By James Scanlan, Esq.
My Truth in Justice editorials of February 22, 2011 (“Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams”) and March 10, 2010 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) present an unflattering picture of Judge Arlin M. Adams as Independent Counsel investigating abuses of HUD housing programs. Such picture shows Adams fabricating charges against Deborah Gore Dean at least partly to get even with the late former Attorney General John N. Mitchell (a person Dean regarded as a stepfather) because in 1971 Mitchell caused President Richard M. Nixon to break a promise to appoint Adams to the Supreme Court. In doing so, Adams also fabricated (posthumous) charges against Mitchell. In refusing to recuse himself from matters involving Mitchell, Adams stated in a June 23, 1992 letter to Dean’s counsel: “To the extent that the ongoing investigation involves Ms. Dean’s family and John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Assuming the validity of my interpretation of the conduct of Adams and his subordinates in the prosecution of U.S. v. Dean, the statement reflects a hypocrisy of epic dimension.
In the February 22 item, I observed that Adams is one of the most revered former jurists in the country. One may get some understanding of why that is so by reading a July 1, 1999 interview of Adams conducted by Sarah Barringer Gordon, a former law clerk to Adams who is today the Arlin M. Adams Professor of Constitutional Law at the University of Pennsylvania Law School. The just over 9300-word interview, part of a Penn Law oral history project, traces Adams life from his growing up in the depression, through his naval service in World War II and his time at Penn Law School before and after the war, followed by a career in Pennsylvania government, national politics, and the law, including distinguished service on the U.S. Court of Appeals for the Third Circuit from 1969 to 1987. It is an interesting historical document and worth reading for reasons unrelated to my criticisms of Adams.
But a few of Adams’ observations in the interview warrant discussion for their bearing on my interpretation of his character and conduct.
A. Paragraphs 58, 60, 74, 82 – the Promise of the Supreme Court Appointment
In paragraphs 58 and 60 (as numbered in this version of the interview) Adams discusses his becoming associated with Richard Nixon and the events leading to Adams’ appointment to the Third Circuit. The discussion is interesting solely from an historical perspective. But it also suggests the circumstances that might have led to Nixon’s promising Adams an appointment to the Supreme Court, probably in conjunction with the offering of Adams a position on the Third Circuit. In paragraph 74 Adams then discusses his initial hiring of law clerks after the 1969 appointment to the Third Circuit, noting that he was able get good candidates because even then “there was some feeling … that I was going to be on the short list for the Supreme Court.”
Adams mentions Attorney General John N. Mitchell only briefly (in paragraph 60), and not by name. In the course of describing a visit by Mitchell to press Adams to decide about the Third Circuit appointment, Adams quotes Mitchell as stating that “[the President] has something in mind for you.” The reference suggests that it may have been Mitchell who communicated Nixon’s promise to appoint Adams to the Supreme Court after a brief tenure on the Third Circuit. Whether or not that was the case, however, the discussion in the three referenced paragraphs provides ample reason why Adams might resent that Mitchell caused Nixon to fail to follow through with the high court appointment.
In paragraph 82, Adams notes that “[t]here had been two or three times when I had been seriously considered for the Supreme Court.” In what seems to be an explanation that he retired from the Third Circuit because he realized he was not going to be on the Supreme Court, Adams makes no mention of Mitchell’s role in causing him not be appointed to the Court in 1971 (as Adams had done in 1990 USA Today article upon his appointment as Independent Counsel). In context, there is no particular reason for him to address the matter. But the discussion adds to the impression that the Third Circuit had been viewed by Adams as but a temporary assignment on the road to the Supreme Court.
B. Paragraph 96 – Independent Counsels and Fiscal Abuses
In paragraphs 94 and 96 Adams discusses his own tenure as Independent Counsel and the independent counsel law generally. In the latter paragraph, Adams observes that an independent counsel’s tenure should be limited to perhaps a year, unless the independent counsel secures an extension from the court. Adams mentions nothing about the possibility for abuse of the exceptional powers granted an independent counsel, or the tendency for independent counsels in fact to abuse those powers such as Judge Thomas F. Hogan noted in a February 14, 1994 hearing (at 27) in finding that in U.S. v. Dean Adams’ attorneys had shown “at least a zealousness that is not worthy of prosecutors in the federal government or Justice Department standards ….” But in observing that the process was too “open-ended,” Adams adds: “The expenditures of money was too open-ended. There were no restraints built into the system.”
