UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 29, 1984
John F. Banzhaf, III, et al., Plaintiffs
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. §§ 591 et seq., to require the Attorney General to appoint an Independent Counsel
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,
in which it is claimed that plaintiffs lack standing to bring the action
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.
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.
To these ends, the statute provides in section 592(a) that if the Attorney General receives specific and credible evidence
that a high-level federal official
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,
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.
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.
Second, to ensure that the Attorney General does not conduct a full criminal investigation and thereby usurp the authority of the Independent Counsel, the Act prohibits the Attorney General from convening grand juries, plea bargaining, granting immunity, and issuing subpoenas.
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
which has the authority to appoint an Independent Counsel to take over any further investigation and prosecution.
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.
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
have admitted to possessing or seeing such materials; that at least some of these aides
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
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.
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.
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.
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.
The two types of investigations would obviously be triggered by evidence of the same or similar character.
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 the Attorney General makes his own decision as to whether or not he should prosecute, while at the conclusion of the other he must account to the special division of the Court of Appeals.
For the reasons stated, the Court finds on the basis of the present record
that plaintiffs have submitted information of sufficient specificity and credibility to require the Attorney General to conduct a preliminary investigation provided for under the Ethics Act.
Accordingly, defendants' contention that the complaint fails to state a claim upon which relief may be granted is rejected.
The government argues that Congress did not intend to confer any private rights when it enacted the Ethics Act and that plaintiffs therefore lack standing to maintain this lawsuit.
Plaintiffs advance two theories in support of their claimed standing: (1) that they have standing as citizens,
as attorneys and officers of the court,
and as public interest lawyers whose prior legal actions helped to establish the Ethics Act,
and (2) that they have standing because they presented sufficiently specific and credible information to the Attorney General to trigger the procedural mechanism leading to the appointment of an independent counsel under the Act. It is not necessary to explore the first theory because plaintiffs have standing under the second.
To establish standing, plaintiffs must show that they suffered "injury-in-fact," that is, that they sustained some actual or threatened injury as a result of the allegedly illegal conduct of the defendants (see, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); and Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)) and that the interest they seek to protect is arguably with the zone of interests to be protected or regulated by the statute. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970).
The government acknowledges that, as a general rule, the deprivation of procedural rights granted by a statute constitutes sufficient injury to confer standing. Reply Brief at 3. See also, Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 224, 41 L. Ed. 2d 706, 94 S. Ct. 2925 n.14 (1974). Accordingly, if Congress created a legal right to a preliminary investigation for persons who supply the required information, then the requisite interest for standing is found in the invasion of that right; i.e., the Attorney General's refusal to conduct that investigation as required by the Act. Thus, plaintiffs have standing
if the Ethics Act confers rights to persons who present to the Attorney General specific and credible information of high-level law violations.
That issue was considered and answered in the affirmative in the only two cases which have thus far arisen under the Act -- Nathan v. Attorney General, 557 F. Supp. 1186 (D.D.C. 1983) (Gesell, J.)
and Dellums v. Smith, 573 F. Supp. 1489 (N.D. Cal. 1983) (Weigel, J.). Nathan involved a request by the victims of a terrorist attack in Greensboro, North Carolina for an investigation of charges that high officials of the government had authorized or negligently permitted various violations of civil rights and that they had conspired to conceal their involvement. In Dellums, plaintiffs charged that, by supporting paramilitary operations against Nicaragua, high federal officials violated the Neutrality Act (18 U.S.C. § 960) and related statutes.
In response to arguments similar to those made in this case, Judge Gesell found the statute's limited restriction on court review
to be suggestive of an intent by the Congress not to foreclose such review in other appropriate circumstances, i.e., where the Attorney General refuses to conduct the preliminary investigation mandated by the statute. He further found that, if the Act is to be enforceable at all, it must be through those who supply specific information, and that the plaintiffs, as victims of the alleged crime, had, for standing purposes, far more than a generalized grievance. See 557 F. Supp. at 1188-89. Based upon these conclusions, the court held that the plaintiffs had standing, and it denied the government's motion to dismiss.
Similarly, in Dellums, Judge Weigel concluded that Congress gave those persons who supplied the required information a procedural right to a preliminary investigation, and that the scheme of the Act -- to remove certain actions and determinations from the political process into the public realm -- supported a decision in favor of standing by the plaintiffs. That court, too, denied a government motion to dismiss.
This Court is in agreement with the Nathan and Dellums conclusions. Where Congress has provided that, upon request of a citizen, the government has a duty to act and the government then fails to act, the person making the request has standing to enforce his right to government action
by a lawsuit in federal court. This principle has been applied in such diverse areas as the Freedom of Information Act, the National Environmental Policy Act, and the False Claims Act. See, e.g., City of Davis v. Coleman, 521 F.2d 661, 672 (9th Cir. 1975); Nixon v. Sampson, 389 F. Supp. 107, 121-22 (D.D.C. 1975); see also, 31 U.S.C. § 231-35. As the court in Dellums correctly noted,
the Ethics in Government Act . . . envisions that information supplied by persons pursuant to its provisions will be forwarded and considered by appropriate decisionmakers named in the statute . . . [and] that plaintiffs have standing because Congress conferred upon them a right to a judicial determination.
