[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.''

                          ____________________