In making this observation, Adams may have been thinking of the investigation by Independent Counsel David M. Barrett that started out as a simple inquiry into whether Henry Cisneros lied about payments to his mistress during a background check for an appointment as Secretary of HUD, but that, at the time of the Adams interview, was beginning its fifth year. While Adams could not then have foreseen that Barrett’s investigation would eventually run over ten years and spend close to $23 million, there was reason for Adams to be acutely aware of the Barrett investigation. See my March 8, 2011 Truth in Justice editorial styled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett” (especially its Addendum 1) regarding reasons why, whatever caused Adams to fail to include Barrett in the case Adams brought against Thomas T. Demery, Adams should have informed the appointing panel of Barrett’s unsuitability to serve as an independent counsel.
But Adams may also have had in mind some fiscal issues in his own investigation, which cost $27.6 million, the second highest independent counsel expenditure at the time of the interview. Considering the matter in 1999, Adams would probably have deemed it unnecessary that his office devoted investigative resources to identifying persons Deborah Gore Dean was believed to have slept with in order to display the results of such investigation for the amusement of the office. See Section B.9 of the Prosecutorial Misconduct page (PMP) and the Paula A. Sweeney profile. Adams may also have been thinking of the fiscal abuses brought to his attention by the document manager discussed in Section B.9 in a meeting on November 8, 1993. As discussed in the document manager’s November 17, 1993 complaint to the Office of Special Counsel, these included, inter alia: (a) that Jo Ann Harris (the subject of the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris”) steered a lucrative handwriting analysis contract in the Dean case to a friend rather than employ the FBI at no cost to the office; (b) that Bruce C. Swartz unnecessarily retained his former law firm as an outside consultant; and (c) that FBI agents and members of the Independent Counsel staff used government-leased vehicles for personal reasons including commuting to work. See also the document manager’s FBI letter, which discusses the leasing of cars from a private company at higher expense than from the General Services Administration precisely to facilitate personal use of the vehicles, as well as the falsifying of a document regarding an accident while a vehicle was so used.
As discussed in the November 17, 1993 complaint, on November 16, 1993, Adams advised the document manager that Adams was satisfied that the matters could be explained away. But Adams also advised the document manager that, supposedly due to the need to make staffing cuts, he was terminating the document manager. Notwithstanding the manner in which Adams dealt with the matter in November 1993, the evident fiscal abuses brought to his attention by the document manager or that otherwise came to his attention may still have been on Adams’ mind. With respect to other fiscal abuses, see the document manager materials suggested as further readings below.
C. Paragraph 94 – the Appointment of Adams’ Successor and the Resolution of U.S. v. Dean
More pertinent to issues addressed in the February 22, 2011 Truth in Justice item is paragraph 94, where Adams discusses his selection of Larry D. Thompson, who had been working with Adams since 1990, to take over as Independent Counsel in 1995. When one has engaged in conduct in a still pending case that includes the covering up of something that many would regard as the suborning of perjury (as discussed in Section B.1 of PMP and below) and has otherwise allowed his subordinates to repeatedly deceive the courts in responding to allegations of misconduct (as discussed in the Bruce C. Swartz profile and several Truth in Justice items), it is important to be succeeded by a hand-picked person, and ideally one who has already been involved in actions undertaken by the office. The last thing one wants in the circumstances is to turn the office over to some person not previously privy to questionable or unconscionable conduct within the office, who, for all one knows, may turn out to be a person of principle.
