Echoes of the past: Judge Reinhart, Judge Lay and habeas corpus

 

With a tip of my hat to How Appealing, I urge federal practitioners of habeas corpus cases challenging state convictions under 28 U.S. Code § 2254 to read Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, University of Michigan Law Review (May, 2015). The author is a judge on the Ninth Circuit Court of Appeals, and a liberal icon of the first rank.

This essay is a scathing criticism of the Supreme Court, starting with the abstract:

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights.

In this age of calls for the near-total abolition of habeas and scathing rebukes of judges who fail to toe the not-so-hidden party line, it is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act (AEDPA). One can then proclaim that there is no reasonable alternative to the Supreme Court’s present construction of that statute, even though any participant in our habeas regime would have to agree that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession—even with the Chief Justice calling balls and strikes.

Reinhardt’s wonderfully written essay (that I don’t agree with) brings up the past for me. It reminds me of another liberal icon of the first rank who hailed from the high plains. Donald P. Lay was one of the longest serving chief judges of any circuit (1980-1992) and one of the youngest men ever appointed to a court of appeals.* He wrote a similar piece years ago. It was published in the Minnesota Law Review (where Lay was also the James A. Levee Professor of Criminal Procedure). See The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 Minn. L. Rev 1015 (1993) (unfortunately, the article sits behind the Hein pay wall).

Liberal judges like Lay and Reinhardt regard the “Great Writ” with a reverence that borders on the religious. Most of the time, I regard habeas corpus cases as being a time-consuming and futile pain in the ass.

The vast majority of habeas petitions have no merit even under the most liberal standard of review. See my earlier post entitled “The High Cost of Snipe Hunts” (noting among other things that excluding death penalty cases, only .45% of the some 16,000 federal habeas cases filed annually resulted in granting relief to the prisoner),

While I disagree with much of what Judge Reinhardt has written, his essay should be read by anyone who labors on federal habeas corpus matters. It is an important contribution to the literature on habeas corpus and an unsually frank examination of the Supreme Court’s jurisprudence on this subject.

RGK

*Lay had practiced law in Omaha, Nebraska at the time of his appointment. So had my mentor Don Ross. Despite the fact that Lay later moved his chambers to Minnesota, when I clerked for Judge Ross, Lay’s chambers, like the chambers of Judge Ross, were in Omaha. I remember once standing between the two men who disagreed on a case and doing so intentionally. I was scared shitless that the confrontation might become physical. Lay was short, very aggressive and had a temper to match. Ross was tall, taciturn and, while slow to anger, had a volcanic temper too. Thankfully, the men did not come to blows.

The Bright Guy

Photo credit: David Samson The Forum. Myron Bright receives well wishes from his granddaughter Amy Long of Fargo on Sunday during his 95th birthday celebration.

Photo credit: David Samson The Forum. Myron Bright receives well wishes from his granddaughter Amy Long of Fargo on Sunday during his 95th birthday celebration.

Judge Myron Bright, who I have known now for over 40 years, is one of the most remarkable men I have come across. From a wonderful article written by Grace Lyden for inforum,* we learn that Judge Bright was recently recognized for all manner of amazing things, including, most especially, that he continues to hear cases as one of the most respected federal appellate judges in the nation:

FARGO – Judge Myron Bright had a lot to celebrate at his party on Sunday afternoon.

This year marks Bright’s 50th year of service to his country: four in the army and more than 46 as a federal judge on the 8th Circuit Court of Appeals.
The event was also a book launch for Bright’s autobiography and a belated birthday party – he turned 95 in March.

Bright took senior status in 1985, but continues to hear cases and is the longest-serving judge in his circuit.*

He said he was “amazed” at how many turned out for the party: more than a hundred friends and family from across North Dakota and Minnesota.

They gathered at Touchmark at Harwood Groves, a retirement community where Bright lives.

