Lone-star justice: conservatives thought Clinton-bashing Judge Royce Lamberth was on their team--until he went after the bushies.
In response, for almost two years, the department dutifully sent the judge quarterly reports describing the tremendous progress it was making to that end. Upon receiving those reports, most judges would have passed them to a clerk, duly noted, and moved on to other business. But Royce Lamberth is no ordinary judge. Suspicious, he decided to check out the government's claims and hired some hackers to break into Interior's computer system to see whether, in fact, the trust-fund security had been upgraded.
Turns out, not only could the hackers get into the system with techniques available to any second-rate high-school computer geek, they were able to set up a trust account and make adjustments to it undetected. The department's computer systems were so vulnerable that on December 5 last year, Lamberth ordered the department to disconnect the trust fund accounts from the Internet until firewalls could be established to protect the Indians' money.
Typically inept, Interior reacted by disconnecting all its Internet links. Soon, outdoors types found themselves unable to find camping reservations at national parks. Indian Health Service doctors had their email cut off. And Interior Secretary Gale Norton found herself on trial for contempt of court.
Testimony during the contempt trial has revealed that attorneys from Norton's office massaged reports to the judge. They also allegedly pressured Interior staffers to change critical facts to cover up the fact that, for two years, the department had done almost nothing the judge had ordered, hoping that the appeals court would throw the Indians' suit out all together.
Late last year, when Norton's own staffers testified that they wouldn't sign off on her reports to the judge because they were so misleading, Lamberth urged Norton to "throw herself on the mercy of the court." Instead, as Lamberth has noted, "The Secretary has decided to contest everything and throw down the gauntlet." Consequently, Lamberth said, he was ready for the fight. "I can give them their worst nightmare."
Norton's handling of the trust-fund case suggests that, despite Lamberth's warnings, she thought she had nothing to fear from a fellow Republican appointed by her party's greatest hero, Ronald Reagan. Norton, perhaps, can be excused for believing Lamberth was on her team. After all, he is the very same judge who, for eight years, dogged the Clinton administration with a ferocity only seen in independent prosecutor Ken Starr.
In 1993, Lamberth socked the Clinton administration right out of the gate, fining Ira Magaziner nearly $300,000 for lying in court about the makeup of Hillary Clinton's health-care task force. Lamberth allowed Judicial Watch bulldog Larry Klayman to depose everyone from George Stephanopoulos to famous fundraiser John Huang in suits against the administration that most judges would probably have thrown out as frivolous. In one of those suits, the judge accused President Clinton of criminal behavior and asked the U.S. Attorney for the District of Columbia to investigate the president's alleged violation of the Privacy Act. And in 1999, he fined former Interior Secretary Bruce Babbitt and Treasury Secretary Robert Rubin more than $600,000 and found them in contempt of court in the same suit in which Norton is now under fire.
Lamberth's Clinton-bashing made him a conservative hero, bringing calls for his appointment to the U.S. Supreme Court and glowing praise from The Wall Street Journal editorial page even as Clintonites reviled him as a partisan nutcase unfit for the bench. It's no wonder conservatives fell into shocked silence when Lamberth turned his fiery temper upon Norton.
Lamberth's treatment of Norton suggests that the Bush administration could be in for a rough ride as more White House business lands in D.C.'s federal court before one of its most colorful and no-nonsense judges. Sitting on one of the nation's most powerful trial courts, Lamberth has wide reach. His jurisdiction covers criminal cases from the smallest D.C. drug bust to congressional mail fraud. He also handles a battery of civil lawsuits covering most of the federal government (including the military). On top of all that, Lamberth is the chief judge of the Foreign Intelligence Surveillance Act (FISA) court, where he oversees Justice Department applications for secret wiretaps of alleged spies and terrorists.
That combination of powerful posts made Lamberth a serious thorn in Clinton's side, and promises to do the same for Bush. Attorney General John Ashcroft's order to government agencies to ignore Freedom of Information Act (FOIA) requests, his refusal to turn over the names of immigrants detained in terrorism investigations, plus Dick Cheney's refusal to identify the members of his energy task force, have already sparked a flurry of litigation, some of which may eventually make it into Lamberth's courtroom. And as history shows, Lamberth may be a Republican, but he has never been a friend to an administration that specializes in keeping secrets.