In a December 1996, Dean moved to overturn the one remaining part of the John Mitchell count – that involving the Arama project, which, as discussed in the March 10, 2011 item, is the matter where Adams’ attorneys most obviously fabricated a charge involving Mitchell. The evidence available to Independent Counsel attorneys before the charge was brought made it clear enough that the funding occurred as a result of Mitchell’s interaction with Lance H. Wilson, Dean’s predecessor as Executive Assistant to the Secretary of HUD. And, in support of her motion, Dean submitted an affidavit from Wilson confirming such fact. Inasmuch as Dean’s innocence of the charge was known to Adams’ attorneys before it was brought, there is little reason to think that Adams would regard the matter differently as a result of the Wilson affidavit. In any case, whether Thompson consulted with Adams or not, Thompson opposed the motion, and did so successfully on the grounds that Wilson’s testimony was not newly-discovered evidence.
Further, In February 1997 Dean moved to dismiss the entire indictment or a new trial on grounds that (a) additional evidence of misconduct had been discovered since the court ruled on her 1993 misconduct motion (including some matters addressed in the March 10, 2011 Truth in Justice item just mentioned); (b) Independent Counsel attorneys had deceived the courts in responding to her 1993 misconduct motion; and (c) there was diminished evidence of guilt because the court of appeals had overturned the verdicts on all or parts of a number of substantive counts. Given that trial Judge Thomas F. Hogan had seemed very close to overturning the verdict based solely on prosecutorial abuses identified in 1993, the motion was by no means frivolous. Thompson opposed this motion too. And, in seeking to strike it rather than respond to it, Thompson represented to the court that there had been no Independent Counsel efforts to deceive the court in responding to the 1993 motion. For reasons reflected in the Bruce C. Swartz profile and throughout Section B of PMP, the representation was patently false. But, from Adams’ perspective, Larry D. Thompson proved to be an excellent choice.
In paragraph 94 Adams also states, apparently in reference to the way that it took longer than expected for Thompson to wrap up the investigation: “Unfortunately it took a long time, and one of the reasons is that there were a few other cases that were on appeal and the Appellate Court was taking a great deal of time with them.” The statement suggests that the investigation was over at the time of Adams July 1999 interview. This was true in the sense that the Adams/Thompson final report had been issued and the office was closed or closing. But the matter was by no means over as to Adams’ most important case. Still pending in the district court were Dean’s February 1997 motion to overturn the entire verdict and a request to reconsider the denial of her motion to overturn the conviction as to the remainder of the John Mitchell count. Further, as a result of the court of appeals ruling, unless Dean could overturn the entire verdict, she still had to be resentenced.
Adams had taken a particular interest in Dean’s sentence. Section B.1 of PMP and several Truth in Justice items discuss that Bruce C. Swartz and Robert E. O'Neill attorneys pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would appear to categorically contradict Dean’s testimony about calling Cain in April 1989 when a HUD IG report was issued showing that John Mitchell had earned a HUD consultant fee. The idea was that, even though Dean had called Cain just as she said, Cain’s seeming denial of any recollection of the call would be literally true because it technically applied to the date the report was issued internally at HUD rather than the day it was released to the public. O’Neill then placed great weight on Cain’s testimony in provocatively attacking Dean’s credibility in closing argument. In post-trial proceedings, as part of an aggressive strategy to cover up Independent Counsel actions regarding Cain, Adams himself requested the probation office to recommend that the court increase Dean’s sentence by six months for lying about the call to Cain. In doing so, by letter of January 18, 1994, notwithstanding that the rationale that had underlain Cain’s testimony was that Dean merely had not called Cain on or about the date the report was published internally at HUD, Adams specifically represented to the probation officer (at 8) that “Agent Cain testified on rebuttal that to his recollection this conversation never occurred.” Whether or not I am correct that Adams’ effort to deceive the probation officer was part of a conspiracy to obstruct justice (undertaken with Independent Counsel attorneys Bruce. C. Swartz, Robert J. Meyer, and Claudia J. Flynn), it was a heinous act.
Adams succeeded in persuading the probation officer to recommend an increase in Dean’s sentencing level for lying about the call. But Judge Thomas F. Hogan evidently believed Dean had testified truthfully. So he declined to follow the probation officer’s recommendation.
