
that she did not want to be represented by the owners' attorney and, in 
addition, that one of the owners had telephoned her the previous day 
and told her to testify falsely in the grand jury. The prosecutor told 
the employee that she was entitled to counsel and offered to obtain 
court-appointed counsel. The employee declined counsel. When the 
owners' attorney arrived at the courthouse, the employee refused to 
meet with him. Despite all of this--the employee's refusal to be 
represented by the company and owners' attorney, her refusal even to 
meet with him, her statement to the prosecutor that the owners of the 
company were apparently suborning perjury, and the prosecutor's offer 
to obtain counsel for the employee--the court still found that the 
prosecutor had violated California's version of Rule 4.2 concerning 
contacts with represented persons and determined that, if the case 
proceeded to trial, the jury would be informed of the government's 
``misconduct'' for the purpose of evaluating the credibility of the 
employee's testimony.
    Although I have focused on state rules on contacts with represented 
persons, which pose the most serious challenge to effective law 
enforcement, many other bar rules threaten to interfere with legitimate 
investigations. Some state bar rules purport to regulate when a 
prosecutor can subpoena an attorney or what information a prosecutor 
must provide a grand jury. In these areas, the bar rules seem to go 
beyond the regulation of ethics and instead attempt to regulate rules 
of procedure and evidence. In addition to interfering with what is 
properly the province of the legislature and the courts, these rules 
also create new obstacles for federal prosecutors.
    It is difficult to identify all the rules that might affect federal 
prosecutions because some bar rules, which are wholly legitimate and 
important on their face, are interpreted in a way that no one would 
expect. For example, in Oregon, a state bar rule, one with a salutary 
prohibition of deception, has been interpreted to prohibit government 
attorneys' participation in sting operations because these operations 
involve deception. In re Gatti, No. 95-18 (Ore. St. Bar). A federal 
prosecutor conducting an investigation of a drug organization would 
thus be prohibited from authorizing an undercover purchase of drugs. A 
prosecutor could not supervise a sting operation intended to lure 
burglars and thieves into selling their ill-gotten proceeds to an 
undercover F.B.I. agent posing as a fence. A prosecutor could not 
authorize law enforcement agents to pose as children to fool pedophiles 
using the Internet in order to sexually exploit minors.
    The response of the Oregon bar to criticism of its interpretation 
of its rule is that law enforcement agents are not bound by ethics 
rules and can continue to conduct undercover operations without 
attorney involvement. This reflects a completely unrealistic view of 
contemporary law enforcement and is terrible public policy to boot. 
Prosecutors conduct investigations because they have to. There is no 
way to conduct a gang investigation, or an organized crime 
investigation, or investigation of a large-scale drug operation, 
effectively without the active involvement of prosecutors.
    Moreover, this is how it should be. The value of attorneys' direct 
involvement in investigations cannot be overestimated. Attorneys are 
well-schooled in the law and can help ensure that investigations stay 
within constitutional bounds. There are many areas of the law that are 
highly complex and specialized. In these areas--civil and criminal 
environmental law enforcement, money laundering, securities fraud, 
cases arising out of acts of terrorism--federal attorneys are critical 
because only they will understand the technical issues that are the 
difference between a case that should be brought to trial and one that 
does not meet statutory requirements. Attorneys must see and speak to 
the witnesses in order to make informed decisions about proceeding with 
a case. Attorneys are often in the best position to decide what the 
next investigative steps should be.
    Unfortunately, federal prosecutors in the Eighth Circuit where the 
Department's contacts regulation has been invalidated--are reporting 
that agents are seeking advice from prosecutors less frequently and are 
simply conducting investigations on their own. Agents are concerned 
that consulting with attorneys will limit the scope of the agents' 
investigations. This development is bad for everyone.
    The examples that I have given represent the problems that we know 
about, but there is also much uncertainty about how particular state 
rules will be applied to federal law enforcement attorneys, and how 
vigorous state bars will be in using their authority under the section 
to control the activities of these attorneys. I am sure that the 
members of this subcommittee are familiar with the since-reversed 
Singleton decision in which a panel of the Tenth Circuit held that 
offering a plea to a reduced charge to a defendant in return for 
truthful testimony violated federal criminal law. Many states have 
rules prohibiting offering inducements to witnesses (one such state 
rule was cited in the original Singleton decision). Since the Singleton 
decision, more defense counsel are making motions to exclude testimony 
from cooperating defendants on the basis of these rules. While most 
state rules prohibit only inducements that are prohibited by law, the 
Florida rule contains no such exception. Does this mean that any 
inducement, such as moving the witness's family to safety pending the 
trial, is prohibited? We simply do not know. The Eleventh Circuit 
recently held that section 530B does not require suppression of 
cooperating witness testimony, but took no position on whether the use 
of such testimony violates the Florida rule. United States v. Lowery, 
166 F.3d 1119 (11th Cir. 999). This opinion is likely to provide little 
comfort to Department attorneys licensed in Florida.
    section 530b is vague and will lead to much satellite litigation
    Section 530B presents many problems beyond the direct impact of 
specific rules. I will describe some of the great uncertainties the 
section creates.
    While the caption to section 530B refers to ethics rules, the text 
of the section refers only to ``laws and rules * * *  governing 
attorneys.'' This language will permit defense counsel to argue 
(incorrectly, we believe) for a form of reverse preemption--if a state 
bar has a rule in a particular area, even if it conflicts with clear 
federal law concerning, for example, wiretapping or consensual 
monitoring, or with the uniform rules of procedure and evidence that 
govern federal court proceedings, the state rule will prevail. We are 
currently litigating against just such an argument: counsel for a state 
bar argued in a recent case that ``the clear intent of [section 530B] 
was to prevent the Justice Department lawyers from ignoring state 
ethical standards on the grounds of conflict with federal law.''
    Over the last 60 years, Congress has developed uniform rules of 
procedure and evidence for the federal courts, and no state or state 
bar should be able to override those. Nor should a state law that 
prohibits wiretapping trump federal law expressly permitting Department 
attorneys to authorize valid electronic surveillance. If this broad 
interpretation of section 530B were to succeed, the effect on federal 
law enforcement would be devastating. State rules concerning electronic 
surveillance, subpoenas, and grand jury practice vary widely. Our 
ability to use particular investigative techniques would vary from 
state to state and would be severely limited in some. I want to 
emphasize that the Department does not believe that this was Congress's 
intention and that we will litigate vigorously against this 
interpretation, but it is already clear that we will face such 
arguments. See ABA/BNA Analysis and Perspective, vol. 14, no. 20, at p. 
498 (Oct. 28, 1998) (noting that opposing lawyers are likely to argue 
for a broad construction of section 530B).
    The other area of serious concern is in determining what rules 
apply to particular conduct. All attorneys face difficult questions 
about what state bar rules apply to particular conduct. As an ABA 
Committee explained a few years ago, ``the existing authority as to 
choice of law in the area of ethics rules is unclear and 
inconsistent.'' ABA Committee Report Explaining the 1993 Amendment to 
Rule 8.5. Although the ABA has tried to improve this situation by 
amending Model Rule 8.5 to make clear that attorneys must generally 
comply only with the rules of the court before which they are 
litigating a particular matter, most states have not adopted this rule. 
This leaves all attorneys at risk that they may, in good faith, comply 
with the wrong rule.
    This problem is especially difficult for federal prosecutors, whose 
practice necessarily crosses state lines and who often supervise 
investigations that span a dozen or more states. By statute, the 
Attorney General has authority to determine who will represent the 
United States in court, and Department attorneys--particularly those at 
Main Justice--travel across the country to represent the United States' 
interest, most often in states where they are not members of the bar. 
Federal prosecutors also must regularly react quickly to protect the 
public and bring criminals to justice. Uncertainty about what bar rules 
apply is thus particularly troubling.
    To the extent that there is already confusion, section 530B makes 
the situation far worse because of its vague directive that government 
attorneys comply with rules in each state in which the attorney 
``engages in that attorney's duties.'' This directive could be read to 
require Department attorneys (unlike private attorneys) to comply with 
rules in every state where they take a deposition or supervise an 
investigation. Although we do not believe this interpretation is 
correct, we anticipate that there will be significant satellite 
litigation about what rules apply to particular conduct. This will 
needlessly slow the enforcement of federal law and will deter 
prosecutors, whose licenses may be on the line.
    Let me give you a realistic example. A team of federal prosecutors 
may oversee an investigation that has grand juries in three states and 
investigators in ten states. We do not believe that the prosecutors 
should have to comply with different rules in each state where an 
investigator goes. Under current federal law, government attorneys 
generally comply with the rules of the court where the case is being 
litigated. Under section 530B, a cautious Department attorneys will 
have to consider how the rules of multiple jurisdictions might be 
applied to his or her conduct, with professional discipline as the 
consequence of a mistaken analysis. If the attorneys on the team are 
licensed in different states, each attorney may have to do a separate 
analysis of the rules that apply, and different rules might apply to 
each of them. Add supervising attorneys with different bar memberships, 
and you can see how complicated it gets.
    This sort of uncertainty does not result in more ethical conduct by 
federal prosecutors. Rather, it will discourage prosecutors from early 
and effective involvement in major criminal cases and will make 
attorneys exceptionally timid about authorizing traditionally accepted 
law enforcement techniques because they are concerned that their 
licenses and careers may be jeopardized. Whether one believes that a 
single nationwide set of ethics rules for practice in federal court is 
the answer or that fifty sets of state bar rules for the practice in 
each state is the answer, I think we all can agree that it should be 
clear what rules apply to what conduct--something section 530B does not 
do.

                               conclusion

    I want to conclude with what I said at the outset. The Department 
is not seeking to exempt itself from ethics rules or to strip state 
bars of their authority. We firmly believe that federal prosecutors 
should comply with the highest ethical standards, regardless of who 
makes and enforces the rules. The federal courts and Congress through 
its oversight functions insist on this. But we also believe that ethics 
rules should be clear, predictable, and reasonably uniform--and also 
that they should not unreasonably interfere with legitimate law 
enforcement techniques.
    Section 530B ensures that none of these things will exist for 
federal prosecutors. For this reason, we strongly believe that section 
530B must be modified prior to going into effect. We are actively 
working to implement the provision, but we believe in the strongest 
terms that it should not be permitted to go into effect as is. No issue 
has galvanized Department attorneys more than this one because their 
licenses are on the line. The Attorney General and I stand ready to 
work with Congress to modify the provision to make certain that federal 
prosecutors are governed by high ethical standards, but also that they 
are able to do their jobs and effectively represent the interests of 
the United States.

    [The subcommittee stood in recess from 3:15 p.m. to 3:37 
p.m.]
    Senator Thurmond [presiding]. The subcommittee will come to 
order.
    Let's see if all the witnesses are here. On the second 
panel, the first witness is John Smietanka. Is that the way you 
pronounce it?
    Mr. Smietanka. Yes, Mr. Chairman, John Smietanka.
    Senator Thurmond. I did pretty good pronouncing that.
    Mr. Smietanka. You did beautifully, Mr. Chairman. Could I 
bring you back to my State?
    Senator Thurmond. Where are you from?
    Mr. Smietanka. I am from Michigan, Mr. Chairman.
    Senator Thurmond. A graduate of John Marshall Law School, 
is that right, in Chicago?
    Mr. Smietanka. Yes, sir.
    Senator Thurmond. Currently in private practice. He became 
U.S. Attorney for the Western District of Michigan in 1981. Is 
that right?
    Mr. Smietanka. Yes, sir.
    Senator Thurmond. In the Bush administration, Mr. Smietanka 
served as Principal Associate Deputy Attorney General and 
Assistant Special Counsel to Attorney General Bill Barr. He was 
also President Bush's nominee to be a judge of the Sixth 
Circuit Court of Appeals.
    Our second witness is John R. Justice. It sounds like a 
South Carolina name.
    Mr. Justice. You are correct, sir. [Laughter.]
    Senator Thurmond. Are you Solicitor of the sixth circuit?
    Mr. Justice. The sixth circuit, Chester, Fairfield and 
Lancaster Counties.
    Senator Thurmond. Yes; we are glad to have you here. Maybe 
you can help me to keep these others straight.
    Mr. Justice. We will try.
    Senator Thurmond. The very able Solicitor of the Sixth 
Judicial Circuit in my home State of South Carolina, Mr. 
Justice is a graduate of the University of South Carolina Law 
School. He retired after 25 years of service in the South 
Carolina Army National Guard with the rank of lieutenant 
colonel. He was elected to the South Carolina House of 
Representatives in 1970. Since 1978, he has served as Solicitor 
for the Sixth Judicial Circuit of South Carolina. Mr. Justice 
is also president of the National District Attorneys 
Association. We are especially pleased to have him with us 
today.
    Mr. Justice. Thank you, Senator.
    Senator Thurmond. That is a high honor.
    Mr. Justice. Thank you, sir.
    Senator Thurmond. The third witness is Richard Delonis. Is 
that pronounced right, ``Delonis?''
    Mr. Delonis. That is close enough.
    Senator Thurmond. Close enough. Mr. Delonis is a graduate 
of the University of Detroit Law School. He is an assistant 
U.S. attorney in the Eastern District of Michigan, a position 
he has held for almost 30 years. Is that correct?
    Mr. Delonis. Yes, Senator.
    Senator Thurmond. You have almost served long enough to 
retire.
    Mr. Delonis. Just about.
    Senator Thurmond. He is currently president of the National 
Association of Assistant United States Attorneys.
    Next is Drew McKay, a graduate of American University's 
Washington College of Law and a former assistant U.S. Attorney 
for the District of Columbia. He is currently executive vice 
president, chief operating officer and deputy general counsel 
of Decision Strategies Fairfax International. He is 
representing the American Corporate Counsel Association, as I 
understand it.
    Mr. McKay. Yes, Mr. Chairman.
    Senator Thurmond. Our final witness is Prof. Geoffrey 
Hazard, Jr. Did I pronounce that right?
    Mr. Hazard. Yes, sir.
    Senator Thurmond. He is a graduate of the Columbia 
University Law School, has held teaching appointments at nine 
different universities, and is currently a trustee professor of 
law at the University of Pennsylvania. Since 1984, he has been 
Director of the American Law Institute. Professor Hazard is a 
widely recognized author and expert on the subject of legal 
ethics.
    I ask that each of you please limit your opening remarks to 
no more than 5 minutes. You can make it shorter if you want to. 
All of your written statements will be placed in the record; 
everything you say will be in the record, without objection.
    We will start with Mr. Smietanka and go down the line. Do 
any of you have statements you want to make before we ask 
questions?

PANEL CONSISTING OF JOHN SMIETANKA, FORMER PRINCIPAL ASSOCIATE 
  DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, GRAND 
   RAPIDS, MI; JOHN R. JUSTICE, PRESIDENT, NATIONAL DISTRICT 
    ATTORNEYS ASSOCIATION, CHESTER, SC; RICHARD L. DELONIS, 
  PRESIDENT, NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES 
   ATTORNEYS, DETROIT, MI; G. ANDREW McKAY, CHAIR, NATIONAL 
 LITIGATION COMMITTEE, AMERICAN CORPORATE COUNSEL ASSOCIATION, 
WASHINGTON, DC; AND GEOFFREY C. HAZARD, JR., TRUSTEE PROFESSOR 
      OF LAW, UNIVERSITY OF PENNSYLVANIA, PHILADELPHIA, PA

                  STATEMENT OF JOHN SMIETANKA

    Mr. Smietanka. Just briefly if I may, Mr. Chairman, the 
point that I would like to make very clearly is I was not only 
a U.S. attorney for 12 years, not only a prosecuting attorney 
in my county in Michigan for 11 years, but during the time that 
I have now been in private practice for the last 3 years, I 
have been also a member of the ethics committee of my bar 
association, and also serving as a hearing officer in the 
voluntary disciplinary program we have with our bar 
association--I should say mandatory disciplinary program. So I 
hear cases of alleged abuses of attorneys' authority by 
attorneys around the State.
    Finally, from my perspective as a Principal Associate 
Deputy Attorney General in the Bush administration, I would 
like to just say that as I see this regulation of attorneys by 
someone, we have to look at a basic premise and that is that 
Federal authorities should regulate Federal attorneys enforcing 
Federal laws in Federal courts.
    This not to denigrate the States. This is not to say that 
they don't do a wonderful job in their areas and have absolute 
and constitutional rights to do it, but they don't have the 
right--they shouldn't be dictating to the Federal Government 
how Federal investigations, approved by Federal courts and the 
Federal Congress, are handled.
    I think that we got in to this mess--and we are in a mess--
which has resulted in McDade, which I think is bad legislation 
and should not go into effect and should be repealed by 
something which is, I think, must wiser. And I think that Hatch 
bill which has been referred to by the Chair at the beginning 
of this hearing is a very wise starting point to work from 
because that is an integrated point of view from the Federal 
level, a response to a very difficult problem which Senator 
Biden talked about.
    Senator Sessions, Senator DeWine, Senator Schumer and 
yourself talked today about the difficult of exercising power 
by Federal prosecutors, and we are paying a lot of attention to 
that that we did not in the past. We tried in the Bush 
administration to deal with this concept of disciplining and 
directing Federal prosecutors to act within the law by starting 
with the Thornburgh memorandum, which we believed at that time 
basically stated Federal law.
    It was followed by Attorney General Bill Barr's attempt 
with his regulation dealing with contact with represented 
persons, and that frankly was picked up by Attorney General 
Reno with her regulation of contacts with represented 
witnesses. Frankly, within the Department of Justice, there is 
an organization which is frankly far better equipped at dealing 
with the enforcement of rules than most, if not all, of the 
State bars.
    In my State today, there are 32,573 lawyers. There are 
three counsel investigators in our bar grievance program. Three 
attorneys are supervising and handling the complaints against 
theoretically 32,000 people. Mr. Chairman, there are in the 
Department of Justice something in the neighborhood of 8 or 
10,000 lawyers. There are 18 lawyers supervising the 
investigations or handling the investigations of the 
discipline. There is a better vehicle existing right now in the 
Department of Justice, with a better track record, than any of 
the bar associations than I have seen operating in this 
country, and I have seen several.
    I would like to suggest that I do support the Hatch view 
because it acknowledges the principle of one United States. It 
acknowledges the principle that the Attorney General has the 
authority to run her Department. It directs her to address 
specific ethical problems. It reaffirms Congress' overall, 
ultimate responsibility to act in an oversight capacity of the 
discretion that it gives to the Attorney General. And, finally, 
it brings in the judiciary in an effective way to assist the 
Congress with their wisdom and their experience on any possible 
other areas that need to be regulated.
    I thank the Chair for its courtesy.
    [The prepared statement of Mr. Smietanka follows:]

                  Prepared Statement of John Smietanka

      the effect of state ethics rules on federal law enforcement
    Mr. Chairman and members of the Subcommittee, thank you for your 
invitation to testify today on the knotty problem of how to deal with 
alleged abuses of power by federal government attorneys.
    I am pleased to be on a panel with people of such diverse 
backgrounds bringing different perspectives to the problem.
                             my background
    Practice:
   Admitted to practice before two state bars, Illinois and 
        Michigan, and the federal bars of Northern Illinois, Western 
        Michigan, the Sixth Circuit and the United States Supreme 
        Court.

   After law school, private practice in my father's family law 
        firm, first formed in Chicago in 1894.

    County Prosecution:
   Trial and appellate Assistant Prosecuting Attorney, Berrien 
        County, Michigan, 4 years.

   Nearly 8 years as Berrien County Prosecuting Attorney.

   President of the Prosecuting Attorneys Association of 
        Michigan.

    Federal Prosecution:
   Appointed and confirmed as United States Attorney for the 
        Western District of Michigan in 1981, serving for over 12 
        years.

   In 1990, I was asked by Deputy Attorney General William Barr 
        to come to Washington to be his Principal Associate. When he 
        became Attorney General I moved with him to the Attorney, 
        General's Office. In December 1992, I was appointed Special 
        Counsel to the Attorney General and Special United States 
        Attorney for the Northern District of Illinois to supervise the 
        prosecution of the roughly 60 cases called the ``El Rukns.'' 
        \1\
---------------------------------------------------------------------------
    \1\ This was because the presidentially-appointed United States 
Attorney had had to recuse himself due to certain allegations against 
members of his office concerning what may generically be called 
``prosecutorial misconduct.''

    Post-federal Government Service:
   I left the federal government and entered private practice 
        in west Michigan on December 31, 1993.

   Interspersed with my private practice were two unsuccessful 
        campaigns to be Michigan Attorney General (1994 and 1998).

    Special Bar Activities: Ethics
   As a member of the Michigan Bar, I have had special 
        responsibilities. Judicial Ethics Subcommittee of the Ethics 
        Committee of the State Bar. Our committee wrote opinions on 
        ethical matters for the state bench and bar.
   I now sit on hearing panels for the Michigan Attorney 
        Discipline Board, the ``judicial'' office of the attorney 
        discipline process in our state.

   Almost Judicial:
   Nominated by President Bush to be Sixth Circuit Court of 
        Appeals Judge in 1992. (The Senate Judiciary Committee did not 
        hold a hearing for me among some 60 others, and my nomination 
        died at the end of that Congress.)

    Thus I have observed the legal scene in Michigan and across the 
United States from several perspectives: private practitioner, trial 
and appellate prosecutor, federal and state chief prosecutor, member of 
the Bush Administration's U.S. Department of Justice management team 
and volunteer in the Michigan State Bar's ethical process.
    From my perspective, the conflict this Committee is dealing with is 
a recent bulge in the amoeba of the relationship between the three 
branches of the federal government, the state legal systems and the 
national and local media and the American public. To adequately examine 
the entire matrix is to risk becoming lost in immense complexity. Each 
aspect has been examined in scores of law review articles, cases, media 
reports, legislation, regulation and seemingly endless pre-meetings, 
meetings and post-meetings of members of all the interrelated 
disciplines. The only topic getting more consistent attention with 
equally less finality is the de rigeur ``Fair Trial, Free Press'' 
sessions which are part of so many seminars all over the country.
                                summary
    Abuse is always a danger when we give power to a person. This is 
the lesson of history and one of the dominant themes of the American 
Revolution and founding of our current government. The real and 
perceived abuses of the colonists by the government of George III and 
his predecessors led to the Declaration of Independence and the 
Revolutionary War. The practical impossibility of the survival of the 
newly independent states under the Articles of Confederation, with 
virtually total decentralization of power to the States, drew us 
inexorably to the Constitutional Convention of 1787. There the delicate 
balances between liberty and coordination, between the people and the 
state and federal governments, between law making, law enforcing and 
law-application were debated and struck. But at the heart of the matter 
was the need for the use of power for good coupled with checking the 
ills coming from its abuse.
    Our national constitutional history since then has been a playing 
out of the drama in a virtual infinity of situations.
    Today you are deliberating on how to regulate power given to 
governmental lawyers.
    We need to parse the question into its components. To deal with the 
future we must first understand the past and the present.
                                history
    The exercise of the power and authority of federal prosecutors did 
not reach the point of causing national controversy until relatively 
recently.
    The systematic pursuit of abuse of governmental power began to 
become a national question with a series of national events: Watergate, 
ABSCAM, the Mafia, the War on Drugs and the scandals of big business or 
big labor gone amok.
    In Watergate, it was the Congress and the parallel work of the 
Special Counsels to the Attorney General, Cox and Jaworski, who broke 
through the screen of payoffs, obstruction of justice, perjury covering 
terminal abuse of presidential power. Many from those days are 
prominent today, instructing us on how to properly deal with the 
exercise of power.
    Perhaps we can flippantly blame the movie ``The Sting'' for 
popularizing the tool of the undercover investigation, or Perry Mason's 
solving of crimes within the 30-60 minute windows of prime time. 
However the very graphic memories of television shots of drug dealers, 
burglars, and crooked politicians committing their crimes has a potent 
punch. The audience is, from the safety of its living room, brought 
into the arena to see crime in action. And juries often seem to expect, 
in this post-``Petrocelli'' world, that prosecutors should be able to 
present videotaped replays of the crime at trial.
    ``ABSCAM,'' the most prominent of the early ``stings'' by federal 
government, introduced the sad images of congressmen taking cash for 
favors broadcast on the nightly news. Political corruption cases are 
always some of the most difficult to prove. The basic nature of the 
political process and the emotional trust we place in the often 
attractive people we elect to office are major factors. Even more so is 
the care the courts take with such cases to make sure there really were 
crimes, and not just one political faction commandeering the criminal 
justice process for personal or partisan advantage.
    The Mafia, with its intensely secretive rules and often-brutal 
elimination of testifying defectors or retaliation against those who 
crossed it, made the captured lawyer and the corrupted legal system a 
household concept. There we saw lawyers, judges, police and the system 
itself seem co-opted by ``the mob.'' Federal prosecutors, in the 
forefront or breaking its power, sat in silent rage at, to cite one 
example, defense lawyers passing from protectors of, the constitutional 
rights of their clients to facilitators of their crimes.
    The ``War on Drugs,'' brought on by what the public believed (and 
still does, for the most part) was the ``Scourge of Drug Abuse.'' A 
public outcry moved the Congress, the courts and the White House to 
respond with tough laws, more enforcement resources and demands for 
results. Many prosecutors and I have had the difficult job of taking to 
task lawyers and judges (among many other types of people) for their 
criminal immersion in the drug trade, In the Western District of 
Michigan, one attorney took paper bags of money from drug clients and 
temporarily stored them in the ceiling above his office desk. Then he 
and his secretaries, during their lunch hour, went to 20 different 
banks, turning the money into cashier's checks for his drug clients. 
This case, and the hundreds of other like situations around the 
country, tended to smudge with suspicion other attorneys representing 
big-time dealers under investigation. Unfortunately, the immense pool 
of drug cash coupled with the tightening of the legitimate market for 
attorneys provided great temptation to struggling practitioners around 
the country.
    Corporate and union investigations brought with them the difficult 
problem of the entity under investigation providing umbrella 
representation for all members of the body. Thus corporate counsel 
would routinely advise federal prosecutors that they now represented 
all employees, directors or in the case of, say, unions, all members, 
and contact with any without permission from the core counsel was 
prohibited. This found parallels later in all manner of investigations 
in the ``joint defense agreements,'' whereby many putative 
``witnesses,'' ``subjects'' and ``targets'' would join together like 
musk oxen to show common horns to the government,
    Several circumstances exacerbated the tension between prosecutors 
and defense counsel. In 1984, prosecutors began going after the 
proceeds of drug dealing wherever they could find them. This included 
two areas that particularly disturbed the private bar, honest and 
dishonest alike: tracing drug money to and through attorneys' bank 
accounts and seizing money paid to defense counsel for their services. 
In one case the federal prosecutors were nosing into facially private 
business transactions of suspected or charged drug dealers; in the 
other, the fees being used to pay for attorneys' services were being 
frozen and seized.
                            the controversy
    One can track through the above historical references the main 
substantive areas of today's allegations of misconduct by the private 
bar against federal prosecutors.