The Cowboy and the Indians
Sitting on a hard bench in Washingtons E. Barrett Prettyman U.S. Courthouse in January, I am struggling to stay awake. A lawyer from the U.S. Attorney's office is grilling some poor sap about a computer system that has been imploding at the Interior Department's Bureau of Indian Affairs. His questions are filled with cryptic acronyms like TAAMS and IIM, test scripts, exhibit 12, tab 4 ... My eyes are getting heavy. It's a month into the Norton contempt trial and the witness has been on the stand now for days. It's freezing cold in the courtroom -- a strategy Lamberth reportedly employs to keep people awake. In my case, it's not working.
As the government lawyers drone on with questions about the minutiae of memos, my head bobs from one side to another. A guy in the corner is already asleep. Suddenly, though, I'm jolted awake by a booming voice from the bench, "Does this have a page 2?" When I open my eyes, Lamberth is squinting at a piece of paper and flipping it back and forth. Apparently the exhibit pages are misnumbered 1 and 3, even though it's only a two-page memo. "All these assistant secretaries signed this without a page two?" Lamberth asks, shaking his head in bemused disgust.
What's amazing about Lamberth's outburst is not what it reveals about sloppy government, but what it reveals about the judge. Not only has Lamberth managed to stay awake during the hours of tedious testimony, but he is closely following every turn of the questioning and scrutinizing each piece of evidence along the way. He knows the material as well as any of the lawyers.
In fact, as the day proceeds, the judge frequently turns his Churchillian profile towards the witnesses and interrupts the lawyers to ask a question ("So what you're saying, essentially, is the system just didn't work?"), and he is not immune from mocking the various absurdities of federal bureaucracy. ("You know any banker would be in jail for handling funds like this, don't you?")
Cobell v. Norton has been dragging on now for more than five years, and ranks as one of the most complicated pieces of litigation in federal court history. The voluminous files in the clerk's office offer a comprehensive history of the government's treatment of Native Americans since the beginning of the republic. It's the story of the push for development of the American West and the thieving, cheating, and bloody battles for the rights to oil, gas, and mining riches on Indian land. In this latest phase, it is a tale of payback for more than 300,000 Indians who've watched the government lose track of as much as $10 billion owed to them, and then were told to buzz off when they had the nerve to protest.
But the day-to-day testimony of this trial is a long way from the rez. Instead, lawyers have boiled this trail of tears down to more mundane issues Of whether the Interior Department is making a reasonable effort to create a basic accounting system to keep track of the thousands of oil, gas, and other leases it holds on behalf of the Indians.
The lawsuit involves dusty, incomplete records dating back to 1887, covering 55 million acres of land, 100,000 active leases, billions of dollars, 20-year-old computer systems, dozens of federal offices, faceless and obstreperous bureaucrats, and more than 100 lawyers--and those are just the ones on the government side. And then there are the lies, mostly from the government, making truth and justice highly elusive goals, and a quick resolution nearly unimaginable. No judge in his right mind would want this case. Yet as this soporific torture session of federal bureaucratese wears on today, Lamberth tips his fleshy frame back in his chair, rests his hands behind his head, and smiles as if he were absolutely enjoying himself.
Lamberth has been enjoying himself on this bench for 15 years, ever since Ronald Reagan plucked him out of the D.C. U.S. Attorney's office in 1987 and ensconced him on one of the country's most influential federal courts. Lamberth has repaid the favor by infuriating the government and endearing himself to underdog litigants ever since.
If Lamberth has earned a reputation as something of a cowboy on the bench, it could be because he is one. Born and raised in San Antonio, and a graduate of the University of Texas undergraduate and law schools, Lamberth is a real Texan. He is famous for attending an annual judicial conference barbeque in his "cowboy outfit," consisting of cowboy boots, red scarf, and a cowboy hat covered with pins from every rodeo he has ever attended. While he doesn't ride a horse, the jowly judge does drive an enormous white Lincoln Towncar (stocked with country-western CDs) which his clerks must occasionally captain when Lamberth needs to go to emergency meetings at the Justice Department.
Unlike most of George W. Bush's judicial nominees, who have spent the bulk of their legal careers in private practice or in universities, this cowboy has spent his entire career working for the federal government. That experience informs his unique view of the people who come before him in court, and has imbued him with a healthy suspicion of the government not unlike that of some of the conspiracy theorists who file suits in his courthouse.
The son of a mechanic who ran the motor pool at the local Air Force base, Lamberth got his interest in the law at a young age the old-fashioned way: watching Perry Mason. He worked in a donut shop all through high school, but got a bug for politics somewhere along the way, and during college and law school, spent his summers in Washington. Lamberth could never get his local congressman to hire him as an intern, so he went to work as a waiter at an Alexandria, Virginia Howard Johnson's where, he says, everyone knew him as "Tex," and the tips were incredible. He worked nights and spent the days sitting in on congressional hearings and studying the Ways of government on his own.
Lamberth was drafted out of law school, and ended up joining the Army's Judge Advocate General Corps, hearing cases in the field, including service in Vietnam in 1969 and 1970. In Vietnam, he once defended a handful of Rangers accused of war crimes. In their defense, Lamberth argued that the Army had to produce bodies in order to prosecute his clients for murder, a comment that prompted an irate judge (in true Lamberthian fashion) to order him to accompany the soldiers on a combat mission to "ensure that their rights weren't being violated," Lamberth says.
After leaving the Army, Lamberth spent 13 years at the U.S. Attorney's office in D.C., finally serving as chief of the civil division, the same office that is now defending Gale Norton.
Joseph diGenova, Lamberth's former boss at the U.S. Attorney's office, says, "Having represented government [agencies] as long as he did, he understands how they function and dysfunction. He knows the games they play on the Justice Department lawyers who represent them."
Dennis Gingold, the attorney representing the Indians in Cobell v. Norton, concurs. "[Attorneys from] Main Justice [are] without inhibition misrepresenting facts in court," he says. "But most judges don't have the substantive knowledge to identify the conduct. Lamberth knows exactly what it is. We're dealing with a person who is bright, well-prepared, who understands how the government operates. Because of the way judges have been selected over the years--not because of their skill--he is rare."
Yet Lamberth has been roundly demonized in the trust-fired case, thanks to cagey Interior officials, who have publicly blamed him for all the recent Internet problems--including the department's inability to issue checks to poor Native Americans. The press responded by bashing Lamberth for what Seattle Times columnist Ron Judd recently dubbed "one of the most egregious cases of judicial overkill in modern times."
Many judges might have fallen for the Interior Department's ploy and backed down. After all, Odyssey vans full of American families trying to vacation in Yellowstone are a powerful constituency to have pissed off. But Lamberth hasn't flinched. Instead, he told Justice Department lawyers he was on to them. "Here in Washington," he said, "we have something called the `Washington Monument syndrome.' Every time Interior loses its appropriation, the first thing they do is close the Washington Monument. Then they go to [Congress] looking for money. In this case, people can't get online to check their favorite campsites."
Not only did Lamberth persevere, but he hauled Norton into the courtroom to defend herself personally. And given the way the case is proceeding, it may not be long before he issues his famous edict that she return and "bring a toothbrush."
The ACLU's Arthur Spitzer first met Lamberth as opposing counsel in the 1980s. Back then, Lamberth was "helping the Reagan administration squash free speech," says Spitzer. As head of the civil division of the U.S. Attorney's office, Lamberth was in charge of defending the Reagan administration's decision to kick Equal Rights Amendment protesters out of Lafayette Park and to prevent the homeless from sleeping there. Spitzer says when Reagan tapped Lamberth for the federal bench, the conventional wisdom was that he would be a knee-jerk, pro-government jurist--and of course, a conservative one. But if the right thought Lamberth was going to become a crusader for the Moral Majority, they were in for a big surprise.
Not a year after his appointment, Lamberth came to the rescue of gay students in the District of Columbia. In 1988, Congress required the D.C. Council to enact legislation allowing religious schools to discriminate against gays because Catholic Georgetown University didn't want to give gays equal access to campus facilities. (Gay student groups were lobbying for campus standing.) Ruling that Congress had infringed on the council members' First Amendment rights by forcing them to enact legislation they opposed, Lamberth mooted the legislation.
"He's a good lesson for people to keep in mind that the people you represented as a private person don't necessarily predict your role as a judge," says Spitzer.
