A Recent Judicial Reprimand of Attorney General Ashcroft Exposes a Pattern of Gag Order and Ethics Violations By His Office

By ELAINE CASSEL
Wednesday, Apr. 30, 2003

On April 18, Attorney General John Ashcroft was reprimanded by a federal judge for his failure to comply with a "gag order" - a standing court order requiring attorneys not to make public comments about the case.

Ashcroft's making a statement in contravention of the gag order is disappointing. But what is particularly upsetting is that this is not the first time. In cases in which defendants are charged with terrorism-related offenses, Ashcroft and other Justice Department prosecutors have repeatedly flouted both gag orders and state ethics rules requiring prosecutors not to make prejudicial out-of court statements about a defendant.

This time, the case at issue was the trial of four Detroit men accused of operating a terrorist cell. But the violations have also occurred in at least two prior cases, those of John Walker Lindh and Lynne Stewart. There seems little question that Ashcroft has consciously adopted a strategy of trying cases in the press so that he can make sure he doesn't lose them in the courtroom.

It is especially disturbing that it is the Attorney General himself who has violated court orders and ethics rules. He can hardly set a standard for his prosecutors when he himself is a law-violator. And his comments carry more weight than most: For many, when the highest law enforcement officer in the country speaks, his words have the imprimatur of truth. Thus, they can tend to lethally "poison the well" of potential jurors.

U.S. District Judge Gerald E. Rosen is the judge for the Detroit case. His gag order has been in place since late 2001. It was apparently prompted by Ashcroft's extremely prejudicial public comment - later retracted - claiming that three of the Detroit defendants had prior knowledge of the September 11 attacks.

On April 17 of this year, Ashcroft held a news conference in Washington, D.C., in which he spoke about the Justice Department's success in the "war on terror." During the conference, Ashcroft commented that the government's lead witness in the Detroit case, Youssef Hmimssa "pleaded guilty to multiple criminal charges, and is currently cooperating in the Detroit cell case. Such cooperation is a critical tool for our war on terrorism."

On April 18, newspapers reported Ashcroft's comment. That same day, Judge Rosen opened the trial with a copy of an article in hand. The Judge expressed his grave disappointment. He commented, "Given all of the history here, I was distressed to see the attorney general commenting in the middle of a trial about the credibility of a witness who just got off the stand." Reiterating that the Attorney General "is subject to the orders of this court," Judge Rosen remarked that, in the April 17 statement, "It was pretty apparent that he was bolstering the credibility of Mr. Hmimssa and his work."

To his credit, the local federal prosecutor made no effort to defend Ashcroft's injudicious remarks. Later, Department of Justice spokesperson Barbara Comstock played down the remarks as part of a "wide-ranging press conference," and minimized the judge's order as merely representing his "wishes regarding publicity" - not what it was: an authoritative mandate designed to protect the defendants' constitutional fair trial rights.

It would be nice to think that Ashcroft has simply slipped up the context of discussing numerous terrorism cases. Nice, but impossible - for Ashcroft has repeated this kind of behavior too many times for it to be unintentional. The John Walker Lindh and Lynne Stewart cases are part of the same pattern.

Both cases had their problems: Lindh's confession may have been coerced, and his request for a lawyer ignored; and Stewart was herself a lawyer talking to her client, in wiretapped attorney-client privileged conversations, when she allegedly violated the law.

Ashcroft seemingly decided to "solve" these problems not in court, but by repeatedly reiterating his belief that each is guilty as charged. The implicit message is this: If they are guilty, who cares if proper procedures were followed?

Ashcroft's Inappropriate Public Comments in the Lindh Case

On the day after John Walker Lindh was indicted, January 16, 2002, Attorney General Ashcroft suggested that Lindh might be guilty of even more, and more serious, offenses than those with which he had already been charged. Specifically, he announced that the government had not "foreclosed charging other crimes against this individual," including those that carry the death penalty.

Ashcroft also insinuated that Lindh might have had something to do with the September 11 terrorist attacks. "We cannot," he said, "overlook attacks on America when they come from United States citizens." In addition, for a period of time, statements were made by some connected to the Justice Department linking Lindh to the murder of a CIA operative who also lived in the Northern Virginia area.

In the midst of all this negative publicity, how could Northern Virginia jurors be expected to be objective? Ashcroft's and the Justice Department's statements may have convinced Lindh to plead guilty on the theory that he'd have no chance to face an unbiased jury or judge.

