Ashcroft's Problem With Ethics

by Christopher Brauchli

John Ashcroft has personally signed more than 170 "emergency foreign intelligence warrants," three times the number authorized in the preceding 23 years. They permit him to issue warrants unilaterally for wiretaps and physical searches of suspected terrorists and other national security threats under certain circumstances. They can be enforced for 72 hours before they are subject to judicial review. John Ashcroft issues these warrants to catch people who may be breaking the rules. John Ashcroft, however, doesn't have to follow rules. That's because he's their enforcer -- not their subject.

Mr. Ashcroft is a member of the bar of the state of Missouri. In that capacity he is, in theory, subject to the rules of professional conduct that govern the conduct of lawyers licensed to practice in Missouri. Missouri's license plate describes it as the "Show me State" and its disciplinary rules do just that, being in some respects, as strict as the best of them. One of the rules deals with what a lawyer can say about defendants in criminal matters.

Rule 3.6(a) says that a lawyer, like John Ashcroft, "shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer", like John Ashcroft, "knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." Rule 3.6(b) says that a statement "is likely to have such an effect when it refers to . . . a criminal matter . . . and the statement relates to: . . . (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty." There's a reason for the rule. It is to make sure that prosecutors, like John Ashcroft, don't say things that deprive even an obnoxious defendant, a fair trial.

On February 5, 2002, Mr. Ashcroft held a press conference in which he described each count of an indictment against John Walker Lindh. He then proceeded to make statements about Mr. Lind's behavior that suggested Mr. Ashcroft had never read the Missouri Supreme Court rules, or, having read them, concluded they did not apply to him. He said that in the indictment the grand jury "outlines a time line of terror in which John Walker Lindh is an active knowing participant. . . . He chose to go to the front lines to fight with the Taliban." Mr. Ashcroft then said that "Americans who love their country do not dedicate themselves to killing Americans. . . . John Walker Lindh chose to train with al-Qaida, chose to be led by Osama bin Laden." At the conclusion of his comments Mr. Ashcroft forgot to say that Mr. Lindh was presumed innocent until and unless proven guilty. That would have sounded somewhat foolish after the other remarks he'd made which had clearly offered a substantial likelihood of prejudicing an adjudicative proceeding as proscribed by the rule, but, nonetheless, that is what the rule required.

This writer was surprised by Mr. Ashcroft's comments and wondered why the rules did not apply to Mr. Ashcroft, whose life is devoted to making sure that the rest of us abide by rules and laws. He wondered if Mr. Ashcroft was exempt from the disciplinary rules to which other lawyers in Missouri are subject. The way to find out the answer to a question like that is to file a complaint with the Office of the Chief Disciplinary Counsel of the Supreme Court of Missouri alleging that Mr. Ashcroft had violated the rules. This writer did just that.

On February 20, 2002, he sent the Chief Disciplinary Counsel a copy of a column he had written describing Mr. Ashcroft's behavior and asking that the column be treated as a formal complaint against Mr. Ashcroft. Within two weeks he received a post card saying: "We will be happy to process your complain. . . .The process will take approximately three weeks. If you have not heard from us within one month of [2/25/02] you may call regarding the status of your complaint." March 19 the Counsel's office asked the writer for a video of the press conference. Lacking that, a transcript from the Washington Post was furnished. Several months later the writer called the Counsel's office and was advised the delay was because of CNN's slow response to the Counsel's request for a video of the press conference. The Counsel's office said the Counsel did not want to rely on a printed transcript.

December 31, the writer wrote the Counsel's office asking about the delay. On January 7, 2003 the Chief Disciplinary Counsel himself responded saying the review was "taking longer than a less complex complaint." He also said, apparently to further explain the delay: "We determined to consult with an outside expert on the application and interpretation of the law."

To date nothing more has been heard. Mr. Ashcroft is being given the benefit of an extraordinarily thorough investigation for an offense that would probably not require disbarment even though a cynic might wonder whether the offense of lying about sex, for which Mr. Clinton was disbarred in Arkansas, is any more serious than a prosecutor ignoring rules calculated to insure that defendants receive fair trials.