Still, Lamberth is a conservative. He attends functions of the right-wing legal group the Federalist Society, as well as the libertarian Cato Institute, and he serves on the advisory board of the University of Texas' Texas Review of Law and Politics with some serious wing-nuts, including Clint Bolick, Edwin Meese, Robert Bork, Phyllis Schlafly, Georgia Rep. Bob Barr, and University of Texas professor Lino Graglia. Lamberth is also a friend of David Sentelle, the now-famous U.S. Court of Appeals judge who replaced Robert Fiske with Ken Starr as the independent counsel investigating Whitewater, setting the stage for Clinton's impeachment.
But unlike Sentelle, Lamberth is not really an activist, or rather, his activism is mostly expressed from the bench in his consistent suspicion of government. He is not deeply involved with the Federalist Society; he doesn't go on many of the industry-funded junkets that many of his more ideological colleagues have gladly accepted in recent years. Not that he wouldn't like to go; he doesn't believe such events could compromise his objectivity. ("They're not brainwashing someone like me," he says with a hearty laugh.) But his hefty trial schedule won't allow it.
Lamberth isn't rich, and owns little stock (which left him vulnerable to landing the laborious Microsoft antitrust case because he was one of the few judges who wasn't compromised by owning shares in the company). Lamberth's closest friend on the bench is Judge Thomas Hogan, a liberal judge appointed by Jimmy Carter. And while many of his colleagues tend to select clerks who match their ideology, Lamberth seems to have only one major requirement for his: At least one of the two clerks he hires every term must be a University of Texas graduate.
If anything, Lamberth is an old-fashioned law-and-order conservative who believes that the law is the law, and he has little sympathy for those who break it. He tends to throw the book at the criminals who regularly come through his courtroom--especially if they happen to be government officials. In 1998, Lamberth sentenced Ronald Blackley, a top aide to Agriculture Secretary Mike Espy, to 27 months in prison for making false statements on financial-disclosure forms and to federal investigators, even though the sentencing guide lines called for six months or less.
What has really defined Lamberth's tenure, more than ideology, is his demand that lawyers, and the government, be honest and forthcoming with information he believes should be public. It sounds like Courtroom 101, but in fact, Lamberth is clearly cognizant of a dirty little secret of federal court: Lawyers lie, all the time. Most judges allow them to get away with all sorts of odious conduct that Lamberth simply will not countenance.
"The very nature of this guy is that he doesn't put up with sloppiness. He doesn't put up with it from Ira Magaziner and he doesn't put up with it from Gale Norton," says former clerk Bob Levy, now with the Cato Institute. "He is unwilling to put up with some of the wiggling around the law that some of the other judges are."
Lamberth is perpetually "shocked," "sickened," and "outraged" by the government's failure to produce even the most meaningless documents in discovery. His outrage often leads him to decisions some lawyers delicately describe as "intemperate," and a string of rebukes from the appellate court for overreaching. In the trust-fund case, Lamberth's impatience with bad lawyering seems a force for good, giving the government a well-deserved reprimand. But in many other cases, critics say his outrage borders on self-righteousness and leads him to mete out punishment that seems a bit out of proportion with to crime.
In 1995, for instance, Lamberth issued sanctions for discovery abuse in a discrimination case fried against ABC Inc. The case never even went to trial before Lamberth ruled in favor of the plaintiffs, who were represented by left-wing conspiracy theorist, not to say Kennedy assassination buff, Mark Lane. After deciding that ABC's lawyers--from the blue-chip firm Wilmer, Cutler & Pickering--had concealed evidence and deliberately misled the court during discovery, Lamberth ruled that the plaintiffs had won by default. He fined ABC nearly $300,000 for the deception. The decision was highly unusual. Needless to say, ABC was furious. Lamberth was overturned on appeal, but the case was a elation call to lawyers that he was not a judge to be trifled with.
That hard-nosed approach has not endeared him to the bar, particularly his old friends at the Justice Department, who are most often the targets of his wrath. In the Indian trust-fund case, Lamberth recently recommended that the government lawyers get private insurance--a not-so-veiled threat that he intended to fine them personally for misbehavior. (Usually in such cases, the government pays.)