          1. ``Federal prosecutors bypass the attorney-client 
        relationship to have private contacts with the represented 
        party.''

          A. Take the case of the member of an organized criminal 
        venture who wants to cooperate with the government, but has an 
        attorney not of his choosing publicly representing him. The 
        dilemma: if he tells that attorney he wants to ``cooperate'' or 
        plea bargain with the government, he risks injury to his family 
        or himself.
          B. Or there is the related question of a federal 
        investigative agency (supervised or working closely with an 
        Assistant United States Attorney) running ``sting'' operations 
        where the undercover agent or informant talked to, or was in 
        the presence of, a represented person.
          C. Here, too, the issue of multiple, or ``umbrella'' 
        representations provides tension, i.e., how can one attorney 
        provide proper counsel for both the target corporation (or 
        principal officers) and the potential witnesses against them at 
        the same time.

          2. ``Federal prosecutors subpoena the attorney of a person to 
        testify about the client.''

          A. A rather rarely used investigative strategy might be to 
        seek from the attorney information not legally within the ambit 
        of the privilege, e.g., the amount of fees charged by the 
        attorney for a representation, perhaps the final step in 
        tracing the proceeds of a drug distribution business.
          B. Related to this issue is the above-noted sensitive area of 
        forfeiture (under United States v. Monsanto, 491 U.S. 600 
        [1989]) of attorney fees traceable to drug proceeds.

          3. ``Under the Sentencing Guidelines, the prosecutors are 
        really running the system through their charging power and 
        their sentence recommendations.''

          A. The volume, if not the strength, of the argument of 
        defense counsel is augmented by the general dissatisfaction 
        with these guidelines, for different reasons by both the 
        Circuit and District Courts.
          i. The defense bar disliked the additional sword in the hand 
        of their adversaries;
          ii. the District Court judges were unhappy with the 
        restriction of their freedom to impose what they felt was an 
        appropriate sentence; and
          iii. The Circuit Court judges disliked the volume of appeals 
        on the rather uninteresting interpretational aspects of the 
        guidelines.
          B. Associated with these problems were the quasi-guerrilla 
        warfare some of these judges were waging by not just publicly 
        voicing opposition, but refusing to follow, and encouraging 
        others not to follow, the guidelines in their courts.\2\
---------------------------------------------------------------------------
    \2\ In the early 1990's, I personally participated in a training 
session for new federal judges, wherein several of the judges on the 
panel advised their audience to ``wait until tomorrow's session and 
we'll tell you how to avoid applying them.'' When I challenged this, 
the defense attorney on the panel told the group to ignore what I was 
saying and the guidelines, and conduct ``guerrilla warfare on the 
(guidelines).''

          4. ``The overwhelming authority against us in the courts, 
        together with the vast new resources given to federal 
        prosecutors and investigators, has tipped the level playing 
---------------------------------------------------------------------------
        field against us.''

          A. When the defense bar saw the courts refusing to accept 
        their arguments on traditional 4th, 5th, 6th, 8th ana 14th 
        Amendment grounds, in the context of the increasing presence of 
        federal prosecutorial power, they resorted to attacking the 
        behavior of their opponents as unethical, first in the federal 
        courts and, failing there for the most part, in the ethics 
        boards of the local bars.
          B. The bar ethical rules had, until the 1980's, not been the 
        forum conveniens for this battle. But then with the federal 
        legislature, courts and executive branch seen as ganging up on 
        them, they became the places to go. Composed in great measure 
        of private practitioners, and with criminal law not being the 
        most socially favored part of the practice,\3\ still there was 
        a visceral resonance to the criminal defense bar's complaints 
        against Administrations (Reagan and Bush) and their Justice 
        Department that were seen as opposed to lawyers generally.
---------------------------------------------------------------------------
    \3\ From being at a way station to private practice when I began to 
practice in the 1970's to being a part of a professionally appropriate 
career path now, prosecutors still deal with some of the most 
distasteful aspects of human life. And for the defense bar, advocating 
for fair treatment of the perpetrators of murders, rapes, frauds and 
drug dealing, puts them in even closer proximity to the seamier side of 
life. Now that I am back in private practice (which is predominantly 
civil), I still hear the old refrain ``How can you defend a guilty 
person?'' Further my civil clients are a bit visibly put off by the 
notion that their attorney is representing a man serving time (I 
believe unjustly) for murder.

    The attacks on the personal ethics of the individual prosecutor or 
his office were not limited to federal court. Anecdotally I can refer 
again to my own experience as a local prosecutor in the 70's. Towards 
the very end of the decade and into the 80's the personal attack 
formula had been adopted from the ``gonzo lawyers'' as they were called 
in Chicago by some of the more regular members of the criminal defense 
bar.
                          resolution attempts
    What we faced, thus, in the late 1980's was a trend that didn't 
bode 4 well for the future. The case of United States v. Hammad,\4\ 
focused the attention of the Department of Justice. Attorney General 
Richard Thornburgh issued what is now known as the ``Thornburgh Memo'' 
in response, not only to Hammad, but to the entire trend of using 
ethics proceedings as one of the main arrows in the defense counsel's 
quiver. As is clear from the reading of the Memo itself, as well as 
Attorney General Thornburgh's rebuttal to the ensuing criticism,\5\ 
this was not seen as creating something out of whole cloth, but rather 
as fitting in with a longer tradition of direction to the Department of 
Justice lawyers from their leader.
---------------------------------------------------------------------------
    \4\ 846 F2d 854 (2nd Cir. 1988), modified, 858 F2d 834 (2nd Cir. 
1988), aff'd, 902 F2d 1062 (2nd Cir), cert. denied, 498 U.S. 871 
(1990).
    \5\ See Richard Thornburgh, Ethics and the Attorney General: The 
Attorney General Responds, 74 Judicature 290 (1991).
---------------------------------------------------------------------------
    Taken in the context of a progressive deterioration of 
relationships between the federal (and state) prosecutors and their 
defense counterparts, the Memo's position was seen by one side as 
welcome leadership and the other as ultra vires arrogance. Rather than 
solve the problem, the Memo simply aggravated and gave to the criminal 
defense bar a torch to heat up members of the bar not till then engaged 
in the debate.
    Meetings were demanded and held between various parts of the 
criminal defense bar and components of the Justice Department. In one 
in 1991, Deputy Attorney General Barr, Jack Curtin, President of the 
American Bar Association, the Presidents of the National District 
Attorneys Association and National Association of Attorneys General, as 
well as some of the associates of each, met at the Department of 
Justice. A discussion of a wide range of issues between the government 
lawyers (local, state and federal) and the ABA resulted in the creation 
of a ``reconciliation committee'' with members of each organization 
trying to resolve long-standing and often bitter differences among 
them, including some of the ``ethics'' issues. That committee submitted 
a report after over a year of meetings that may or may not have 
actually caused change for the better.\6\ In addition, in 1991, 
meetings of a different kind were begun between the Department and the 
National Association of Criminal Defense Lawyers, to attempt to build 
bridges on an individual rather than institutional level between these 
two organizations.\7\
---------------------------------------------------------------------------
    \7\ I was also a participant in those discussions.
    \6\ I was a member of that committee, but left the Department some 
months before the final report was issued.
---------------------------------------------------------------------------
    As a final attempt to resolve the ambiguity of the various issues 
discussed above and more, Attorney General Barr in 1992 promulgated for 
comment a proposed regulation. While that proposal was later withdrawn 
by Attorney General Reno, another was prepared and promulgated in its 
place, founded on the same assumed authority to regulate the behavior 
of her employees that Barr's was. With some modifications after months 
of extensive public commentary, the Reno Rule went into effect in late 
1994.
    For the next few years, the matter was played out in the law review 
articles, courts and media.
                         mcdade and the future
    In 1998, the so-called Citizens' Protections Act (till passage 
colloquially known as ``the McDade Bill'') was passed as a hider to an 
Omnibus Consolidated and Emergency Supplemental Appropriations for 
Fiscal 1999. It mandates that attorneys for the government ``* * * 
shall be subject to State laws and rules, and local Federal court 
rules, governing attorneys in each State where such attorney engages in 
that attorney's duties, to the same extent as other attorneys in that 
State.''
    While short and simple, the Act delivers far more punch. 
Effectively it expands the authority of the bars of the various states 
to regulate behavior not only in their own courts, but in federal 
courts as well. Simply put, had this law been in effect in 1961, the 
bar grievance authorities in the States of Mississippi, Alabama and 
Georgia would have had the power to punish under whatever ``ethical'' 
rules it had on the books by reprimand, suspension or revocation of the 
privilege of practicing law the federal attorneys who sought in federal 
court, either district or in the Fifth Circuit, to enforce the federal 
civil rights of the African-Americans in those states.
    My view is that this statute should be immediately dealt with, 
either by repeal or amendment, to more properly reflect a true 
understanding of constitutional federalism. Both on the levels of 
proper balance between the state and federal governments and of the 
substance of the concerns about federal prosecutorial behavior, I would 
further suggest that some version of the Hatch Bill, S. 250, be 
adopted.
    Enough law review articles, media discussion and court rulings and 
dicta have been disseminated to drown this issue in a maelstrom of 
words. I believe that stripped of its arcana, it may be simply stated:

          Federal authorities should regulate the behavior of federal 
        attorneys, enforcing federal criminal law in federal courts.

This is, in other words, the Supremacy clause argument.

    To say that the ultimate decision as to what norms are to be 
adopted in the federal executive and judicial branches, and who are to 
be the enforcers is one for the federal government is not arrogance, it 
is the constitutional framework. This is not to say there cannot be 
criticism or input by any other third parties, but rather the rules 
should be created and enforced by the constitutional or statutory 
officers in charge of either the legislative, executive or judicial 
institutions they work within.
    That being said as a general rule, I personally favor the balance 
struck between the federal govermental branches by the S. 250. It 
recognizes both the oversight power of the Congress, the wisdom and 
experience of the federal judiciary and the primary supervisory role of 
the Attorney General. It identifies the questioned behavior most 
apparent today (S. 250, see. 2) and tasks the Attorney General to 
fashion rules to cover them. It leaves open to another day, after 
consultations with the entire justice system of the United States, 
federal, state and local, moderated by a federal judicial commission, 
the proposing of other standards.\8\
---------------------------------------------------------------------------
    \8\ I have some trouble, from a constitutional separation of powers 
standpoint, with the Commission's power to review, and responsibility 
to report on, the work of the Justice Department's Office of 
Professional Responsibility. However, from a pragmatic point of view, I 
cannot at this time come up with a better entity as a substitute.
---------------------------------------------------------------------------
    The alternatives are as I see them bleak.
    Like it or not, the role of a prosecutor, federal, state or local, 
is different qualitatively from that of the non-prosecuting lawyer. 
This difference is based on both the powers vested in the prosecutor (a 
member of the Executive Branch charged with enforcing law), and the 
charge given (to do justice, regardless of the wishes of any ``client'' 
other than the constitution, laws and treaties of the United States). 
The private attorney, or probably even the federal civil attorney, is 
charged with representing the best interests of his client, regardless 
of what he may think the ultimate Platonic ideal of justice would 
require in the situation. Thus, when it comes to the enforcement of 
law, the prosecutor cannot be dealt with in a cookie cutter manner as 
just another attorney.
    And the rules should not come from the fiat of associations that 
virtually are unrepresentative of prosecutors, such as the American Bar 
Association and most, if not all, the state bar associations. The 
percentage of prosecutors participating in the ABA at any significant 
level is minuscule. Time, money and, to some unfortunate extent, a 
cultural chasm keep them from meaningful participation.
    Thus, the specific rules that deal with the most uniquely 
prosecutorial and federal issues are not best designed, in my view, by 
either the state or American Bar Associations.
    And, while the tradition of delegating review of basic 
qualifications and enforcement of basic ethical rules to the states' 
courts may be long, it still is a delegation of federal authority not 
an inherent constitutional power. Query: Would the federal judiciary 
blithely accept a sitting district judge being suspended from practice 
by a state court for unethical behavior? Or would they demand a federal 
solution?
    S. 250 provides the basis for a process, at once open and 
integrated, leading us out of the labyrinth within which we find 
ourselves. I support looking closely at it, but in any event, strongly 
urge the repeal of the current approach of the so-called Citizens' 
Protections Act.

    Senator Thurmond. Before we go to questions, does anybody 
else have a brief statement to make?

                  STATEMENT OF JOHN R. JUSTICE

    Mr. Justice. I do, Mr. Chairman. Mr. Chairman, you have 
been so kind to introduce me, so I can cut out all the self-
introduction. I would substitute for it this, that only a South 
Carolinian could say I am 55 years old, my wife is a couple of 
years younger, my oldest daughter is 27, my middle daughter is 
a junior at Carolina, and we all have one precious asset in 
common. We all have a letter from Senator Strom Thurmond 
congratulating us for finishing high school.
    Senator Thurmond. Well, you have a fine family. [Laughter.]
    Mr. Justice. And in 3 more years, I fully expect my 
youngest child to have such a letter, Senator.
    Senator Thurmond. Wonderful.
    Mr. Justice. On behalf of the country's prosecutors, as 
president of the NDAA, I appreciate this opportunity to appear 
in regard to this inappropriately titled Citizens Protection 
Act.
    At the onset, let me make it clear that neither I nor any 
of my colleagues excuse improper or illegal acts by prosecutors 
at either the State or the Federal level. We condemn as much as 
any other citizen those who cannot properly employ the awesome 
responsibility. I am here to emphasize, however, that the 
Citizens Protection Act, passed through a previous Congress, is 
not the manner by which to enforce this exercise of power.
    In 1996 testimony before the House Judiciary Committee on 
relationships between Federal and local law enforcement, I 
stated that the strength of the Federal system of criminal 
justice are those serious cases that necessitate investigations 
crossing State lines. Federal law enforcement can greatly 
expedite the closing of a case, bringing the guilty to justice. 
Congress has recognized this through a number of enactments, 
particularly the High-Intensity Drug Trafficking Area Act which 
brings partnerships between State and local government.
    We have two basic concerns with the Citizens Protection 
Act, in that it, number one, we feel, will undermine the 
jurisdiction of State prosecutions. The proper role for Federal 
law enforcement is to investigate and prosecute those cases 
that are truly multi-State or international in nature. This is 
what the Constitution envisioned when separating State and 
Federal authority, and what the Congress has seen fit to do 
through its support of regional cooperative law enforcement 
efforts.
    But the Citizens Protection Act in its simplest terms 
requires a Federal prosecutor to adhere to the ethical and 
procedural and substantive rules of both the States in which 
they are licensed and the State or States in which they 
practice. This presents an impossible ethical choice for the 
Federal prosecutor. They either follow the ethics of the State 
in which they work or the State in which they are licensed. And 
if these two States differ, they are in Hobson's choice and 
there is no way they can make a correct choice. No matter what 
they choose, the result is anything except a boon for 
criminals, and compounds the Federal investigation that 
involves several States at the same time. Then you are even in 
a more difficult place.
    We view the Citizens Protection Act as undermining the very 
strength that the Federal system is made to advance--the 
ability to support local efforts by providing a multi-State 
capability. In turn, our concern goes to what new role the 
Federal system will assume to protect itself from an impossible 
ethical dilemma. And the natural result there would be to adopt 
cases strictly within a State, cases that should be the State's 
responsibility, or, in other words, coming into my counties and 
taking my cases that should be in State court instead of 
Federal court. It is an unacceptable duplication of effort and 
a waste of assets. More importantly, it gives near impunity to 
criminals who work in multiple States. Our fight to reduce 
crime and to reduce the number of victims has come too far to 
be hobbled by an ill-considered effort that does nothing but 
prove solace to criminals.
    Our second basis of opposition I will just briefly say was 
not in the final version of McDade last year, although I 
understand it is in the new legislation in the House this year. 
It would virtually end the practice or cross-designation of 
local prosecutors into the Federal system to have joint task 
force prosecutorial operations. Under McDade, in its original, 
pure form, that would be a matter of the past. I would suggest 
that more appropriate means of correcting ill-conceived actions 
by Federal prosecutors are found through the Department of 
Justice's Office of Professional Responsibility.
    I thank you for the opportunity to be here.
    Senator Thurmond. Thank you.
    [The prepared statement of Mr. Justice follows:]

                 Prepared Statement of John R. Justice

    On behalf of this country's local prosecutors, I wish to thank you 
for this opportunity to voice our concerns about the inappropriately 
titled ``Citizens Protection Act'' and its adverse consequences for law 
enforcement.
    I am John Justice, Circuit Solicitor (state prosecutor) of the 
Sixth Circuit of South Carolina. A jurisdiction of just over 100,000 
people living in small towns and rural areas over a three county area. 
My circuit is located on the border with North Carolina and is between 
Charlotte, North Carolina, and Columbia, South Carolina.
    I have been honored to serve in my current office for 21 years, 
having been elected to office 6 times. I still actively try cases as 
well as supervise a staff that includes five assistant solicitors. 
Annually, my office handles more than 3,000 felony cases.
    I have been a member of the National District Attorneys Association 
for 20 years and am proud to be serving the prosecutors of America as 
president of that organization. I am here today, to present you with 
the views of that 7000 member organization.
    At the onset, let me make it clear that neither I, or any of my 
colleagues, excuse improper or illegal acts by prosecutors at either 
the state or federal level. Our responsibilities to our citizens are 
perhaps best articulated by the Supreme Court in Young v. U.S. ex rel. 
Vuitton (107 S. CT. 2141) when it said:

          Between the private life of a citizen and the public glare of 
        criminal accusation stands the prosecutor. That state official 
        has the power to employ the full machinery of the state in 
        scrutinizing any given individual. * * * For this reason, we 
        must have assurance that those who will wield this power will 
        be guided solely by their sense of public responsibility for 
        the attainment of justice.

    We condemn, as much as any other citizen those who cannot properly 
employ this awesome responsibility. I am here to emphasize, however, 
that the ``Citizens Protection Act,'' passed during the previous 
congress, is not the manner by which to enforce this exercise of power.
    In 1996 I testified before the House Judiciary Committee on the 
relationships between federal and local law enforcement. At that time I 
stated that the strength of the federal system of criminal justice are 
those serious cases that necessitate investigations that cross state 
lines. Federal law enforcement can greatly expedite the closing of a 
case and bringing the guilty to justice.
    The Congress has recognized this strength through the inception of 
the High Intensity Drug Trafficking Area (HIDTA) which unites federal, 
state and local law enforcement on a regional basis to stop drug 
trafficking. A similar scheme was established for stopping money 
laundering and pending juvenile justice legislation looks at 
establishing a similar concept for youth gangs that operate on a 
regional basis.
    In it's recently released report on ``Federalization of Criminal 
Law'' the ABA cautions against continuing the trend towards 
substituting the federal system of criminal justice for the traditional 
realm of local authority. It recognized that there is a role for 
federal law enforcement to play but as an extension rather then a 
replacement for state systems. The National District Attorneys 
Association participated in the ABA task force and has long opposed the 
unwarranted federalization of crime and the intrusion by federal law 
enforcement into traditionally local issues. Our position on 
unwarranted federalization has been premised upon the belief that there 
is more than enough crime for the combined efforts of federal, state 
and local law enforcement authorities to combat.
    When the ``Citizens Protection Act'' was introduced in the House 
the consequences for local prosecutors would have been truly 
devastating.
    Many hundreds of local prosecutors have been, and continue to be, 
cross designated as Special Assistant United States Attorneys. As such 
they work closely with joint task forces combating drug trafficking, 
domestic terrorism, money laundering, and other crimes that involve 
cross-jurisdictional efforts and interests. This designation as Special 
Assistant U.S. Attorney serves to foster a team approach to fighting 
crime, permits federal and local prosecutors to share information 
within their separate rules of criminal procedure and serves as a 
valuable source of experienced assistance to US Attorney Offices.
    The ``Citizens Protection Act,'' as originally envisioned would 
have cast a serious cloud on the continuation of this shared 
responsibility. The broad definition given to ``attorney for the 
government'' would have included a local prosecutor working under cross 
designation as a Special Assistant US Attorney. As such, he or she 
would then have been subject to disciplinary action by the ``Misconduct 
Review Board'' without benefit of any of the protections or financial 
support afforded employees of the federal government. While we 
recognized that many of the articulated penalties were not applicable, 
mounting a defense in Washington would be difficult at best. Yet the 
local prosecutor would not dare risk the consequences of not pursuing 
vindication because of the possible implications on their position 
within their own community.
    Local prosecutors already face disciplinary proceedings by our 
state licensing authority, as city or county employees, under the 
inherent authority of the judges we appear before, and under the 
federal civil rights statutes that permit both civil and criminal 
sanctions against us as individuals. To add another disciplinary 
proceeding against local prosecutors would have removed any incentive 
to continue to cross designate and place ourselves in additional 
jeopardy.
    The issue of access to state and local records by the ``Misconduct 
Review Board'' was an even more serious problem that would jeopardize 
joint work. The ``Citizens Protection Act'' would have overridden state 
privacy or privilege rules or legislation with the broad subpoena power 
given to the Board. Moreover, there was no requirement to wait until 
the criminal trials or investigations were completed.
    The scenario could have developed where a local prosecutor, acting 
as a special assistant, becomes involved in a Misconduct Review Board 
investigation based on allegations by someone under investigation. 
Because of the extremely broad subpoena powers of the Board the subject 
of the criminal investigation could get any and all state records 
pertaining to any matter that was part of the joint effort or pertained 
to the background of the local prosecutor, including local grand jury 
records. Since their hearings would be open to the public, and could 
occur before the investigation, much less the trial was done, the 
state's ability to successfully investigate and prosecute the case 
would be placed at risk.
    At a time when every effort is being made to maximize the 
efficiency and effectiveness of our efforts to fight crime it would 
have been extremely counterproductive for the Congress to have built 
this barrier to cooperative efforts between local and federal 
prosecutors. If the ``Citizens Protection Act'' had become law this 
Association was prepared, to protect local criminal cases, to recommend 
that local prosecutors and police agencies consider withdrawing from 
all task forces and criminal investigations that include federal 
agencies.
    Many of you in the Congress saw the folly in this Act and were able 
to have removed those potions that would have opened our investigative 
and trial efforts through a federal process that was unrelated to fact 
or merit.
    Our concern with the ``Citizens Protection Act'' is now based upon 
two premise's. First, that the proper role for federal law enforcement 
is to investigate and prosecute those cases that are truly multi-state 
or international in nature. This is what the Constitution envisioned 
when separating state and federal authority and what the Congress has 
seen fitting through it's support for regional cooperative law 
enforcement efforts.
    But the ``Citizens Protection Act,'' in it's simplest terms, 
requires a federal prosecutor to adhere to the ethical and, as 
appropriate, procedural and substantive rules of both the state in 
which they are licensed and the state, or states, in which they 
practice. This presents an almost impossible ethical choice for the 
federal prosecutor.
    If they follow the state rules and law of the jurisdiction in which 
they work an ethical complaint can be lodged in their licensing state 
if the rules there differ from the state of practice. Their licensing 
state can discipline the prosecutor and the defense that they were 
adhering to the rules of the state in which they practice will not 
serve as a defense.
    Conversely, if the federal prosecutor follows the rules of their 
licensing state then the case in the jurisdiction in which they 
practice can be dismissed and sanctions taken against the federal 
prosecutor by the court before whom they are trying their case.
    Neither result is anything except a boon for criminals and this 
Hobbesian choice is compounded if the federal investigation involves 
several states at the same time. Differing rules of practice and 
procedure will be impossible to untangle without running afoul of one 
set of rules or another.
    Thus we view the ``Citizens Protection Act'' as undermining the 
very strength that the federal system is to advance--the ability to 
support local efforts by providing a multi-state capability.
    In turn, our concern goes to what ``new'' role the federal system 
will assume to protect itself from an impossible ethical dilemma.
    Faced by the daunting task of weaving a safe course between various 
state rules, at the risk of career ruining missteps, the safe course 
for the federal prosecutor is to retreat from multi- state cases and 
stick close to home. Essentially doing those types of cases that 
involve the laws of a single state--in short doing my cases--and 
ignoring the traditional role of federal law enforcement.
    This is unacceptable as a duplication of effort and waste of 
assets. More importantly, it gives near impunity to criminals who work 
in multiple states. Our fight to reduce crime, to end reduce the 
numbers of people who become victims, has come too far to be hobbled by 
an ill considered effort that does nothing but provide solace to 
criminals.
    Our second basis for opposing the so-called ``Protection Act'' is 
its very real potential to chill state and local participation in task 
force efforts. Now, our assistant prosecutors, cross-designated as 
special assistant U.S. Attorneys, work as full members of a joint 
investigations. If the ``Protection Act'' is implemented local 
prosecutors will need to examine the risks involved with continued 
participation. If a task force effort results in a federal trial in one 
of the participating venues what risk will there be for an local 
prosecutor from another state? Can they continue to be a team members 
of the laws of the second state are in conflict with those of their 
home jurisdiction. There is no federal protection thus do they limit 
participation and thereby limit liability or do they fully participate 
and exposure to personal and professional liability. Each case will 
have to be assessed not only on the merits of the situation but on the 
jeopardy that inures to the prosecutor.
    I believe, in short, that far from being an ethics rule this is 
nothing less then an attempt to ``divide and conquer.'' If the joint 
state-federal task forces are split up or rendered less effective then 
there is no protection for our citizens,
    I would suggest that more appropriate means of correcting ill 
conceived actions by federal prosecutors are found through the 
Department of Justice's Office of Professional Responsibility.
    On behalf of the prosecutors of this nation, both local and 
federal, I thank you, and this Subcommittee, for this opportunity to 
testify.

    Senator Thurmond. Does anybody else have anything to say?