Early in the afternoon, Bright stood up and recognized a few who had come particularly far, then extended the invitation:

“All you are friends!” he cried in the booming voice that Susan Skeen, 62, associates with her former next-door neighbor. “Why don’t you stand up and give yourselves a hand?”

Skeen was there with her parents, Luther and Marilyn Kristensen, who live in Bismarck. The three of them spent the afternoon fondly recalling their 15 years as neighbors of the Bright family, on 21st Avenue South.

The Brights taught the Kristensens about Jewish holidays, and the Kristensens invited the Brights over to hang Christmas lights and bake cookies.

“Are you ordering one of those books?” Luther Kristensen, 83, asked his wife.

“I’m ordering six of ’em,” said Marilyn, 82, without hesitation.

Bright’s memoir, titled “Goodbye Mike, Hello Judge: My Journey for Justice,” was published by North Dakota State University and should be available in about a week, editor Bob Jansen said.

Rob and Wendy Gordon were also at the party with their two children; their son Micah, 9, is friends with one of Bright’s great-grandchildren, and they’ve known Bright for 12 years through Temple Bethel.

Wendy described Bright as “kind, insightful, but tough as nails.” She and her husband refer to him as simply, “the judge.”

Bright will hear 40 to 50 cases this year, from September 2014 to June 2015. In December, he’ll hear cases happening in St. Paul through video conferencing, he said.

“Retiring for most other people would not be what it is for him,” said his granddaughter Amy Long, 38. Long’s 9-year-old son, William Bright Long, is named after his great-grandfather.

Bright has two children, three grandchildren, six great-grandchildren and another on the way. His wife Frances, or “Fritzie,” died in 2000 after almost 54 years of marriage.

Bright said two things are important to him: family and work.

“I always tell people, what the hell am I gonna do if I retire?” he said with a grin. “It keeps my mind active. It keeps me young.”

Bright said his biggest challenge today is not a personal one but a cause: He is concerned by the disproportionately long sentences for Native Americans who commit the same crimes as whites.

As the child of Russian-Jewish immigrants, Bright considers himself a champion of equality for minorities, and his son said that’s still the case.

“What hasn’t changed or him are his convictions,” said Josh Bright, 57.

Josh and his sister, Dinah Golding, were glowing as they watched their father shout greetings to everyone who walked by him at the party.

“He eats this up; he loves this,” Golding said. “He loves embracing life.”

Judge Bright, and my mentor Judge Ross, could not have been more different. Ross was tall, quiet, conservative, Republican, and all that goes with those things. Bright was (and is) short, loquacious, liberal and Democrat and all that goes with those things. And they were the best of friends. It is not a stretch to say they loved each other.

I will tell two stories about the men, more for the fun of telling them than anything else, although they provide insights into a rare and beautiful friendship.

* I cannot prove that this story is true, but I have reason to think that it is. Judge Ross and Judge Bright were sitting together with a visiting judge.  One evening they all went to dinner. They brought several law clerks along. Earlier that day they had heard a labor union case brought by a distinguished Omaha lawyer who happened to be Jewish. During a point in the meal, Judge Ross excused himself for a bathroom break. While he was gone, the visiting judge started to speak ill of the Omaha lawyer in front of Judge Bright and the law clerks. He made anti-Semitic remarks that made all the law clerks very uncomfortable since they were well aware that Judge Bright was Jewish, and proud of it. When Ross returned to the table, the conversation turned to other subjects. After the evening meal, Ross and Bright went to retrieve their coats. One of the law clerks called the visiting judge aside, and told him that Judge Bright was Jewish. The visiting judge was crestfallen. In response, the visiting judge told the law clerk, “Well, hell. I made a fool of myself. I knew Ross was a Jew, but not Mike.” Of course, that was not true. Ross was a protestant. Upon learning of this exchange from the clerk, Ross and Bright had a good and hearty laugh. The story is now legend, although not widely known outside of a few.