Ashcroft's Post-Indictment Comments and Prosecutor Gag Order Issues in the Stewart Case

A few months later, on April 9, 2002, attorney Lynne Stewart was indicted on terrorism-related charges, as I discussed in a prior column. Ashcroft announced the indictment in the shadow of New York City's "Ground Zero," declaring Stewart an "associate" of her client, convicted 1993 World Trade Center bomber Sheik Abdel Rahman. In fact, she was one of Rahman's court-appointed attorneys. That evening, Ashcroft went on The David Letterman Show to tout the case, and promise to bring every "terrorist" to justice.

U.S. District Judge John Koeltl issued a gag order in Stewart's case. It appears that the government soon defied it - or, at a minimum, was negligent in its compliance. A story reporting the evidence supporting the government's search warrant appeared in a New York newspaper - suggesting that either the government had talked to the press, or the press had access to the affidavit despite the gag order.

How could this have happened? Under questioning by the judge, the best the prosecution could do was suggest it had not complied with the order quickly enough, and a reporter therefore got to the court file before this and other documents were removed to comply with the court order.

The damage was done; tens of the thousands of potential jurors read the content of the affidavit - without the benefit of the cross-examination and contrary testimony that would have mitigated its contents had the affiant instead given trial testimony.

The Relevant Ethics Rules, and How They Apply to Prosecutors, Including Ashcroft

Even before a gag order is issued - and, indeed, even if no such order is ever issued - state ethics rules prohibit prejudicial statements by attorneys in a case.

Every state has this type of ethics rule, governing all attorneys who practice there. The American Bar Association's Model Rule 3.6, on Trial Publicity, sets the standard. It prohibits an attorney who is participating in a case investigation or litigation - as well as any lawyer in the same firm or government agency - from making an out-of-court statement that would have the substantial likelihood of prejudicing "an adjudicative proceeding" in the matter. (Not just trial proceedings, but also motion hearings, count as adjudicative proceedings.)

Particularly unethical, according to an explanatory note to Rule 3.6, are statements such as the one Attorney General Ashcroft made about cooperating witness Youssef Hmimssa in the Detroit case. As Judge Rosen noted, Ashcroft's clear intent was to bolster Hmimssa's credibility. But according to the explanatory note, Rule 3.6 specifically forbids comments having to do with "the character, credibility, reputation or criminal record of a ...witness" in a criminal proceeding where the defendant faces incarceration.

In short, Attorney General Ashcroft's ethical breach was plain. As all lawyers are, he is held to know the rules and to have the duty to scrupulously abide by them. Surely, he does not consider himself above the ethical requirements. Or does he?

The Line Between Appropriate and Unethical Prosecutorial Comments

Obviously, there is one kind of public statements prosecutors can - and routinely do - make: They can announce an indictment. They need to be very careful in doing so, however.

Model Rule 3.6 recognizes that "the announcement of an indictment . . . will necessarily have severe consequences for the accused." According, it says that "a prosecutor . . . should avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused." Unfortunately, that's exactly the type of comment that Attorney General Ashcroft makes when he announces the indictments--and he almost always holds public news conferences to announce indictments against defendants charged with terrorist-related crimes.

Prosecutors don't have to remain mute, however. Model Rule 3:8 (f) allows a prosecutor to make statements "that are necessary to inform the public of the nature and extent of the prosecutor's action." (Emphasis added). None of Ashcroft's comments, beyond announcing the fact of the prosecution, were "necessary." Was it really "necessary," for instance, for him to go on Letterman to try to turn the public against Lynne Stewart?

(In contrast, under the Model Rules, defense attorneys are not allowed to make statements they might think are necessary to inform the public. But they can, at least, fight back to some extent against prejudicial publicity that neither they, nor their client, initiated, providing "such information as is necessary to mitigate" that publicity.)

Prosecutors Should Be Paragons of Ethical Propriety

Consider the Supreme Court's comments about the federal prosecutor in 1935 in Berger v. United States: "[He represents] a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . [Thus, in prosecuting,] while he may strike hard blows, he is not at liberty to strike foul ones. 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."

Now consider if this description of duty seems to have any connection to the conduct of the current Attorney General of the United States. Then ask yourself if an Attorney General who behaves this way, can possibly expect - or instill in his line prosecutors their duty to - behave any better.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the author of a textbook on criminal behavior and is writing a book on civil liberties as collateral damage in the war on terror. She is the chair of the American Bar Association's Science and Technology Law Section's Behavioral Science Committee. The views expressed herein are her own, and not those of the American Bar Association.

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