                STATEMENT OF RICHARD L. DELONIS

    Mr. Delonis. I do, Mr. Chairman. First of all, I would like 
to thank the Chair and the subcommittee for inviting me to 
appear on behalf of the country's frontline Federal 
prosecutors. I serve, and I am honored to serve as the 
President of the National Association of Assistant United 
States Attorneys.
    The first point I would like to make is that some of our 
critics have said that we Federal prosecutors feel that we are 
above the law, and I want to just say forthrightly that that is 
not true, that we as a group feel that we are among the most 
dedicated servants of the law and we do not oppose regulation. 
In fact, we invite it. We ask to be regulated. We want to be 
ethical, but we do ask, do it, please, in a way that does not 
interfere with the way we discharge our responsibilities.
    I would note that we as Federal prosecutors are already 
subject to a great deal of regulation from a great number of 
different perspectives--institutions, procedures, and the like 
that keep prosecutors on the straight and narrow. Indeed, one 
of my colleagues has done a chart which is here in the hearing 
room that pictorially displays all the various mechanisms and 
procedures and institutions that impact on a Federal prosecutor 
and assure ethical and proper conduct.
    Now, beyond that, I would like to do something nobody else 
has alluded to here so far. I don't want to repeat what other 
panelists have said, but I thought I would put things in the 
context of a particular story, and the story I chose is 
something that happened in my own backyard, so to speak, in 
Detroit, and I talked to some colleagues in my office who 
handled the case.
    Back in May 1992, it was a nice, warm summery day. There 
was a little girl named Loreal Roper, a toddler, age 3, a 
typical 3-year-old, active, at home standing in the doorway of 
the house looking out on the porch. There on the porch was her 
uncle and two male visitors, one being a guy named Alfred 
Austin.
    As little Loreal stood there in the doorway looking out, a 
man approached the house. When he got to within 10 feet of the 
men, he pulled a gun and shot the three men dead, but he wasn't 
done. This man turned to Loreal, the 3-year-old toddler 
standing there in the doorway, pointed the gun at her and shot 
her in the face, killing her, and walked away.
    That gunman was part of an organization that was known as 
Best Friends, a drug-dealing, murderous group of people 
operating in the city of Detroit and elsewhere that in their 
term of activity was responsible for upwards of 50, perhaps as 
many as 80 drug-related murders. The investigation of Best 
Friends was underway when one day a mother who had two sons who 
were defendants in criminal cases in the Federal court, as she 
was also a defendant--she was charged with laundering drug 
money--she came into the U.S. attorney's office without her 
lawyer and came to one of our prosecutors. And her message was 
this: I have a son who is one of the defendants. He wants to 
cooperate, but he is afraid of his lawyer; he doesn't trust 
him.
    Now, the Michigan rules of discipline would not allow us, 
if we followed those and if those were controlling, to talk to 
her or to her son. But Federal policy and the rules of the 
Justice Department allowed us to do that, and one of my 
colleagues went to visit the son and talked to him and asked, 
is it true that you want to cooperate and that you don't trust 
your lawyer? He said that it was, and he was taken before the 
court and got an appointed counsel.
    Then he offered the fact that his brother, who was also a 
defendant, had the same reservations about his lawyer. We 
talked to that brother, ascertained that was true, got him a 
lawyer. These two brothers cooperated, and in the end more than 
50 murderous thugs dealing drugs were indicted, prosecuted and 
convicted. And the man who murdered Loreal Roper sits today in 
a penitentiary, where he will sit for the rest of his life. I 
would say that that might not have happened had the Michigan 
rules of ethics been in force and controlled Federal law 
enforcement in that case.
    Thank you.
    Senator Thurmond. Thank you very much.
    [The prepared statement of Mr. Delonis follows:]

                Prepared Statement of Richard L. Delonis

    Mr. Chairman, Honorable Members of the Subcommittee on Criminal 
Justice Oversight, Good Afternoon. My name is Richard Delonis, and I 
have been deeply honored by your invitation to testify at this hearing. 
I appear before you today in my capacity as President of the National 
Association of Assistant United States Attorneys, a professional 
association formed approximately six years ago for the purpose of 
representing the interests of this nation's federal prosecutors. My 
colleagues share in my appreciation of being afforded an opportunity to 
speak to you today regarding a topic that is of paramount interest to 
Assistant United States Attorneys.
    We are the government's front-line litigators, those whose duty it 
is to investigate and vigorously prosecute the criminals who prey upon 
American society and the American people. I will endeavor to present to 
you the perspective of the dedicated men and women who daily walk into 
court, often confronting dangerous criminals ``eyeball-to-eyeball'' 
and, in their presence, asking juries to convict them and judges to 
sentence them.
    I am employed by the Department of Justice, serving as an Assistant 
United States Attorney for the Eastern District of Michigan, at 
Detroit, Michigan. In November, I will have held that position for 
thirty years. I am the senior most attorney in my district. My current 
assignment entails the prosecution of the majority of my Office's 
criminal tax cases, as well as any special tasks that I may be 
delegated. I report directly to the Chief Assistant United States 
Attorney. Prior to my current assignment, I served in my Office's 
Organized Crime Strike Force for a period of six years.
    I am here to address the issue of ``The Effect of State Ethics 
Rules on Federal Law Enforcement'' and, more particularly, speak to you 
in support of S. 250, The Federal Prosecutor Ethics Act. Let me begin 
by stating that, contrary to the ``spin'' being placed on this issue by 
some members of the bar, federal prosecutors are not opposed to being 
regulated. We take great pride in our integrity, and we are fervent in 
our dedication to ethical principles. We do not view ourselves as being 
above the law, rather, we view ourselves as being among its most 
dedicated servants. Indeed, we embrace the words of Mr. Justice 
Sutherland in Berger v. United States, 295 U.S. 88 (1935), where he 
wrote that the United States Attorney is ``the representative not of an 
ordinary party to a controversy, but of a sovereignty * * * whose 
interest, therefore, in a criminal prosecution is * * * that justice 
shall be done. * * * It is as much his duty to refrain from improper 
methods calculated to produce a wrongful conviction as it is to use 
every legitimate means to bring about a just one.''
    The words of Justice Sutherland set forth the parameters of ethical 
conduct for Assistant United States Attorneys. My colleagues and I 
regard his depiction of our office as an ethical beacon for us to 
follow. I personally keep a framed copy of Justice Sutherland's remarks 
both in my office and in my study at home. I am attaching a copy of the 
full quotation to my written remarks.
    Assistant United States Attorneys favor the imposition of ethical 
principles upon lawyers, including themselves. But we believe that this 
must be done in a manner which does not conflict with existent federal 
law and does not alter the established and accepted practices and 
procedures in the federal courts. Ethical proscriptions must be 
consistent with the performance of our sworn duty, and must not erect 
barriers to the effective discharge of our responsibilities.
    Of the vast body of lawyers admitted to the bar in the fifty 
states, by far the greatest percentage of their number practice their 
profession largely in the state courts. Federal prosecutors practice 
almost exclusively in the federal courts. The state bar associations 
which promulgate ethical rules and regulations are, in essence, agents 
of the states in which they function. While they are rightly entitled 
to regulate the conduct of the attorneys admitted to practice in their 
respective states, including Assistant United States Attorneys, that 
regulation should be compatible with the manner in which federal 
prosecutors have traditionally performed their duties in the federal 
venue.
    The assertion of ethical principles which contravene existent 
federal prosecutorial practice would handcuff federal prosecutors, 
thwart the efficient administration of justice, and usurp the authority 
of the constitutionally established body charged with regulating 
federal practice and procedure: the Congress of the United States. In 
short, federal prosecutors ought be subject to the ethical rules of the 
states in which they are admitted to practice, but those rules should 
not conflict with the discharge of their official duties. Federal 
prosecutors ought be subject to discipline by state authorities for 
breach of those rules, but not when the conduct to be disciplined is an 
appropriate performance of prosecutorial duty.
    The question before us today is what legislation, if any, is 
necessary in order to assure ethical conduct by federal prosecutors. 
But, before giving detailed consideration to any legislative proposal 
relating to the establishment of ethical standards for federal 
prosecutors, it is both desirable and advantageous to examine the 
current situation in an effort to determine the extent to which any 
such legislation may be warranted. After the performance of such an 
inquiry, which we might call a needs assessment, we will be in a far 
better position to judge the value of any legislative proposals. 
Accordingly, I would like to now review with you the numerous existent 
practices, procedures and circumstances which serve to promote ethical 
conduct and act as prosecutorial restraints. The chart that we have 
placed before you contains a graphical representation of the numerous, 
current ``barriers'' to prosecutorial misconduct. A copy will be 
attached to my written remarks.
                        prosecutorial restraints
Case agent training, experience and judgment
    Typically, an Assistant United States Attorney's first contact with 
a given criminal case occurs when it is presented to him or her by the 
case agent, i.e., the investigator to whom the case has been assigned 
by the federal investigative agency. The case may be at an incipient 
stage, or the investigation may be substantially underway. In either 
event, the prosecutor will be working with a federal agent who has been 
well trained and has demonstrated good judgment to agency supervisors. 
Moreover, the agent will have been seasoned by some degree of 
experience in the field. The prosecutor's interaction with a skilled 
law enforcement professional will be a factor in the creation of an 
atmosphere of professional responsibility.
Agency investigative policy and guidelines
    The investigative and prosecutive process is impacted by the 
internal rules, regulations, and policies of the investigative agency. 
The agent with whom the prosecutor works is subject to rules of conduct 
established by the agency for its employees. Agency policy and 
guidelines will thus influence the nature of the professional 
relationship between the investigative agent and the prosecutor.
Agency supervisor's training, experience and judgment
    The case agent who works on a case with an Assistant United States 
Attorney works under the active supervision of his own agency. The 
agent reports to a supervisor on a regular basis, and the agent's 
activities and written reports are subjected to supervisory review. The 
training, experience and judgment of the supervisor act as a positive 
influence upon the case agent, and they provide a qualitative direction 
and control to the agent's job performance.
AUSA training, experience and judgment
    Quite naturally, the Assistant United States Attorney's own 
training, experience and judgment will contribute to the ethical 
performance of prosecutorial duties. Also, it must be noted here that 
by Department of Justice policy, every Assistant United States Attorney 
is required to attend ethics training sessions on a regular basis.
AUSA's supervisor's training, experience and judgment
    The federal prosecutor does not work in isolation. The Assistant 
United States Attorney works under the direction of a unit and/or 
division chief whose training, experience and judgment will also 
contribute to the formation of an ethical work environment.
Internal U.S. Attorney's Office investigative and prosecutive 
        guidelines and policy
    Most, if not all, United States Attorney's Offices have established 
their own internal policies and investigative/prosecutive guidelines. 
These internal rules and policies serve to further enhance an 
atmosphere where ethical conduct is expected and demanded.
U.S. attorney's manual guidelines and policy
    In fulfilling their daily responsibilities, federal prosecutors 
have the assistance of a manual, promulgated by the Department of 
Justice, which gives them information and guidance on a vast array of 
issues.
Department of Justice investigative guidelines and policy
    The work of an Assistant United States Attorney often involves 
complex issues, novel legal questions, high profile cases, and other 
sensitive questions. Over the years, the Department of Justice has 
established guidelines and departmental policies which are to be 
followed by prosecutors in the field.
Department of Justice approval process as to important issues and cases
    Certain important issues and cases handled in the field by federal 
prosecutors require Department of Justice consultation and approval. 
For example, an Assistant United States Attorney who wishes to use a 
wiretap, compel testimony from a witness by a formal grant of immunity, 
issue a subpoena to an attorney, or bring a charge under the RICO 
statute, must first secure departmental approval. Certain types of 
prosecutions are routinely processed through the Justice Department in 
Washington. In tax cases, for example, the evidence gathered by the 
Internal Revenue Service is reviewed by the Tax Division which makes 
the decision whether or not to prosecute. If prosecution is warranted, 
the Tax Division sends the case to the United States Attorney's Office 
with the instruction to file criminal charges.
Department of Justice attorneys' training, experience and judgment
    In those cases which involve Department of Justice consultation and 
approval, one or more attorneys and/or supervisors in the Department's 
appropriate litigating division will participate in the decision making 
process. Their individual and collective training, experience and 
judgment will influence the formulation of ethically appropriate 
decisions.
Judicial approval of search warrants
    The search of a person's home or property constitutes one of the 
most significant intrusions that government can impose upon that 
person's freedom and right to privacy. In order to use such an 
intrusive investigative technique, the law requires the law enforcement 
officer to obtain the approval of a neutral and detached judicial 
officer. Common practice requires the federal agent to have the 
application for a search warrant reviewed and approved by an Assistant 
United States Attorney prior to its submission to the court. When 
unusual issues or circumstances are involved, oftentimes an Assistant 
United States Attorney will consult with colleagues or a supervisor to 
assure that a proper and legally justifiable search warrant is being 
sought from the court.
Judicial approval of complaints and arrest warrants
    To initiate criminal charges by way of a criminal Complaint, or to 
secure a warrant for someone's arrest, the Assistant United States 
Attorney is required to submit to the court an affidavit setting forth 
the probable cause justifying the Complaint and the warrant. The 
affidavit itself is ordinarily sworn to by a federal agent who has 
knowledge of the case. A Complaint or a warrant will not issue without 
the approval of a judicial officer.
Preliminary hearings--judicial determination as to probable cause and 
        release
    Upon arrest, an accused is entitled to be brought before a judicial 
officer without any unreasonable delay. If the defendant has been 
charged in a criminal Complaint, the Assistant United States Attorney 
must establish the existence of probable cause to the satisfaction of a 
Magistrate Judge in order to obtain from the court an order in which 
the defendant will be ``held to answer.'' To have the accused detained 
without bond, an Assistant United States Attorney must demonstrate to 
the Magistrate Judge that no condition or set of conditions will assure 
the accused's future appearance before the court or that, if released, 
he will not pose a danger to the community.
Grand jury indictment
    To secure the return of formal criminal charges against anyone, the 
federal prosecutor must establish the existence of probable cause to 
the satisfaction of a majority of a federal grand jury. The grand jury 
will then return an indictment. The grand jury is a body of citizens 
drawn from the community to inquire into allegations of criminal 
conduct and to consider the filing of criminal charges. As an 
institution, the grand jury is several centuries old, having been 
originated in England as a means to check the power of the crown.
Motion to dismiss
    In cases where criminal charges have been filed, an accused can 
seek the dismissal of charges, either pretrial or during the trial, 
upon a showing of some impropriety or defect in the charges.
Motion to suppress
    Where an accused believes that evidence was illegally obtained, he 
may seek an order from the court suppressing such evidence, thereby 
foreclosing its use at trial.
Motion for judgment of acquittal
    At trial, an accused can seek an order from the court entering a 
judgment of acquittal where the evidence is insufficient to support a 
conviction. Where a court determines the evidence to be legally 
insufficient, it even has the power to function as ``the thirteenth 
juror'' and vacate a jury's verdict of guilty.
Judicial sanctions--district court
    Assistant United States Attorneys, like all lawyers, are subject to 
judicial sanction by the court where the court makes a finding of 
misconduct. The sanctions available to the court include reprimand and, 
censure, a finding of contempt, imposition of a fine, and an order 
barring the attorney from practicing in that court.
Judicial sanctions--appellate court
    Lawyers, including Assistant United States Attorneys, are also 
subject to the disciplinary authority of the appellate courts. The 
available sanctions are similar to those which may be exercised by the 
lower court. One additional remedy exists at the appellate level, 
however. Under an appropriate circumstance, the favorable judgment 
obtained by the attorney in the lower court could be reversed.
Internal agency discipline
    Where allegations of misconduct are raised against a federal agent, 
that agent's own agency will conduct its own internal investigation 
and, if circumstances warrant, impose sanctions upon the agent. Under 
some circumstances, disciplinary actions taken against an agent may 
have a deleterious impact upon an investigation or prosecution being 
conducted by a federal prosecutor.
Internal U.S. Attorney's Office discipline
    Where misconduct allegations are raised against an Assistant United 
States Attorney, the United States Attorney's Office may take 
disciplinary action against its employee upon a finding that the 
attorney is in fact guilty of the charged misconduct. Internal 
discipline within the United States Attorney's Office is usually 
reserved to those cases where the misconduct is less serious in nature.
Office of Professional Responsibility
    Where the charges of misconduct by a federal prosecutor are of a 
more serious nature, the matter is referred to the Department of 
Justice's Office of Professional Responsibility. That office is noted 
for conducting thorough investigations which can be protracted. The 
possible sanctions that could be imposed include reprimand, suspension, 
and discharge from office. Even when vindicated by an O.P.R. 
investigation, the experience can prove to be very difficult and 
demoralizing to the prosecutor who was been victimized by spurious 
charges. Last year, during the congressional consideration of the 
Citizen's Protection Act sponsored by Congressman Joseph McDade, an 
Assistant United States Attorney from Florida wrote to her congressman 
and her two senators stating her opposition to Representative McDade's 
bill and advising them of her own experiences. She wrote: ``I have 
personally been subject to these processes, and I can tell you from 
first-hand knowledge that the system provides more than the average 
number of safeguards for unethical behavior without this bill. During 
my experience, I spent months defending myself against a spurious 
charge in three separate investigations. Though they all found no 
wrongdoing on my part, my ability to represent the people of the United 
States was, and has been, forever impacted by this horrible and 
humiliating experience. This bill would make those types of experiences 
commonplace for all of us.'' Michelle McCain Heldmyer, Assistant United 
States Attorney, Pensacola, Florida.
State bar associations
    Assistant United States Attorneys are subject to the disciplinary 
rules of the state bar to which they belong. Indeed, the Department of 
Justice expects its lawyers to adhere to the state bar ethics rules. 
The Department's singular reservation has been to those instances where 
a state bar has chosen to promulgate a rule which conflicts with the 
official duties of its prosecutors.
Civil liability
    Under some circumstances, federal prosecutors are subject to civil 
suit for conduct related to the performance of their official duties. 
The Congress has recognized the potential difficulties occasioned by 
this liability by recently enacting legislation that would allow the 
Department of Justice to pay one-half of the annual premiums on 
malpractice insurance policies obtained by its prosecutors. 
Unfortunately, to date the Department has not been able to extend this 
benefit to its attorneys.
Hyde amendment claims
    Recently enacted legislation sponsored by the House Judiciary 
Committee Chairman, Representative Henry Hyde, allows defendants who 
have been acquitted to bring suit against the government for damages 
under certain circumstances.
Criminal prosecution
    Finally, in the very worst of circumstances, federal prosecutors 
are themselves subject to criminal prosecution should they violate the 
law. Indefensible and condemnable acts such as subornation of perjury, 
obstruction of justice and willful and unlawful violation of the rules 
of grand jury secrecy constitute some of the potential grounds for 
criminal prosecution. Assistant United States Attorneys do not and 
would not condone such deplorable conduct by a colleague, and they 
earnestly hope and pray that they will never see the day that a 
colleague is charged with any such offense.
Three significant observations
    The foregoing analysis leads us to three significant observations 
regarding the promulgation of ethical regulations for federal 
prosecutors. First, federal prosecutors are already subjected to many 
proscriptions and restraints. Indeed, it can be forcefully argued that, 
currently, federal prosecutors are more regulated than other members of 
the bar. The preceding analysis discloses that a prosecutor's conduct 
is subjected to continual and pervasive scrutiny. Moreover, there are 
very adequate disciplinary remedies already available for any instances 
of misconduct which would warrant the imposition of sanctions.
    The second observation relates to the fact that issues of ethics 
and discipline are a very personal matter. These are not abstractions 
about procedural questions or constitutional interpretations of law, 
rather, they go directly to the very heart of a prosecutor's most 
valuable possessions: integrity and reputation. We are dealing with 
matters that deeply impact a person's livelihood and professional 
future. Allegations of misconduct, even if spuriously made, have 
profound impact upon morale which, in turn, will negatively impact the 
quality of work being performed by even the most conscientious of 
prosecutors.
    The third observation relates to the interaction between 
prosecutors and agents. In recent years, federal prosecutors have 
become more active in the investigatory process and have assumed a 
greater role in the direction and supervision of investigations. The 
blanket application of state ethics rules to federal prosecutors will 
extend the ultimate impact of those rules to investigative agents 
simply because they are now working under a prosecutor's supervision. 
Ironically, such an extension of regulation to agent activity is likely 
to produce unintended, counter-productive results. Knowing that their 
closer relation to the prosecutor serves to circumscribe their 
investigative efforts, agents may well be motivated to separate 
themselves from prosecutorial oversight and act more independently. 
Having lost the benefit of prosecutorial supervision, the quality of 
law enforcement will diminish, a circumstance that will surely be 
decried by the organized bar that precipitated it.
                  the citizen's protection act of 1998
    Having reviewed with you the various practices, procedures and 
mechanisms which serve to promote ethical conduct and act as 
prosecutorial restraints, I would like to take a moment or two to 
comment upon a bill passed by the Congress last October. The Citizens 
Protection Act of 1998 was sponsored by Representative Joseph McDade 
and was ultimately affixed to an omnibus appropriations bill which was 
hurriedly enacted in the closing moments of the last Congress. It was 
enacted without the benefit of a hearing in either congressional 
chamber. This Committee was thus deprived of an opportunity to exercise 
its normal and appropriate legislative prerogatives. Indeed, it would 
appear that the bill's primary supporters made every effort to avoid 
the scrutiny of this Committee and its counterpart in the House.
    Consequently, we find ourselves confronted with legislation, which 
was both ill-advised and poorly crafted, slated to become effective in 
but a short time. The statute's key defect is that it subjects federal 
prosecutors, without any qualification, to the ``State laws and rules 
and local federal court rules'' in any state where the prosecutor 
``engages in that attorney's duties.''
    The vagueness of the statutory language is patent. A cursory 
reading discloses that the words are so ambiguous in character that the 
federal prosecutor's duty of adherence is not specifically confined to 
ethical rules, but to ``laws and rules'' in general. The sheer breadth 
of this statutory language opens the door to much mischief. For 
example, many states have laws prohibiting the obtaining of evidence by 
wiretap. But, for more than thirty years, federal prosecutors have been 
authorized by law to gather evidence from the use of judicially 
sanctioned and supervised electronic surveillance. We can realistically 
anticipate many challenges to wiretap evidence obtained in states where 
state laws proscribe the use of electronic surveillance.
    The blanket subjugation of federal prosecutors to state ``laws and 
rules'' creates another problem which seriously implicates the 
constitutional principles of federalism and the supremacy clause. As 
written, the statute now creates an opportunity for state bar 
associations, and perhaps state legislatures, to promulgate new ``State 
laws and rules'' governing federal law enforcement. So construed, this 
statute amounts to a congressional delegation or cession of its 
legislative authority to the states. The remaining question is how far 
will state authorities go in the exercise of such regulatory authority 
over federal law enforcement.
    And, finally, it should be noted that the statute provides that 
government attorneys ``shall be subject to State laws and rules * * * 
to the same extent as other attorneys in that State.'' The statute thus 
operates upon the faulty assumption that the federal prosecutor is just 
like all other lawyers. It ignores the fact that a federal prosecutor 
practices law almost exclusively in the federal court. It also fails to 
consider the fact that a prosecutor's work environment is far different 
from that of attorneys who are not prosecutors. As a public official, 
the federal prosecutor is subject to many more restraints and controls 
than attorneys who are not prosecutors. The chart which I presented to 
you earlier, as well as my earlier delineation of the many rules, 
procedures and mechanisms which exert influence and control over 
prosecutorial conduct, clearly demonstrate that there are far more 
ethical restraints upon the federal prosecutor than upon the 
prosecutor's law school classmates who have chosen to follow a 
different career in the law.
    Most importantly, the statute fails to account for the fact that a 
federal prosecutor's authority and responsibilities are far different 
from those of an attorney engaged in the private practice of law. As a 
representative of the people, the duties of the federal prosecutor 
occupy a different, if not special, place in the operation of our legal 
system. The federal prosecutor represents not an individual client, but 
the people of the United States of America. It is the prosecutor's duty 
to enforce the law, not to seek a remedy or damages for a client. In 
proving a case, the prosecutor must prove it beyond a reasonable doubt, 
not to a preponderance of the evidence as the plaintiff's counsel in a 
civil case. The federal prosecutor may not prosecute a defendant he or 
she knows to be innocent, yet the defendant's attorney is duty bound to 
vigorously defend a client known to be guilty. Thus, it may make sense 
to promulgate an ethical rule forbidding a civil attorney from 
contacting a represented party without the notification/consent of that 
party's counsel. But in the context of the federal prosecutor's role in 
the administration of justice, the strict application of such an 
ethical rule may well be illogical and in conflict with the 
prosecutor's duty. Later, I will share with you a story that 
dramatically illustrates that point.
                             cases in point
    Perhaps the best way to underscore the difficulties posed by the 
blanket subjugation of federal prosecutors to the ethical rules of 
state bar associations is to examine real cases and consider how they 
would have been impacted if state bar rules had controlled. Far from 
being speculative, these illustrations drive home the point that, as 
enacted, the Citizen's Protection Act of 1998 would not protect the 
citizenry as much as it would deprive them of the effective enforcement 
of the law to which they, as citizens, are entitled.
Operation senior sentinel
    In an effort to stem the rising tide of telemarketing fraud, 
several years ago the Department of Justice launched an initiative, 
under the supervision of federal prosecutors, called ``Operation Senior 
Sentinel.'' The undercover technique utilized in this investigation 
involved the secret recording of telephone calls from telemarketers to 
the telephone numbers of actual, former victims of telemarketing fraud. 
Many of the victims were senior citizens who had been defrauded out of 
substantial sums of money. With their cooperation and consent, their 
telephone numbers were taken over by the F.B.I. and routed to lines 
which were answered by retired agents and volunteers from the American 
Association of Retired Persons (AARP). With the consent and cooperation 
of the answering party, the telephone calls from telemarketers were 
secretly recorded. The telemarketers believed that they were making a 
pitch to a would be victim when, in fact, their pitch was being 
recorded and preserved to be used as evidence against them at a later 
date. Eventually, more than 450 persons from various states were 
successfully prosecuted.
    Some of the calls were recorded in jurisdictions where state laws 
prohibit the recording of telephonic conversations unless both parties 
to the conversation agree to the recordation. Had the state law in 
those jurisdictions controlled, federal prosecutors would have been 
ethically precluded from supervising the investigation, and the 
evidence gathered through this investigative technique would have been 
inadmissible in court. As a consequence, this law enforcement 
initiative to combat telemarketing fraud would have been substantially 
impeded if not entirely thwarted.
Little Loreal Roper
    By all accounts, Loreal Roper was a typical, active three year old 
child. The toddler was destined, however, to find herself in the middle 
of an outburst of murderous violence. May 9, 1992 was one of those 
pleasant, warm, spring days in the city of Detroit. Harry Roper, 
Loreal's uncle, was sitting on the front porch talking with two male 
visitors while Loreal stood in the doorway looking on. One of the 
visitors was Alfred Austin, a young man who had recently had a brush 
with the law in the state of Ohio where he was now facing weapons 
charges.
    As little Loreal stood in the doorway observing her uncle and the 
two men sitting with him on the front porch, a fourth man quietly 
approached the house. When he got to within ten feet of the three men 
on the porch, he produced a gun and shot all three of them to death. 
The cold blooded gunman then turned his attention to the innocent 
little girl standing in the doorway and, in a further act of savage, 
brutal violence, he shot little Loreal in the face, killing her. The 
gunman escaped from the scene, leaving behind the bodies of his four 
victims, including the three year old toddler.
    At that time, federal and local authorities were in the midst of an 
intensive investigation of a notorious and extremely violent group of 
Detroit drug traffickers known as ``Best Friends.'' The organization 
was believed to be responsible for at least 50, and perhaps as many as 
80, drug related murders in Detroit and elsewhere.
    Alfred Austin had been marked for death when a defense attorney 
advised members of the Best Friends organization that Austin was about 
to cooperate with the authorities and that he should be taken care of. 
Little Loreal Roper's life ended at the tender age of three when she 
became a victim as an innocent bystander to a Best Friends' execution.
    During the Best Friends investigation, a female defendant charged 
with laundering drug money approached an Assistant United States 
Attorney without the presence or knowledge of her attorney. She advised 
the prosecutor that one of her sons, who was also a defendant 
represented by counsel, wanted to cooperate with the government. She 
further said that her son did not trust his attorney and, therefore, 
could not communicate through him. An Assistant United States Attorney 
then spoke to the son, with out the presence, consent or knowledge of 
his attorney. When the son confirmed what his mother had indicated 
about his desire to cooperate and his fear of his attorney, the 
prosecutor advised the court and another attorney was brought into the 
case to represent the son. The first son advised the government that 
his brother also wished to cooperate but he, too, did not trust his 
lawyer. The second son was also approached by the government, without 
the knowledge of his attorney, to confirm what his brother had said. 
When the second son confirmed those facts, the court was advised and a 
new attorney was appointed for the second son as well.
    The cooperation of the two brothers was the major break in the 
case, and led to the dismantling of the Best Friends organization. In 
the end, approximately fifty people were charged and convicted of 
various crimes, including murder. As we sit here today, the murderer of 
little Loreal Roper is behind prison bars where he will spend the rest 
of his life.
    Rule 4.2 of the Michigan Rules of Professional Conduct prohibits 
lawyers from contacting persons who are represented by counsel. 
Department of Justice policy, however, allows for such contacts under 
certain limited circumstances. If the Michigan rules had prevailed over 
Department of Justice policy in this case, the man who murdered little 
Loreal Roper and a number of his murderous colleagues might still be 
roaming the streets of Detroit today. And the Best Friends' drug 
trafficking and bloodbath would still be in progress.
                               conclusion
    It is quite apparent from the foregoing that 28 U.S.C. 530B, the 
Citizens Protection Act of 1998, is fundamentally flawed in numerous 
respects. Its provision for the blanket subjugation of federal 
prosecutors to ``State laws and rules'' will significantly impede the 
administration of justice at the federal level. If we are to truly 
protect the citizens of our Republic, we must afford them the quality 
federal law enforcement effort that they deserve. Section 530B must be 
repealed or amended. S. 250, the Federal Prosecutor Ethics Act, 
constitutes an appropriate remedy to the problem at hand. On behalf of 
the members of the National Association of Assistant United States 
Attorneys, and all of this nation's more than 4,500 federal 
prosecutors, I respectfully urge this Subcommittee and the entire 
United States Senate to rectify the situation created by the statute so 
hurriedly enacted last year. Thank you.