*One of my jobs as a Ross clerk was to pick up judges who flew to Omaha to meet Judge Ross and then drive north for fishing in the Boundary Waters. That’s how I first came to know Judge Bright. A warmer person I have never known. Over the years, Judge Bright’s kindness to me continued unabated. He never forgot my name, although god knows why he had any reason to remember it. After I became a district judge, Judge Bright would occasionally call me to see how Judge Ross was doing. I was always happy to hear from him. The conversations were brief, and Judge Bright’s raspy voice clipped. He spoke quickly. I always referred to him as “Judge” and he always referred to me as “Rich.” As both men hit 90 and above, Judge Bright followed Judge Ross from afar as Ross became ever so frail. The last birthday Judge Ross celebrated was nearing, and sure enough Judge Bright reached out to me. The following conversation ensued:

Rich, this is Bright.

Oh, hi Judge.

Rossie’s birthday is coming up.

Yes, Judge.

Get a good flower arrangement. A bright one.

Yes, Judge.

Send it to Rossie.

Yes, sir.

Sign it, “The Bright Guy.”

The phone went dead.

I think Judge Bright still thought of me as a law clerk.  And, that made me both very proud and very happy.

RGK

H/t How Appealing.

*For a detailed background on Judge Bright, see here from the Eighth Circuit Historical Society.

David Lat’s first novel, “Supreme Ambitions,” deftly dissects judicial power, how to get it and how to use (and abuse) it

David Lat is a champion of judicial transparency even though he is a slightly monstrous one. If you read his first novel, and I heartily recommend it, you will understand my choice of words.

The annoying thing is that Lat is young. If you don’t know about his first blog, you have not been paying attention to the federal judiciary. Entitled  Underneath Their Robes, and written under the pseudonym Article III Groupie (because he was then a junior federal prosecutor and federal prosecutors are typically plodding and illiterate and constitutionally unable to rock the boat), Lat wrote snarky, terrifically funny, sometimes shocking, and always utterly revealing pieces about federal judges and their law clerks including especially those at the Supreme Court. These offerings were not made up. He had real sources and they leaked everything to him. Highly regarded federal appellate judges sought him out for coverage. He wrote in a female voice, and his fashion sense was as acute as his other skills.

It took a kid’s courage, a scamp’s mind, and boatload of diverse talents equivalent to a dangerously packed Filipino ferry to do what he did. Did I mention Harvard, Yale law, a clerkship with the brilliant Diarmuid F. O’Scannlain of the Ninth Circuit, a stint at Wachtell Lipton Rosen & Katz and an appointment as an AUSA under (bad word choice) United States Attorney Chris Christie (yea, that guy)?

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat revealed his identity in a November 2005 interview with Jeffrey Toobin of The New Yorker. After that, he left his prosecutor’s position in New Jersey to enter the literary world, founding, among other things, the everything-about-law-site, Above the Law.

And now we have the wunderkind’s first novel. It will be on “book stands” in hard cover around December 1, 2014, but you can (and should) pre-order now. The list price is $22.95, but Amazon will sell it at a pre-order price of $17.21. Published by the ABA, Lat titled his book Supreme Ambitions.

Lat’s novel is a cross between a serious look into the heart of darkness and an insouciant study of Manolo Blahnik footwear. It recounts the story of a young women, Audrey, who is half-asian. She is beautiful, poor, a gunner without being a mean girl, and a Yale law graduate. Audrey serves as a law clerk to a ruthless female federal appellate judge on the Ninth Circuit who is also of Asian origin. Our heroine desperately wants to clerk for a Justice of the Supreme Court. If Audrey plays her cards right, her Ninth Circuit boss, with more than a passing interest in the Supreme Court herself, can fulfill the waif’s supreme ambition. But what if Audrey must sell her integrity to get what she wants? For the rest of this captivating story, buy the book.

