[Congressional Record Volume 146, Number 132 (Thursday, October 19, 2000)]
[Senate]
[Pages S10790-S10792]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONTINUING PROBLEMS FOR FEDERAL LAW ENFORCEMENT DUE TO THE McDADE LAW
Mr. LEAHY. Mr. President, I have spoken several times this year about
the so-called McDade law, which was slipped into the omnibus
appropriations bill at the end of the last Congress, without the
benefit of any hearings or debate in the Senate. I have described the
devastating effects that this ill-considered law is having on Federal
law enforcement efforts across the country. Recent articles in the
Washington Post, the Washington Times and U.S. News & World Report also
describe how the McDade law has impeded Federal criminal
investigations.
For over a year, I have been proposing legislation to address the
problems caused by the McDade law. My corrective legislation would
preserve the traditional role of the State courts in regulating the
conduct of attorneys licensed to practice before them, while ensuring
that Federal prosecutors and law enforcement agents will be able to use
traditional Federal investigative techniques. Although the bill does
not go as far as the Justice Department would like--it does not
establish a Federal code of ethics for government attorneys, nor does
it authorize the Justice Department to write its own ethics rules--
nevertheless, the Justice Department has supported the bill as a
reasonable, measured alternative to the McDade law.
Congress's failure to act on this or any other corrective legislation
this year means more confusion and uncertainty, more stalled
investigations, and less effective enforcement of the Federal criminal
laws. I regret that we
[[Page S10791]]
have not made more progress, and hope that we can work together in the
next Congress, on a bipartisan and bicameral basis, to resolve the
situation.
I ask unanimous consent that these articles be included in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Oct. 19, 2000]
Repeal the McDade Law
Two years ago, Congress approved a seemingly innocuous
requirement that federal prosecutors observe the ethical
standards of the state bars that gave them their law
licenses. Members probably didn't think that, in supporting
the proposal, they would be harming important federal
investigations. They thought rather to stand against
prosecutorial excess and show support for retiring Rep.
Joseph McDade, who had once been prosecuted unsuccessfully by
the Justice Department. Yet even as Congress was moving ahead
with the bill, many people--including in the Justice
Department and on the Senate Judiciary Committee--warned of
unintended consequences. Now the warnings are coming true.
The so-called McDade law has compromised Justice Department
investigations on matters ranging from airline safety to
child pornography.
State bar rules are generally not written with
investigative concerns in mind--and are sometimes written to
hamper prosecutors. Lawyers, for example, are generally
forbidden from contacting directly people whom they know to
be represented by counsel. The rule makes sense as a general
matter, but figuring out how it should apply to investigative
work is exceptionally difficult. A prosecutor investigating a
corporation who wants to talk with company employees could be
read to violate this ethical stricture if the corporation's
lawyers are not present. Such a rule would make federal
investigations of corporations dependent on the corporation's
consent. According to a Justice Department report, this
precise issue hampered an investigation of an airline--which
press reports identify as Alaska Airlines--for allegedly
falsifying maintenance reports. Unable to have agents
interview key witnesses, the department had to bring them
before a grand jury--a process that involved lengthy delays.
``When the witnesses finally appeared before the grand jury,
they had trouble remembering anything significant to the
investigation,'' the report notes. ``After about a year of
investigation, one of the airline's planes crashed.''
In Oregon, the U.S. Attorney's Office recently notified the
FBI that it would not participate further in an undercover
program that targets child pornography. The Oregon Supreme
Court has interpreted state ethics rule to prohibit
dishonesty or deceit in investigations--with no exception for
law enforcement. That makes undercover work of any kind the
stuff of potential bar discipline for lawyers who get
involved. In a letter to the FBI field office, Portland's
U.S. attorney announced that, under the rule, ``the attorneys
in our Criminal Division cannot approve or authorize any
undercover operations or consensual monitoring'' at all. Such
an outcome has nothing to do with prosecutorial ethics but
will harm law enforcement.
The McDade problem needs to be fixed, and Sen. Patrick
Leahy is pushing a bill that would do that. Federal
prosecutions and investigations cannot be held hostage to
whatever rules 50 state bars choose to pass.
