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International Society of Quarterly International Society of Volume 33 Number 2 THE OFFICE OF INDEPENDENT COUNSEL: PAST HISTORY AND FUTURE CHANGES Robert B. Fiske, Jr. THE OKLAHOMA CITY BOMBING CASES I. HUGE CASES WITHOUT THE MEGA-TRIAL Larry A. Mackey II. REFLECTIONS ON THE OKLAHOMA CITY BOMBING, FROM THE DEFENSE PERSPECTIVE Stephen Jones III. DEMONSTRATIVE EVIDENCE IN THE OKLAHOMA CITY BOMBING TRIAL Alan Treibitz and Ray Hauscel THE CASE FOR MERIT SELECTION AND RETENTION Gerald F. Richman PERSPECTIVES FROM AN AMERICAN DIPLOMAT ABROAD Edward E. Elson “AIN’T IT AWFUL”AIN’T GOOD ENOUGH! James W. Jeans Quarterly International Society of Barristers Quarterly Volume 33 April, 1998 Number 2 CONTENTS The Office of Independent Counsel: Past History and Future Changes . Robert B. Fiske, Jr. 315 The Oklahoma City Bombing Cases I. Huge Cases Without the Mega-Trial . Larry A. Mackey . 325 II. Reflections on the Oklahoma City Bombing, From the Defense Perspective . Stephen Jones . 330 III. Demonstrative Evidence in the Oklahoma City Bombing Trial . Alan Treibitz and Ray Hauscel . 339 The Case for Merit Selection and Retention . Gerald F. Richman . 344 Perspectives from an American Diplomat Abroad . Edward E. Elson . 355 “Ain’t It Awful” Ain’t Good Enough! . James W. Jeans . 366 International Society of Barristers Quarterly Editor John W. Reed Associate Editor Margo Rogers Lesser Editorial Advisory Board Douglas W. Hillman Daniel J. Kelly Myron J. Bromberg, ex officio Editorial Office University of Michigan Law School Ann Arbor, Michigan 48109-1215 Telephone: (734) 763-0165 Fax: (734) 764-8309 E-mail: [email protected] Volume 33 Issue Number 2 April, 1998 The INTERNATIONAL SOCIETY OF BARRISTERS QUARTERLY (USPS 0074-970) (ISSN 0020- 8752) is published quarterly by the International Society of Barristers, 3586 East Huron River Drive, Ann Arbor, MI 48104-4238. Periodicals postage is paid at Ann Arbor and additional mailing offices. Subscription rate: $10 per year. Back issues and volumes available from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, NY 14209-1911. POSTMASTER: Send address changes to the International Society of Barristers, 3586 East Huron River Drive, Ann Arbor, MI 48104-4238. ©1998 International Society of Barristers International Society of Barristers Officers 1998* John G. Lancione, Ohio, President Frank J. Brixius, Minnesota, First Vice-President Myron J. Bromberg, New Jersey, Second Vice-President Joe McLeod, North Carolina, Secretary-Treasurer Board of Governors* The Officers and 1996-1999 Michael E. Hale Gerald F. Richman Mark P. Robinson, Jr. Arkansas Florida California Donald L. Schlapprizzi Harry E. Wrathall** Missouri Nova Scotia 1997-2000 John P. Arness Daniel J. Kelly Edward J. Matonich District of Columbia California Minnesota Joseph K. Meusey Robert F. Ritter Nebraska Missouri 1998-2001 John D. Liber Michael Nachwalter Edward J. Nevin Ohio Florida California Michael W. Perrin Gene Mac Winburn Texas Georgia Ex Officio 1998 Richard E. Day Wyoming Annual Meetings 1999: February 28-March 6, Four Seasons Resort Hualalai, Kailua-Kona, Hawaii 2000: February 27-March 4, Four Seasons Resort Aviara, Carlsbad, California 2001: March 11-17, Four Seasons Resort Nevis, Nevis, West Indies *Terms begin and end on last day of annual meetings. **Elected 1998, to fill the unexpired term of Stanley J. Krist, desceased. International Society of Barristers Past Presidents Craig Spangenberg, Cleveland, Ohio (1914-1998) 1966 Murray Sams, Jr., Miami, Florida 1967 Kelton S. Lynn, Rapid City, South Dakota (1916-1974) 1968 Arch K. Schoch, High Point, North Carolina (1909-1980) 1969 John H. Locke, Roanoke, Virginia 1970 William H. Erickson, Denver, Colorado 1971 Charles T. Hvass, Minneapolis, Minnesota 1971 Robert T. