Ginsburg May Face Ethics Investigation

The Justice Department is conducting a preliminary inquiry into whether an independent counsel should investigate possible conflict-of-interest violations by former Supreme Court nominee Douglas H. Ginsburg when he drafted the government’s position in a cable television case at a time when he owned $140,000 in cable TV stock, officials said Friday.

The central question in the cable case is whether Ginsburg--who withdrew as a high court nominee last Saturday after a furor over disclosures that he had smoked marijuana in the 1970s--violated federal rules designed to prevent government policy-makers from profiting by their official actions.

In 1985, Ginsburg, who was assistant attorney general in charge of the Justice Department’s antitrust division, prepared the government’s position in an important Supreme Court case affecting the cable television industry. At the time that he drafted the friend-of-the-court brief--taking a position that the industry favored--he had almost $140,000 invested in a major cable company, Rogers Communications Inc. This constituted his largest investment other than real estate.

Under the Ethics in Government Act, the department’s public integrity section is considering whether to recommend that Atty. Gen. Edwin Meese III ask that an outside prosecutor be named to investigate Ginsburg, according to two sources who asked not to be identified. Such independent counsels are named by a special three-judge federal panel.

If Meese does make such a recommendation, it would be with great embarrassment because he spearheaded the nominee’s support inside and out of the Administration. He was said to have fought a bitter internal White House battle with presidential Chief of Staff Howard H. Baker Jr. over the nomination of Ginsburg, who had served under Meese.

In fact, one official said Meese might have to remove himself from the case because of his past association with Ginsburg and let the decision on asking for appointment of an independent counsel be made by Deputy Atty. Gen. Arnold I. Burns.

Ginsburg, who is continuing to serve as a judge on the U.S. Court of Appeals for the District of Columbia, could not be reached for comment Friday night.

President Reagan withdrew the Supreme Court nomination at Ginsburg’s request after a controversy mushroomed over his acknowledgement that he had smoked marijuana during his years as a Harvard Law School professor. The withdrawal was an major setback for the Administration, which had lost a confirmation battle over another high court nominee, federal Judge Robert H. Bork, barely a week earlier.

At issue in the cable case, in which Rogers Communications was not a party, was Los Angeles’ policy of allowing only one cable franchise to serve each area of the city. The U.S. 9th Circuit Court of Appeals invalidated the policy, saying it violated the Constitution’s First Amendment guarantee of a free press.

The city appealed to the Supreme Court. Ginsburg’s brief supported the concept of the First Amendment’s application to cable television but did not go as far as the circuit court had, contending that the case should be sent back to lower courts for further fact development.

Ginsburg’s deputy at the time, Charles F. Rule, who now heads the Justice Department’s antitrust division, said he and Ginsburg discussed whether he should remove himself from the matter but decided that he should not. Ginsburg did not follow the usual procedure for assistant attorneys general of submitting the conflict question to the deputy attorney general.

The question about his role in the cable case was only one of a number of potentially damaging factors in Ginsburg’s nomination. He was, for example, criticized heavily for his relative lack of judicial experience.

Although his doctrinaire conservative views appealed particularly to Meese and led to his nomination by Reagan, the 41-year-old Ginsburg has been an appeals court judge for only a year. Unlike Bork, his prolific predecessor, he had written few articles or legal opinions.