____
[From the Washington Times, Oct. 10, 2000]
Federal Prosecutors Hostage to State Codes
(By Bruce Fein)
If you think United States Secret Service protection of the
president should be held hostage to state law, then you
should love the 1-year-old ``McDade'' statute. Ditto if you
think FBI attempts to thwart or investigate presidential
assassinations or corruption of Members of Congress also
should be held hostage. But you might think the McDade law
reflects federalism run riot, and thus champion its overhaul,
like Sen. Patrick J. Leahy, Vermont Democrat, and Sen. Orrin
G. Hatch, Utah Republican and chairman of the Senate
Judiciary Committee.
Without hearings, the law was tucked into an appropriations
bill in a fit of congressional disenchantment with aggressive
investigative tactics symbolized (rightly or wrongly) by
Independent Counsel Kenneth Starr. It subjects all federal
government attorneys in conducting federal criminal or civil
investigations to state professional disciplinary rules in
the state in which they operate. On its face, the McDade law
seems unalarming. Why shouldn't federal attorneys conform to
the same ethical standards required of their professional
colleagues whether in private practice of state government?
The answer is that the parochial perspectives of states may
discount or overlook broader and compelling federal law
enforcement interests. The state of Oregon sports a typical
disciplinary rule prohibiting attorney dishonesty, deceit or
misrepresentation. It has been interpreted to prohibit
federal prosecutors from either authorizing or supervising
undercover operations of the FBI or consensual monitoring of
conversations by informants. Under the McDade law, for
instance, suppose the United States Attorney in Oregon and
the FBI suspect an attempted assassination of President
Clinton during a fund-raising visit to Portland by
extremists. A plan is devised to infiltrate an informant into
the suspected circle of conspirators with an electronic
recording device to forestall the villainy. it would be
frustrated by Oregon's disciplinary code coupled with the
McDade law.
Federal terrorism investigations or prosecutions are
likewise jeopardized in Oregon. Suppose a terrorist suspect
pleads guilty to a federal conspiracy offense and agrees to
cooperate in the apprehension and trial of co-conspirators in
exchange for a lenient sentence. The United States Attorney
contemplates the terrorist-informant's use of an electronic
recording or transmitting device to prove the guilt of the
conspirators from their own words. The U.S. Supreme Court
held in United States vs. White (1971) that such
investigatory deceit is no affront to the Constitution, and
added: ``An electronic recording will many times produce a
more reliable rendition of what a defendant has said than
will the unaided memory of a police agent. It may also be
that with the recording in existence it is less likely that
the informant will change his mind, less chance that threat
or injury will suppress unfavorable evidence, and less chance
that cross-examination will confound the testimony.''
Under the McDade law in Oregon, however, the United States
Attorney would be required to forgo his impeccable plan for
electronic monitoring to ensnare a nest of terrorists.
Its mischief is not confined to these troublesome
hypotheticals, but handcuffs the investigation of every
federal crime and has thrown a spanner in real cases. The FBI
initiated an ``Innocent Images'' investigation in Portland
spurred the burgeoning problem of child pornography and
exploitation in Oregon. The United States Attorney shut down
the operation because fearful that the involvement of
undercover agents and the monitoring of telephone calls with
the consent of but one party could be deemed deceitful by the
State Bar.
During a recent Oregon drug trafficking investigation, the
FBI located a cooperating witness willing to use an
electronic monitoring device to record the conversations of
drug trafficking suspects. The United States Attorney nixed
the idea because of the McDade law.
In 1980, the FBI's Abscam investigation employed undercover
agents to implicate six House members and one senator in
corruption. One videotape captured Rep. John W. Jenrette Jr.,
South Carolina Democrat, confessing to an agent, ``I've got
larceny in my blood.'' Abscam would have been problematic if
the McDade law had then been in effect.
A recurring impediment in all states are codes that
prohibit federal attorneys and their agents from contacting
and interviewing corporate employees without the consent and
presence of corporate counsel. In California, the FBI's
investigation of Alaska Airlines maintenance records through
separate interviews of employees was thwarted by a company
attorney's claiming to represent all. After a Jan. 31, 2000,
crash of an Alaska Airlines jet killing everyone on board,
FBI agents were blocked from questioning ground mechanics for
the same reason. Sen. Leahy, a former seasoned prosecutor,
lamented: ``[T]hose interviews that are most successful
simultaneous interviews of numerous employees could not be
conducted simply because fear that a [state] ethical rule . .
