On Report and Recommendation of the Board on Professional Responsibility
Before Wagner, Chief Judge,* Terry, Associate Judge, and Kern, Senior Judge.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: In this case we must decide whether we have the power to impose disciplinary sanctions against respondent Abrams, a member of the District of Columbia Bar, for making false and misleading statements before three congressional committees, even though he has received a full and unconditional presidential pardon for his actions. After reviewing the pertinent case law, we conclude that such a pardon bars the imposition of sanctions which might otherwise be imposed on attorneys who violate our disciplinary rules. Consequently, we cannot adopt the recommendation of the Board on Professional Responsibility to suspend Mr. Abrams from the practice of law for one year.
Elliott Abrams was admitted to the bar of New York in 1974 and to the bar of the District of Columbia in 1979. From July 1985 until the end of 1988, he served as Assistant Secretary of State for Inter-American Affairs under President Reagan. In that capacity he was the government's senior official in matters relating to United States policy in Central America and was a spokesman for the Administration's controversial policy of supporting the resistance movement in Nicaragua. *fn1
In early October 1986 an American cargo plane was shot down over Nicaragua. Shortly thereafter Mr. Abrams was called to appear before various congressional committees to respond to public allegations that the government was secretly providing the Contras with arms and other supplies. *fn2 His first such appearance was before the Senate Committee on Foreign Relations on October 10, 1986. In claiming that the Administration had not participated in the acknowledged efforts of others to supply the Contras with aid since the passage of the Boland Amendment in 1984, Mr. Abrams testified as follows:
I think that people who are supplying the Contras believe that we generally approve of what they are doing - and they are right. We do generally approve of what they are doing, because they keep the Contras alive while Congress makes its decision, which each House has separately, though obviously final legislation is not yet ready.
So the notion that we are generally in favor of people helping the Contras is correct.
We do not encourage people to do this. We don't round up people, we don't write letters, we don't have conversations, we don't tell them to do this, we don't ask them to do it. But I think it is quite clear, from the attitude of the administration, the attitude of the administration is that these people are doing a very good thing, and if they think they are doing something we like, then, in a general sense, they are right. But that is without any encouragement and coordination from us, other than a public speech by the President, that kind of thing, on the public record. *fn3
Four days later, on October 14, Mr. Abrams testified before the House of Representatives Permanent Select Committee on Intelligence. When he was asked whether he knew if any foreign government, and in particular the government of Saudi Arabia, was supplying the Contras with aid, the following exchange took place:
MR. ABRAMS: I can only speak on that question for the last fifteen months when I have been in this job, and that story about the Saudis to my knowledge is false. I personally cannot tell you about pre-1985, but in 1985-1986, when I have been around, no.
THE CHAIRMAN: Is it also false with respect to other governments as well?
MR. ABRAMS: Yes, it is also false. *fn4
Finally, on November 25, 1986, Mr. Abrams was called to testify before the Senate Select Committee on Intelligence. About four hours before his testimony was scheduled to begin, Attorney General Edwin Meese disclosed at a press conference the diversion of funds from the Iran arms sales to the Contras. Later that day Mr. Abrams testified as follows before the Senate Intelligence Committee:
I was, until today, fairly confident that there was no foreign government contributing to this. But I knew nothing, still don't know anything about the mechanisms by which money was transferred from private groups that have been raising it, to the Contras. *fn5
The Iran-Contra affair resulted in the appointment of an Independent Counsel to investigate the actions of several high-ranking officials of the Reagan Administration, including Mr. Abrams. In early October 1991 Mr. Abrams and the Office of Independent Counsel (OIC) reached an agreement whereby Abrams agreed to plead guilty to two misdemeanor charges and to assist in the ongoing investigation. In exchange, the OIC agreed not to prosecute Abrams for any other statements or activities relating to the Iran-Contra matter. Accordingly, on October 7 the OIC filed a two-count information in the United States District Court for the District of Columbia, alleging violations of 2 U.S.C. § 192 (1988). *fn6
The first count of the information charged that Abrams had "unlawfully withheld material information" during his testimony on October 10, 1986, before the Senate Committee on Foreign Relations. In support of this charge, the OIC alleged that, before testifying at the Senate hearing, Abrams was aware that Lieutenant Colonel Oliver North, former Deputy Director for Political and Military Affairs of the National Security Council, was working with the Contras and with private benefactors "to keep the resistance alive." In addition, Abrams had allegedly sought the advice of Lieutenant Colonel North on how to arrange a monetary contribution to the Contras from the Sultan of Brunei.
