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Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers Kathleen Clark* This article takes a comprehensive look at a problem of growing signifi- cance for government officials: how to pay the legalfees they incur when they or their colleagues are investigatedfor wrongdoing. Since Watergate, an in- creasing number of government officials have had to hire attorneys when called before grandjuries and legislative committees or subjected to internal admin- istrative investigations. Their legalfees often outstrip their government salaries or even their net worth. This article examines three existing mechanisms for government reimbursement of legal fees-Justice Department regulations, the Independent Counsel statute, andprivate legislation-andidentifies the short- comings of each. It then explores the legal status of legal defensefunds, which top officials have used to raise millions of dollars to pay their legalfees. Fi- nally, the article identifies several reforms that would treat government officials much morefairly andprotect against corruptinginfluences. INTRODUCTION ....................................................................................... 67 I. THE PROBLEM: GOVERNMENT OFFICIALS INCURRING MASSIVE LEGAL FEES ...........................................................................................69 II. THE INADEQUACY OF GOVERNMENT REIMBURSEMENT PROGRAMS ..... 72 A. Justice DepartmentRegulations ..................................................... 72 B. Independent Counsel Statute ........................................................... 80 C. Private Legislation .......................................................................... 86 III. THE SELF-HELP OPTION: LEGAL DEFENSE FUNDS ................................ 88 Copyright © 1997 by Kathleen Clark and the Board of Trustees of the Leland Stanford Junior University. * Associate Professor of Law, Washington University School of Law. kath- [email protected]. Earlier versions of this article were presented at the Fifth International Conference on Public Service Ethics in Brisbane, Australia, and to faculty workshops at the Emory University, Indiana University, St. John's University, and Sydney University law schools. I am in- debted to John Q. Barrett, Lester Brickman, Mark Davies, Neal Devins, Stephen Gillers, Marilyn Glynn, Katy Harriger, Howard Harris, Richard Hasen, Arthur Jacobson, Daniel Keating, Susan Koniak, Eric Lane, Ronald Levin, Ronald Mann, Ronald Noble, Alfred Novotne, and Gregory Wal- den for their comments on earlier drafts of this article, and to Kevin Cooney, Andrea House, Shel- ley Koren, and Lucy Yang for their help with research. Mary Clark and Reverand John O'Connell provided invaluable assistance on this article. HeinOnline -- 50 Stan. L. Rev. 65 1997-1998 STANFORD LA WREVIEW [Vol. 50:65 A . Executive Branch ............................................................................90 1. The prohibitionon salarysupplementation .............................90 2. Restrictions on gifts .................................................................94 B. Legislative Branch ..........................................................................98 1. Regulations specific to legal defense funds ................ 98 2. Donations based on an official's position ................ 102 IV. RECOMMENDED REFORMS .....................................................................106 A. End Overreimbursement Under the Independent Counsel Statute .............................................................................................106 B. Provide Better Representation Optionsfor Witnesses and Lower Level Officials....................................................................... 109 C. Improve the Regulation of Legal Defense Funds............................. 113 1. Promulgate an executive branch regulation specific to legal defense funds ...............................................................113 2. Tighten disclosure requirements ..............................................116 3. Prohibitthe solicitationof legal defense fund donations .........118 D. Prohibitthe Use of Campaign Fundsfor Noncampaign RelatedLegal Expenses ..................................................................122 CONCLUSION ..........................................................................................125 TABLE: AMOUNTS RECEIVED BY THE CLINTON LDF ...........................89 TABLE I: TARGETS, DATES, AND COSTS OF INDEPENDENT COUNSEL INVESTIGATIONS .............................................................127 TABLE II: LEGAL EXPENSES REIMBURSED UNDER INDEPENDENT COUNSEL STATUTE .........................................................................130 TABLE III: AMOUNTS RAISED BY