[GRAPHIC] [TIFF OMITTED] T0098.015

[GRAPHIC] [TIFF OMITTED] T0098.016

    Senator Thurmond. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. I have to 
preside at the Senate in 5 minutes, and I am very, very 
disappointed not to be able to be with you.
    I got to know Mr. Justice. We are glad to have you here. 
And, Mr. Delonis, you represent the people with the greatest 
job in the whole world, assistant U.S. attorneys. I have been 
that, and U.S. attorney, and assistant is better. You don't 
have as many headaches. But it is a great job and it is 
composed of some of the finest people I have had the pleasure 
to know.
    Mr. Delonis. Thank you, Senator.
    Senator Sessions. It is good to see Mr. Smietanka. John and 
I served as U.S. attorneys together for 12 years, I guess. 
There were just a handful that lasted that long.
    Mr. Smietanka. That is right.
    Senator Sessions. But John is a man of integrity and 
ability and courage and kindness and gentleness and strength 
and power, and all the good things that anybody could have as a 
human being, and it is an honor to see him again. And I respect 
you and the work you did as a principal deputy to the Attorney 
General and as U.S. attorney. It is good to see you again, 
John.
    Mr. Smietanka. It is good to see you.
    Senator Sessions. I am sorry I am not going to be able to 
stay for the rest of this panel. Thank you so much, Mr. 
Chairman.
    Senator Thurmond. Thank you.
    Before we go to questions, Mr. McKay and Mr. Hazard, do you 
all have anything you would like to say?

                  STATEMENT OF G. ANDREW McKAY

    Mr. McKay. Mr. Chairman, with your permission, I would like 
to not repeat my statement, but supplement it with a few 
comments that I will keep certainly within the 5-minute rule, 
with your permission.
    The issue is not, I believe, as the Department of Justice 
has testified before you today, whether the Ethical Standards 
for Federal Prosecutors Act creates new rules and restrictions 
for the Department of Justice. In fact, the eighth district 
decision last year governs the Department attorneys' conduct 
today. And whether McDade is in force or not, I believe the 
rules governing the conduct of the Department's attorneys would 
not change, and that would be the enforcement of the State 
laws.
    The McDade provision simply codified the well-established 
understanding that all attorneys are subject to State bar 
professional rules of conduct. Since 1908, when the ABA first 
proposed the model rules, the chief judges in the highest 
courts in the States have adopted essentially the same 
standards for Federal and for local attorneys. And those of us 
who are in the corporate bar and other bars who also practice 
on a Federal level have to abide by all of those different 
rules.
    The American Corporate Counsel Association, which is made 
of nearly 11,000 attorneys and 4,500 organizations across the 
United States and overseas, does not support the rescission of 
the McDade provisions or the adoption of S. 250. We believe 
that the current standards are appropriate. That has been 
supported by the National Association of Manufacturers, the 
Chamber of Commerce, and others. And with the Chair's 
permission, I would be happy to submit additional comments for 
the record from those organizations rather than take time now 
to repeat those.
    But I would like to point out to the Chair and the 
subcommittee a couple of other matters that I think are useful 
in your consideration. Senator Schumer mentioned that in the 
adoption of the legislation last year, this was a rather hasty 
and ill-conceived consideration. In fact, back in 1996, the 
Department and others were testifying before the House 
Committee on the Judiciary about ethical standards for Federal 
prosecutors. There was a report issued.
    The Department had ample opportunity to discuss what was 
then H.R. 3386, and essentially the McDade provision codifies 
what was the result of those hearings. There has been some 
precedent and some discussion of these issues in the past, and 
the McDade bill is not a radical departure.
    I would like to address one point that the Deputy Attorney 
General and his two colleagues made. With the Chair's 
permission, I would like to quote from a letter from the 
National Organization of Bar Counsel. This is a letter to 
Senator Hatch that is dated March 10, and I think it speaks 
pointedly to a couple of issues that are of legitimate concern 
to this committee and to others.

          The truly remarkable feature of the Department's 
        campaign is the absence of any evidence to suggest a 
        factual basis for the Department's concern that its 
        line attorneys are at the mercy of State bar 
        prosecutors, who are in turn supposedly working hand in 
        hand with the criminal defense bar to complicate the 
        lives of their prosecutorial adversaries. In the 
        collective experience of the National Organization of 
        Bar Counsel, nothing could be further from the truth. 
        Informal surveys of the membership of the NOBC, which 
        includes every attorney disciplinary authority in the 
        country, repeatedly have failed to produce evidence of 
        ethical prosecutions or even investigations directed at 
        Federal prosecutors who engage in traditionally 
        accepted law enforcement activities, such as string 
        operations, undercover operations, wiretap 
        surveillance, or the like.''

    Mr. Chairman, I think the record is clear that there are 
standards and they should be set very high for all of us who 
are members of the bar. As a former Federal prosecutor, now as 
a corporate attorney, we all individually should maintain and 
be held to that high standard. I do not think it is appropriate 
for the Department of Justice to be the final arbiter of its 
own rules of ethical conduct. I don't think this committee nor 
the Congress needs to be persuaded by the simple innuendo of 
the prosecutorial authority that they have been inhibited.
    All of us who are former prosecutors--and I could cite from 
several, including members of the panel who spoke earlier and 
their predecessors who oppose this legislation--I think all of 
us have a different perspective on how high that bar should be 
set and the limitations that it should be met with by this 
committee and by the Congress.
    I look forward to working with this committee. If the 
American Corporate Counsel Association or the other 
organizations I mentioned can be helpful to this committee in 
considering the legislation, we would be pleased to do so, Mr. 
Chairman. Thank you.
    Senator Thurmond. Thank you.
    [The prepared statement of Mr. McKay follows:]

                 Prepared Statement of G. Andrew McKay

    Mr. Chairman and Members of the Committee: I appreciate your 
invitation to address this important subject before the Committee 
today. I come before you with perhaps a different perspective than my 
distinguished former colleagues from the Department of Justice who 
testified today. I am a representative of perhaps the most potentially 
adversely affected group by your decisions in this matter: corporate 
America.
    I have been practicing as a corporate attorney, currently Executive 
Vice President, Chief Operating Officer and Deputy General Counsel of 
DSFX International, for the last thirteen years. I am a member of the 
American Corporate Counsel Association, Chair of its National 
Litigation Committee, Board Member of the ACCA Foundation, and past 
President and Board Member of the Washington Metropolitan Corporate 
Counsel Association. Before corporate practice, I was an Assistant US 
Attorney for the District of Columbia and served as counsel to a 
Congressional committee, among other positions I held on the Hill and 
at the Federal Election Commission.
    The subject under consideration before you is perhaps rare, if not 
unique; it is a non-partisan, neither Republican nor Democratic, issue. 
Effective law enforcement is really not the central issue either, I 
suggest. No one would argue with the proposition that we want effective 
Federal (and local) law enforcement. Nor is this a debate about this 
particular Attorney General or anyone else in the current leadership of 
the Department of Justice. After all this debate began during the 
Carter Administration under Judge Bell when he was the Attorney General 
but received it most notable attention during the Bush Administration 
under Attorney General Tbornburgh.
    This is a question of the appropriate ethical standards for federal 
prosecutors, which was well-established until 1989 when the Department 
began its unilateral efforts to exempt itself from the rules. State and 
federal courts have universally rejected, including most recently by 
the Eighth Circuit Court of Appeals in their January 6, 1998, opinion 
in the United States v. McDonnell Douglas Corporation (132 F.3d 1252), 
the Attorneys General arguments that the Department has the authority 
to promulgate rules regarding ex parte contact with individuals, 
specifically with represented corporate employees. The Conference of 
State (Supreme Court) Justices unanimously approved a resolution 
rejecting the Department's attempt to evade the fundamental rules 
governing ethical attorney conduct. State bar ethical bodies have 
uniformly applied Rule 4.2 to government attorneys and maintained that 
it would be a violation of a corporation's right to counsel in a 
governmental action if federal prosecutors were allowed to have ex 
parte contacts with represented corporate employees.
    The Committee and Congress are examining the fundamental principle 
of the right of individuals, including organizations, to be 
represented. This widely accepted principal, too, has overwhelming bi-
partisan support. It is a principle, I believe, that has been accepted 
by all states, the courts and, with the passage of Section 801 of the 
Omnibus Spending Bill last year, wisely reaffirmed by the Congress.
    At the same time, as a former federal prosecutor I understand the 
Department's desire to increase its weapons to fight crime. However, I 
respectfully disagree with the leap-of-faith that the Department is 
asking the Committee to take. Having debated a senior Departmental 
representative on this subject twice last year, once before the ABA and 
again at ACCA's annual meeting, I still am unaware of any empirical or 
substantive evidence the Department has proffered to demonstrate the 
need for this exemption from the rules governing all other attorneys. 
It is not enough, I submit, to simply say that multi-jurisdictional 
prosecutions would be aided by freeing DOJ prosecutors from state 
ethical obligations. It probably would make such prosecutions easier if 
you abolished Miranda warnings in such cases, too, but I don't think 
the Committee or Congress would entertain such a suggestion. But where 
is the evidence to substantiate the Department's claim? What 
prosecutions have been hindered? What were the facts and circumstances 
in those cases? How many prosecutions really were affected? What 
disciplinary proceedings have resulted from multi-state prosecutions 
that these changes would eliminate in the future? The Committee 
deserves such facts not just innuendo from the Department.
    What the Department is asking the committee to do--without proper 
justification--is akin to authorizing what I've labeled as a 
``Representational Wiretap'' whenever the Department sees fit. This is 
unnecessary and diametrically contrary to important fundamental 
principles. The right to counsel should not be lightly dismissed. And, 
no one individual or entity should be the final, self-governing 
arbitrator of these important rights. We don't allow it in traditional 
wiretaps, why should you be asked to change the standard here? Instead, 
why not authorize the Department to have judicial review and approval 
of such activity when it can demonstrate the specific need in a 
particular case to a judicial officer? Such a showing could include the 
authorization to use undercover agents and informants when the court 
finds it appropriate. Why create an entirely new mechanism to address 
the Department's concern when a procedure already exists that could 
accommodate legitimate law enforcement concerns and needs? And, it is a 
procedure that works well for everyone's benefit: protecting the rights 
of individuals, while at the same time aiding effective law enforcement 
in the appropriate cases.
    The Department only says that it needs help in prosecuting drug 
trafficking, organized crime and telemarketing fraud. While I certainly 
agree that these are important crimes to combat, why should we subject 
the overwhelming majority, I suggest 99.99 percent, of corporations and 
organizations to such intrusive and potentially damaging contact? How 
is it intrusive or potentially damaging? The mere fact that--an 
organization could be held liable for what a heretofore represented 
individual might say is contrary to the long standing principles of 
fairness. See for example Comment 4 to the ABA's Model Rules. To follow 
the analogy I proposed above, why isn't an organization entitled to the 
same protections as individuals who are being targeted by federal 
prosecutors? Individuals receive Miranda or Civiletti warnings, but the 
Department doesn't even want the organization to be represented.
    In today's marketplace the mere consequence of a corporation being 
investigated by the Department could have significant market and 
business consequences--regardless of the final outcome. Market price is 
affected each day by news about corporate performance in advance of 
actual disclosures by the company. How would the shares of a 
corporation be affected by an investigation started by a disgruntled, 
or worse miscreant, employee? How would such disclosure affect those 
doing business with corporation? Under such circumstances how is the 
corporation to protect itself if it cannot be properly represented? One 
proposal I previously made was that as a result of ex parte contact 
individuals could be held liable for their conduct, but that the 
organization could not. I was not surprised when my suggestion was not 
agreed upon by the Department. But why deny an organization the right 
to be adequately represented and then hold them accountable for any 
information that is collected?
    The Department simply wants too much. The Department has apparently 
chafed under the current ethical structure when the Attorneys General 
have been unsuccessful at unilaterally establishing new governing 
ethical policies. The Department's twenty year effort to remove its 
prosecutors from the appropriate standard of ethics governing all other 
attorneys should be ended. The no-contact rule should not be diluted; 
the legitimate and reasonable constraints on such ex parte contact 
should remain. Nor should the Department become a self enforcing 
ethical body, exempt from discipline by state courts when it chooses. 
All attorneys should shoulder the same professional duties, obligations 
and privileges in the pursuit of justice.

    Senator Thurmond. Mr. Hazard, would you care to make any 
statement?

              STATEMENT OF GEOFFREY C. HAZARD, JR.

    Mr. Hazard. Yes, sir. I will be brief. I think Federal 
Government lawyers should be governed by rules of ethics 
because I think lawyers who are not, are not real lawyers. The 
States have regulated the bar since before the Constitution, 
and I think that authority ought to be recognized and 
maintained.
    The Department of Justice does have some special problems. 
You have heard about them today. They center on one rule, 4.2. 
I believe that the power of investigation should be reasonably 
protected in the way that Mr. Holder and his colleagues 
suggested. I speak of that only generally, but that is the 
idea. That is possible under rule 4.2 if there were 
authorization on some form of Federal regulation because that 
rule contemplates that there would be special authorization.
    I happen to think that most of the activities are already 
authorized by law, but the Department understandably gets 
nervous and that nervousness tends to be accentuated when State 
bar committees issue some of these opinions that we have heard 
about. I think the baseline ought to be where it now is. I 
don't think the Department of Justice ought to make the rules, 
as would be permitted under the Hatch bill, because that 
amounts to Government lawyers making their own rules. Assuming 
that was valid, as I assume it would be, it just won't enjoy 
public support. There ought to be a broader base.
    So the question is how do you get from here to there. I 
suggest an ad hoc commission made up of members of the Senate, 
House, the Department of Justice, the Conference of Chief 
Justices which is very interested in this, and the legal 
profession, or some such group. It happens that the Conference 
of Chief Justices and the Department of Justice, through very 
long negotiations which were referred to earlier, have gotten 
pretty close. I think that is a reasonable place to begin. I 
think it is possible to arrive at a set of rules that would 
provide some special protection for government attorneys. I 
think they are entitled to that, but I don't think we ought to 
displace the State rules wholesale in an effort to remedy that 
relatively narrow problem. I would be glad to be available to 
your staff or whoever, Mr. Senator, in whatever way I could be 
helpful.
    Let me conclude by saying I appear here personally, not as 
a member of the Rules Committee of the Judicial Conference, not 
as a member of an ABA committee which I happen to be one, but 
only as an individual.
    Thank you, sir.
    Senator Thurmond. Thank you, Professor Hazard.
    Now, we will begin questions. Mr. Smietanka, do you think 
the interests of Federal prosecutors are adequately represented 
before the ABA and State bars when ethical rules that impact 
Federal law enforcement are considered?
    Mr. Smietanka. No; the reason is for several reasons. No. 
1, there are 400,000 members of the American Bar Association. 
Of those 400,000, there are, I understand, roughly 4 to 5,000 
prosecutorial-type folks who are active or members of that 
Association. When you get to the level of the rulemaking 
committees, I believe there is no one who is representing the 
prosecutorial point of view.
    When I say ``point of view,'' that is extremely important, 
Mr. Chairman, because there is a basic difference in outlook, 
mandated by the law and the power we give to prosecutors, than 
to lawyers who are in the private practice, and that is the 
responsibility of the prosecutor is not simply to represent a 
private client to get their best interest, but it is to 
exercise the power of the government and their discretion they 
are given to, in fact, do justice. That is a different 
perspective than is represented, understandably, by the 
American Bar, the other 392,000 lawyers.
    Senator Thurmond. Thank you very much.
    Mr. Justice, if the McDade amendment is not amended or 
repealed, do you believe it could complicate and impede 
Federal-State cooperation in law enforcement efforts?
    Mr. Justice. Certainly, Senator, I fully believe that it 
would. The cooperation that we have enjoyed the last number of 
years has been exceptional. There was a time when there was 
little cooperation between State and Federal prosecution, but 
that has changed. The McDade amendment would undo that, in that 
the Federal prosecutor would look more to within the State of 
his assignment to find his subject matter for prosecution, 
which would put him in direct conflict with State prosecution. 
As I mentioned before, if it passed in its pure form that has 
been reintroduced this year, it would absolutely dissolve the 
idea of cross-designation of State prosecutors as assistant 
U.S. attorneys.
    Senator Thurmond. Incidentally, I want to commend you for 
your good work in South Carolina.
    Mr. Justice. Thank you, and yours too.
    Senator Thurmond. Thank you.
    Mr. Delonis, it appears to me that the McDade amendment 
will make prosecutors especially cautious not to do something 
that may even possibly violate a State's ethics rule because of 
the impact it would have on them personally. Please discuss the 
implications that disciplinary proceedings can have against the 
career and livelihood of an assistant U.S. attorney.
    Mr. Delonis. Mr. Chairman, I think that it is fair to say 
that the McDade amendment going into effect and being fully 
implemented would have a chilling effect on prosecutors in 
their work. I think they would be more reserved in the vigor 
with which they pursue their work because as a prosecutor, as a 
Federal attorney, you don't amass a fortune. At the end of your 
career, your greatest assets that you hold are your integrity 
and your reputation.
    And when you get challenged and accused of misconduct by 
people on the other side--and I can say that I have seen 
something in 30 years that has happened; there has been a 
change in the judicial culture. The prosecutor now is the 
victim of personal attack as a defense tactic. That didn't 
happen when I was a new rookie in the Federal courts.
    U.S. attorneys, we in the field, take these charges very 
seriously. We take them to heart, and what is especially 
burdensome is when somebody on the other side, as a tactic or 
maneuver of their own, calls our integrity into question when 
we know in our heart of hearts we have done nothing wrong, that 
we have been correct. And then we are put through a long, 
protracted process of defending ourselves and we come out of 
that being cleared because so many of these things are spurious 
allegations to begin with. And it leaves an indelible imprint 
on the morale of the person who has come under fire, when all 
they have done is performed their sworn duty in the best way 
that they knew how.
    Senator Thurmond. Thank you very much.
    Mr. McKay, assume that a low-level employee voluntarily 
approaches a Federal prosecutor to discuss corporate fraud and 
he says he is not and does not wish to be represented by the 
corporation. In your opinion, is it appropriate for the 
employee to speak to the prosecutor, and if it is not, can this 
limitation impede whistleblowers?
    Mr. McKay. I think it is appropriate for the individual to 
speak with the prosecutor, but I also think it is appropriate 
for the corporate counsel to be notified of such conversation. 
If the individual employee declines to be represented by 
corporate counsel, I think there is no prohibition for that 
employee to continue. I think corporate counsel is entitled to 
be notified, as I believe the model rules originally 
contemplated. I don't think that is an impediment today, nor 
should it be. But the individual has the right to decline the 
representation and that should be his right. The corporation, 
though, should be at least notified, Mr. Chairman.
    Senator Thurmond. Thank you.
    Professor Hazard, I understand that there is considerable 
debate within the legal community on whether the Judicial 
Conference should develop uniform Federal ethics rules. Do you 
think it is likely that in the near future the Judicial 
Conference will actually propose some form of uniform rules to 
the Congress under the Rules Enabling Act?
    Mr. Hazard. I think it is very unlikely, and I might say as 
a member of the committee I oppose it. I think we have got 
enough complications with the 50 State rules. I don't see that 
a uniform Federal rule would help. I think the problem before 
this house on 4.2 can be focused on and resolved without 
displacing State rules generally.
    Senator Thurmond. I believe that is all the questions I 
have. Do any of you care to make any further statement?
    [No response.]
    Senator Thurmond. Well, I want to submit for the record a 
statement by Senator Hatch and a statement by Senator Leahy, 
members of this Judiciary Committee.
    [The prepared statements of Senators Hatch and Leahy 
follow:]

 Prepared Statement of Senator Orrin G. Hatch, a U.S. Senator From the 
                             State of Utah

    Mr. Chairman, thank you. I appreciate your leadership in holding 
this important hearing, today.
    This hearing could not be more timely. Last year's omnibus 
appropriations bill included a provision originating in the house, 
relating to the application of state bar rules to federal prosecutors. 
The so-called McDade amendment proposed the addition of a new section, 
Section 530B, to title 28 of the United States Code, which would effect 
the ethical standards required of federal prosecutors.
    Including this provision was so controversial that a bipartisan 
majority of the Judiciary Committee opposed its inclusion in the 
omnibus bill. In fact, our strong opposition resulted in a six month 
delay in the provision's effective date being included as well.
    So there is no mistake, let me make it clear that questioning this 
provision should not be interpreted as advocating looser ethical 
standards for federal prosecutors, as some might suggest. Indeed, I 
have considerable sympathy for the values Section 530B seeks to 
protect. No one wants more than I to ensure that all federal 
prosecutors are held to the highest ethical standards. As Justice 
Sutherland put it in 1935, the prosecutor's job is not just to win a 
case, but to see ``that justice shall be done. * * * It is as much his 
duty to refrain from improper methods calculated to produce a wrongful 
conviction as it is to use every legitimate means to bring about a just 
one.''
    No one would suggest that unethical conduct be tolerated by any 
attorney--and especially not by an attorney representing the United 
States in federal court. The real question is whose rule to apply. I 
respectfully submit that, in general, the conduct of federal attorneys 
practicing before federal courts should be subject to federal rules, 
particularly when state rules conflict with established federal 
practice.
    Although well-intentioned, section 530B is not the measured and 
well tailored law needed to address the legitimate concerns 
contemplated by Congress, and will have serious unintended 
consequences. Indeed, if allowed to take effect in its present form, 
section 530B could cripple the ability of the Department of Justice to 
enforce federal law.
    The federal government has a legitimate and important role in the 
investigation and prosecution of complex multi-state terrorism, drug, 
fraud or organized crime conspiracies, in rooting out and punishing 
fraud against federally funded programs such as Medicare, Medicaid, and 
Social Security, in appropriate enforcement of the federal civil rights 
laws, in investigating and prosecuting complex corporate crime, and in 
punishing environmental crime.
    As we will hear from some of our witnesses today, it is in these 
very cases that current Section 530B, if unchanged, will have its most 
serious adverse effects. Federal prosecutors in these cases, which 
frequently encompass several states, will be subject to the differing 
state and local rules of each of those states. Their decisions will be 
subject to review by the ethics review boards in each of these states 
at the whim of defense counsel, even if the federal prosecutor is not 
licensed in that state.
    At a minimum, the law will discourage the close prosecutorial 
supervision of investigations that ensure that suspect's rights are not 
abridged. More likely, however, in its current form, section 530B will 
hinder the effective investigation and prosecution of violations of 
federal law.
    Several important investigative and prosecutorial practices, 
perfectly legal and acceptable under federal law and in federal court, 
under current section 530B will be subject to state bar rules.
    In short, current section 530B will likely affect adversely 
enforcement of our antitrust laws, our environmental laws prohibiting 
the dumping of hazardous waste, our labor laws, our civil rights laws, 
and the integrity of every federal benefits program.
    I have given this matter substantial thought, and believe that the 
issue of ethical rules for federal prosecutors is only symptomatic of a 
larger issue to which greater consideration needs to be given. 
Presently, there are no uniform ethical rules that apply in all federal 
courts. Rather, applicable ethics rules have been left up to the 
discretion of local rules in each federal judicial district. Various 
districts have taken different approaches, including adopting state 
standards based on either the ABA Model Rules or the ABA Code, adopting 
one of the ABA models directly, and in some cases, adopting both an ABA 
model and the state rules.
    This variety of rules has led to confusion, especially in multi-
forum federal practice. As a 1997 report prepared for the Judicial 
Conference's Committee on Rules of Practice and Procedure put it, 
``Multi-forum federal practice, challenging under ideal conditions, has 
been made increasingly complex, wasteful, and problematic by the 
disarray among federal local rules and state ethical standards.''
    Indeed, the U.S. Judicial Conference's Rules Committee has been 
studying this matter, and is considering whether to issue ethics rules 
pursuant to its authority under the federal Rules Enabling Act.
    I believe that this is an appropriate debate to have, and that it 
may be time for the federal bar to mature. The days are past when 
federal practice was a small side line of an attorney's practice. 
Practice in federal court is now ubiquitous to almost any attorney's 
practice of law. It is important, then, that there be consistent rules. 
Indeed, for that very reason, we have federal rules of evidence, 
criminal procedure, and civil procedure. Perhaps it is time to consider 
the development of federal rules of ethics, as well.
    This is not to suggest, of course, a challenge to the traditional 
state regulation of the practice of law, or the proper control by state 
Supreme Courts of the conduct of attorneys in state court. The 
assertion of federal sovereignty over the conduct of attorneys in 
federal courts will neither impugn nor diminish the sovereign right of 
states to continue to do the same in state courts.
    I want to work with all interested parties to address--and 
resolve--the critical issue. I believe that today's hearing is an 
important step in this process, and I commend Senator Thurmond for 
holding it. Thank you, Mr. Chairman, and I look forward to the 
testimony of our witnesses.
                               __________

 Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the 
                            State of Vermont

    I commend Chairman Thurmond and Senator Schumer, the Ranking Member 
on this Oversight Subcommittee, for holding a hearing on the Citizen's 
Protection Act. These provisions, which are known as the ``McDade 
law,'' reflect an effort to clarify the ethical standards that apply to 
federal prosecutors and to identify who has the authority to set those 
standards. These are two questions that have cried out for answers for 
years, and created enormous tension between the Justice Department and 
virtually everyone else. We will hear today from a number of witnesses 
representing law enforcement organizations that are critical of the new 
law.
    But we cannot lose sight of the fact that the McDade law has 
enormous support in other quarters, which is part of the reason the law 
passed in the first place. To name a few, the McDade law is supported 
by the Chamber of Commerce, the National Association of Manufacturers, 
the American Corporate Counsel Association, the National Organization 
of Bar Counsel, the ABA, the National Association of Criminal Defense 
Attorneys, General Motors Corporation and Monsanto.
    The McDade law passed in October last year as part of the omnibus 
appropriations bill, yet this is the first congressional hearing in 
either the Senate or the House of Representatives on this law. Given 
the importance, complexity and controversy surrounding this issue, it 
is a matter that this Subcommittee and the Senate Judiciary Committee 
ought to examine carefully and responsibly.
    The Justice Department aggressively opposed passage of the McDade 
law last year. It will come as no surprise today to hear that the 
Department continues to fight aggressively against this law. The 
Department has most recently been supportive of a change in the 
effectiveness date of the law to prevent its ever going into effect. 
Rather than a standstill that merely delays the effectiveness of a new 
law, such action in this setting would, in effect, repeal the McDade 
law for that period and the Department would during that period claim 
authority to prescribe regulations governing the conduct of federal 
prosecutors around the country, and rely on the controversial Justice 
Department regulations issued in 1994--regulations that allow contacts 
with represented persons and parties in certain circumstances, even if 
that contact is at odds with state or local ethics rules.
    Independent Counsel. The debate over the ethical rules that apply 
to federal prosecutors comes at a time of heightened public concern 
over the high-profile investigations and prosecutions conducted by 
independent counsels. Special prosecutors Kenneth Starr and Donald 
Smaltz are the ``poster boys'' for unaccountable federal prosecutors. 
They even have their own Web sites to promote their work. By law, these 
special prosecutors are subject to the ethical guidelines and policies 
of the Department of Justice, and all of them claim to have conducted 
their investigations and prosecutions in conformity with Departmental 
policies.
    I am not alone in my concerns about the tactics of these special 
prosecutors and, specifically, requiring a mother to testify about her 
daughter's intimate relationships, requiring a bookstore to disclose 
all the books a person may have purchased, and breaching the 
longstanding understanding of the relationship of trust between the 
Secret Service and those it protects. I was appalled to hear a federal 
prosecutor excuse a flimsy prosecution by announcing after the 
defendant's acquittal that just getting the indictment was a great 
deterrent. Trophy watches and television talk show puffery should not 
be the trappings of prosecutors.
    One of the core complaints the Department has against the McDade 
law is that federal prosecutors would be subject to restrictive State 
ethics rules regarding contacts with represented persons. A letter to 
The Washington Post from the former Chairman of the ABA ethics 
committee pointed out:

          [Anti-contact rules are] designed to protect individuals like 
        Monica Lewinsky, who have hired counsel and are entitled to 
        have all contacts with law enforcement officials go through 
        their counsel. As Ms. Lewinsky learned, dealing directly with 
        law enforcement officials can be intimidating and scary, 
        despite the fact that those inquisitors later claimed it was 
        okay for her to leave at any time.

    The McDade Law. This is not to say that the McDade law is the 
answer. This new law is not a model of clarity. It subjects federal 
prosecutors to the ``State laws and rules'' governing attorneys where 
the prosecutor engages in his or her duties. A broad reading of this 
provision would seem to turn the supremacy clause on its head. Does the 
reference to ``State laws'' mean that federal prosecutors have to 
comply with a state law requiring the consent of all parties before a 
conversation is recorded, or a state law restricting the use of 
wiretaps? Furthermore, by referencing only the rules of the state in 
which the prosecutor is practicing, does the new law remove the 
traditional authority of a licensing state to discipline a prosecutor 
in favor of the state in which the prosecutor is practicing? The new 
law subjects federal prosecutors not only to the laws and rules of the 
state in which the attorney is practicing, but also to ``local Federal 
court rules.'' What is a federal prosecutor supposed to do if the state 
rules and local federal court rules conflict?
    These are all significant questions and show that this law would 
have benefited from hearings, debate and more careful drafting before 
being inserted into an appropriations bill.
    Hatch Bill, S. 250. At least one bill, the ``Federal Prosecutor 
Ethics Act,'' S. 250, has been introduced to repeal the McDade law. 
This bill is a ``cure'' that could produce a whole new set of problems.
    First, this bill would grant the Attorney General broad authority 
to issue regulations that would supersede any state ethics rules to the 
extent ``that [it] is inconsistent with Federal law or interferes with 
the effectuation of Federal law or policy, including the investigation 
of violations of federal law.'' I am skeptical about granting such 
broad rulemaking authority to the Attorney General for carte blanche 
self-regulation.
    Moreover, any regulation the Attorney General may issue would 
generate substantial litigation over whether it is actually 
``authorized''. For example, is a state rule requiring prosecutors to 
disclose exculpatory information to the grand jury ``inconsistent 
with'' federal law, which permits but does not require prosecutors to 
make such disclosures? More generally, must there be an actual conflict 
between the state rule and federal law or policy? Can the Attorney 
General create conflicts through declarations and clarifications of 
``Federal policy''? Does a state rule ``interfere with'' the 
``investigation of violations of Federal law'' merely by restricting 
what federal prosecutors may say or do, or is more required?
    In addition to challenges concerning whether a Justice Department 
regulation was actually authorized, violations of the regulations would 
invite litigation over whether the remedy is dismissal of the 
indictment, exclusion of evidence or some other remedy.
    Second, S. 250 provides nine categories of ``prohibited conduct'' 
by Justice Department employees, violations of which may be punished by 
penalties established by the Attorney General. These prohibitions were 
initially proposed last year as a substitute for McDade's ten 
commandments, which were extremely problematic and, in the end, not 
enacted. With that fight already won, there is no useful purpose to be 
served by singling out a handful of ``prohibitions'' for special 
treatment, and it may create confusion. For example, one of the 
commandments prohibits Department of Justice employees from 
``offer[ing] or provid[ing] sexual activities to any government witness 
or potential witness in exchange for or on account of his testimony.'' 
Does this mean that it is okay for government employees to provide sex 
for other reasons, say, in exchange for assistance on an investigation? 
Of course not, but that is the implication by including this 
unnecessary language.
    Although the bill states that the nine ``commandments'' do not 
establish any substantive rights for defendants and may not be the 
basis for dismissing any charge or excluding evidence, they would 
invite defense referrals to the Department's Office of Professional 
Responsibility to punish discovery or other violations, no matter how 
minimal. In other words, these ``prohibitions'' and any regulations 
issued thereunder could provide a forum other than the court for a 
defendant to assert violations, particularly should defense arguments 
fail in court. This could be vexatious and harassing for federal 
prosecutors. The workload could also be overwhelming for OPF, since 
these sorts of issues arise in virtually every criminal case.
    Two of the nine prohibitions are particularly problematic because 
they undermine the Tenth Circuit's recent en banc decision in United 
States v. Singleton that the federal bribery statute, 18 U.S.C. 
Sec. 201(c), does not apply to a federal prosecutor functioning within, 
the official scope of his office. The court based its decision on the 
proposition that the word ``whoever'' in Sec. 201(c) ["Whoever * * * 
gives, offers, or promises anything of value to any person, for or 
because of [his] testimony `` shall be guilty of a crime] does not 
include the government. But the bill would expressly prohibit 
Departmental employees from altering evidence or attempting corruptly 
to influence a witness's testimony ``in violation of [18 U.S.C. 
Sec. Sec. 1503 or 1512]''--the obstruction of justice and witness 
tampering statutes. These statutes use the same ``Whoever * * *'' 
formulation as Sec. 201(c). By providing that government attorneys are 
subject to Sec. Sec. 1503 and 1512, the bill casts doubt on the Tenth 
Circuit's reasoning and may lead other courts to conclude that 
Sec. 201(c) does, indeed, apply to federal prosecutors, thereby 
reopening another can of worms.
    Third, S. 250 establishes a Commission composed of seven judges 
appointed by the Chief Justice to study whether there are specific 
federal prosecutorial duties that are ``incompatible'' with state 
ethics rules and to report back in one year. The new Commission's 
report is not due until nine months after the Attorney General is 
required to issue regulations. Thus, to the extent that the Commission 
is intended to legitimize the Attorney General's regulations exempting 
federal prosecutors from certain state ethics rules (by providing the 
record and basis for the exemption), its purpose is defeated by the 
timing of its report. In addition, the Commission's report must be 
submitted only to the Attorney General, who is under no obligation to 
adopt or even consider its recommendations in formulating her 
regulations.
    For these reasons and others, S. 250 is not the answer to resolving 
the disputes over who sets the ethical rules for federal prosecutors 
and what those rules should be.
                          judicial conference
    The question of what ethics rules govern federal prosecutors is 
only a small part of the broader question of what ethics rules govern 
federal practitioner. The Justice Department has complained loudly 
about the difficulty in multi-district investigations of complying with 
the ethics rules of more than one state. Yet, private practitioners 
must do so all the time. Even the Justice Department acknowledges that 
its attorneys are subject to the ethics rules of both the states where 
an attorney is licensed and where the attorney practices. No area of 
local rulemaking has been more fragmented than the overlapping state, 
federal, and local court rules governing attorney conduct in federal 
courts. The Judicial Conference of the United States and the 
Administrative Office of the Courts have been studying this problem for 
some time. Their recommendations may come as early as this fall. I have 
sent a letter to the Chief Justice requesting information on when the 
Judicial Conference is likely to forward its final recommendations to 
Congress.
    Any ethics, legislation dealing with the particular problem of 
federal prosecutors should be sensitive to the broader issues and not 
foreclose reasonable solutions to these issues on recommendation of the 
Judicial Conference.
    The recommendations of the Judicial Conference on what ethics rules 
are applicable to federal prosecutors and what those rules should be 
would provide helpful guidance to Congress on this issue. While I 
respect this Attorney General and the government attorneys at the 
Department of Justice, I am not alone in my unease at granting the 
Department authority to regulate the conduct of federal prosecutors in 
any area the Attorney General may choose or whenever prosecutors 
confront federal court or state ethics rules with which they disagree.
    The problems posed to federal law enforcement investigations and 
prosecutions by the McDade law may be real, but resolving those 
problems in a constructive and fair manner will require thoughtfulness 
on all sides.

    Senator Thurmond. Now, before adjourning the hearing, I 
would like to place in the record a copy of three editorials 
from the Washington Post expressing concerns about the McDade 
legislation. As one of the editorials aptly states, McDade can 
be expected to hamper Federal law enforcement efforts greatly.
    [The editorials follow:]

    [GRAPHIC] [TIFF OMITTED] T0098.017
    
    [GRAPHIC] [TIFF OMITTED] T0098.018
    
    Senator Thurmond. I would also like to submit for the 
record letters from individuals and groups that were written a 
few months ago in opposition to McDade--Attorney General Janet 
Reno and Deputy Attorney General Eric Holder; former Attorneys 
General Griffin Bell, Elliott Richardson, Benjamin Civiletti, 
Edwin Meese, III, Richard Thornburgh, and William Barr; FBI 
Director Louis Freeh and DEA Administrator Thomas A. 
Constantine; Director of the Office of National Drug Control 
Policy Barry McCaffrey; the National District Attorneys 
Association; the Fraternal Order of Police; the National 
Association of Assistant United States Attorneys; the Federal 
Bar Association; the Federal Criminal Investigators 
Association; the National Black Prosecutors Association; and 
the National Sheriffs' Association.
    [The letters referred to are located in the appendix.]
    Senator Thurmond. Additionally, I wish to place in the 
record a letter and attachments from the National Conference of 
Chief Justices, and a letter from the National Victims Center.
    [The information referred to follows:]

                       The Supreme Court of South Carolina,
                                                    March 22, 1999.
The Hon. Strom Thurmond,
U.S. Senate, Russell House Office Building,
Washington, DC.
    Dear Senator Thurmond: I would like to thank you, again, for taking 
the time out of your busy schedule in January to listen to some of the 
concerns of the South Carolina court system and the Conference of Chief 
Justices (CCJ) with matters that may come before the United States 
Senate in the 106th Congress. This letter is a follow-up to that 
conversation and outlines our problems with S. 250, the Federal 
Prosecutor Ethics Act, which I am informed will be the subject of a 
hearing before the Subcommittee on Criminal Justice Oversight on March 
24, 1999. S. 250, seeks to repeal the Ethical Standards for Federal 
Prosecutors Act (Sec. 801 of the Omnibus Appropriations Bill for Fiscal 
year 1999) that was signed into law on October 21, 1998, and will 
become effective on April 19, 1999. We believe the Ethical Standards 
for Federal Prosecutors Act merely codifies existing law (see United 
States v. McDonnell Douglas Corporation, 132 F. 3d 1252 (8th Cir. 
1998)) and that in repealing it, S. 250 in its present form would, 
among other matters, allow self-regulation by the U.S. Department of 
Justice in critical legal ethics matters. We in South Carolina and the 
CCJ have a number of problems with this legislation and I have attached 
a brief Fact Sheet on this issue for your perusal.
    As Chairman of this Subcommittee, I would like to thank you for 
your consideration of our concerns as you process this legislation. If 
you and your staff have any further questions on these matters, please 
feel free to call me or Edward O'Connell, Senior Counsel, at the 
National Center for State Courts in the Washington office at 703-841-
0200.
            Yours very truly,
                                     Ernest A. Finney, Jr.,
                                                     Chief Justice.
                                 ______
                                 

                               Fact Sheet

           28 u.s.c. Sec. 530b--the citizens' protection act
    The Conference of Chief Justices opposes efforts to repeal the 
Citizens' Protection Act, 28 U.S.C. Sec. 530B (also known as ``the 
McDade Bill''). Section 530B, which became law on October 21, 1998, 
requires attorneys for the federal government to comply with the rules 
of professional ethics adopted by the state supreme courts.
    Background: For more than a century, it has been understood that 
all lawyers, including federal prosecutors, are required to abide by 
state rules governing professional ethics. However, in recent years, 
the U.S. Department of Justice has asserted that federal prosecutors 
are not required to comply with these ethics rules.
    This position was first asserted in June 1989, by then-Attorney 
General Richard Thornburgh, in an internal memo to all DOJ litigators 
(the Thornburgh Memo''). He argued that any disciplinary rule for the 
profession which placed a burden on Department of Justice attorneys was 
invalid under the Supremacy Clause of the Constitution, and that the 
rule against contacts with represented parties (Model Rule 4-2) was 
unenforceable against federal lawyers.
    On August 4, 1994, the Department of Justice issued a final 
regulation providing circumstances under which Department attorneys are 
permitted to contact persons represented by counsel. The Conference of 
Chief Justices opposed this regulation because it substituted the 
Attorney General's regulation on lawyers for the independent control 
and supervision that has historically been the province of the state 
and federal judiciary.
    Recently, the Eighth Circuit U.S. Court of Appeals struck down the 
Department's 1994 regulation, holding that it was promulgated without 
statutory authority. United States v. McDonnell Douglas Corporation, 
132 F.3d 1252 (8th Cir. 1998). DOJ's position has also been rejected by 
a number of other courts.
    The McDade provision codifies these holdings. It is intended to 
clarify that the DOJ cannot exempt itself from the ethical rules which 
govern all other attorneys.
    Legislative Status: The McDade provision takes effect 190 days 
after enactment, or on April 19, 1999. Representatives of the 
Department have indicated that the Department will likely use the delay 
to seek to repeal the McDade provision.
                           specific concerns
   Prosecutors should be required to behave ethically. 
        Prosecutors must be held to the highest standards of conduct 
        because of their extraordinary powers and unique role in our 
        justice system. Permitting the Justice Department to exempt its 
        prosecutors from the ethics rules which govern all other 
        attorneys creates a double standard. This sends precisely the 
        wrong message to the profession and the public.

   DOJ self-regulation cannot guarantee the objectivity that 
        the current system delivers. Currently, ethics allegations 
        against federal prosecutors are subject to two levels of 
        independent, outside review: state ethics boards investigate 
        complaints and propose discipline if appropriate, state supreme 
        courts then rule upon those proposals. This arrangement 
        safeguards the integrity of the legal system in a way that 
        self-regulation cannot.

   Section 530B does no more than codify existing practices. 
        The McDade Bill originally contained two additional provisions: 
        a citizens' review board and a list of specific rules for 
        prosecutors. The Conference of Chief Justices took no position 
        on these provisions. They did not become law. Section 530B 
        simply recognizes the traditional authority of state supreme 
        courts over ethics questions.

   This historical system of state regulation of lawyers does 
        not impose undue problems for prosecutors. The courts have 
        already interpreted the ethics rules to allow for law 
        enforcement needs. For example, the courts have rejected the 
        claim that Rule 4.2 prohibits taping by undercover agents of 
        represented persons. In practice, there are only a tiny handful 
        of cases in which federal prosecutors have been disciplined 
        over the objections of DOJ.
   State ethics rules do not form a hodgepodge of inconsistent 
        standards. Prosecutors can readily ascertain the rules which 
        apply to multidistrict Investigation or litigation. Since 1908, 
        standards of professional conduct recommended by ABA have been 
        the national professional model, adopted by states almost 
        universally. In practice, there are few conflicts between 
        ethics rules. DOJ has ample resources to provide a ``'hotline'' 
        for prosecutors with questions about the ethics rules.
                               __________
                                    National Victim Center,
                                 Arlington, VA, September 28, 1998.

    To Whom It May Concern: On behalf of the Board of Directors and 
Staff of the Nation Victim Center, we wish to express our opposition to 
the ``Citizens Protection Act'' (Formally H.R. 3396), a current 
amendment to the recently passed Commerce, Justice, State and the 
Judiciary appropriations measure (Title VII of H.R. 4276).
    The National Victim Center, serving victims of all crimes, is the 
largest non-profit organization in the nation. The Center works with 
more than 10,000 victim-related organizations and agencies across the 
country.
    We are greatly over the likely repercussions of this measure. Apart 
from the numerous negative consequences this measure holds for the 
federal criminal justice system in general, we are deeply concerned 
over its likely impact on victims of crime.
    First and foremost, we strongly believe that the open-ended 
structure and criteria suggested by the measure creates an open 
invitation for procedural abuse by defendants at the expense of crime 
victims--and at the expense of justice. The terms used to define the 
conduct proscribed are so broad as to allow any defendant (or anyone 
for that matter) to file an endless stream of unsubstantiated 
complaints against U.S. Attorneys or other critical prosecutorial staff 
members. Federal prosecutors, in particular, will be forced to spend 
the majority of their time and resources responding to potentially 
frivolous complaints rather than pursuing prosecutions. As a result, 
criminal prosecutions may be delayed substantially, forcing crime 
victims to languish indefinitely as they await justice.
    The emotional anguish and unrelenting turmoil inflicted on the 
lives of victims by the resulting delay will constitute nothing less 
than a re-victimization of those victims. The time honored tenant that 
``justice delayed is justice denied'' should apply not only for the 
benefit of convicted murders, but for innocent victims as well.
    We are equally concerned that the proposed measure will operate to 
seriously undermine the privacy and confidentiality of crime victims 
involved with criminal investigations and prosecutions. The Board, 
newly created by the bill, would have sweeping powers to obtain 
investigative files that include deeply personal and private 
information about crime victims. Since the Board is required to conduct 
its business in public, it is likely that this information will become 
public. In some cases, such disclosures would cause serious additional 
trauma and embarrassment to the victims. The prospect of such public 
disclosure might deter crime victims from cooperating with 
investigations and prosecutions, thus frustrating the ends of justice 
and the interests of public safety.\1\
---------------------------------------------------------------------------
    \1\ A study conducted by the National Victim Center by an 
independent research firm indicated that the number one concern of rape 
victims was that others, including the public, would learn that they 
had been raped. Sixty-six percent (66 percent) of the rape victims 
interviewed, said that they would be more likely to report their 
victimization to police if there was a law prohibiting public 
disclosure. (Emphasis added). National Victim Center, Rape in America: 
A Report to the Nation, (1992).
---------------------------------------------------------------------------
    Such divulgences might also violate the privacy rights of crime 
victims guaranteed them by federal law. For example, defendants (and 
the public for that matter) may be able to obtain information about the 
past sexual history of rape victims that would otherwise be denied to 
them under the federal rape shield law.\2\ In a similar vein, offenders 
might be able to learn the whereabouts of victims and witnesses who are 
``in hiding'' to escape the threat of further victimization of the 
accused or convicted perpetrator. Considering the circumstances 
surrounding many domestic violence and gang-related cases, disclosure 
of residence information to the perpetrator through the proposed review 
process would seriously jeopardize the safety and even the lives of the 
crime victims (and witnesses) in question.
---------------------------------------------------------------------------
    \2\ See, Fed. R. Evid. 412, [Sexual Offense Cases; Relevance of 
Alleged Victim's Past Sexual Behavior Sexual Predisposition].
---------------------------------------------------------------------------
    For the reasons set out above, we oppose the ``Citizens Protection 
Act'' (Title VII of H.R. 4276), and urge the Members of the Senate, the 
House, and the Conferees appointed to consider the measure, to strike 
Title VII from the bill.
    Thank you for your consideration of our position concerning this 
matter.
            Sincerely,
                                              David Beatty,
                                         Director of Public Policy.