The second count charged Mr. Abrams with having "unlawfully withheld material information" during his testimony on October 14, 1986, before the House Intelligence Committee. The OIC alleged that in August 1986 Abrams had solicited a $10 million contribution on behalf of the Contras from a representative of the Sultan of Brunei. In the process, he allegedly had provided the Sultan's representative with the number of a Swiss bank account which had been opened by Lieutenant Colonel North to facilitate covert transfers of money to the Contras. On September 16 Abrams had allegedly received information that the Sultan had agreed to contribute the $10 million. The transfer had taken place on September 26, more than two weeks prior to his testimony before the House Committee.
Upon the filing of the information on October 7, 1991, Mr. Abrams pleaded guilty to both counts. A few weeks later he was sentenced to two years' probation and ordered to perform 100 hours of community service. On March 25, 1992, this court referred Mr. Abrams' conviction to the Office of Bar Counsel for appropriate action pursuant to Rule XI, § 10 (e), of the court's Rules Governing the Bar. Bar Counsel in due course filed a three-count petition with the Board alleging that Abrams had violated Disciplinary Rule (DR) 1-102 (a) (4) during each of his three appearances before congressional committees in October and November 1986.
A hearing was held on December 21, 1992, before a hearing committee of the Board on Professional Responsibility ("the Board"), at which Bar Counsel presented evidence of Abrams' misconduct. Mr. Abrams testified that he was "trying to walk a tightrope" during his congressional testimony:
I was in government for twelve years, and I tried to serve the country, and I tried to follow the law. I tried very hard to follow the law. . .and then I got caught up in a huge political war that I did not create, and I made mistakes. . . .
But I think I did what a responsible official should do. . .which is try to balance conflicting responsibilities, to defend the President and his policies, to answer questions honestly, to keep confidences when you instructed to do so, to be accurate, to set the record straight when you mistakes, which you'll inevitably do.
While admitting that he had misrepresented material facts to Congress, Abrams claimed that he had been acting under the instructions of the Secretary of State not to disclose the Brunei solicitation. *fn7 He also said that he had never functioned as an attorney while at the State Department, and asserted that his status as an attorney was irrelevant to his appearances before Congress. At the close of the hearing, Bar Counsel preliminarily recommended to the hearing committee that Abrams receive a public censure for his ethical misconduct, with the understanding that a formal written recommendation would be made later.
On December 24, 1992, three days after the hearing, President Bush granted Mr. Abrams, along with several other officials, a full and unconditional pardon for any charged or uncharged conduct relating to the Iran-Contra affair. The President gave four reasons for granting these pardons: (1) each individual had acted patriotically, even though his acts might have violated the law; (2) none of the persons involved had been motivated by economic gain; (3) they all had records of long and distinguished service to the United States; and (4) they all had already paid too great a price for the acts they had allegedly committed.
Notwithstanding the pardon, in January 1993 Bar Counsel submitted his formal recommendation to the hearing committee, urging that Mr. Abrams be suspended from the practice of law for at least thirty days, instead of the public censure he had initially proposed. Bar Counsel also contended that the pardon had no effect on the disciplinary proceeding. On April 8 the hearing committee made its report to the Board, finding that Abrams' conduct had violated DR 1-102 (a)(4). The committee concluded that, because of the seriousness of the violation, a thirty-day suspension was insufficient and recommended instead a suspension of one year.
On July 29, 1993, the Board issued its report and recommendation, in which it urged this court to suspend Mr. Abrams for one year. *fn8 The Board found that Abrams' conduct was comparable to that in other cases in which attorneys had received one-year suspensions. See, e.g., In re Kerr, 611 A.2d 551 (D.C. 1992); In re Shorter, 570 A.2d 760 (D.C. 1990); In re Hutchinson, 534 A.2d 919 (D.C. 1987) (en banc). Mr. Abrams now challenges the Board's recommendation.
The essence of Mr. Abrams' argument is that a full and unconditional presidential pardon prevents this court from imposing any sanction based on the conduct for which he was pardoned. To support his broad interpretation of the Pardon Clause of the Constitution, he places great reliance on a series of post-Civil War decisions by the Supreme Court. In response, Bar Counsel asserts that these cases have been uniformly criticized by other federal and state courts and may no longer be regarded as reliable precedent. Accordingly, Bar Counsel urges us to hold that a full and unconditional presidential pardon does not affect attorney disciplinary sanctions like the one recommended here.
Before we can decide whether Bar Counsel or Mr. Abrams is correct, we must examine the historical origins and the Supreme Court's subsequent interpretations of ...