Last fall, Lamberth came under fire for sanctioning Justice Department lawyer Michael Resnick for failing to provide sufficient documentation for a wiretap application in the FISA court. The FISA court is a top-secret institution created in 1978 to oversee warrants for domestic wiretaps issued for national security reasons rather than criminal investigations. When the FBI wants to tap a phone, break into a house, hack into a computer, or bug the rooms of a suspected terrorist on American soil, it applies to the FISA court for a secret warrant.
A FISA court warrant does not require the same burden of proof that a search warrant in a criminal case does, which is one reason civil libertarians believe the FISA court is unconstitutional. Not only does it allow the government to secretly spy on its own citizens with little evidence of their guilt, its entire book of business is conducted in secrecy, leaving very little public insight into its workings. The statute creating the court contains protections to ensure that the government, in prosecuting criminal cases, does not simply go to the FISA court when it has too weak a case to secure a wiretap from a regular judge. But critics have charged that the seven-judge court is simply a rubber stamp for the government, because, since its inception, the court has denied just one wiretap application out of more than 12,000 made.
At a 1997 meeting of the American Bar Association, Lamberth, the FISA court's chief judge, said he resented the "rubber stamp" charge. He insisted that even if judges did not reject wiretap applications outright, they closely scrutinized and even revised them before approving them. "I ask questions. I get into the nitty-gritty. I know exactly what's going to be done and why," he said. "I have pen-and-inked changes myself on the things."
Lamberth proved he wasn't kidding in March last year when he censured Resnick. Unfortunately for Lamberth, after September 11, when the FBI received unexpected criticism for shoddy counterterrorist investigations, law enforcement officials blamed Lamberth. They argued that his censure had a chilling effect, making lawyers leery of seeking new wiretaps--such as the one critics say the bureau should have requested for Zacarias Moussaoui. Thought to be the "20th terrorist," Moussaoui is the Moroccan man arrested in August after he tried to learn how to fly a plane but not how to land it. (Officially, the FBI has denied that Lamberth had anything to do with the decision not to surveil Moussaoui.)
Because the whole episode is classified, it's impossible for the public to really know whether this was another case of Lamberth going ballistic over a minor bureaucratic snafu or a serious screwup by the Justice Department. Either way, civil libertarians were reassured simply to know that the judge really was exercising his oversight role on the court with an eye towards protecting constitutional rights.
"Lamberth has demonstrated a refreshing willingness to scrutinize government claims and to demand absolute accuracy from the government filings. You'd be surprised how rare that is," says Jonathan Turley, a professor of public interest law at George Washington University and one of the few lawyers actually to set foot inside the FISA court.
Turley says that with its windowless, soundproof, super-secret chamber on the sixth floor of the Justice Department, the FISA court can dangerously warp a judge's perspective. "The trappings of the court can make judges feel like an extension of the intelligence agencies. That would not be the case with Lamberth. He has a healthy skepticism_ It takes a great deal of self-confidence for a judge to send back a FISA application. The good thing about Lamberth is that he has never flinched. He possesses independent judgement that makes him a real protector of constitutional rights. The criticism that has been heaped on him should be a badge of honor."
The Bush administration has apparently been less pleased with Lamberth's independence. Last fall, Attorney General John Ashcroft's office sent Congress the "U.S.A. Patriot Act," sweeping anti-terrorism legislation that called for far-reaching changes in federal law enforcement. Those changes included overturning many of the rules put in place at the FBI, like those creating the FISA court, designed to protect Americans against Hoover-era domestic spying abuses. The bill (which Bush signed in October) also attempted to eliminate the provision that allowed Lamberth to send back Resnick's wiretap application.
Klayman v. Clinton
The image of Lamberth as constitutional crusader conflicts with the reputation he earned during the Clinton years, when his name became almost synonymous with Larry Klayman's. Klayman, a former trade lawyer turned right-wing activist, spent those years suing the administration for everything under the sun, and a good number of his lawsuits ended up in Lamberth's courtroom.
One of the most prominent cases--and most enduring--involves the Clinton administration's handling of the FBI files of former Republican White House staffers (known as Filegate), who sued the administration for violating the Privacy Act. Another was a FOIA suit filed in 1995 against the Commerce Department seeking information about foreign trade missions overseen by the late Commerce Secretary Ron Brown. Klayman alleged that Brown had sold slots on the missions to Democratic donors.
