Justice Dept. Contends Law Would Handcuff Prosecutors

Caught in a running feud with a former congressman who was prosecuted by the federal government, Justice Department officials are scrambling to reverse a little-noticed piece of legislation that they insist would handcuff them in pursuing a range of federal crimes.

The legislation, tacked onto an appropriations bill last fall, seems harmless enough on its face. It would simply require federal prosecutors to abide by the bar ethics rules in the states in which they work.

But worried Justice Department officials say that the measure--scheduled to take effect in April--would rob them of a number of important prosecutorial tactics.

For instance, in some states prosecutors no longer would be able to talk to would-be whistle-blowers without first notifying attorneys at the employees’ firms, Justice Department officials maintained.

They might not be able to use wiretaps or informants or employ other undercover techniques against certain types of suspects, officials said. And they could be hindered in pursuing crimes that cross state lines, such as telemarketing fraud, because of inconsistencies in state bar rules.

“This will seriously interfere with our ability to enforce the laws,” said one senior Justice Department official who is working to overturn the measure. “People are very energized about [reversing] this, because it gets to the core of what we do. This is one of the highest priorities for the department over the next few months, no doubt.”

Sponsor Acquitted After 4-Year Ordeal

The legislation is known as the “McDade provision.” It represents a bitter parting shot fired at the Justice Department last fall by the measure’s sponsor, Rep. Joseph M. McDade (R-Pa.), who recently retired from the House after 18 terms.

McDade was the target of an eight-year federal investigation into allegations that he accepted $100,000 in gifts and other items from defense contractors and lobbyists. Indicted for bribery by a federal grand jury in 1992, he was acquitted four years later. He maintains that he was the victim of an investigation run amok, damaged both personally and politically by prosecutorial intimidation and recklessness.

Intent on fighting back, McDade and Rep. John P. Murtha (D-Pa.), who was also targeted in a criminal inquiry but was never indicted, introduced the Citizens Protection Act last fall, aimed at reining in federal prosecutors.

McDade said that “the liberty of every citizen of this country” rested on the legislation, and several sympathetic members of Congress shared stories of what they too considered overeager federal prosecutors.

The measure clearly struck a chord, even in a Republican-controlled House where law-and-order often rules the day. No hearings were conducted but it passed the House by an overwhelming majority. Although some parts of the measure were killed, language on requiring federal prosecutors to adhere to state bar rules remained.

Justice Department officials said they have tried not to let the matter become too personal.

But McDade “is fixated on the injustice of his particular prosecution,” said the senior Justice Department official, who asked not to be identified. “We don’t see the logic behind his provision. The logic appears to be that some folks don’t like being prosecuted, so they’ve got to strike back at federal prosecutors.”

McDade was not available for comment Monday.

Justice Department officials are banking on legislation introduced two weeks ago in the Senate by Sen. Orrin G. Hatch (R-Utah), to neuter the effects of the McDade provision before it takes effect April 19.

Hatch said that the McDade law would “cripple” prosecutors as they enforce the law and would cede control of federal issues to state bars--”at a devastating cost to federal sovereignty.”

His “corrective legislation” would add a proviso to McDade’s measure saying that federal prosecutors should follow state standards--unless such standards are inconsistent with federal law and policy. Critics said that the qualification would effectively gut the McDade provision.

ABA Battles Justice Department

Justice Department officials have begun pushing hard in support of the Hatch bill, lobbying members of Congress, preparing talking points and letters to the editor and reviewing legal opinions in relevant areas.

The American Bar Assn. is one of the groups aligned against the Justice Department on the issue, and Philadelphia litigator Lawrence J. Fox, a past chairman of the ABA’s ethics committee, said that the group feels a bit like “David vs. Goliath” in the pitched battle.

Justice Department officials “have been hysterical, walking [Capitol] Hill and engaging in gross hyperbole,” Fox said.

“It’s always been our position that the regulation of lawyers is done on a state-by-state basis. Even if you work for the Justice Department or God, you’re still obliged to follow those rules.”

Fox scoffs at suggestions from the Justice Department that the McDade rules would have harmed federal prosecutions of the Oklahoma City bombing, the Unabomber case, or a number of hate crimes.

“They’re making it up. I’ve never understood it,” he said.

But Justice Department officials have made their case effectively enough to help align a long list of civic groups, law-enforcement associations and six former attorneys general in opposition to the McDade measure.

Among the bloc is the American Assn. of Retired Persons, which is worried about the effect the McDade law would have on investigations into telemarketing fraud, which often victimizes the elderly.

In states such as Nevada, the law would effectively “outlaw” the law-enforcement practice of monitoring phone calls between fraudulent telemarketers and potential victims, the group maintains.