    Senator Thurmond. Further, I would like to submit a 
statement by Senator Hatch upon his introduction of S. 250.
    [The prepared statement of Senator Hatch follows:]

                  Statement of Senator Orrin G. Hatch

           introduction of the federal prosecutor ethics act
    Mr. President, I am pleased today to introduce an important piece 
of corrective legislation--the Federal Prosecutor Ethics Act. This bill 
will address in a responsible manner the critical issue of ethical 
standards for federal prosecutors, while ensuring that these public 
servants are permitted to perform their important function of upholding 
federal law.
    The bill I am introducing today is a careful solution to a 
troubling problem--the application of state ethics rules in federal 
court, and particularly to federal prosecutors. In short, my bill will 
subject federal prosecutors to the bar rules of each state in which 
they are licensed unless such rules are inconsistent with federal law 
or the effectuation of federal policy or investigations. It also sets 
specific standards for federal prosecutorial conduct, to be enforced by 
the Attorney General. Finally, it establishes a commission of federal 
judges, appointed by the Chief Justice, to review and report on the 
interrelationship between the duties of federal prosecutors and 
regulation of their conduct by state bars and the disciplinary 
procedures utilized by the Attorney General.
    No one condones prosecutorial excesses. There have been instances 
where law enforcement and even some federal prosecutors, have gone 
overboard. Unethical conduct by any attorney is a matter for concern. 
But when engaged in by a federal prosecutor, unethical conduct cannot 
be tolerated. For as Justice Sutherland noted in 1935, the prosecutor 
is not just to win a case, ``but that justice shall be done. * * * It 
is as much his duty to refrain from improper methods calculated to 
produce a wrongful conviction as it is to use every legitimate means to 
bring about a just one.''
    We must however, ensure that the rules we adopt to ensure proper 
prosecutorial conduct are measured and well-tailored to that purpose. 
As my colleagues may recall, last year's omnibus appropriations act 
included a very controversial provision known to most of my colleagues 
simply as the ``McDade provision,'' after its House sponsor, former 
Representative Joe McDade.
    This well-intentioned but ill-advised provision was adopted to set 
ethical standards for federal prosecutors and other attorneys for the 
government. In my view, it was not the measured and well tailored law 
needed to address the legitimate concerns its sponsors sought to 
redress. Nor was I alone in this view. So great was the concern over 
its impact, in fact, that its effective date was delayed until six 
months after enactment. That deadline is approaching. In my view, if 
allowed to take effect in its present form, the McDade provision would 
cripple the ability of the Department of Justice to enforce federal law 
and cede authority to regulate the conduct of federal criminal 
investigations and prosecutions to more than fifty state bar 
associations.
    As enacted last Fall, the McDade provision adds a new section 530B 
to title 28 of the U.S. Code. In its most relevant part, it states that 
an ``attorney for the government shall be subject to State laws and 
rules * * * governing attorneys in each state where such attorney 
engages in that attorney's duties, to the same extent and in the same 
manner as other attorneys in that state.''
    There are important practical considerations which persuasively 
counsel against allowing 28 U.S.C. 530B to take effect unchanged. I 
have been a frequent critic of the trend towards the over-
federalization of crime. Yet the federal government has a most 
legitimate role in the investigation and prosecution of complex 
multistate terrorism, drug, fraud or organized crime conspiracies, in 
rooting out and punishing fraud against federally funded programs such 
as Medicare, Medicaid, and Social Security, in vindicating the federal 
civil rights laws, in investigating and prosecuting complex corporate 
crime, and in punishing environmental crime.
    It is in these very cases that Section 530B will have its most 
pernicious effect. Federal attorneys investigating and prosecuting 
these cases, which frequently encompass three, four, or five states, 
will be subject to the differing state and local rules of each of those 
states, plus the District of Columbia, if they are based here. Their 
decisions will be subject to review by the bar and ethics review boards 
in each of these states at the whim of defense counsel, even if the 
federal attorney is not licensed in that state.
    Practices concerning contact with unrepresented persons or the 
conduct of matters before a grand jury, perfectly legal and acceptable 
in federal court, will be subject to state bar rules. For instance, in 
many states, federal attorneys will not be permitted to speak with 
represented witnesses, especially witnesses to corporate misconduct, 
and the use of undercover investigations will at a minimum be hindered. 
In other states, section 530B might require--contrary to long-
established federal grand jury practice--that prosecutors present 
exculpatory evidence to the grand jury. Moreover, these rules won't 
have to be in effect in the district where the subject is being 
investigated, or where the grand jury is sitting to have these effects. 
No, these rules only have to be in effect somewhere the investigation 
leads, or the federal attorney works, to handcuff federal law 
enforcement.
    In short, Section 530B will affect every attorney in every 
department and agency of the federal government. It will effect 
enforcement of our antitrust laws, our environmental laws prohibiting 
the dumping of hazardous waste, our labor laws, our civil rights laws, 
and as I said before, the integrity of every federal funding program.
    Section 530B is also an open invitation to clever defense attorneys 
to stymie federal criminal or civil investigations by raising bogus 
defenses or bringing frivolous state bar claims. Indeed, this is 
happening even without Section 530B as the law of the land. The most 
recent example is the use of a State rule against testimony buying to 
brand as ``unethical'' the long accepted, and essential, federal 
practice of moving for sentence reductions for co-conspirators who 
cooperate with prosecutors by testifying truthfully for the government. 
How much worse will it be when this provision declares it open season 
of federal lawyers?
    What will the costs of this provision be? At a minimum, the 
inevitable result will be that violations of federal laws will not be 
punished, and justice will not be done. But there will be financial 
costs to the federal government as well, as a result of defending these 
frivolous challenges and from higher costs associated with 
investigating and prosecuting violations of federal law.
    All of this, however, is not to say that nothing needs to be done 
on the issue of attorney ethics in federal court. Indeed, I have 
considerable sympathy for the objectives values Section 530B seeks to 
protect. All of us who at one time or another have been the subject of 
unfounded ethical or legal charges, as I have been as well, know the 
frustration of clearing one's name. And no one wants more than I to 
ensure that all federal prosecutors are held to the highest ethical 
standards. But Section 530B, as it was enacted last year, is not in my 
view the way to do it.
    The bill I am introducing today addresses the narrow matter of 
federal prosecutorial conduct in a responsible way, and I might add, in 
a manner that is respectful of both federal and state sovereignty. As 
all of my colleagues know, each of our states has at least one federal 
judicial district. But the federal courts that sit in these districts 
are not courts of the state. They are, of course instrumentalities of 
federal sovereignty, created by Congress pursuant to its power under 
Article III of the Constitution, which vests the judicial power of the 
United States in ``one supreme Court and in such inferior Courts as the 
Congress may from time to time ordain and establish.''
    As enacted, Section 530B is in my view a serious dereliction of our 
Constitutional duty to establish inferior federal courts. Should this 
provision take effect, Congress will have ceded the right to control 
conduct in the federal courts to more than fifty state bar 
associations, at a devastating cost to federal sovereignty and the 
independence of the federal judiciary. Simply put, the federal 
government, like each of our states, must retain for itself the 
authority to regulate the practice of law in its own courts and by its 
own lawyers. Indeed, the principle of federal sovereignty in its own 
sphere has been well established since Chief Justice Marshall's opinion 
in McCulloch v. Maryland [17 U.S. (4 Wheat.) 316, 1819].
    However, the bill I offer today may only be a first step. For the 
problem of rules for the conduct of attorneys in federal court affects 
more than just prosecutors. It affects all litigants in each of our 
federal courts, who have a right to know what the rules are in the 
administration of justice. This is a problem that has been percolating 
in the federal bar for over a decade--the diversity of ethical rules 
governing attorney conduct in federal court.
    Presently, there is no uniform rule that applies in all federal 
courts. Rather, applicable ethics rules have been left up to the 
discretion of local rules in each federal judicial district. Various 
districts have taken different approaches, including adopting state 
standards based on either the ABA Model Rules or the ABA Code, adopting 
one of the ABA models directly, and in some cases, adopting both an ABA 
model and the state rules.
    This variety of rules has led to confusion, especially in 
multiforum federal practice. As a 1997 report prepared for the Judicial 
Conference's Committee on Rules of Practice and Procedure put it, 
``Multiforum federal practice, challenging under ideal conditions, has 
been made increasingly complex, wasteful, and problematic by the 
disarray among federal local rules and state ethical standards.''
    Moreover, the problem may well be made worse if Section 530B takes 
effect in its present form. First, as enacted, Section 530B contains an 
internal conflict that will add to the confusion. Section 530B provides 
that federal attorneys are governed by both the state laws and bar 
rules and the federal court's local rules. These, of course, are 
frequently different, setting up the obvious quandary--which take 
precedence? Finally, Section 530B might further add to the confusion, 
by raising the possibility of different standards in the same court for 
opposing litigants--private parties governed by the federal local rules 
and prosecutors governed by Section 530B.
    The U.S. Judicial Conference's Rules Committee has been studying 
this matter, and is considering whether to issue ethics rules pursuant 
to its authority under the federal Rules Enabling Act. I believe that 
this is an appropriate debate to have, and that it may be time for the 
federal bar to mature. The days are past when federal practice was a 
small side line of an attorney's practice. Practice in federal court is 
now ubiquitous to any attorney's practice of law. It is important, 
then, that there be consistent rules. Indeed, for that very reason, we 
have federal rules of evidence, criminal procedure, and civil 
procedure. Perhaps it is time to consider the development of federal 
rules of ethics, as well.
    This is not to suggest, of course, a challenge to the traditional 
state regulation of the practice of law, or the proper control by state 
Supreme Courts of the conduct of attorneys in state court. The 
assertion of federal sovereignty over the conduct of attorneys in 
federal courts will neither impugn nor diminish the sovereign right of 
states to continue to do the same in state courts. However, the 
administration of justice in the federal courts requires the 
consideration of uniform rules to apply in federal court and thus, I 
will be evaluating proposals to set uniform rules governing the conduct 
of attorneys in federal court.
    Mr. President, the legislation I am introducing today is of vital 
importance to the continued enforcement of federal law. Its importance 
is compounded by the deadline imposed by the effective date of Section 
530B. I urge my colleagues to join me in this effort, and support the 
Federal Prosecutor Ethics Act.
    Mr. President, I ask unanimous consent that the text of the bill be 
printed in the record following my remarks.

[GRAPHIC] [TIFF OMITTED] T0098.019

[GRAPHIC] [TIFF OMITTED] T0098.020

    Senator Thurmond. Finally, I wish to place in the record a 
copy of a bipartisan letter from members of the Senate 
Judiciary Committee last year in opposition to McDade, and a 
letter from Senators a few weeks ago seeking an additional 
delay in the effective date of the legislation.
    [The letters referred to follow:]

                                       U.S. Senate,
                                Committee on the Judiciary,
                                     Washington, DC, July 21, 1998.
                                        
The Hon. Ted Stevens,               The Hon. Robert C. Byrd,
Chairman, Committee on              Chairman, Ranking Member Committee
  Appropriations,                     on Appropriations,
  Washington, DC.

                                      Washington, DC.

The Hon. Judd Gregg,                The Hon. Ernest F. Hollings,
Chairman, Subcommittee on Commerce, 
Justice, State and Related 
Agencies, Washington, DC.

                                    Ranking Member, Subcommittee on 
                                    Commerce, Justice, State and 
                                    Related Agencies, Washington, DC.

    Dear Chairman Stevens: As you may know, the House Appropriations 
Committee has approved the Commerce-Justice-State appropriations bill 
for fiscal year 1999 which includes an amendment that could seriously 
impair the effectiveness of federal prosecutors in their efforts to 
enforce federal criminal laws and protect our communities. 
Specifically, the amendment, which is very similar to H.R. 3396, the 
``Citizens Protection Act of 1998,'' would subject federal prosecutors 
to the state bar rules, and discipline, of any state in which they 
work, and to a Congressionally devised ``Misconduct Review Board.'' 
These would be in addition to the already established Office of 
Professional Responsibility and Department of Justice ethical rules 
that federal prosecutors are required to follow.
    By subjecting federal attorneys to State bar rules, Subtitle A of 
this amendment would have the effect of forbidding federal prosecutors 
in certain states from utilizing court approved and constitutional law 
enforcement techniques related to undercover investigations, contact 
with represented persons and cooperating witnesses, and the conduct of 
the grand jury. Indeed, federal court victories in each of these areas 
have been challenged as violating certain restrictive state rules of 
procedure, which are framed as ``ethics'' rules, to chill the 
enforcement of federal law. The most recent example is the use of a 
State rule against testimony buying to brand as ``unethical'' the long 
accepted, and essential, federal practice of moving for sentence 
reductions for co-conspirators who cooperate with prosecutors by 
testifying truthfully for the government. Use of these potentially 
devastating State rules against prosecutors has been resisted by every 
Attorney General for at least the last twenty years. The House 
amendment would in practice cede to fifty State bar associations 
control how federal prosecutions are to be conducted.
    Subtitle B of the amendment would change the internal disciplinary 
procedures the Department uses, substituting vague and disruptive 
requirements for the Attorney General to follow. It also would impose 
unreasonably short time requirements on the Attorney General to hear 
and resolve complaints, and thus would likely unnecessarily interfere 
with the effectiveness of these prosecutors and result in rushed and 
incomplete investigations of the alleged wrongdoing. The amendment 
would provide, as an available penalty, loss of the employees' pension 
and retirement benefits--a severe sanction usually reserved only for 
criminal offenses involving disloyalty or treason. Lastly, this title 
would establish, as mentioned above, a Misconduct Review Board, which 
duplicates existing procedures, utilizes an unconstitutional structure, 
and provides virtually no due process rights to the accused employee.
    The Department of Justice has weighed in strongly against the 
proposal, noting that it ``constitutes an unwarranted and unnecessary 
interference with the lawful and effective functioning of federal 
attorneys and law enforcement agents.''
    Improving the disciplinary process for federal prosecutors, without 
hindering legitimate law enforcement investigative techniques and 
practices, is an important and complex issue that deserves our 
consideration. We stand ready to work with interested members of the 
House and others on this matter.
    At this time, the amendment adopted by the House Appropriations 
Committee has not undergone the scrutiny that a proposal of this 
magnitude should be afforded. No Senate bill on this issue has been 
introduced, and the Judiciary Committee, the Committee of jurisdiction, 
has thus not formally considered the bill or held hearings on its 
merits. Therefore, we request your assistance in defeating any attempt 
to add this legislative language as an amendment to the Commerce-
Justice-State appropriations bill, and in ensuring that this language 
is not included in any conference report.
            Sincerely,
                                        
Orrin G. Hatch,                     Patrick Leahy,
Chairman.

                                    Ranking Member,

Jeff Sessions,

                                    Ted Kennedy,

Strom Thurmond,

                                    Herb Kohl,

Mike DeWine,

                                    Dick Durbin,

Spencer Abraham,

                                    Russ Feingold,

Fred Thompson,

                                    Dianne Feinstein.
Jon Kyl.
                               __________
                                       U.S. Senate,
                                Committee on the Judiciary,
                                     Washington, DC, March 4, 1999.
                                        
The Hon. Ted Stevens,               The Hon. Robert C. Byrd,
Chairman, Committee on              Ranking Member, Committee on
  Appropriations, U.S. Senate,        Appropriations, U.S. Senate,
  Washington, DC.

                                      Washington, DC.

    Dear Senator Stevens and Senator Byrd: As the Senate prepares to 
consider supplemental appropriations for fiscal year 1999, the 
undersigned members of the Judiciary Committee and other members of the 
Senate urge you to include a modest, technical corrective provision 
extending the delay in the effective date of certain legislation 
relating to the regulation of federal prosecutors, which was included 
in the fiscal year 1999 omnibus appropriations bill.
    As you will recall, section 801 of the CJS appropriations 
provisions of the fiscal year 1999 omnibus appropriations bill added 
section 530B to title 28 of the United States Code, which was intended 
to set ethical standards for federal prosecutors, and which included a 
six-month delayed effective date. The intent of Congress in including 
this six-month grace period was to provide sufficient time for the 
resolution of concerns over the legislation, which had not been 
considered by the Senate in any meaningful way. However, due to 
arguably unanticipated events, the Congress has not been able to avail 
itself of the grace period provided in the legislation.
    It is our desire to work with our colleagues in the House to 
resolve this important matter. However, we believe that it is in the 
best interests of the Congress, the Department of Justice, and our 
state and federal courts, to do so under the provisions of a grace 
period that maintains the status quo of current law, as Congress 
intended when the fiscal year 1999 omnibus appropriations bill was 
enacted. For this reason, we urge you to include in the Senate version 
of the supplemental appropriations bill the attached proposal, 
extending the delay in the effective date of section 530B six months, 
to October 21, 1999, and further urge you to request the House to 
accede to this provision in conference.
    We have attached language for your review and consideration, and we 
thank you for your attention to this request. Should you have any 
questions, please let us know, or have your staff contact Judiciary 
Committee Chief Counsel Manus Cooney.
            Sincerely,
                                        
Ted Kennedy,

                                    Orrin Hatch,

Joe Biden,

                                    Mike DeWine,

Jon Kyl,

                                    Don Nickles,

Dianne Feinstein,

                                    John Warner,

Herb Kohl.                          Strom Thurmond,

                                    Jeff Sessions,

                                    Spencer Abraham.
                                 ______
                                 
AMENDMENT NO. ____
                                  Calendar No. ____

    Purpose: To extend the period for compliance with certain ethical 
standards for Federal prosecutors.

       IN THE SENATE OF THE UNITED STATES--106th Cong., 1st Sess.

                              (no.) ______

    (title) 
__________________________________________________________________
          
__________________________________________________________________

          
__________________________________________________________________


    Referred to the Committee on ____________________ and ordered to be 
printed

             Ordered to lie on the table and to be printed

    Amendment intended to be proposed by Mr. Hatch

Viz:

At the appropriate place, insert the following:

  SEC.____.COMPLIANCE WITH ETHICAL STANDARDS FOR FEDERAL PROSECUTORS.

            Section 801 of title VIII of the Departments of Commerce, 
        Justice, and State, the Judiciary, and Related Agencies 
        Appropriations Act, 1999 (Public Law 105-277) is amended by 
        striking subsection (c) and inserting the following:

    ``(c) EFFECTIVE DATE.-The amendments made by this section shall 
take effect 1 year after the date of enactment of this Act.''

    Senator Thurmond. We will leave the hearing record open for 
one week for additional materials to be placed in the record 
and for follow-up questions.
    Now, I want to express my deep appreciation to you 
gentlemen for your presence here today and the great 
contribution that you have made to this hearing. It is very 
important. What you have had to say will be given every 
consideration and I thank you for coming.
    We now stand adjourned.
    [Whereupon, at 4:15 p.m., the subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


                         Questions and Answers

                              ----------                              


 Responses of Geoffrey C. Hazard, Jr., to Questions From Senator Leahy

    Question 1. You have argued that ABA Rule 4.2 (the ``no contact'' 
rule) should apply to government attorneys, and that a corporation's 
right to counsel is violated when federal prosecutors have ex parte 
contacts with represented corporate employees. Your position raises two 
concerns: First, that corporations could immunize themselves from 
criminal investigation simply by employing in-house counsel, and 
second, that government attorneys would cease the salutary practice of 
supervising federal agents during the early stages of their 
investigations. In your opinion, are these concerns well founded?
    Answer 1a. This is a complicated issue that protagonists on either 
side have oversimplified. Many government lawyers assert that 
corporations routinely attempt to do this and succeed. Many in-house 
counsel, including the lawyer sitting next to me at the hearing I 
attended, assert that corporations have a right to do so. The following 
response seeks to get closer to the truth of the matter.
    First, a corporation can be a client and as such is entitled to the 
protection provided by Rule 4.2 against being interrogated by opposing 
counsel without the presence of its own lawyer. A corporation has no 
physical existence and hence acts only through its employees. A first 
issue is which employees ``personify'' the client for purposes of Rule 
4.2.
    It is generally agreed that top level management, including 
directors--the so-called ``control group'' do personify the corporation 
for this purpose. Decisional law establishes, at least to my 
satisfaction, that ground-level employees ordinarily do not personify 
the corporation, except, as establishes in Upjohn Co. v. United States, 
449 U.S. 383 (1981), where they have actually consulted the company's 
lawyer (whether in-house or outside counsel) or where they have been 
given directions by that such a. Some corporation lawyers say that all 
employees always personify the corporation. Some lawyers in specific 
cases have written to Government lawyers stating that they represent 
all the employees and hence that the Government may not talk with any 
employees. In my opinion these ``blanket immunity'' claims are 
unsupported by law and are unprofessional pretenses to an immunity that 
corporations neither have nor should have.
    Within the foregoing framework a difficult issue is the situation 
of mid-level employees such as plant or office managers or assistant 
managers or foremen. This issue often turns on specific facts. 
Employees at this level may or may not be considered to ``personify'' 
the corporation for purposes of Rule 4.2, depending on circumstances, 
on the particular interchange, on what the participants actually 
testify to concerning the interchange, and on the tendency of 
decisional law in the local jurisdiction. If personnel in this category 
are held to personify the corporation, then direct contact by an 
opposing counsel is not permitted; if they are held not to personify 
the corporation, the conversation are not improper.
    These situations are necessarily uncertain and therefore fraught 
with risk for a lawyer making the contact. Not only may there be an 
ethical violation but, as a consequence of such a violation, evidence 
obtained through the interview may be irreparably ``tainted'' (and 
hence excluded) and the offending lawyer may be disqualified. These 
risks fall not only on Government lawyers but also private lawyers, for 
example, plaintiffs' lawyer seeking to investigate an accident. See, 
e.g., Neisig v. Team I, 78 N.Y. 2d 363 (1990).
    In my opinion Rule 4.2 itself should be changed to reduce this 
risk. The Rule could provide, for example, that a lawyer does not 
violate the Rule if the person with whom contact was made did not 
object, if it was not evident that the person was part of the control 
group, and if inquiry was avoided inquiry into attorney-client 
communications with the corporation's counsel. The American Bar 
Association Ethics2000 Commission, of which I am a member, is presently 
working on some such modification. However, many lawyers--especially 
lawyers for corporations--oppose any such change and it is uncertain at 
present what reformation, if any, will emerge, I repeat that the 
problem in this respect is as difficult for private lawyers as for 
Government lawyers. However, it might be appropriate for Congress to 
enact a specific rule applicable to Government lawyers.
    Still within the foregoing framework, the ethics rules provide that 
if the person contacted has his or her own counsel, then consent from 
that lawyer prevails. Comment [4] to Rule 4.2 states: ``If an agent or 
employee of the organization is represented in the matter by his own 
her own counsel, the consent of that counsel to a communication will be 
sufficient for purposes of this Rule.'' In my opinion Government 
lawyers have not taken advantage of this provisions as often as they 
might. Obviously an investigator cannot as a practical matter make this 
suggestion in routine inquiries to corporate employees. On the other 
hand, this provision could be useful when dealing with a witness who 
obviously has a lot of relevant information.
    I suspect there is reluctance to use this approach not only because 
of the inconvenience but because of fear that the respondent's own 
lawyer would advise the respondent to refuse to talk unless immunity 
from prosecution is provided. This consequence makes the point that 
corporate employees, if they have proper legal advice, often would 
refuse to talk. That is, the Government investigators are often trading 
on legal ignorance. Corporate employees often are at risk because the 
statutory penalties in fields such as environmental law have been drawn 
so widely as to create real risks for middle level personnel.
    Answer 1b. This issue is real and difficult and opens up a deep 
conflict in the law's attitude toward investigations. On one hand, in 
my opinion it is highly desirable that Government lawyers supervise 
investigations by federal agents. In general and usually, supervision 
by lawyers will result in more closely restrained investigations, less 
duplicity in dealing with suspects, and so forth. This is because--no 
matter what public opinion may be--lawyers generally adhere closer to 
the law governing such matters than do nonlawyer investigators, and 
they certainly know the rules better and the risks (to successful 
prosecution) of violating the rules. On the other hand, if a Government 
lawyer supervises an investigation, then the investigation is governed 
by the tight constraints in Rule 4.2. This is because activity done 
under a lawyer's supervision is generally governed by the same 
standards as activity of the lawyer personally.
    If an investigation is conducted by a nonlawyer (such as an FBI 
agent) then the only constraints are those imposed by the general law, 
particularly Constitutional limitations formulated by the Supreme Court 
under the Due Process clause. Under that body of law, a witness or 
suspect can be questioned, including secret taping with a ``wire,'' 
wire-tapped, and questioned by someone pretending to be a friend (such 
as someone in the same jail cell). None of this is permitted under the 
Rule 4.2 regime. Since FBI agents are not in lawyer employment 
classification, they are nonlawyers for purposes of these rules, even 
though they may have gone to law school.
    Thus, there is strong practical incentive to avoid supervision of 
an investigation by Government lawyers, particularly Department of 
Justice lawyers and legal staff of local U.S. Attorneys. Perhaps 
needless to say, this gap in the rules governing investigations also 
creates serious ``turf'' conflict between the Department of Justice and 
the FBI. Top officials of both agencies are likely to deny any such 
conflict. At the same time, I am sure that the FBI agents are likely to 
deny any such conflict. At the same time, I am sure that the FBI agents 
in general like the idea of being free of DoJ supervision, whereas the 
DoJ lawyers in general prefer being in charge of investigation of 
matters which they eventually may have to prosecute.
    I know of no good solution to the foregoing conflict in the law's 
attitude toward Government investigations. I am sure that folks 
concerned about law enforcement would strongly resist imposing Rule 4.2 
on all Government investigations. I am sure that folks concerned with 
civil liberties would strongly resist eliminating the constraints that 
Rule 4.2 now imposes. Indeed, the latter group probably would wish to 
extend some such restraints to all Government investigations, whether 
lawyers supervised or not.
    The most promising accommodation may be in the modifications of 
Rule 4.2 that the ABA Ethics2000 Commission is now considering. I 
should add that opinion within the Commission is probably divided on 
the issue. Hence, it is uncertain what recommendation the Ethics2000 
Commission may make.

    Question 2. Proponents of the McDade provision contend that it does 
nothing more than codify existing law with respect to rules governing 
attorney conduct. Do you agree? If not, why not?
    Answer 2. Yes. In my opinion that is the effect of the McDade 
provision. However, codification of state ethics rules incorporates the 
conflicts described above. The McDade rule provides for ``dynamic 
conformity'' between the rules governing Government lawyers the rules 
prescribed by state law. That is, as state law rules are changed, the 
rules governing Government lawyers also change. In my opinion that is 
as it should be. The state ethics rules will change over time, to meet 
newly encountered problems and provide more definite solutions to old 
issues previously not resolved.
    I think Government lawyers should be governed by ethics rules and 
that the governing ethics rules ought to remain those prescribed by the 
states. I also think that in some states, under prodding from some 
sectors of the bar, the courts have adopted provisions inappropriately 
protective of lawyers. However, as Nicholas Katzenbach observed years 
ago in another context, that is the price of federalism. In my opinion, 
which is shared my many ecademic observers and some members of the bar, 
Rule 4.2 is overly protective of lawyer interests and inadequately 
protective of the public interest in law enforcement. However, that is 
a seriously debatable question both within the legal profession and in 
the general public arena.
    If the ABA Ethics2000 makes a suitable adjustment to Rule 4.2, the 
problem may be solved or least its intensity moderated. If no such 
adjustment is made, or if such an adjustment is not adopted by the 
states, Congress could address the problem anew. However, the problem 
will not become any simpler through passage of time.

    Question 3. Under current law, can Federal courts authorize Federal 
prosecutors to do things that State ethics rules prohibit, or exempt 
Federal prosecutors from doing things that State ethics rules require? 
How, if at all, does the McDade law affect the authority of Federal 
courts to set their own rules of conduct that differ from State ethics 
rules?
    Answer 3. In general, federal courts cannot do this. However, this 
problem too is complicated. For one thing, some federal courts have 
adopted ethics rules that are different from those operative in the 
state where the courts sits. This strikes me as foolish and potentially 
dangerous to lawyers, Government lawyers are well as those in private 
practice. Where such is the federal rule, a lawyer could be doing 
something in connection with federal litigation that is prohibited by 
the applicable state ethics rules, and vice versa. Surveys under 
auspices of the Federal Judicial Conference reveal these discrepancies. 
(A couple of federal courts adopt the 1908 ABA Canons of Ethics, which 
have been now twice superseded!) The Standing Committee on Rules of 
Practice and Procedure of the Judicial Conference (of which I am 
honored to be a member) is now considering a Rule, binding on the 
federal courts, that would require ``dynamic conformity'' to the local 
state rules. this seems to me a desirable proposal.
    A subcategory of this problem is where the federal court allows--or 
refuses to condemn--conduct that arguably violates the state rules, and 
then the state disciplinary authority undertakes to reexamine the 
matter. Here the problem typically results not from a difference in the 
rules but a difference in their interpretation or in interpretation of 
the facts to which the rule is being applied. This sequence often 
results because the losing party before the federal judge takes the 
issue to the state disciplinary authority. (A similar issue can arise 
regarding conduct of private lawyers, and has in fact arisen in a 
particularly deplorable way in a case in which I have been consulted.) 
This situation is rare but generally very wrong in my opinion.
    In my opinion an issue of professional conduct resolved in federal 
court should not be subject to reconsideration by the state 
authorities, whether state disciplinary authority or the local 
prosecutor--some of these cases implicate criminal law. An exception to 
this could be conduct relevant to a larger pattern of professional 
misconduct by the lawyer. It has been suggested to the Standing 
Committee (mentioned above) that it should consider such a provision.

