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BANZHAF v. SMITH

February 29, 1984

John F. Banzhaf, III, et al., Plaintiffs
v.
William F. Smith, et al., Defendants



The opinion of the court was delivered by: GREENE

This is an action under the Ethics in Government Act (Ethics Act), 28 U.S.C. ยงยง 591 et seq., to require the Attorney General to appoint an Independent Counsel *fn1" to investigate whether criminal offenses were committed by high-level officials in the course of an alleged transmittal of certain briefing materials from the Carter White House to the headquarters of the then candidate for President Ronald Reagan. Presently before the Court is defendants' motion to dismiss, *fn2" in which it is claimed that plaintiffs lack standing to bring the action *fn3" and that they have failed to submit information that is sufficiently specific and credible to cause an investigation to be conducted under the statute. For a better comprehension of the issues and the underlying facts, it is convenient to discuss these defenses in inverse order.

I

 The Ethics Act was enacted in the aftermath of Watergate to establish procedures for the avoidance of the actual or perceived conflicts of interest which may arise when the Attorney General investigates alleged criminal wrongdoing by other high government officials. The Congress believes that an independent prosecutor, who would be free from the divided loyalties which may afflict officials of the Justice Department in these circumstances, would be more likely to be guided by politically neutral principles of fairness and justice. *fn4"

 To these ends, the statute provides in section 592(a) that if the Attorney General receives specific and credible evidence *fn5" that a high-level federal official *fn6" has committed a federal criminal offense, he "shall" conduct a preliminary investigation. In addition to its mandatory nature, the investigation required by the Act differs from an investigation conducted by the Department of Justice under normal circumstances in the following principal respects.

 First, an Ethics Act investigation, which may last not more than ninety days, *fn7" is "preliminary," that is, it is not and it may not become a full-fledged criminal investigation. Its purposes are only to weed out frivolous or groundless allegations and to determine whether the case warrants further investigation. *fn8" Consequently, as soon as the Attorney General determines that the allegations are serious or have a potential chance of substantiation, his role is over: the case must be referred to a special judicial body (see infra) for the appointment of an Independent Counsel. *fn9"

 Third, if at the conclusion of an Ethics Act investigation, the Attorney General determines that further investigation or prosecution is not warranted, he must submit a memorandum containing both a summary of the information received and a summary of the results of the investigation to a special division of the U.S. Court of Appeals *fn11" which has the authority to appoint an Independent Counsel to take over any further investigation and prosecution. *fn12" The summary of information must be sufficiently detailed to apprise the special judicial division of the essence of the allegations and the information received by the Department of Justice; the summary of the results must be sufficiently comprehensive to enable the special judicial division to determine what efforts the Department made to determine the truth of the allegations and what, if anything, it did to uncover additional evidence. *fn13" When conducting investigations not covered by the Ethics Act, the Attorney General is, of course, free to pursue his own course and reach his own conclusions without accounting to anyone.

 The complaint in this case alleges, inter alia, that, according to information available on the public record, hundreds of pages of documents from the White House and the Executive Offices were removed or copied and then turned over to the 1980 Reagan campaign organization; that four of President Reagan's present or former aides *fn14" have admitted to possessing or seeing such materials; that at least some of these aides *fn15" knew that the documents had been taken from the Carter White House; that an operation existed to collect inside information on the Carter campaign through means of a "mole" and otherwise; and that several high Administration officials *fn16" appear to have made contradictory statements concerning these papers. Plaintiffs claim that the individuals involved in these activities may have violated one or more federal criminal laws. *fn17"

 The government argues that this information is not specific or credible, and that plaintiffs have for that reason failed to state a claim upon which relief may be granted. Indeed, the government goes so far as to assert, more pointedly, that the term "mole" has no "criminal overtones"; that there are likewise no such "overtones" to an information gathering apparatus employed by a Presidential campaign which uses former agents of the FBI and the CIA; and that the statement of Budget Director Stockman -- that briefing books were "filched" -- may have had a connotation other than theft. Memorandum of Points and Authorities at 19-21.

 These contentions entirely lack merit. To be sure, none of the information summarized above is sufficient, without more, to prove the guilt of any particular individual beyond a reasonable doubt; it may not even be sufficient to support the indictment of any particular individual by a grand jury. But that is not the standard that Congress had in mind when it directed that an Ethics Act investigation be conducted whenever information of high-level involvement in criminal conduct is received. In fact, the intention of the Congress is the precise opposite. The Senate Report states that

 
as soon as there is any indication whatsoever that the allegations involving a high level official may be serious or have any potential chance of substantiation, a special prosecutor should be appointed to take over the investigation.

 (emphasis added). S. Rep. 170 at 54, 1978 U.S. Code Cong. & Ad. News at 4270.

 There can be no question that the admissions, contradictions, and other information suggestive of criminal activity would normally generate at least a preliminary investigation to determine whether those who were seemingly implicated did, in fact, violate the law. *fn18" If any proof of that proposition were needed, it is supplied by the Department of Justice itself. By the government's own admission, the Department has conducted "a thorough and searching investigation of the transmittal of the briefing papers" in the course of which "over 200 interviews have been conducted and numerous criminal statutes have been considered, including those cited by plaintiffs." Memorandum of Points and Authorities at 21-22. *fn19"

 It is difficult to understand on what basis the government can conduct that kind of an investigation and yet assert at the same time that when plaintiffs furnished evidence similar to that which generated the Department's inquiry, they failed to provide information that is sufficiently specific and credible to cause an Ethics Act investigation to be conducted. *fn20" The two types of investigations would obviously be triggered by evidence of the same or similar character. *fn21" The difference between them lies not in the quantity or quality of the evidence required for their initiation but in the fact that at the conclusion of one ...


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