. might result in proceedings against the prosecutor.''
The Supremacy Clause of Article VI of the Constitution that
when legitimate federal interests are at stake, state law
should bow. It was underscored by the Supreme Court's ruling
in In re Neagle (1890), which denied California authority to
prosecute a federal deputy marshal for killing an attacker in
the course of defending Supreme Court Justice Stephen J.
Field.
An ethics code to ensure that federal government attorneys
turn square corners is admittedly necessary. But shouldn't it
be drafted by federal authorities sensitive to federal needs
rather than consigned to the whims of 50 different states?
____
[From U.S. News & World Report, Oct. 16, 2000]
Federally Speaking, A Fine Kettle of Fish
(By Chitra Ragavan)
Two Octobers ago, Congress passed a funny little law. It
was named after its sponsor, Pennsylvania Republican Joseph
McDade, but for the congressman, there was nothing funny
about it. The Justice Department had spent eight years
investigating McDade on racketeering charges. He was finally
acquitted by a jury in 1996, but by then McDade's health and
spirits were broken. The McDade bill was his payback to
Justice. It simply requires federal prosecutors to comply
with state ethics laws.
No big deal? Not quite. In August, the Oregon Supreme Court
forbade all lawyers in the state to lie, or encourage others
to lie, cheat, or misrepresent themselves. Under McDade, the
ruling now applies to Oregon's federal prosecutors. ``We've
handcuffed the agents,'' says senior FBI official David
Knowlton, ``not the criminals.'' The U.S. attorney for the
Oregon district, Kristine Olson, has informed the FBI and
other federal investigative agencies that she cannot
[[Page S10792]]
OK agents or informants to assume false identities, wear body
wires, or engage in undercover activities. ``In effect,''
says David Szady, special agent in charge of the FBI's
Portland office, ``we now have to go to a drug dealer and
say, `FBI! Would you sell us some drugs, please?' '' The FBI,
Szady says, has had to suspend 50 investigations, including
probes of Internet child pornographers, A Russian organized-
crime group, and a massive check-fraud ring.
Federal prosecutors despise the McDade law. David Margolis,
a senior Justice Department official and a veteran organized-
crime prosecutor, says McDade has had a major chilling
effect. ``Even I wouldn't go out on a limb,'' he says.
Justice officials are trying to gut the law before Congress
goes out of session this week. The department warned
lawmakers in 1998 that prosecutors would be lost in a morass
of quirky state ethics laws--especially during complicated
multistate investigations. But defense lawyers won the day.
``Why should prosecutors be exempt from rules that apply to
all other lawyers in that state?'' says Mark Holscher, lawyer
for former Los Alamos scientist Wen Ho Lee. So far, no court
has dismissed a case or excluded evidence on the basis of
McDade. ``These are crocodile tears,'' says veteran defense
lawyer Irv Nathan.
Major headache. The biggest headache for prosecutors is the
American Bar Association's controversial Model Rule 4.2,
adopted by many states. It prohibits prosecutors from
contacting people represented by lawyers without first
talking to the attorneys. Remember when Kenneth Starr's
prosecutors ignored Monica Lewinsky's tearful entreaties to
call her lawyer? They got away with it because, since 1989,
Justice had defied Rule 4.2.
No more. Prosecutors now say adhering to 4.2 has hurt
white-collar probes, where securing the cooperation of
informers in often vital. In an investigation of Alaska
Airlines last year, company lawyers barred federal agents
from questioning employees. Sen. Patrick Leahy of Vermont
says, ``The pendulum has swung too far in the other
direction.'' But House Judiciary Committee Chairman Henry
Hyde of Illinois says he's not inclined to repeal McDade.
``That doesn't mean I'm for crooks,'' Hyde says. ``I'm for
ethical behavior both by law enforcement and by defense
counsel.'' Watching the fight from the sidelines in Joe
McDade, now 69. ``I didn't read about it. I lived it,'' he
says, of prosecutorial zealotry. ``The effort is not justice.
The effort is to break a citizen.''
____________________