In no particular order, here are a few of my thoughts:supreme-ambitions-cover (1)

  • The novel is more about truth than fiction. This is legal realism at its finest but told in the highly unusual and difficult form of a a well-crafted novel. Concentrate on the details as you read this piece. It is Lat’s attention to that detail–the manner of speaking, the fixation on appearances, the guardedness, the obscene opulence of appellate judicial chambers, the hard, hard work that appellate law clerks are required to put in, the silly and ultimately unwarranted hero worship of federal appellate judges by law clerks just out of law school, the horrid egotism that runs unchecked and unchallenged among so many federal appellate judges, the use of words to hurt and demean for no reason other than to feel the sharpness of the blade cut sinew, and the pettiness, oh, the pettiness–that both brings this novel to life and gives it more than passing significance.
  • Especially for me, the book brought back memories. Long, long, long, long ago, I served as a law clerk to Judge Donald R. Ross on the Eighth Circuit Court of Appeals. It was the best job I have ever had. Lat’s novel reminded me of that wonderful period when high drama appeared around every corner. When my judge secretly flew out to the east coast on a private jet during the midst of Watergate, the fact that he had formerly been Vice Chair of the RNC, the fact that he had been the arrangements chair for the 1968 Republican convention in Miami, and the fact that he was the lawyer who dumped Barry Goldwater and his acolytes from power within the GOP, punctuated the point that some federal appellate judges remain unseen national power brokers even after they take the bench. My memory fits perfectly with Lat’s intriguing narrative.
  • Lat is a taxonomist of the first order. He divides federal appellate judges into two camps. The CEOs who manage cases, but who find little interest in the nitty-gritty of the law. They are said to see the big picture. Alternatively, there are the judges who are technicians who love the law, and the nitty-gritty that goes with it. They are said to be the intellectuals. While this division does not always hold true in real life, my experience suggests that Lat’s taxonomy is generally accurate. For what it is worth, my view is that the perfect appellate judge is the one who blends both attributes. Unfortunately, there aren’t many of those judges.
  • If you are expecting something from the likes of John Grisham, look elsewhere.
  • There is a hipster quality to the book, but it is not overdone.
  • Snark? Oh, of course. Do you know what TTT stands for? It stands for “Third Tier Toilet.” Snotty appellate law clerks from elite law schools use TTT to describe law schools like the University of Nebraska College of Law, my law school. At times, the novel has a very sharp edge to it.
  • Lat’s use of his real life blog Underneath Their Robes as an important element in the story initially annoyed me because it seemed needlessly self-promotional, but the device ultimately ended up being brilliant.
  • Until the end, there were not enough white guys. I’m kidding, but only sorta. As you reach the end of the novel, I think Lat wants you to think about Chief Judge Kozinski (a former law clerk to Warren Burger, Supreme Court of the United States, 1976-1977) and his independence, his brilliance, his weirdness, his powerful writing, his love of the law, his understanding of power, his terrific sense of humor and his intellectual honesty. Lat hints that such men (and women) are there if only the political will exists to put them on the upper rungs of the federal judiciary. And so it is, as the 281-page offering ends, that Lat provides me with a glimmer of hope.
  • The novel is fun for the gossip potential too. If you know what to look for, you can find references to present day Judges and Justices, although their names are changed. There a several nods to Lat’s old boss, Diarmuid F. O’Scannlain of the Ninth Circuit, but, of course, under a different name. Of particular interest to me, Eighth Circuit Court of Appeals Judge Steven Colloton is favorably mentioned as “feeder” judge to the Supreme Court but under another name. Later, he is mentioned as a likely candidate for the Supreme Court. By the way, I know Steve (just a little) having sat with him on the Court of Appeals and worked with him on other projects. Lat’s speculation about the upward trajectory of this young Iowa federal appellate judge from flyover country fits my guess-work. That said, and while I like and respect him an awful lot, Steve would be well advised to polish his interpersonal skills with other judges. Just sayin’.
  • In the book, Lat uses court cases as stage props, but he gives us realistic cases to ponder. Because the novel concentrates on the tension between judges of different jurisprudential stripes (“conservative” and “liberal”), Lat is forced to describe the arguments for and against the competing alternatives. His analysis is balanced. Indeed, there are portions of the novel when the characters are getting down to the cases where Lat’s book might serve as a fun “hornbook.” Again, the detail Lat provides gives the novel a feel of reality that would be impossible to achieve without it.
  • I continue to thank the God(s) that my law clerks (Jan and Jim) are career clerks. Lat accurately describes the kids just out of law school who populate the ranks of federal appellate clerks. Sure, they are brilliant. But the acne that still dots the faces of many of them highlights their immaturity, and the ultra strange fact that important decisions are substantially shaped by children scares me.
  • Lat pens dialogue reasonably well for a first timer. Some of it is even marvelous. Dialogue is not, however, his strength. Because Lat is such a wonderful observer, I hungered for longer strings of dialogue but that is not found in Supreme Ambitions. Good dialogue is impossibly hard to write without years of practice. He will get better with time.
  • Next time around (and I strongly encourage Lat to continue writing novels), I would like David to concentrate on the TTT of the federal judiciary, the federal trial courts. There is a drama there as well as a desperate need for transparency. Again, the great value of Lat’s work is that he gives us legal realism in a transparent and knowing manner while using the unusually difficult but terrifically engaging device of a novel. Lat can become the master of this powerful new way of describing our opaque federal judiciary. I sincerely hope he continues.

