ON JULY 15, the District of Columbia Court of Appeals issued its decision in Hamdan v. Rumsfeld affirming the power of the president to designate the trial of enemy combatants by military commissions. Supreme Court nominee Judge John Roberts was a member of the unanimous three-judge panel which decided the case.
Flying mostly beneath the coverage of Roberts has been a dubious ethics charge floated by three law professors--most prominently Professor Stephen Gillers of New York University Law School--last month in Slate. According to Gillers, Roberts should have recused himself from the panel because of interviews with administration officials contemporaneous with the progress of the Hamdan appeal. (A Newsday story on July 21 was the first to raise the recusal question. Tom Brune followed up with additional Newsday stories on August 18 and August 25.)
In his capacity as chairman of the Senate Judiciary Committee, Arlen Specter sought an opinion from Professor Ronald Rotunda of George Mason University Law School on the recusal question raised by Professor Gillers et al. (Senator Specter also sought an opinion from Professor Thomas Morgan of George Washington University Law School.) On August 22, Rotunda sent a 15-page opinion letter to Senator Specter exhaustively setting forth the facts, citing the federal recusal statute, analyzing the applicable case law and discussing previous similar circumstances. Rotunda noted that by the time Roberts was offered the Supreme Court nomination, the Hamdan case had already been decided.
Based on applicable case law and past practice of other judges who have accepted or considered appointments for other offices, including Roberts's predecessors on the D.C. Circuit, Rotunda concluded that Roberts properly participated in the decision of the Hamdan case. (Morgan reached the same conclusion.) Rotunda found the case law, including the case law cited by Gillers, to support Rotunda's conclusion.
Earlier this week the Washington Post published Rotunda's op-ed column recapitulating the analysis set forth in his letter to Senator Specter. Hamdan's lawyers appear to interpret the law in a manner similar to Rotunda; they haven't raised any issue regarding Roberts's participation in the decision of the case.
ONE MIGHT think that the fun would end there for Roberts opponents searching for an ethical lapse. But one would be wrong. The fun was just beginning. On August 29, the Washington Legal Times reported that "Rotunda may have his own conflict of interest." Why is that? Because "Rotunda worked full time as a special adviser to Pentagon General Counsel William Haynes II--a fact Rotunda failed to disclose in his 15-page letter."
Sounds suspicious. But Rotunda had advised Specter and his staff of his one-year stint as special counsel to the Pentagon General Counsel. In an interview with me this week, Rotunda stated that his work did not involve advice to the military commissions at issue in Hamdan. The lawyers advising the military commission were, according to Rotunda, in "a separate chain of command." Rotunda added: "By the way, my father also worked for the DoD. That's about equally relevant."
The Wall Street Journal contributed to the fun with Jess Bravin's story on the recusal issue. According to Bravin, Rotunda "recently completed a term as a Defense Department adviser on the military commissions." Rotunda has asked Bravin for a correction, but one will apparently not be forthcoming until Rotunda tells Bravin what work he did during his year as special counsel. Bravin responded to Rotunda's request for a correction: "You didn't work on military commissions? Then what were you working on?" Unfortunately, Rotunda won't be able to tell Bravin any time soon, because Rotunda's work for the department is subject to a nondisclosure agreement.
Rotunda has also asked the Legal Times for a correction regarding its assertion that he "may have had his own conflict of interest." Rotunda wrote:
It is amusing--but not laugh-out-loud amusing--to read a story that suggests that my comments on judicial recusal are tarred because I worked in the Department of Defense for one year ending nearly three months ago . . .
I've been teaching and writing about legal ethics for 30 years. I have written opinion letters for Democratic and Republican politicians, major law firms, small pro bono clients, Fortune 500 companies, and death row inmates. The American Bar Association has published my treatise on legal ethics. I've written so much (fortunately, trees are a renewable resource) that I'm on the record on most legal issues, and I can't (and won't) tailor my opinions to fit the politics of the moment. Plus, my former employment is no secret; it's posted on my Web page (along with some lawyer jokes).
I'm proud that I was able to work for my country. While I was at the DoD, I was not assigned to the Hamdan case. I don't know if the DoD has any official policy regarding judicial recusal, but I know I didn't work on that, either.
Moreover, where I worked can't affect the untidy little fact that my opinion merely quoted the case law. That exists no matter where I used to work, and it undermines any charge that Judge Roberts violated the federal recusal statute.
The Legal Times has declined to run a correction of its charge against Rotunda, but it has run a "clarification." One senses, however, that its heart isn't in it:
In the Aug. 29, 2005, issue, the "Inadmissible" item "Warning: This Case May Contain Conflicts" (Page 3) stated that George Mason law professor Ronald Rotunda "may have his own conflict of interest" in commenting on John Roberts Jr.'s involvement in the case of Hamdan v. Rumsfeld. That was not meant to suggest that Rotunda violated any specific legal ethics rule.
The comment by Glenn Reynolds deserves to stand as the last word on this sorry spectacle: "Likewise, I believe the Legal Times may be controlled by baby-eating space aliens. This is not, however, meant to suggest that theLegal Times is controlled by any specific baby-eating space aliens."
Scott Johnson is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.