[Congressional Record Volume 144, Number 152 (Thursday, November 12, 1998)]
[Senate]
[Pages S12996-S12997]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            APPLICATION OF STATE LAW TO FEDERAL PROSECUTORS

 Mr. ABRAHAM. Mr. President, I rise to register serious concern 
over a provision in the Omnibus Appropriations bill, included as I 
understand it over the protest of the Senate. This is a legislative 
provision appended to the Commerce, Justice, State Appropriations 
portion of the bill that subjects federal prosecutors and other 
``attorneys for the Government'' to State laws and rules governing 
attorneys ``to the same extent and in the same manner as other 
attorneys in that State.''
  Now please understand, Mr. President. I think I am as much of a 
believer in federalism as anyone here. But federalism does not mean 
that control of all matters should be ceded to the States. One area 
where I think it is pretty clear that the national government should be 
the principal source of law is in setting rules of professional conduct 
for its own officers. To leave that question to the States, it seems to 
me, is to cede a very large portion of the control for how federal law 
is to be enforced to the States. That power can then be used to 
frustrate the enforcement of federal law. The risk that this will 
happen is significantly greater where the power is being turned over 
not to the States' elected representatives, but to bar associations 
vested with the States' powers, but without the accountability to the 
people of the States that elections generate.
  I believe that we can be pretty sure that this provision imposing 
State laws and rules on federal prosecutors will be used to frustrate 
federal law simply by looking at the rules the State bars already have 
adopted that will have this effect. I believe this trend will only 
accelerate once those opposed to certain aspects of federal law know, 
as a result of our adoption of this provision, that they have this new 
tool at their disposal.
  For many years members of the criminal defense bar have been 
sponsoring rules adopted in State codes of professional responsibility 
that trench upon legitimate and essential practices of federal 
prosecutors. The best known example involves rules of States such as 
California, Missouri, and New Mexico, as well as the District of 
Columbia, that limit prosecutors' contacts with represented persons in 
a way that can seriously complicate undercover investigations. The 
problem with this prohibition is that a low-level member of an 
organized crime ring may well be represented by counsel retained by the 
leaders of the ring. As a result, counsel's principal interest may be 
in preventing his or her ``client'' from giving useful information 
about those leaders to law enforcement--even if doing so would be in 
the client's interest because the client might get less prison time.
  But the ``represented parties'' context is not the only one where 
State rules governing attorneys raise problems. Colorado, New 
Hampshire, Pennsylvania, and Tennessee have ``ethics'' rules requiring 
prior judicial approval of subpoenas of attorneys, even though federal 
case law has (for good reason) adopted no such requirement. Colorado 
also has a rule requiring submission of exculpatory evidence to grand 
juries, which it adopted shortly after the Supreme Court found in 
United States versus Williams that federal courts could not use their 
``supervisory powers'' to impose such an obligation. And, at least 
according to the 10th Circuit's vacated Singleton opinion, it is an 
``unethical'' practice, under Kansas state rules, for an Assistant U.S. 
Attorney to offer leniency in exchange for truthful testimony. Even 
assuming the 10th Circuit does not reinstate that portion of the panel 
opinion when it rules en banc, hardly an inevitable outcome, the 
suggestion the opinion made will continue to chill any federal 
prosecutor practicing in Kansas. It will continue to do so regardless 
of what the 10th Circuit does, since Kansas could adopt this theory 
even if the Tenth Circuit abandons it. Indeed, any State bar will be 
free to declare that offering leniency to accomplices to obtain their 
testimony is ``unethical'' and, under the provision we have unwisely 
adopted, that rule will control federal prosecutions. The result will 
be a drastic reduction in the effectiveness of federal efforts to 
combat crime.
  State bar associations have adopted the rules I have described 
despite previously grave doubt about their legal authority to make 
these rules binding on federal prosecutors. It seems to me that now 
that we have established as a matter of federal law that six months 
from now, rules like this will indeed govern federal prosecutors' 
conduct, these rules will only multiply further. For example, States 
could ban as unethical the forfeiture of cash intended to pay a defense 
lawyer--indeed, the ABA came very close to doing just that in an 
attempt effectively to overrule the Supreme Court's holding Caplin & 
Drysdale. States could rule it ``unethical'' to examine a witness in 
the grand jury room without his attorney being present, or to adduce 
evidence of one party-consent tape recordings--proposals the Senate, of 
course, rejected last month during the CJS debate. The potential list 
is limited only by the criminal defense bar's imagination.
  To be sure, the Department of Justice can argue its case to the bar 
associations considering such rules. But that is no solution. At best, 
it will require an inordinate expenditure of effort and resources that 
could instead be used to lock up dangerous criminals. At worst, and 
more likely in my view, the Department will lose the argument much of 
the time, and we will end up with constraints on federal officers that 
bear no connection with the federal policies those officers are charged 
with enforcing.
  This is not to say that I am opposed to requiring that lawyers who 
work for the federal government behave professionally. I am not. In 
fact, I am strongly for it. But I believe that it makes no sense to 
have the judgment about what ``professional conduct'' consists of be

[[Page S12997]]

made by State bar associations. Of necessity these associations have 
little or no stake in securing the enforcement of the federal laws with 
which these federal government lawyers are charged; and it is easy to 
imagine instances where a number of their members may have an 
affirmative stake in frustrating that enforcement.
  Perhaps my concerns will turn out to be misplaced. I understand that 
one important concession the Senate obtained in the negotiations 
leading up to the inclusion of this provision in the omnibus 
legislation is a 6 month delay in the provision's effective date. This 
will give us some opportunity to see whether the result of the adoption 
of this provision is a greater effort by the State bars to accommodate 
federal interests, or the opposite. It will also give us a better 
opportunity to assess what the real impact of applying existing State 
rules in the context of federal prosecutions will be. In the long run, 
however, it seems to me that the right answer here is not for the 
federal government to abdicate to State bars the important 
responsibility of establishing these rules, but, at least with respect 
to its own officers, to perform that responsibility itself.

                          ____________________