CONGRESSIONAL LEGAL DEFENSE FUNDS ..............................................................................135 TABLE IV: CAMPAIGN FUNDS USED FOR NONCAMPAIGN RELATED LEGAL EXPENSES .............................................................137 "What would you advise anyone coming into your job to do first?" George Stephanopoulos, in his White House office, replies immediately, with- out a second's hesitation. "I would advise anyone who comes into my job to make sure you have a lawyer on retainer from the day you walk in." 1. Judy Bachrach, They Who Serve and Suffer, VANITY FAIR, Dec. 1996, at 128, 141; see also Daniel Wise, Ickes Looks to Life After the White House, N.Y. L.J., Feb. 24, 1997, at 1. Wise writes: "It's gotten so you have to come to Washington with an accountant and a lawyer in tow," said [Harold M.] Ickes, [President Clinton's former deputy chief of staff,] who already num- bers his appearances before congressional committees and grand juries at about a dozen. By the time he is done, he estimates, he will be out of pocket close to a year's salary in legal ex- penses. As deputy chief he earned $125,000. Wise, supra, at 1. HeinOnline -- 50 Stan. L. Rev. 66 1997-1998 November 1997] HEIGHTENEDETHICS SCRUTINY INTRODUCTION In recent years, persons running for or holding government office have increasingly used charges of illegal and unethical conduct against their op- ponents, and these charges have proven to be potent weapons in political battles. 2 As has been discussed elsewhere, the increasing attention to gov- ernment ethics has resulted in the downfall of numerous government officials who have committed wrongdoing. 3 But another result is that an increasing number of government officials who have done nothing illegal have been called before grand juries and congressional committees and have been sub- jected to other internal administrative investigations to answer questions about their alleged participation in or witnessing of the wrongdoing of oth- ers.4 The government has poured significant resources into the investigation of wrongdoing. Congress has set up special committees to conduct some- times lengthy hearings, and independent counsels ("ICs") have been quite expansive and expensive in conducting their investigations. 5 The political stakes are high in these investigations, and the government officials involved have felt the need to hire attorneys to advise them, even if they have not been charged with any wrongdoing. 6 Officials have racked up tens of thousands 2. For an example of how ethics charges are used for political purposes, see Damon Chappie & Juliet Eilperin, Ethics Tit-for-Tat Ensnares Gephardt & Gingrich: Sources Say Republicans Drafted Measure Callingfor Outside Counsel in Gephardt Case, ROLL CALL, July 1, 1996, avail- able in LEXIS, News Library, Roilcl File (describing "a pattern of attempted retaliation on ethics matters," including a "retaliation plan by several GOP Members and staff' who "threatened House Minority Leader Richard Gephardt (D-Mo) with a measure that would have sent ethics charges against him to an outside counsel unless a Democratic drive to broaden the scope of an investiga- tion of House Speaker Newt Gingrich (R-Ga) was dropped"). See generally BENJAMIN GINSBERG & MARTIN SHEFTER, POLITICS BY OTHER MEANS: THE DECLINING IMPORTANCE OF ELECTIONS IN AMERICA (1990) (describing the increased use of congressional investigations and judicial pro- ceedings, rather than electoral politics, as forums for political struggles). 3. See, e.g., Howard Kurtz, The Politics of Scandal, WASH. POST MAG., Sept. 22, 1991, at Wll, WlI. 4. See Stuart Taylor, Jr., Brother, Can You Spare Some Fees?, LEGAL TIMES, Mar. 18, 1996, at 23. Taylor writes: [The need for legal defense funds is] a consequence of our current culture of hair-trigger resort to criminal investigations as the ultimate weapon in partisan warfare, and of the vast resources available to [the] independent counsel to turn over every rock in search of evidence of crime. Government service... now carries a significant risk of being hauled before congressional committees and grand juries, grilled under oath, and perhaps even accused of pejury or other crimes. Id. 5. See Timothy S. Robinson, Legal Cost Problem Growsfor Officials, WASH. POST, Apr. 19, 1980, at A8 ("[M]embers of the Carter administration have encountered what appears to be a growing problem for persons either accepting political jobs or visibly attaching themselves to an in- cumbent administration: The high cost of legal fees in a post-Watergate climate requiring intense investigations of public figures."). 6. For example, Joseph diGenova spent three years and $2.2 million investigating whether any Bush White House or
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