RGK

Remembering Richard Nixon

On August 8, 1974, President Richard Nixon resigned. The night before, he addressed the nation on television. I remember that time clearly. I had just concluded my clerkship with Judge Ross. The judge was a Nixon confidante. The judge shared many insights about the President. As a result, I was particularly fascinated with the developments in Washington and the enigma that was Richard M. Nixon.

Do you know the actor Harry Shearer? Well, you should. He is wonderfully talented.

For a sadly funny and poignant skit on Nixon preparing to give his nationally televised resignation speech and then giving that speech, I encourage you to watch the six-minute YouTube video that is attached. Shearer provides us a penetrating insight into a brilliant, awkward, and complex man.

After the speech is over, Shearer, as Nixon, looks at those assembled in the Oval house. He wishes them a “Merry Christmas” with all the fake of bonhomie of child used to enduring playground beatings. It is August of 1974 but the raw winds of winter are evidently on Nixon’s mind.

RGK

 

Dancing down under and other Sunday musings

Got up early this morning (the pain in the left thigh and groin is a bitch) and thought about the day and the week to follow.

*  Joan and I will attend a memorial service for Janice Cook Ross today in Omaha.  Janice was married to Judge Donald R. Ross, my mentor, for over 70 years. Ed Cook, my former law partner, and my other mentor, was her brother. She died recently. A wryly funny, and brilliant person, it is a shame that she will not be there when the Eighth Circuit Court of Appeals and the Nebraska Federal District Court honor Judge Ross’ memory tomorrow.

*  Speaking of the memorial proceeding tomorrow, Judge William H. Webster will be there and speak about his good friend, Judge Donald R. Ross. Judge Webster was a United States Attorney for the Eastern District of Missouri from 1960 to 1961. In 1970, Webster was appointed a judge of the United States District Court for the Eastern District of Missouri, and in 1973 he was elevated to the United States Court of Appeals for the Eighth Circuit. Five years later, President Jimmy Carter appointed him as Director of the Federal Bureau of Investigation. Then in 1987, President Ronald Reagan chose the judge to be Director of the Central Intelligence Agency. He led the CIA until his retirement from public office in 1991. Judge Webster served in the Navy during WWII and the Korean War.

*  Tuesday, I start chemo. I get my first infusion plus “patient education.”  Ought to be interesting.

