Thursday, December 22, 2005

The Robertson Brief

Yesterday, we reported the resignation of Federal Judge James Robertson from the Foreign Intelligence Surveillance Court (FISA), in protest over the recently-disclosed NSA program that conducts warrantless surveillance of terrorism suspects, both at home and abroad.

Robertson's "decision" has already been hailed as courageous, although it's unclear if he will reach the icon level of other anti-Bush luminaries, such as Joe Wilson and Cindy Sheehan. Perhaps his decision wasn't so brave afterall; we've subsequently learned that Judge Robertson plans to remain on the federal bench; his resignation applies only to the FISA court, so that nice federal paycheck will keep rolling in, and there won't be any interruption of his health insurance, or other fringe benefits.

Judge Robertson may not be such a lofty judicial figure, either. Scott Johnson at Powerline has unearthed a Wall Street Journal column from 2000, outlining Robertson's role as one of the "Magnificent Seven," Clinton-era appointees to the federal bench in the D.C. area. As recounted by George Mason University Law Professor Ronald Rotunda, the Clinton judges (under the aegis of Chief Judge Norma Holloway Johnson) wound up hearing cases that related to the President's various scandals. Judge Robertson--who worked in an contributed to the Clinton's 1992 presidential campaign--was assigned the trial of Web Hubbell, the long-time Clinton crony accused of corruption as a partner at the Rose Law Firm in Little Rock, where he worked with Hillary Clinton.

As Professor Rotunda notes, Judge Robertson made some rather unusual decisions in the case that appeared to favor the defense:

"In the Hubbell tax-fraud prosecution, Judge Robertson ruled that he could ignore the ruling of the three-judge panel of the D.C. Circuit and hold that the OIC (Office of Independent Counsel) did not have jurisdiction to prosecute Mr. Hubbell and the other defendants, and that it could not use tax documents subpoenaed from Mr. Hubbell. J udge Robertson used incendiary language, calling the OIC's tactics (which other circuits had approved) "scary." The D.C. Circuit agreed with these other circuits and reversed."

Robertson's unusual--perhaps questionable conduct--extended into other elements of the trial as well. At subsequent hearings, Judge Robertson found it almost impossible to set a trial date, and Professor Rotunda observes:

At the hearing of May 8, 1998, OIC counsel asked Judge Robertson to set a trial date, which is standard operating procedure. The judge responded that he normally does that but it would be "arbitrary" to do so here, "when we're looking at the kinds of motions that I'm sure are coming." In other words, the judge refused to set a trial date because of motions not even filed; that is not standard operating procedure. The OIC attorney replied that he had already talked to defense counsel and they were prepared to find a mutually agreeable date, to which Judge Robertson answered, apparently in surprise: "Oh." He still refused to set a date.

At the June 2, 1998 hearing, the judge again questioned whether "it makes sense for us to set a trial date," and he volunteered that any date will be written "in sand here if there are, heaven forfend, interlocutory appeals." The defendants are not entitled to interlocutory appeals but the prosecution is, so once more it appeared that the judge had already decided that there would be no trial.

On July 1, three business days after oral argument, Judge Robertson issued a lengthy written opinion. This is an extraordinarily brief time in which to formulate a decision and write it up, unless the judge had made up his mind in advance.

Given these--and other--shennanigans by Judge Holloway and the "Magnificent Seven," Professor Rotunda believed an investigation was in order (it never happened). He also wondered if the federal court's reputation for integrity and impartiality would be the "greatest victim" of the Clinton Presidency. And ironically, a judge now hailed for his "courage" appears to have been a key player in a saga that brought no honor to the federal bench.

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