F. James Sensenbrenner (R- Wis.) seems to be making waves these days in a number of not so flattering ways. His recent unilateral gaveling-closed of a House Judiciary Committee hearing on the Patriot Act (in violation of House rules) pretty much re-defined modern-day GOP arrogance. His outrageous flip-flop, first saying the Patriot Act would be made permanent “over my dead body” and now seeking to rush legislation through the House that would make the Patriot Act permanent, while trying to stifle debate about the Act, is in violation of American traditions, House ethics rules, as well as an egregious flip-flop on his part that makes him deserving of ridicule and scorn.
Now, in an extraordinary move, Sensenbrenner privately demanded that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn’t believe a drug courier got a harsh enough prison term. Sensenbrenner, in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded “a prompt response” as to what steps Judge Flaum would take “to rectify the panel’s actions” in the case.
Judge Flaum declined comment on the situation, saying he doesn’t publicly discuss matters pending before the court. He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong.
The Chief counsel of a House Judiciary subcommittee, who apparently is also an apologist for Sensenbrenner’s unethical behavior, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties.
Judiciary Committee Democratic staff huddled at press time yesterday to determine how, or if, to respond to the letter. According to one aide, Democrats were considering asking the House Ethics Committee to review the letter. This is par for the course in the mistakes the Democratic Party makes when they respond to wrongdoing by the Republican Party and part of the reason some believe the Democratic party has become timid in their approach to politics.
To put everything in perspective, the GOP is a party who expended 60 million dollars and several years of government resources and time in a failed and unconstitutional attempt to prove that Bill Clinton’s sex life was a “high crime.” This same party should never be given the benefit of the doubt when one of their members has arguably violated the law. This is the same GOP that thought that investigating Bill Clinton’s sex life was more important than stopping Osama Bin Laden, at the very time he was planning to perpetrate the 9/11 attacks.
Thus, the GOP’s outlandish use of resources, time, and governmental focus (at the expense of national security), to investigate something the government had no business meddling in, and to fail miserably trying to make the term “high crime” stick to what was a consensual sexual act puts their party in a position that when they slip-up, they should be prosecuted to the fullest extent of the law. That is not to say the Democratic Party should act frivolously as the GOP did with regard to Clinton, but at the very least they should aggressively pursue all legal avenues in good faith against their opponents.
In Sensenbrenner’s case, going to the House Ethics Committee, although it should be pursued as the Democrats have suggested, is largely ineffective. Take for example Tom DeLay, perhaps the only man in history to be a repeatedly admonished as an offender of House ethics rules, still walks around the capitol claiming he has done nothing wrong and is largely intact as a political figure.
Therefore, pursuing House Ethics violations by Sensenbrenner will only be effective if it is followed up by a vigorous attempt to have Sensenbrenner sanctioned by any and all Bar Associations of which Sensenbrenner is a member. It is instructive to note that all lawyers are bound by separate ethical standards in the jurisdiction in which they practice. In order to become a lawyer one must have the appropriate education, pass the bar exam, and pass a separate ethical exam. Every jurisdiction writes its own rules that its lawyers must follow 24 hours a day seven days a week, and violations are handled by special courts set up in each jurisdiction. Cases against an attorney can arise from the Bar itself or when a citizen files a claim against an attorney in the jurisdiction they are registered in. The attorney will have a chance to clear his name but if found guilty will be subject to discipline.
Although each jurisdiction writes its own rules, all states base their rules on the Model Rules of Professional Conduct put out by the American Bar Association. In particular model rule 3.5 states:
RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal. [emphasis added]
Looking more closely at sections a, b, and d of the rule it becomes apparent that Sensenbrenner violated all three of these provisions. He did, by his letter “seek to influence a judge” in an “ex parte” communication and has engaged in conduct “intended to disrupt” the tribunal. Contrary to court rules, Sensenbrenner’s letter was not sent to Rivera’s appellate attorney, Steve Shobat, who received a copy only after the letter was placed in the official court file. “To try to influence a pending case is totally inappropriate,” Shobat said. “My client had a very small role in this case, and to think that she is the focus of the head of the House Judiciary Committee? It is intimidating.”
Law professor Zlotnick echoed Shobat, saying, “To try to influence a court ruling is entirely inappropriate, particularly in an ex parte (without notifying all parties) proceeding – they are trying to intimidate the judiciary.” The more juicy part of this whole charade comes at the end of section (a) of the model rule. Did Sensenbrenner try to influence a judge by means prohibited by law. Sensenbrenner is one of the politicians with the most control over the budget for the judiciary. Was this act of intimidation a subtle threat for the court to alter a ruling or face a cut in its budget? Is this a form of subtle extortion where Sensenbrenner is threatening to take away money from the court if it does not do what he says?
Only time, and a thorough trial at any and all State Bar courts of discipline can reveal the mindset of disgraceful representative F. James Sensenbrenner and whether he is engaging in conduct that could subject him to discipline. If the Democratic Party is able to summon the backbone to prosecute Sensenbrenner to the fullest extent of the law the truth about what he was thinking and his motives for threatening the court may come out. Luckily, it does not take the will of the Democratic Party to initiate the process. Any citizen with knowledge of these transgressions is permitted to complain to the Bar where the alleged perpetrator is licensed to practice law.
More left-leaning and libertarian political commentary can be found at the Rights and Freedoms Coalition website.