- The Washington Times - Tuesday, October 10, 2000

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. Its 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?

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