(As discussed in the February 22, 2011 Truth in Justice item, however, Hogan refused to order the discovery that was likely to reveal the truth about the Cain testimony, and such refusal may have involved Hogan’s deference to a person of Judge Adams’ stature. An irony of such deference is that the more egregious the conduct, the less an inclined a deferential court will be to bring it to light.)
But Adams remained interested enough in the sentencing to argue the matter himself at the sentencing hearing of February 25, 1994 (at 11-12). As part of an argument that Dean should be sentenced at the higher end of the Sentencing Guidelines range, Adams stressed that the criminal justice system should not be perceived as favoring affluent defendants who could hire good lawyers, contrasting Dean with “a young minority representative who goes into a liquor store and steals a couple of bottles of liquor.” Given that Independent Counsel attorneys had employed so many tactics to overwhelm Dean’s single attorney and to take advantage of the racial and background differences between the jury and the defendant (as best summarized in Part V of the DC Bar Counsel materials) – leave aside that Adams’ attorneys would never have taken the chance of using Agent Cain in the manner they did but for the belief that an apparently categorical contradiction of the defendant by a black agent would have great impact on an all black jury – Adams’ making of this argument suggests a smallness of character of striking contrast to the impression created by the July 1999 interview.
In any event, observing that race had nothing to do with the matter, Judge Hogan instead chose the low end of the range, imposing a 21-month prison sentence, and allowing bond pending appeal. Then, on the basis of a ruling on a sentencing guidelines issue and the fact that it had overturned the verdict on all or part of a number of the counts on which Dean was convicted, the court of appeals had ordered that Dean be resentenced.
While Dean’s 1997 motions were still pending, in approximately July 1999, the case was transferred to the Department of Justice. It also refused to respond to Dean’s pending motions. Justice still had not done so in November 2001, when it reached an agreement whereby Dean agreed to withdraw all pending motions and make no further direct or collateral attacks on her conviction. In return, Justice recommended that Dean be sentenced to a term of probation that included six months of home detention, agreeing also to take no position as to the terms of the home detention. Dean was then sentenced to three years of probation including six months of home detention under terms that allowed her to go to work during the period of home detention.
Only then had what Robert E. O’Neill would describe as Independent Counsel Arlin M. Adams’ “showcase trial” come to a close.
For further reading, I recommend the document manager’s November 17, 1993 complaint to the Office of Special Counsel and FBI letter already mentioned, as well as his November 15, 1996 letter to the Office of Professional Responsibility, his May 15, 1997 Clarification to the Merit Systems Protection Board, and his Miscellany document. The document manager, incidentally, is the person who in a December 1997 telephone call told me that all he knew about Agent Cain’s role in the Dean case is that Cain was someone who thought of himself as highly principled; that he had to be taken into a room by Robert E. O’Neill and Bruce C. Swartz on some number of occasions to be persuaded to provide testimony that he was very reluctant to give; and that there was considerable celebration in the offices of the Independent Counsel when the manner in which Cain had been coached was not revealed on the witness stand. That was the missing piece of the puzzle I had been trying to solve since December 1994, when Associate Deputy Attorney General David Margolis first suggested to me that, even though Dean had testified truthfully about her conversation with Cain, Cain’s testimony that seemed to contradict Dean might have been elicited on the basis that it was also literally true. See the concluding paragraphs of Addendum 3 to the Swartz profile regarding the feigned indignation of Independent Counsel attorneys at accusations against “a career government employee.”
The document manager’s accounts provide an interesting piece of history and not only as the tragic story of what can befall a straightforward person, who is proud to be part of the government and just wants to do a good job, when he happens into the wrong environment. Particularly if read in conjunction with the materials on my Prosecutorial Misconduct and Misconduct Profiles pages, those accounts also illustrate, not how extraordinary power can sometimes be exercised corruptly, but how it can sometimes run amok. All under the guidance of an eminent jurist whom his brethren would assure: “No one has better carried out the role of independent counsel than you.”