*  Fletcher, one of our beloved grandsons, lives in Australia.  In fact, he is an Australian citizen and is developing a distinct Aussie accent.  His dad, our son, Keller, takes Fletcher on Saturday morning outings to give mother Stacey a break.  Recently, the bushy, blond-haired boy busted a dance move during one those outings. As a dancer, the kid is better than his father, but that’s not saying much.  Too funny!

*  The river of life and all that . . . .

RGK

Do whatever’s right

"“He was larger than life. He had a big smile and a big laugh and a gigantic heart,” his daughter said of Donald Ross." Photo credit: Bilde, Omaha-World Herald

““He was larger than life. He had a big smile and a big laugh and a gigantic heart,” his daughter said of Donald Ross.” Photo credit: Bilde, Omaha-World Herald

The following story appears in the Omaha-World Herald today about Judge Ross:

Donald Ross repeatedly did whatever was right.

At 21, he was a bombardier over Germany with the 306th Bomb Group of the 8th Air Force.

By 31, he had finished law school and served on the City Council in Lexington, Neb., and was its newly elected mayor.

Just a few months later, he was named Nebraska’s U.S. attorney.

Before he turned 50, he was appointed as a judge to the 8th U.S. Circuit Court of Appeals.

His law partners at the time gave him a judge’s robe that was embroidered inside with, “Do whatever is right.” He was known for saying that to colleagues and family.

When Ross retired from the 8th Circuit in 1987, he told those gathered about the robe’s inscription, noting: “I’ve spent the last 16½ years trying to live up to that.”

Ross, 91, died Wednesday at his Omaha home after a long illness, said daughter Joannie Wilson of Omaha.

“He was larger than life. He had a big smile and a big laugh and a gigantic heart,” she said.

His children and grandchildren called him “Peaches.”

Wilson described some of her father’s qualities: honesty, integrity, “his ability to take his emotion out of the situation and find what was right to do.”

He had four rules: Houses are brown. Cars are blue. Dinner at 6. Do whatever’s right.

“He was a very remarkable man,” Wilson said.

Ross entered the Army Air Corps in October 1942. He flew 46 missions as lead bombardier with the 306th Bomb Group.

The 306th was the first U.S. group to bomb Germany, inspiring the book, movie and television series “Twelve O’Clock High.” Ross twice was awarded the Distinguished Flying Cross and left military service as a major.

President Richard Nixon appointed Ross to the 8th Circuit in 1971. Ross replaced Harry Blackmun, who was named to the U.S. Supreme Court.

As a judge, Ross told The World-Herald in 1987, he regarded himself as “moderate in civil rights cases” but “very conservative” in criminal cases.

Ross received the Herbert Harley Award from the American Judicature Society, a national organization of lawyers and judges, for his “outstanding service in promoting the administration of justice.” That award is the top one given by the society.

He was born near Orleans, Neb., and grew up at Curtis, Neb., where he graduated from the Nebraska School of Agriculture High School.

Military service in World War II interrupted his education at the University of Nebraska. He graduated from the NU College of Law in 1948.

He practiced law for five years in Lexington before President Dwight D. Eisenhower appointed him as U.S. attorney for Nebraska. Ross, who moved to Omaha, served in the post from 1953 to 1956.

He returned to private practice and became vice president and general counsel for ConAgra.

Before his judicial career, Ross was active in state and national Republican politics. He was Republican National Committeeman for Nebraska from 1958 to 1970 and vice chairman of the Republican National Committee from 1965 to 1970.

Other survivors include his wife of 70 years, Janice Cook Ross of Omaha; daughters Jane Moody and Sharon Stephan, both of Lincoln, and Rebecca Ross of River Forest, Ill.; son Dean Ross of Omaha; 14 grandchildren; and 17 great-grandchildren.

The family will hold a private service in Omaha before Ross’ inurnment at Arlington National Cemetery. The court will plan a memorial service for him at a later date.

By Sue Story Truax / World-Herald staff writer, published by the Omaha-World Herald on Saturday, December 21, 2013. 