    Question 4. Does the McDade law affect in any way the authority of 
the U.S. Judicial Conference to prescribe uniform national rules for 
attorney conduct in Federal courts under the Rules Enabling Act? Does 
the McDade law affect in any way the authority of Federal district 
courts to prescribe local rules for attorney conduct?
    Answer 4. In my opinion the McDade does limit the authority 
conferred under the Enabling Act. The Enabling Act confers authority 
concerning ``rules of practice and procedure.'' The McDade provision 
covers ``rules of professional ethics.'' There is some overlap because 
many state rules of professional ethics address conduct that is carried 
out through rules of practice and procedure. For example, the rules of 
professional conduct in most states impose obligations toward the 
courts. See particularly Rules 3.3 and 3.4. The Federal Rules of Civil 
Procedure and the Federal Rules of Criminal Procedure have provisions 
on the same subjects. The risk of conflict is small, however, chiefly 
because the rules of professional conduct, particularly the ABA Model 
Rules, were drafted with an eye to the interaction between the rules of 
ethics and the rules of procedure.
    Perhaps more important, many aspects of the rules of professional 
ethics concern lawyer conduct that, in my opinion, could not properly 
be characterized as involving ``practice and procedure'' in the federal 
courts. For example, in my opinion investigations prior to commencement 
of litigation are governed by the McDade provision, particularly 
because that provision incorporates rules like Rule 4.2, but would not 
properly be considered as ``practice and procedure'' in the federal 
courts. Accordingly, in my opinion the Enabling Act does not confer 
authority for the Judicial Conference to change some of the 
consequences mandated by the McDade Act. In my opinion that is true of 
regulation of lawyer conduct in the pre-litigation stage of federal 
investigations. That is, this stage involves Government lawyer conduct 
regulated by the McDade Act but does not involve ``practice and 
procedure'' within the scope of the Enabling Act.

    Question 5. In practice, and as codified in an ABA rule, when a 
lawyer licensed in a State appears in the court of another 
jurisdiction, the ethics rules of the forum govern the lawyer's 
conduct, not the rules of the licensing State. This suggests that the 
ethics rules of the federal court in which a federal prosecutor is 
practicing ought to govern the conduct of federal prosecutors. Do you 
agree?
    Answer 5. Yes, in my opinion. In general that approach applies to 
private lawyers as well. Thus, the conduct of a Maryland lawyer who is 
participating in a case in Virginia courts is governed by the Virginia 
rules, if the matter relates to the litigation as distinct from 
transactional aspects occurring outside of court and if there is 
conflict between the two rules.
                               __________

        Responses of Eric Holder to Questions From Senator Leahy

    Question1. A subcommittee of this Committee held a hearing on March 
24th on the new McDade law. Deputy Attorney General Eric Holder and two 
United States Attorneys testified that the McDade law would cause 
``significant problems'' for federal civil and criminal law 
enforcement. The McDade law went into effect on April 19th. Although I 
appreciate that it may be too soon to tell, are you aware of any 
significant problems: that have resulted in the last three weeks as a 
result of the new law?
    Answer 1. Impact of Section 530B: The Department's assessment of 
the full impact of Section 530B is ongoing, and there are many issues 
about the scope and interpretation of Section 530B that are currently 
in litigation or are likely to be litigated in the near future. To 
date, however, the impact of Section 530B has been for the most part 
exactly what the Department predicted:

          (1) The Amendment has caused tremendous uncertainty because 
        most state bar rules have not been interpreted as applying to 
        government attorneys and are vague, so attorneys simply do not 
        know if their conduct is permissible or not; not surprisingly 
        that creates a tremendous chilling effect and interferes with 
        our ability to enforce the law.
          The uncertainty is increased because we must frequently 
        compare conflicting bar rules. Department attorneys, who are 
        often licensed in multiple states, working in other states, and 
        supervising investigations that span many states, must engage 
        in a complex analysis to determine what rules should apply to 
        particular conduct. The Department's regulation implementing 
        the McDade Amendment provides guidance to attorneys, but the 
        area of choice-of-law with respect to state ethics rules 
        remains complex. Department attorneys often must seek guidance 
        in determining what rules apply or must divert their scarce 
        time to research on what rules may apply to particular conduct. 
        The clear impact of this is to delay the investigation.
          Moreover, the guidance that the Department provides is in a 
        sense of less value to its attorneys than the guidance it can 
        provide in other areas. In attempting to interpret Sec. 530B, 
        we can advise Department attorneys as to our best reading of 
        the statute, but cannot protect them from the personal 
        consequences if a court or disciplinary committee takes a 
        different view. Under Sec. 530B, unlike any other statute to 
        which the Department might object on policy grounds, it is the 
        individual government attorney, rather than the government who 
        pays the price for misinterpreting the law. Accordingly, 
        especially with respect to close questions arising under the 
        statute, attorneys are chilled even from engaging in conduct 
        that is in the best interests of a case and consistent with 
        what we believe to be a correct interpretation of the law.

          (2) The Amendment creates a rift between agents and 
        prosecutors, because the Amendment, in practice, restricts 
        prosecutors from supervising agents. This is not a helpful 
        development in law enforcement because it is critically 
        important that investigators and prosecutors work together, 
        particularly on complex cases. We are already seeing evidence 
        of this rift as investigators develop cases on their own, 
        relying on well-established and perfectly legitimate federal 
        law, without the input of prosecutors in order to avoid the 
        restrictions prosecutors may be subject to under state ethics 
        laws.
          Moreover, because Section 530B limits the ability of 
        prosecutors to speak with those who may have evidence of 
        wrongdoing, particularly corporate employees, prosecutors have 
        no choice but to use the grand jury subpoena to obtain the 
        evidence, although a simple conversation might provide all that 
        was needed. The Department believes that Section 530B is 
        causing an increase in the use of grand jury subpoenas, but it 
        does not yet have empirical evidence to support this claim.

          (3) The Amendment has prevented attorneys and agents from 
        taking legitimate, traditionally accepted investigative steps, 
        to the detriment of pending cases. The most obvious effect on 
        law enforcement has been in decisions by attorneys and 
        investigators not to take particular investigative steps out of 
        concern that such steps, such as obtaining evidence by 
        consensual monitoring or speaking with corporate employees 
        about potential corporate misconduct, may violate some state's 
        bar rules.
          There have been several examples of the impact already. In 
        some states, Department attorneys are refraining from 
        authorizing tape recordings by informants or law enforcement 
        agents operating undercover. Federal law clearly permits this 
        routine law enforcement activity, referred to as consensual 
        monitoring. However, one state bar has issued a brief ethics 
        opinion and has verbally advised Department attorneys that, if 
        they participate in or authorize a consensual monitoring, they 
        will violate the state bar rule prohibiting the use of fraud or 
        deceit; this state's interpretation appears to be similar to 
        the highly restrictive (and, we believe incorrect) view of the 
        Oregon bar, which has interpreted its bar rules to prohibit 
        attorney participation in sting operations (Oregon has recently 
        issued a new opinion which addresses the issue of an attorney 
        tape recording a conversation but does not resolve the issue of 
        sting operations). In another state, Department attorneys have 
        been reluctant to authorize consensual monitoring because of 
        state criminal law or state ethics rules that could be 
        interpreted to prohibit the conduct. Before proceeding with the 
        action they contacted the local District Attorneys office and 
        others to be sure they wouldn't be prosecuted for their 
        actions.
          As noted above, state rules regarding contacts with 
        represented persons continue to be a problem for Department 
        attorneys. In many cases, state rules are unclear or appear to 
        prohibit traditionally accepted, constitutionally permissible 
        investigative activities. In several cases, Department 
        attorneys have refrained from, or been advised not to be 
        involved in questioning targets and witnesses represented by 
        counsel or defendants, even though law enforcement agents are 
        permitted to engage in the same conduct. The most difficult 
        situation arises in investigations of corporate misconduct 
        because the law concerning which employees a government 
        attorney may speak with is unclear.
          The Amendment has also limited the Department's ability to 
        investigate continuing criminal activities and such offenses as 
        witness tampering and obstruction of justice. For instance, in 
        one case, Department attorneys received information that an 
        indicted defendant was seeking to intimidate or bribe a 
        witness. The attorneys did not feel that they could, under the 
        relevant interpretations of the state's ethics laws, use an 
        informant to find out more about the defendant's plans.
          Although state rules on communications with represented 
        persons remain the most significant problem, defendants are 
        also-using other bar rules offensively to claim that legitimate 
        cases or evidence should be thrown out of court. In one case, 
        defense counsel unsuccessfully sought dismissal of a drug 
        indictment and other sanctions by claiming that, under the 
        McDade Amendment, Department attorneys violated state ethics 
        rules related to trial publicity because an arresting officer--
        a state trooper--talked to a reporter.
          In another instance, on the eve of trial a defendant filed a 
        motion to dismiss the indictment in a case for failure to 
        present ``material evidence'' to the grand jury in violation of 
        Rule 3.3(d) and 3.8(d). The defendant argued that the McDade 
        amendment, by requiring compliance with state bar rules, 
        altered existing Supreme Court law on what evidence must be 
        presented to the grand jury. We argued that we had complied 
        with existing Supreme Court law and the court denied the 
        motion.

          (4) Defendants are raising Section 530B in cases to interfere 
        with prosecutions. The Department believes that Section 530B 
        should be interpreted not to conflict with other federal laws 
        and not to elevate state substantive, procedural, and 
        evidentiary rules over established federal law. The 
        Department's regulations make clear that Section 530B mandates 
        compliance with state bar ethical rules, not the host of other 
        rules that govern each state's judicial system. Nonetheless, as 
        the Department has predicted, it is being forced to litigate 
        these claims by defendants. A number of defendants have argued 
        that state bar rules prohibit the use of cooperating witness 
        testimony. The Department has not lost on this issue to date. 
        As we have noted in the past, the Department continues to 
        litigate against the application of state bar rules that 
        provide additional protections to attorneys (and not others) 
        who are subpoenaed by federal prosecutors. These rules give 
        procedural or other advantages to attorneys and are not part of 
        established federal law.
          The Department expects litigation concerning the McDade 
        Amendment to be wide-ranging because defense counsel have every 
        incentive to seek broad interpretations of the Amendment. In 
        one case currently being litigated, a defendant is arguing that 
        Section 530B requires compliance with state procedural rules 
        that prohibit or limit the removal of cases from state court 
        into federal court.

    Question 2. I recently introduced a bill that addresses the 
Department's most pressing concerns respecting the McDade law. S. 855, 
The Professional Standards for Government Attorneys Act of 1999, would 
do two things. First, it would clarify the professional standards that 
apply to Government attorneys. Second,, it would ask the Supreme Court 
to prescribe a uniform national rule for Government attorneys with 
respect to contacts with represented persons. I know that the 
Department has been reviewing S. 855 for several weeks now. Do you 
support the basic approach of this legislation?
    Answer 2. S. 855 is a good approach that addresses the two most 
significant problems caused by the McDade Amendment--confusion about 
what rule applies and the issue of contacts with represented parties. 
The Department looks forward to working with the Committee to solve 
these problems.

    Question 3a. Under current practice and ABA model rules, the ethics 
rules of the court in which a lawyer is appearing govern the lawyer's 
conduct, not necessarily the rules of the licensing State. This 
suggests that the ethics rules of the federal court in which a federal 
prosecutor is practicing ought to govern the conduct of federal 
prosecutors. Do you agree?
    Answer 3a. Yes.

    Question 3b. More generally, do you agree that the choice-of-law 
provisions in S. 855 simply codify existing practice with respect to 
rules governing attorneys conduct?
    Answer 3b. The Department strongly supports clear choice-of-law 
rules, so that all attorneys know what rules govern their conduct. The 
ABA Model Rules address most situations by making clear that the rule 
of the court before which an attorney is litigating should govern an 
attorney's conduct. Unfortunately, only a small minority of states have 
adopted that rule. Moreover, the ABA Model Rules do not directly 
address what is perhaps the most difficult choice-of-law issue--what 
rules apply to an investigation that is a collaboration of several 
attorneys who may be licensed in different states. The choice-of-law 
provisions of S. 855 do adopt the ABA's model rule approach.

    Question 3c. Please let me know the respects in which the McDade 
law departs from existing law and practice with respect to rules 
governing attorney conduct?
    Answer 3c. How far the McDade Amendment will stray from current law 
remains to be seen because the provision is so vague. Here are some of 
our concerns:

    First, under pre-McDade law, it was relatively clear that 
Department attorneys need comply with the rules of the court before 
which they are litigating or the state where they are licensed; 
language of the McDade Amendment leaves that in doubt.
    Second, pre-McDade, where a state bar rule went beyond the 
regulation of ethics and sought to alter substantive, evidentiary, or 
procedural rules in federal court, the Department has been able to 
challenge the rule in court, which it has done with varying success. 
Our ability to do this in the future remains to be seen.
    Third, prior to the McDade Amendment, where a state bar rule 
purported to regulate ethics by unduly interfering with the enforcement 
of federal law, the Department has argued that the federal courts 
should (1) interpret the rule in the light of federal practice; (2) 
create an exception for law enforcement; and/or, (3) construe the rule 
narrowly in order to avoid running afoul of the Supremacy Clause. These 
arguments are more difficult to make now, even when a federal judge 
believes a state ethics rule will interfere with the legitimate 
enforcement of federal law.
    Fourth, with respect to the area of contacts with represented 
persons, the McDade Amendment supersedes the Department's ethics rule 
on communications with represented persons. The Department has proposed 
an interim final rule that would replace the Department's regulation on 
communications with represented persons. The new rule is intended to 
provide guidance to Department attorneys about what rule applies. It 
does not address communications with represented persons.

    Question 4. In a letter that you and the Deputy Attorney General 
sent last year to Chairman Henry Hyde on the proposed McDade law, you 
discussed the ongoing consideration by the Judicial Conference of rules 
governing attorney conduct in federal court, and noted that ``the Rules 
Enabling Act process is the one established by Congress to consider 
these kinds of issues. It would be premature at best to prejudge the 
outcome of that deliberative process.''
    a. Does the Department support the approach taken in S. 855, which 
is consistent with the Rules Enabling Act, or does it maintain that the 
authority to make and enforce ethical rules for federal prosecutors 
should rest with the Department?
    b. As between the U.S. Judicial Conference and the Department of 
Justice, would you agree with me that the Judicial Conference is more 
disinterested with respect to the appropriate standards of conduct for 
federal prosecutors?
    Answer 4 a and b. The Department has worked with the Conference of 
Chief Justices, the ABA, and others to come up with a rule on contacts 
with represented persons that is fair and effective. The Department 
believes that the Judicial Conference, under the Rules Enabling Act, is 
an appropriate forum to discuss and resolve the longstanding issues 
related to Rule 4.2 and we look forward to participating, as we have, 
in that process.

    Question 5. Does the McDade law affect in any way the authority of 
the U.S. Judicial Conference to prescribe uniform national rules for 
attorney conduct in Federal Courts under the Rules Enabling Act? Does 
the McDade law affect in any way the authority of Federal district 
courts to prescribe local rules for attorney conduct?
    Answer 5. The Department does not believe, that the McDade 
Amendment in any way affects the authority of the Judicial Conference 
or of local federal courts to develop rules of practice in federal 
courts.

    Question 6. As you know, the Administrative Office of the Courts 
has spent many years reviewing the case law and studying the rules 
governing attorney conduct in the federal courts. It has found that 
most conflicts between state and local federal court rules fall into 
just a few core areas, including contacts with represented persons. In 
connection with which of these areas of conflict has the Department 
issued regulations and with which has it refrained from issuing 
regulations?
    Answer 6. Of the 10 rules identified by the Judicial Conference, 
the Department has issued an ethics regulation in only one of these 
areas--the area of contacts with represented persons, where we have had 
serious problems.

    Question 7. What new instructions or guidance, if any has the 
Department given to Assistant United States Attorneys with respect to 
their professional conduct under the McDade Amendment?
    Answer 7. The Department has published regulations to implement the 
Amendment and to provide guidance to Department attorneys about what 
rule applies to particular conduct. We have also trained our 
Professional Responsibility Officers and are in the process, of 
training our attorneys, on compliance with the Amendment. In addition, 
we have created a new, centralized Professional Responsibility Advisory 
Office (PRAO) to provide consistent guidance and assistance to 
Department attorneys on issues of professional ethics.

    Question 8. Senator Hatch has introduced a bill, S. 250, which 
would grant the Department broad authority to issue its own ethics 
rules where a state's rules were ``inconsistent with Federal law'' or 
``interfere[d] with the effectuation of Federal law or policy.'' Please 
identify those state ethics rules which the Department would 
``supersede' should this bill become law, and describe the regulations 
which the Department would likely issue.
    Answer 8. S. 250 sets a standard--``inconsisten[cy] with federal 
law or ``interferen[ce] with the effectuation of federal law or 
policy''--that the Department would have to meet in order to seek 
relief from state bar rules, whether via regulation or court order. If 
enacted, the Department would have to review that standard to determine 
what circumstances meet that test. As noted above, contacts with 
represented persons is the only area in which the Department has issued 
its own regulation, and the one area where the Department has had 
serious, longstanding problems.

                 Additional Submissions for the Record

                              ----------                              


                    American Corporate Counsel Association,
                                    Washington, DC, March 31, 1999.
Re: Hearing on The Effect of State Ethics Rules on Federal Law 
Enforcement.

Hon. Strom Thurmond,
Committee on the Judiciary, U.S. Senate, Washington, DC.
    Dear Senator Thurmond: Pursuant to the Chairman's request, 
submitted is additional evidence to be entered into the record for the 
hearing on ``The Effect of State Ethics Rules on Federal Law 
Enforcement,'' conducted on March 24, 1999 by the Senate Subcommittee 
on Criminal Justice Oversight of the Judiciary Committee.
    I thank the Chairman again for his gracious invitation to the 
American Corporate Counsel Association to testify on such an important 
issue for all the legal profession.
            Very truly yours,
                                        Frederick J. Krebs,
                                                         President.
                                 ______
                                 
                                  American Bar Association,
                                    Chicago, IL, February 22, 1999.
    Dear Senator: One of the significant provisions in last year's 
omnibus appropriations bill, was The Ethical Standards for Prosecutors 
Act, P.L. 105-277, Sec. 801. This provision, popularly known as the 
``McDade-Murtha provision,'' makes it clear that federal prosecutors, 
like all other lawyers are subject to existing state laws and ethics 
rules governing attorney conduct. The effective date of the Act was 
delayed for 180 days to April 19, 1999. The American Bar Association, 
the Conference of Chief Justices and the American Corporate Counsel 
Association strongly support this provision. We urge you to oppose any 
proposals to weaken it or prevent it from taking effect.
    Section 801, as passed, does not represent a change in the law. 
Since the founding of the Republic, the licensing and regulation of 
lawyers has always been the exclusive province of the states and the 
District of Columbia. The states and not the federal government license 
all lawyers, including federal prosecutors. It is states, under the 
authority of their highest courts, that adopt rules of professional 
responsibility to make sure all lawyers, regardless of their areas of 
practice, practice ethically. Federal prosecutors, like state 
prosecutors, have been disciplined under this system since the 
licensing of lawyers began. The independent review of state courts over 
the licensing of lawyers and the supervision of their conduct is an 
important check on misconduct and overreaching by attorneys for the 
federal government.
    Section 801 is necessary because, in recent years, the U.S. 
Department of Justice has sought to exempt its lawyers from the state 
supreme courts' independent supervision. This would make these lawyers 
the only lawyers in America not subject to ethical regulation by a 
state court. In 1989, then-Attorney General Richard Thornburgh issued a 
memorandum to all U.S. Attorneys expressing the view that federal 
prosecutors from state ethics rules uniformly prohibiting unauthorized 
contact with represented persons.
    Last year, a federal appeals court struck down the Reno regulation 
on the grounds that it was beyond the Attorney General's authority to 
issue the regulation. The Court of Appeals for the Eighth Circuit held 
that no law ``expressly or impliedly gives the Attorney General the 
authority to exempt lawyers representing the United States from the 
local rules of ethics which bind all other lawyers appearing in that 
court of the United States.'' Section 801 makes clear that the justice 
Department may not unilaterally exempt itself from ethical rules 
imposed upon all lawyers by the judiciary of each state and the local 
federal court.
    Some who are opposed to Section 801 complain that it will unduly 
burden federal prosecutors. We reject any suggestion that acting 
ethically interferes with the prosecutorial function. Prosecutors are 
obligated above all to serve justice, and compliance with ethics rules 
advances that end while inspiring trust among the bench, the bar and 
the public.
    Moreover, as a practical matter, the ethics rules rarely present 
problems for federal prosecutors. The courts have repeatedly 
interpreted these rules to allow prosecutors to do their jobs, and 
there are seldom conflicts among the various state rules which affect 
prosecutors. Since 1908, standards of professional conduct recommended 
by ABA have been the national professional model, adopted by states 
almost universally. As a result, there are only a tiny number of cases 
in which federal prosecutors have ever been disciplined over the 
objections of the Department of Justice.
    All lawyers should continue to be held to the same standards of 
ethical conduct. Section 801 is not a radical departure in the law. 
Instead, it prevents the Department of Justice from substituting its 
regulation of its employees' conduct for the control and supervision 
that historically have been the province of the state and federal 
judiciary.
    We urge you to oppose efforts to weaken or repeal Section 801.
            Respectfully yours,
                                Philip S. Anderson.
                                 ______
                                 
                                          Caterpillar Inc.,
                                         Peoria, IL, March 9, 1999.
Re: S. 250.

The Hon. Peter G. Fitzgerald,
U.S. Senator, Washington, DC.
    Dear Senator Fitzgerald: I am writing to urge your opposition to 
legislation recently introduced by Senator Orrin Hatch, S. 250, which 
repeal the Ethical Standards for Federal Prosecutors provisions that 
were included in last year's omnibus spending bill, P.L. 105-277.
    The Ethical Standards provisions (also known as the ``McDade 
provisions'') make it clear that federal prosecutors are subject to 
existing state supreme court ethics rules governing attorney conduct. 
These provisions merely codify the longstanding principle that the 
regulation of the conduct of attorneys--including government 
attorneys--is the province of the states, which admit them to practice, 
adopt rules for their conduct and discipline them for violations of 
those rules.
    S. 250 would effectively allow the Department of justice to 
unilaterally exempt its attorney from their longstanding professional 
obligation to honor these state ethics rules. Permitting the Department 
to exempt its prosecutors from the ethics rules that govern all other 
attorneys creates a double standard and sends the wrong message to the 
profession and the public. It would also lessen carefully crafted 
protections for people and entities under investigation. We at 
Caterpillar have long believed that the same ethical standards should 
apply to government attorneys, in-house counsel and outside counsel.
    I urge you to oppose S. 250 or any similar effort to lower the 
ethical standards applicable to attorneys.
            Sincerely,
                                    R.R. Atterbury.
                                 ______
                                 
                         Chamber of Commerce of the
                                  United States of America,
                                    Washington, DC, March 30, 1999.
The Hon. Strom Thurmond,
U.S. Senate, Washington, DC.
    Dear Senator Thurmond: On behalf of the U.S. Chamber of Commerce, 
the world's largest business federation, representing more than three 
million businesses of every size, sector, and region, I am writing to 
express our concern about S. 250, the Federal Prosecutor Ethics Act, or 
similar legislation.
    This legislation would allow government attorneys to engage in ex 
parte contacts with individuals known to be represented by counsel 
without their counsel's consent. Such a change would do more than 
simply reverse the Citizen's Protection Act, passed just last year in 
the Omnibus Appropriations bill. It would also send a signal that 
Congress is prepared to undo the long-standing ethical prohibition on 
ex parte communications with represented individuals that apply to all 
attorneys under state and local federal court rules.
    We appreciate and support the interest in ensuring that federal 
government attorneys have all the tools they need to investigate and 
prosecute fully any illegal or improper corporate activity. This 
legislation, however, would seek to achieve this goal by creating a 
different standard for government attorneys and private sector 
attorneys with respect to ex parte communications.
    As you are probably aware, the American Bar Association, the 
American Corporate Counsel Association and a number of other legal 
associations, individuals and companies have come out strongly against 
enactment of S. 250 and further delay in implementing the McDade 
provision. It is our understanding that the Conference of State 
(Supreme Court) Justices has similarly enacted a unanimous resolution 
condemning the U.S. Department of Justice's refusal to abide by current 
state law principles of attorney-client ethics.
    The different treatment of such a fundamental principle of the law 
requires substantial opportunity for Congress to understand fully the 
implications of this change, including the effect on due process for 
businesses and the strong potential for governmental abuse of power.
    We do not believe the case has yet been made for such a change. 
Accordingly, the U.S. Chamber of Commerce continues to oppose S. 250 
and any similar legislation that would undermine long-standing ethical 
prohibitions on ex parte communications.
            Sincerely,
                                   R. Bruce Josten.
                                 ______
                                 
                                General Motors Corporation,
                                     Detroit, MI, February 5, 1999.
The Hon. Carl M. Levin,
U.S. Senate, Washington, DC.
    Dear Senator Levin: I am writing to you to express my support for 
the McDade provision signed into law in October of last year which 
clarifies that attorneys employed by the Federal Government, like all 
other attorneys, will be subject to the state ethics codes and court 
rules where they practice.
    This provision had broad-based, bipartisan support in the last 
Congress, but is still being opposed by the Department of Justice. The 
DOJ position puts the desire for prosecutorial convictions ahead of the 
principle that the self-regulation of the bar and judiciary, as well as 
the public's respect for our legal system, depend upon all attorneys 
observing the ethics of the jurisdictions in which they practice.
    The end does not justify the means. Convictions only obtainable by 
a disregard of accepted ethical codes of professional conduct are not 
worthy to pursue. Federal Government attorneys should set the example, 
not lower the standard.
    State ethical codes are essentially uniform. Compliance with them 
is neither difficult nor complicated. They actually facilitate the 
administration of justice and are important to protecting the 
constitutional and personal rights of all citizens.
    I very much hope you will oppose efforts by the DOJ, however well 
intended, to relax the obligation to observe the legal profession's 
ethics for its attorneys.
            Sincerely,
                              Thomas A. Gottschalk.
                                 ______
                                 