The cases attracted little attention until shortly before the 1996 presidential election, when allegations of Clinton campaign fundraising improprieties began to surface. As part of his suit against the Commerce Department, Klayman had won permission to depose Commerce employee and elusive Democratic fundraiser John Huang. Huang actively ducked service and avoided appearing in court until Lamberth threatened to call the marshals out to bring him in, sparking something of a media circus.
When Klayman requested documents on how trade-mission participants were selected, the administration stonewalled, hitting Lamberth's famous raw nerve. He ordered Commerce to hand over 27,000 documents. Among them, Klayman discovered evidence that Brown had indeed been giving favored seats on lucrative trips to fit-cat donors. Those discoveries led Lamberth to approve Klayman's requests to depose dozens of Commerce employees. Commerce so wanted out from under the suit--and three others filed after the initial one--that in 1997, it begged for a judgement against itself, offering to pay all of Klayman's legal fees. But Lamberth was unmoved. He wrote at one point, "This is not a case of a mere `fishing expedition.' Even if it were, however, [Judicial Watch] has now caught some fish, and the court is unwilling to suddenly post a `no fishing sign.'"
One of those fish turned out to be Nolanda Hill, one of Brown's former business partners, who in 1998, testified that Brown had told her a slot on a trade mission could be had for a $50,000 contribution. She also claimed that the White House had told Brown to "slow-pedal" the search for documents Klayman wanted released. Klayman's investigation also turned up evidence that after Brown was killed in a plane crash in the Balkans, the Commerce Department had shredded hundreds of documents that should have been released. The disclosure prompted Lamberth to accuse the administration of showing "disregard for the law" and to clear the way for even more document requests and depositions. The suits are still continuing.
Filegate is also heading into its sixth year, with no trial in sight, and long after an independent prosecutor abandoned a similar line of inquiry without charging anyone. Filegate's public revelations have been somewhat underwhelming given its longevity. In January this year, Klayman announced triumphantly that the government had admitted to discovering--at a cost of $12 million--nearly 2 million White House emails that hadn't been archived properly because of a computer glitch. Of course, the email dates back only until 1996; by then, most of the people involved in Filegate had left the White House. (One can imagine how many White House intern happy-hour plans the government concealed in its deception.)
Critics have charged that Lamberth gave Klayman far too wide a berth to depose people and subpoena documents in areas often completely unrelated to the issues in the original suits. In Filegate alone, Klayman deposed Harold Ickes, Deputy FBI Director Larry Ports, Lanny Davis, Mack McLarty, Linda Tripp (four times), James Carville, George Stephanopoulos, Mandy Grunwald, John Podesta, Bernard Nussbaum, Paul Begala, Pentagon rack Kenneth Bacon, and dozens of others--practically every political operative connected to the administration.
Carville still fumes about his experience with Lamberth. He had never worked in the White House, he was not working there when the case was filed, and Klayman never produced a single person who suggested that the FBI files might be in Carville's office. Carville wasn't even a litigant in the case. Yet Lamberth allowed Klayman to turn Carville's office upside down.
Klayman went through everything, says Carville. "Everything I had in my office, polls, tapes of TV appearances. Ever went to the proctologist, it was in there ... Basically [Lamberth] let Klayman subpoena everything in my office and then [Klayman] took it all on TV and gave it to The Washington Times."
Carville also had a run-in with Lamberth, who "went ballistic" when Carville's lawyers asked to postpone his deposition because of a previously scheduled business trip to South America. Lamberth ordered Carville to show up anyway, accusing him and his lawyer Jo Marsh of being "less than forthcoming ... Marsh and Carville sought to mislead this court from the outset and to delay this deposition. There is simply no other explanation."
Probably it hadn't helped his case that the ragin' Cajun had initially called Klayman "a little twerp" and refused to be deposed. But despite Lamberth's assertion--and an editorial in The Wall Street Journal praising Lamberth for the decision--there really was another explanation for Carville's request for a date change. When Carville presented a mountain of evidence documenting his plans for the South America trip, the judge had to relent.
In retrospect, Carville says, "If you cut into [Lamberth], he probably views himself as kind of a crusader. I think he's highly susceptible to kooky theories. I think he lets a lot of goofy people have undue influence over him."