RGK

Petard

Petardsketch2A petard is not what you think it is. Well, to be more accurate, a petard is not what I thought it was. A petard is a small explosive device used to breach gates and the like as shown in the sketch reproduced above. The meaning of the word “petard” derives from taking the roots of the word in Middle French, Latin and Greek and making an analogy. That is, the small explosive character of the bomb is the equivalent of breaking intestinal wind. The phrase “hoisted by your own petard,” as used in Hamlet, means that one has blown oneself up. Hey, pay attention now, this is not a digression!

A year or so after Judge Ross dissented in Jones v. Clinton, I had my own run in with the Clinton whirlwind. Few people know it, but the First Lady is a government official for purposes of the attorney-client privilege. If you think about it, that makes sense. Anyway, Mrs. Clinton discovered some papers in the residence at the Whitehouse. Mrs. Clinton had a meeting with her personal lawyer and her White House counsel to decide what to do with the papers. They decided that the papers should be turned over to Kenneth Starr, the special prosecutor. That was not good enough for Starr, and he obtained a grand jury subpoena to get the lawyers’ notes of that meeting. Susan Webber Wright, the district judge, who is a really nice person and a great judge, said hell no. And that important matter of first impression came to the 8th Circuit, where I was sitting by designation.

The case is In Re Grand Jury Subpoena, 112 F.3d 910 (8th Cir.) (holding that the White House may not use the attorney-client privilege to avoid complying with the subpoena issued by a federal grand jury calling for lawyers’ notes and Mrs. Clinton’s reasonable belief that her conversations with White House lawyers were privileged was insufficient to prevent their disclosure), cert. denied, 117 S.Ct. 2482 (1997). Judge Bowman wrote the opinion for the court and Judge Wollman agreed. I dissented.

I vividly remember the oral arguments because they took place in a sealed courtroom in St. Louis. The proceedings were closed because the matter dealt with a grand jury matter. Anyway, as I saw it, the question was whether or not the White House had an attorney client privilege in a criminal case and whether Mrs. Clinton gave up her personal privilege by participating in a meeting with White House counsel.

Relying on Proposed Federal Rule of Evidence 503 and United States v. Nixon,  418 U.S. 683 (1974), I thought it plain that the White House had an attorney-client privilege and that the privilege could be overcome only as follows:

(1) The special prosecutor must make an initial threshold showing before the district court that the documents are: (a) specifically needed; (b) relevant; and (c) admissible [or would lead to the discovery of admissible evidence].

(2) Assuming such a showing has been made, the documents are first delivered to the district judge, who will examine the documents in chambers, to decide if in fact the documents are relevant and admissible, and irrelevant documents will be returned under seal to the White House.

I also reasoned that Mrs. Clinton did not forfeit her personal privilege because she had reasonably relied upon the existence of the governmental privilege in a matter of “common interest.” But, in the future, Mrs. Clinton could have no personal privilege under similar circumstances because under the Nixon balancing test the governmental privilege could be overcome in a criminal case in certain rare circumstances and thus she could not thereafter reasonably rely on the “common interest” proviso.

After the opinion was unsealed at the request of all parties and the matter hit the press, most everyone assumed the Supreme Court would take the case. After all, it was a matter of first impression and it involved the scope of the White House’s attorney-client privilege. But, as frequently happens, the Court fooled everyone. It let Judge Bowman’s opinion stand. Shortly thereafter Judge Ross called me. Our conversation was brief. He said simply, “Richard, my boy, we have been hoisted by our own petards.” And that was that.

RGK

P.S. To be perfectly clear, I do not mean to suggest in any way that Judge Bowman or Judge Wollman were motivated by politics. Moreover, as a district judge sitting by designation on an explosive case like the one mentioned, Judges Bowman and Wollman could not have been nicer or more helpful and that was so despite my dissent. They are true gentlemen.

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