573 F. Supp. at 1095-96.
This conclusion is particularly compelling in the context of this statute when the alternative is considered,
for if the government is right, no one has standing to enforce the Ethics Act.
This contention is supported neither by the statutory language
nor by the legislative purpose. The Ethics Act was enacted to prevent a recurrence of the Watergate abuses perpetrated by, among other individuals, the then Attorney General. It accomplishes that objective by requiring the Attorney General, upon the receipt of information that certain high officials violated criminal laws, promptly to undertake an investigation and to report thereon to a special judicial body. The obvious purpose of this procedure is to provide some check on the Attorney General who is a political appointee of the President and who, as a member of an elected Administration, is placed in a difficult situation when called upon to investigate allegations against Administration officials.
Yet if the government's argument is correct, that entire process can be short-circuited by the simple devise of a refusal of the Attorney General (either on his own volition or on instructions from White House officials who may be the targets of the investigation) to initiate the required investigation. For if no one has standing to sue, there will be no accountability: no one could require the Attorney General to conduct a preliminary investigation in accordance with the Act, to report to the special judicial division, or to apply in appropriate cases for the appointment of Independent Counsel.
Stripped of an enforcement mechanism, the statute would be nothing more than a hortatory statement from the Congress to the Executive Branch.
That is not the way in which statutes, unlike resolutions or informal requests, are normally viewed. In any event, absent a direction to that effect in the Act or the legislative history, the Court is not prepared to adopt so defeatist a view of a law which had its origins in the dereliction of duty of the highest officers of the Republic and which was intended to prevent their recurrence.
The government finally contends that, even if Nathan and Dellums were correctly decided, and that in these cases the plaintiffs did have standing, the plaintiffs in this case do not. In that view, if plaintiffs, who are no more than citizens and lawyers, have standing, the floodgates would be open.
That argument misconceives what is involved. As indicated above, plaintiffs' standing stems not from their citizenship or their membership in the Bar; it stems from their submission to the Attorney General of information that is plainly adequate under the statute to trigger a preliminary investigation.
The question of any injury to plaintiffs apart from the Attorney General's failure to conduct a preliminary investigation in response to their request is therefore irrelevant.
Insofar as the "floodgates" argument is concerned, the requirement of specificity and credibility establishes an inherent limitation on the use of the statute and the burdens on the Attorney General. It will presumably not be a frequent occurrence that someone could or would submit a petition to the Department of Justice containing information that specifically and credibly charged one or more high-level officials with committing a federal criminal offense.
But on those rare occasions when such information is submitted, the Attorney General has the duty under the law to act.
To the extent that a distinction may be made between this case and Nathan and Dellums, the instant case even more clearly justifies a finding that the plaintiffs have standing to enforce the statute. Unlike the issue of American involvement in Nicaragua or the alleged violations of the civil rights laws in an alleged assault by members of the Ku Klux Klan on members of the Communist Party in North Carolina, this case involves the very evil that prompted the adoption of the Ethics Act -- alleged political chicanery at the highest levels of government in the context of a political campaign.
To hold that in that kind of situation, the Attorney General may refuse even to conduct the preliminary investigation required by that statute, either by making the patently erroneous claim that he had received no specific and credible information concerning law violations, or by arguing successfully that no one has standing to challenge his failure to act, would vitiate that which Congress had sought to achieve in the Ethics Act.
It may well be that no crime was committed by anyone in connection with the transfer of documents from the White House to the campaign headquarters of the opposing candidate.
After all, not every allegation of wrongdoing or even every proven incident of wrongdoing is another Watergate. Yet there may be here at least one parallel with that unhappy episode.
The Ethics Act plainly contemplates that when the Attorney General receives specific and credifible information of law violations by high-level officials, he shall do no more than to conduct a limited investigation with a view solely to determining whether an Independent Counsel should be appointed. Once he has done that, he must stop. He may not conduct his own full-fledged investigation and draw his own conclusions from that investigation. The entire point of the Ethics Act is that, when there are even preliminary indications that high-level officials violated criminal laws, the decision on how to proceed further must be left to independent authority.
According to the allegations of the complaint, ample grounds exist for the conduct of an investigation leading to a determination whether an Independent Counsel ought to be appointed. The only substantive basis
on which the Department of Justice has defended or on which it could defend
its failure to conduct a preliminary investigation under the Act -- that the evidence of wrongdoing is not sufficiently specific or credible to warrant even a preliminary inquiry -- is without any reasonable basis. In short, the Department of Justice appears to have simply ignored the requirements of the Ethics Act.
Thus, the procedural mechanism adopted in the aftermath of Watergate for an independent, dispassionate inquiry into possible wrongdoing has been frustrated at the very outset. If the Department's decision stands, the public will never know whether the special division of the Court of Appeals would have been satisfied with the scope and the results of the inquiry and whether an Independent Counsel would or would not have found evidence of wrongdoing. The Attorney General fiat would effectively end any possibility of an independent decision. This result comports neither with the language nor with the purpose of the Ethics Act.
The motion to dismiss is denied. The defendants shall file their answer to the complaint within ten days.
For the reasons stated in the Opinion filed this date, it is this 29th day of February, 1984,
ORDERED That defendant's motion to dismiss be and it is hereby denied, and it is further
ORDERED That defendants shall have ten days from the date of this order to answer the complaint.