These kinds of stories helped establish Lamberth's status in the right-wing pantheon, and brought him nothing but scorn from Democrats. But neither side presented a full portrait of the judge. Even Stanley Brand, who represented Stephanopoulos in Filegate, notes that the press only focused on the motions Lamberth approved. "Most of the rulings that Lamberth issued were in our favor. People forget that," says Brand.
In fact, Lamberth did occasionally rein Klayman in. For instance, he refused to let Klayman depose Penthouse publisher Larry Flynt after Flynt's daughter claimed he might have some of the FBI files. He quashed Klayman's subpoena for The New Yorker's Jane Meyer. Also, in 1999, Lamberth sanctioned Klayman and ordered him to pay court costs and legal fees for Linda Tripp's former stepmother after Klayman violated Lamberth's order not to ask her about family matters in a deposition. And despite five years worth of requests, Lamberth still has not given Klayman what he wants more than anything in the world: permission to depose Hillary Clinton.
Still, the Judicial Watch cases fueled suspicion that Lamberth was in cahoots with the "vast right-wing conspiracy" to bring down the Clinton administration, and that he was somehow getting all the Klayman cases through nefarious means. In fact, Lamberth's misfortune in getting the Klayman cases stemmed from two factors: One, Lamberth moves his docket. He is one of the hardest working judges on the bench, and as one admirer notes, if all the judges managed their caseloads as well as Lamberth, there would be no backlog at the court. (Moving cases also has a downside: pushing up a judge's reversal rate. Lamberth gets overturned a lot on appeal.) But because he moves so many cases, Lamberth also gets more.
The second factor was that Klayman literally filed dozens of lawsuits against the Clinton administration. Simple math ensured that Lamberth was bound to end up with a few of them. Klayman also filed suits attempting to link them to matters already in Lamberth's courtroom to try to hedge his bets in getting Lamberth assigned to them. Lamberth himself rejected 11 out of 12 of these cases. Nonetheless, the White House launched a personal attack against Lamberth, branding him a "loose cannon" and subjecting him to a tremendous amount of vitriol. "Everyone was clamoring for Lamberth to shut the lid on Klayman," says Turley. "At points the I criticism of Lamberth was deafening. The man has remarkable intestinal fortitude."
Lamberth's courtroom style may set him apart from most, if not all, of his colleagues on the bench today, but he does have a predecessor: Judge John J. Sirica, to whom he is frequently compared. Sirica was the chief judge of the same court Lamberth sits on who presided over the Watergate break-in cases and whose determination to find the truth led to President Nixon's resignation.
Sirica tangled with the Nixon White House over issues of executive privilege, and like Lamberth, questioned witnesses himself. Sirica became known as a judge who asked the questions lawyers didn't think to ask. As he later wrote, "I had no intention of sitting on the bench like a nincompoop and watching the parade go by."
While Lamberth seems to have adopted Sirica's style, he has not been so lucky as to land a case as significant as Watergate. John Huang is no Gordon Liddy. As Joe Klein has suggested about Bill Clinton, Lamberth is perhaps the right man at the wrong time, a fierce crusader for justice searching for glory and smoking guns amid millions of meaningless White House emails.
That's not to say that his aggressive government oversight hasn't served the public good. Without Lamberth's prodding, it's unlikely that the Interior Department would have lifted a finger to undo its century-long screwup of Indian trust funds. It wasn't until Lamberth shut down its Internet system that Interior took its very first steps to address security problems first identified more than a decade ago. After he held Robert Rubin in contempt in 1999, Rubin ordered the Treasury Department to retrain all 2,000 of its lawyers in legal ethics and federal court procedures to ensure that they lived up to Lamberth's strict standards.
And if the past is any indication, Gale Norton will not be the only errant Bush administration official to be reprimanded by Lamberth. Not since Richard Nixon has there been a president so enamored of cloak-and-dagger governance. Lamberth's demands for government transparency could be a welcome corrective to the administration's stealth. So far, the administration has dodged the bullet, so to speak, with pending suits over Cheney's energy task force going to less bellicose jurists. But the honeymoon is not likely to last. Larry Klayman has already announced that he has more than 100 FOIA actions currently pending all across the government, with litigation certain to follow. Odds are good that at least one or two of those suits will end up in Lamberth's hands.
STEPHANIE MENCIMER is an editor of The Washington Monthly.
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|Date:||Apr 1, 2002|
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