                                          Monsanto Company,
                                  St. Louis, MO, February 11, 1999.
Senator John Ashcroft,
Hart Senate Office Building, Washington, DC.
    Dear Senator Ashcroft, I am writing to you to urge your opposition 
to legislation recently introduced by Senator Orrin Hatch, S. 250, 
which would repeal the Ethical Standards for Federal Prosecutors 
provisions that were included in last year's omnibus spending bill, 
P.L. 105-277.
    The Ethical Standards provisions (also known as the ``McDade 
provisions'') make it clear that federal prosecutors are subject to 
existing state supreme court ethics rules governing attorney conduct. 
These provisions do no more that codify the longstanding principle that 
the regulation of the conduct of attorneys--including government 
attorneys--is the province of the states, which admit attorneys to 
practice, adopt rules for their conduct, and discipline them for 
violations of those rules.
    S. 250 would effectively allow the Department of Justice to 
unilaterally exempt its attorneys from their longstanding professional 
obligation to honor these state ethics codes. Permitting the Department 
to exempt its prosecutors from the ethics rules that govern all others 
attorneys creates a double standard and sends the wrong message to the 
profession and the public. It could also lessen thoughtful protections 
that have been crafted for people and entities under investigation. We 
at Monsanto have long believed that the same ethical standards should 
apply to government attorneys, in-house counsel and outside counsel.
    I urge you to oppose S. 250 or any similar effort to lower the 
ethical standards applicable to attorneys.
            Sincerely,
                                          Bill Ide.
                                 ______
                                 
                     National Association of Manufacturers,
                                    Washington, DC, March 16, 1999.
The Hon. Dennis Hastert,
Speaker of the House, U.S. House of Representatives,
Rayburn House Office Building, Washington, DC.
    Dear Mr. Speaker: On behalf of the National Association of 
Manufacturers (NAM), the nation's largest broad-based industry trade 
group, I am writing to express our grave concerns regarding S. 250, the 
Federal Prosecutors Ethics Act.
    This bill would allow government attorneys to engage in ex parte  
contacts with individuals represented by counsel without notifying or 
obtaining consent from such counsel. This result is in direct 
opposition to one of the most fundamental rules of established legal 
standards--the requirement that represented persons be contacted only 
through counsel.
    Department of Justice lawyers have increasingly ignored this 
uniform rule observed by all 50 states. In fact, in 1989, Attorney 
General Richard Thornburgh expansively construed the Constitution's 
Supremacy Clause, declaring in a memo that ``assistant U.S. attorneys 
could, under certain circumstances, contact and question people they 
knew to be represented by a lawyer without first alerting the contacted 
people's attorneys.'' The 8th Circuit Court of Appeals has ruled this 
practice unconstitutional, and the Citizens Protection Act (CPA) passed 
as part of the 1998 Omnibus Appropriations bill explicitly requires 
that all federal attorneys are ``subject to State laws and rules, and 
local federal court rules, governing attorneys in each State'' in which 
they practice--including ex parte contact prohibitions.
    While the NAM appreciates and supports ensuring that the government 
has all the tools necessary to investigate and fully prosecute any 
illegal or improper activity, this bill would seek to achieve this 
laudable goal by severely undermining a nationally uniform and well-
established code of conduct. Accordingly, we would urge substantive 
review and serious deliberation of this measure before undertaking such 
a drastic step. Please feel free to call me or Kimberly Pinter, the 
NAM's director for corporate finance and tax, at (202) 637-3071 if you 
would like to discuss this further.
            Sincerely,
                                Michael E. Baroody.
                                 ______
                                 
                National Organization of Bar Counsel, Inc.,
                                         Boise, ID, March 10, 1999.
Re: Federal Prosecutor Ethics Act (S. 250)

The Hon. Orrin Hatch,
Chair, Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
    Dear Senator Hatch: I write as president of the National 
Organization of Bar Counsel (the ``NOBC''), an association composed of 
the Bar Counsel of all 50 states and the District of Columbia, who are 
charged by their respective high courts to investigate and, where 
appropriate, prosecute attorneys charged with professional misconduct. 
I write to express the NOBC's concern that pending proposed legislation 
introduced in the present session of Congress as the ``Federal 
Prosecutor Ethics Act,'' S. 250, would undercut the traditional; 
authority of State Supreme Courts around the country to regulate the 
membership of their Bars, without conferring any measurable benefit 
upon the federal law-enforcement officials that the legislation is 
intended to protect.
    The evident objective of S. 250 is to federalize the rules of 
professional conduct applicable to federal law-enforcement officials, 
creating a uniform set of disciplinary rules to be interpreted and 
implemented by the Justice Department rather than by the State Supreme 
Courts of the various jurisdictions before which the federal attorneys 
are admitted to practice. So far as federal law-enforcement personnel 
are concerned, the legislation, if enacted, would pre-empt the 
enforcement mechanisms established by the State Supreme Courts, as well 
as by the District of Columbia Court of Appeals, to oversee the 
professional conduct of attorneys admitted before the various high 
courts.
    It merits observation that S. 250 would not only federalize the 
ethical rules governing federal law-enforcement attorneys but would 
oust the several federal district courts and courts of appeals from 
their traditional oversight of attorneys who practice before them. 
Rather than permit those courts to determine for themselves whether to 
follow the disciplinary rules of the States in which the courts sit, to 
adopt the ABA's Model Rules, or to prescribe their own standards, S. 
250 would impose a uniform set of rules on the federal courts, whether 
the courts want one or not. The legislation also would deprive the 
federal courts of authority to enforce their own rules of conduct where 
government prosecutors are concerned.
    It is beyond the scope of this letter to address the 
constitutionality of such an arrangement, although the Supreme Court's 
post-Civil War opinion in Ex parte Garland strongly suggests that such 
a law would not survive judicial review. Rather, we urge practical and 
prudential, rather than constitutional considerations. Before Congress 
embarks upon such a potentially confrontational course with the federal 
court system, we respectfully urge that the proponents of the 
legislation come forward with evidence that the present arrangement has 
compromised the ability of the Justice Department to perform its law-
enforcement mission. the reasons for our scepticism are as follows:

    For nearly a decade, the Justice Department has mounted a campaign 
to insulate its lawyers from the perceived threat of State disciplinary 
proceedings, first in the Thornburgh memorandum, then in the 
``contact'' regulations, promulgated in 28 C.F.R. Part 77 (since 
declared invalid by the United States Court of Appeals for the Eighth 
Circuit in the McDonnell-Douglas litigation), and most recently in the 
Department's unsuccessful opposition in the McDade legislation enacted 
last year and codified at 28 U.S.C. Sec. 530B. The truly remarkable 
feature of the Department's campaign is the absence of any evidence to 
suggest a factual basis for the Department's concern that its line 
attorneys are at the mercy of State bar prosecutors who are, in turn, 
supposedly working hand-in-hand with the criminal-defense bar to 
complicate the lives of their prosecutorial adversaries.
    In the collective experience of the NOBC, nothing could be further 
from the truth. In formal surveys of the membership of the NOBC, which 
includes every attorney disciplinary authority in the country, 
repeatedly have failed to produce evidence of ethical prosecutions, or 
even investigations, directed at federal prosecutors who engage in 
traditional, accepted law-enforcement activities, such as ``sting'' 
operations, undercover operations, wiretap surveillance, or the like. 
As I am sure you are aware, the only remotely recent disciplinary 
proceeding challenging a federal prosecutor's unauthorized contact with 
a represented defendant was the Howes case in New Mexico. There the New 
Mexico Supreme Court imposed a public censure upon a federal prosecutor 
who repeatedly made contact with an incarcerated defendant who was 
under indictment and represented by a public defender at the time of 
the contacts.
    Other well-known cases are readily distinguishable. The Hammad case 
arose not as a disciplinary matter, but as a defendant's challenge to 
the prosecutor's use of manufactured evidence in aid of an undercover 
operation; the court of appeals in New York ultimately overturned the 
trial court's dismissal of the indictment and took no further action 
against the prosecutor. Likewise, in Ryan, the court of appeals in 
California reversed the trail court's dismissal of an indictment 
predicated upon the prosecutor's unauthorized contact.
    The District of Columbia Bar, with an estimated 18,000 lawyers who 
are government attorneys, probably has more federal prosecutors as 
members than any other bar in the country. The United States Attorney's 
Office for the District of Columbia is one of the largest in the 
country and handles criminal prosecutions in both the federal court and 
the District of Columbia Superior Court. Thousands more Department 
lawyers are based at Main Justice. If Justice Department lawyers were 
the subject of ethical complaints, investigations and prosecutions 
anywhere in the country, one would expect to find evidence of such 
activity in the District of Columbia. But the evidence is to the 
contrary. The District of Columbia Bar Counsel advises that, 
notwithstanding his receipt of nearly 1700 ethical complaints and his 
institution of over 100 formal disciplinary proceedings each year, he 
has had perhaps half a dozen complaints involving unauthorized contacts 
by federal attorneys (not merely Justice Department lawyers) in the 
seven years that he has held the position of Bar Counsel, and he has 
instituted no prosecutions on such grounds. (the Howes case, noted 
above, started as a referral to the District of Columbia Bar Counsel by 
a Superior Court Judge, because Mr. Howes was not a member of the 
District of Columbia Bar at the time, Bar Counsel referred the matter 
to his New Mexico counterpart.)
    We ask: Why is the Justice Department so concerned about the 
regulation of the professional performance of its attorneys by the 
State Supreme Courts? Where is the evidence that the Supreme Courts 
have overstepped their bounds or infringed upon legitimate federal law-
enforcement efforts?
    We understand that the McDade provision has inspired criticism to 
the effect that its provisions inadvertently subject federal law-
enforcement attorneys to the potentially conflicting rules of multiple 
jurisdictions. The argument is based upon the provision of the law such 
attorneys ``shall be subject to State laws and rules * * * governing 
attorneys in each state where such attorney engages in that attorneys 
duties, to the same extent and in the same manner as other attorneys in 
that state'' (emphasis added). Apparently opponents of the McDade 
provision contend that the quoted provision subjects federal law-
enforcement attorneys to the disciplinary rules in each jurisdiction to 
which the attorneys dispatch agents or investigators in aid of 
multistate investigations. By way of illustration, it is suggested that 
Judge Merrick Garland of the United States Court of Appeals for the 
District of Columbia Circuit, while serving as a principal in the 
office of the Deputy Attorney General in connection with the Oklahoma 
City bombing case, could have been made subject to investigation and 
prosecution in 20 or 30 different states because he dispatched FBI 
agents and investigators to those jurisdictions as part of the Justice 
Department's necessarily wide-ranging inquires. This argument is 
meritless, for at least the following reasons.
    First, the McDade law plainly provides that the attorney is to be 
held accountable to the rules of the court before which he or she 
appears or in whose jurisdiction the attorney engages in law-
enforcement efforts. Thus, under the McDade law, Mr. Garland would have 
been subject to the rules of the District of Columbia Bar (where he had 
been admitted to practice and where he maintained his office at Main 
Justice) while the Oklahoma City investigation was pending and then to 
the rules of the United States District Court, if and to the extent 
that his activities continued after the government commenced a formal 
criminal proceeding in that forum. I cannot imagine that any 
disciplinary authority in the country would have taken the position 
that, by virtue of the McDade law, Mr. Garland also had subjected 
himself to the rules of every jurisdiction to which the Justice 
Department dispatched agents or investigators in aid of its inquiry.
    Second, the opponents of the McDade law who rely upon the Garland 
hypothetical or its like assume, incorrectly, that the ethical rules of 
the several States are variant and inconsistent. To the contrary, 
notwithstanding stylistic differences, the rules are remarkably similar 
from State to State. This is particularly the case with respect to the 
``anti-contact'' rule embodied in the various state versions of the 
ABA's Model Rule 4.2(a) of the Rules of Professional Conduct and its 
counterpart Disciplinary Rule 7-104(A)(1) of the antecedent Code of 
Professional Responsibility. The remarkable absence of disciplinary 
proceedings brought against federal law-enforcement attorneys under any 
version of the ``anti-contact'' rule is the best evidence of uniformity 
in function, if not in precise wording.
    Third, the criticism of the McDade law assumes, again incorrectly, 
that the NOBC's constituent bar counsel are anxious to bring 
disciplinary charges against federal prosecutors who engage in 
traditionally accepted law-enforcement procedures, notwithstanding that 
the federal courts repeatedly have upheld pre-indictment, noncustodial 
contacts with suspects known to be represented by counsel. Under the 
McDade law, The Bar Counsel of the several States remain the 
enforcement agents of the State Supreme Courts. Thus, it is significant 
that, as noted above, the NOBC regularly reports that its members have 
no pending prosecutions of federal attorneys based on violations of the 
``anti-contact'' Rule.
    Finally, the District of Columbia Bar Counsel notes that he has 
occasion to investigate Assistant United States Attorneys at the United 
States Attorney's Office who are charged with violations of the Jencks 
and Brady rules or with improper closing arguments in criminal trials. 
The District of Columbia Bar Counsel also notes that from time to time, 
the Justice Department's Office of Professional Responsibility refers 
matters involving attorneys at Main Justice who have been the subject 
of OPR's investigations and who are members of the District of Columbia 
Bar, Presumably, under S. 250, the District of Columbia Bar would lose 
jurisdiction over such matters, notwithstanding that Main Justice and 
the United States Attorney's Office never have objected on 
jurisdictional grounds to the Bar's investigations and prosecutions in 
such cases and have cooperated with Bar Counsel's inquiries.
    In our view, the McDade provision has restores a measure of 
stability and certainty to a situation that has become progressively 
more muddled in recent years, as the Justice Department has asserted 
and reasserted a supposed authority to pre-empt the State Supreme 
Courts' regulation of the Department's attorneys and to substitute the 
Department as sole judge of its own conduct. For years, the ABA has 
struggled to deal with the problem presented by the Department's 
persistent derogation of the authority of the State Supreme Courts 
before which the Department's attorneys are admitted to practice. More 
recently, the Conference of State Chief Justices has been drawn into 
the fray. Far from resolving this perennial conflict, we respectfully 
submit, the proposed S. 250 merely would renew the cycle of dispute and 
confrontation that has characterized the handling of this issue for the 
better part of a decade.
    At the outset, for present purposes, we do not take issue with the 
power of Congress to enact such Legislation, even though the bill as 
drafted would make significant incursions upon the traditional 
authority of the State Supreme Courts to regulate the practice of law 
in their respective jurisdictions. Rather, we question the need for 
such legislation and the wisdom of delegating to one segment of the 
Bar--the federal prosecutors--the authority to act, in effect, as 
judges in their own cases, unlike any other lawyers admitted to 
practice in their country.
    For the forgoing reasons, we respectfully urge you and your staff 
to reconsider the proposed S. 250 and to give the McDade law (which 
becomes effective in April 1999) a chance to work before the Senate 
condemns it out of hand.
    We welcome an opportunity to meet with you to discuss in person our 
concerns about the pending legislation. We thank you for your careful 
attention to this important issue. I should note that copies of this 
letter will be made available to other members of Congress and their 
staffs.
    Respectfully submitted,
                                   Michael J. Oths,
           President, National Organization of Bar Counsel,
                                      Bar Counsel, Idaho State Bar.
                                 ______
                                 
                                        Proskauer Rose LLP,
                                  New York, NY, September 28, 1998.
Re: Title VIII in H.R. 4276 (DOJ Appropriations Bill)

Hon. Ted Stevens,
Chairman, U.S. Senate Appropriations
Committee, U.S. Capitol, Washington, DC.
    Dear Chairman Stevens: I write to you with perspective of a former 
Deputy Attorney General of the United States, a vigorous advocate for 
victims' rights (I am privileged to serve as Chairman of the Board of 
the National Victim Center and Chairman of the Board of the 
International Center for Missing and Exploited Children), and as one 
who now represents companies and individual business persons under 
investigation by the federal government attorneys for criminal and 
quasi-criminal (or regulatory) federal violations. I respectfully urge 
you to ensure that the much-needed, indeed, long-overdue measure passed 
overwhelming (345-82) by the House of Representatives on August 5 as 
Title VIII of its version of the fiscal year 1999 appropriations bill 
for the Department of Justice (H.R. 4276), is retained as part of your 
unified bill and conference committee report.
    I enclose for your information two articles I have recently 
written, on the need for Congress to curb prosecutorial excesses. The 
primary problem-solver advocated in these articles is for Congress to 
insist upon meaningful checks and balances against abuses of 
prosecutorial powers. The most important congressional action called 
for in the longer article I have written with two of my firm colleagues 
is the re-subjection of federal government lawyers to the ethical 
standards of conduct by which they abided for the history of the 
Republic, until 1989, and by which all other attorneys must abide.
    I respectfully urge you to work toward a conference committee 
measure which embraces Title VIII of the House version of the bill, and 
thus re-establishes that federal government lawyers, just like all 
other attorneys, must indeed abide by the fundamental rules of ethical 
attorney conduct required by the State Supreme Courts granting those 
attorneys their very licenses to practice law, and the law, and the 
local rules of ethical practice required by the federal courts before 
whom these lawyers appear.
    Contrary to the misunderstanding of some, this is nothing new. And 
it is certainly nothing radical. The measure simply sets the record 
straight, once and for all, and calls a halt to the Department's 
inappropriate claims, rejected by the courts, state and federal, that 
its lawyers alone are unbound by the basic rules of ethical attorney 
conduct applicable to all other lawyers, including state prosecutors 
and the federal prosecutors' adversaries, counsel for the investigated 
and the accused.
    DOJ lawyers, like all other lawyers, are actually, and historically 
have been, subject to independent investigation and disciplines by the 
high court of the state or states in which they are admitted to 
practice--that is, the State Supreme Court that granted the lawyer his 
or her license to practice law. But, unfortunately, since 1989, the 
Department of Justice has taken the position that its lawyers alone, 
paid for by congressionally-appropriated tax dollars, may ignore the 
fundamental ethical prohibition against interrogating represented 
persons outside the presence of the person's lawyer (ex parte 
contacts). The Department has abused this self-created, unethical power 
to interrogate and in some cases intimidate employees of corporations, 
small businesses, and individual citizens under criminal or civil 
(regulatory) investigation.
    The Department's refusal to abide by the fundamental laws of 
ethical attorney conduct has been roundly condemned by state and 
federal courts, including a unanimous resolution of the Conference of 
State (Supreme Court) Justices. Most recently, the Eighth Circuit U.S. 
Court of Appeals rejected the DOJ's position, in a case concerning a 
government regulatory investigation of the McDonnell Douglas 
Corporation, U.S. v. McDonnell Corporation, 132 F.3d 1252 (8th Cir. 
1997), in which the Department claimed the power for its attorneys 
alone to avoid not only the rules of the State Supreme Courts granting 
those lawyers their licenses, but even the local rules of practice of 
the federal court before which the government's lawyers were appearing.
    Unless corrected, this self-exemption for government lawyers will 
likely expand and create the anomaly of prosecutors abiding by one set 
of (self made) rules while counsel for citizens in litigation with the 
Department of Justice are required to follow more restrictive rules.
    The State Supreme Courts have always borne the exclusive 
responsibility for admitting attorneys to the bar and for their 
discipline. As the U.S. Supreme court has said: ``Since the founding of 
the Republic, the licensing and regulation of lawyers has been left 
exclusively to the States and the District of Columbia within their 
respective jurisdiction. The States prescribe the qualifications for 
admission to practice and the standards of professional conduct. They 
also are responsible for the discipline of lawyers.'' Leis v. Flynt, 
439 U.S. 438, 442 (1979).
    Moreover, as a fundamental condition on its appropriations to the 
Department of Justice, Congress has routinely declared that each 
Department of Justice lawyer must be ``duly licensed and authorized to 
practice as an attorney under the laws of a State, territory, or the 
District of Columbia.'' See, e.g., Department of Justice Appropriation 
Authorization Act. Fiscal Year 1980, Pub. L. No. 96-132, 93 Stat. 1040 
(1979) (This provision has been reenacted in successive years). The 
courts have held that this statute requires prosecutors to comply with 
the ethics rules of their respective states of admission. See, e.g., 
U.S. v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd, 54 F.3d 825 
(D.C. Cir. 1995). DOJ has simply been ignoring these rulings. This must 
stop. Congress--your Conference Committee--should act to stop it.
    Title VIII of H.R. 4276 simply clarifies for the Department that it 
must cease its attempts to circumvent this requirement. The measure 
ensures that Justice employees will indeed abide by the rules of ethics 
required by the state supreme court authorities which have granted the 
lawyers their very licenses (as a condition of those licenses), and the 
local federal court rules of attorney conduct by which all attorneys 
appearing before those courts must abide.
    No one, not even federal prosecutors, should consider themselves 
above the law. This appropriations measure would set the record 
straight, and put an end to the Department's policy of deciding which 
ethical rules it will obey or not obey.
    Most recently, the Department has used its congressionally-
appropriated tax dollars to bring federal suits against the states. DOJ 
has forced the states to spend their own tax dollars in these federal 
cases defending their right under the fundamental constitutional 
principle of Federalism (state prerogatives and responsibilities), to 
ensure that the lawyers to whom they grant a license to practice law (a 
core state function) actually abide by the states' standards of ethical 
attorney conduct. A case in point is the one recently brought by DOJ in 
federal court against Louisiana in December 1996. DOJ soaked up the 
scarce resources of the Louisiana Supreme Court, represented by the 
Louisiana Attorney General, for over seven months before the case was 
dismissed. There was no actual or potential interference with any 
federal investigation even claimed along the lines of the hypothesized 
horrors DOJ has presented.
    The House was right to recognize that law enforcement concerns 
cannot justify the DOJ's self-creation of less demanding ethics rules 
for federal prosecutors and regulatory lawyers. This has nothing to do 
with the supremacy of federal laws that are duly enacted by Congress 
and enjoy protection of federal constitutional preemption.
    The judiciary has consistently read the rule against contact with 
represented persons, and other ethics rules, to permit federal 
prosecutors reasonable leeways to perform their duties--e.g., in the 
``in-house mob lawyer'' hypothetical DOJ so often cites. In exceptional 
cases like these. government lawyers would simply seek judicial 
authorization for an exception to the rules, just like with warrant or 
wiretap requests. A judicial authorization, by the neutral judicial 
authority, would meet the well-recognized ``authorized by law'' 
exception to the legal rules against interrogating persons outside the 
presence of their lawyers. Neither DOJ nor any other law enforcement 
group has cited an actual ethics case placing an unreasonable restraint 
on law enforcement.
    In short, it makes sense for Congress to condition its 
appropriation of citizen tax dollars to DOJ operations on the basic 
requirement that the federal lawyers employed through the public purse 
abide by the rule of law.
    I hope these views and the enclosed materials are helpful to the 
Conference Committee. I look forward to answering any questions you may 
have and assisting you and the conference Committee in any way I can.
            Sincerely,
                                   Arnold I. Burns.
                                 ______
                                 
                                      Sara Lee Corporation,
                                       Chicago, IL, March 23, 1999.
To: The Illinois Congresspersons, Included on the Attached Schedule.

    Dear Senator or Representative: I am writing to urge your 
opposition to S. 250, the Federal Prosecutor Ethics Act, which seeks to 
repeal the Ethical Standards for Federal Prosecutors Act, P.L. 105-277, 
Sec. 801 (popularly known as the McDade Provision). The McDade 
Provision is an important clarification of well-established law that 
compels all attorneys to conduct themselves in accordance with the 
ethical standards established by the states in which they practice. It 
is crucial that these standards of professional conduct be applied 
equally to federal prosecutors in order to support the integrity of the 
judicial process, to safeguard important protections of individual 
rights and to ensure public respect for our judicial system.
    Federal prosecutors are entrusted with extensive powers in order to 
facilitate performance of their prosecutorial duties. While vigorous 
investigation and prosecution of improper conduct is essential to 
maintaining our social framework, the nation is not well served if 
prosecutorial activities infringe upon individual rights or undermine 
public confidence in the fairness of our judicial system. Exempting 
federal prosecutors from the ethical rules that bind all other lawyers 
would allow federal prosecutors to disregard long-standing practices 
which have been carefully and thoughtfully crafted to safeguard 
individual rights. Furthermore, such exemption is contrary to the 
public's expectation that prosecutors should adhere to the highest 
standards of the legal profession. Adherence to such standards is not 
an impediment to our federal prosecutors, but rather an essential part 
of their prosecutorial role.
    While the Department of Justice had taken the position that it 
should be permitted to unilaterally declare federal prosecutors exempt 
from the ethics standards which apply to the rest of the legal 
profession, Congress wisely rejected this argument in the McDade 
Provision. We at Sara Lee believe that the same ethical standards 
should apply to both private sector and government attorneys. I urge 
you to continue to reject any efforts to diminish the ethical standards 
that apply to the conduct of government attorneys, including the 
legislation introduced by S. 250.
            Sincerely,
                                      Janet Langford Kelly,
              Senior Vice President, Secretary and General Counsel.

                                        
The Honorable Richard J, Durbin     The Honorable John Porter
United States Senate                U.S. House of Representatives
Washington, D.C. 20510

                                    Washington, D.C. 20515

The Honorable Peter Fitzgerald      The Honorable Jerry Weller
United States Senate                U.S. House of Representatives
Washington, D.C. 20510

                                    Washington, D.C. 20515

The Honorable Bobby Rush            The Honorable Jerry Costello
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Jesse Jackson, Jr.    The Honorable Judy Biggert
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable William Lipinski      The Honorable Dennis Hastert
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Luis Guitirez         The Honorable Thomas Ewing
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Rod Blagojevich       The Honorable Donald Manzullo
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Henry J. Hyde         The Honorable Lane Evans
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Danny Davis           the Honorable Ray La Hood
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Philip M. Crane       The Honorable David Phelps
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515

                                    Washington, D.C. 20515

The Honorable Janice Schakowsky     The Honorable John Shimkus
U.S. House of Representatives       U.S. House of Representatives
Washington, D.C. 20515              Washington, D.C. 20515

                               

      
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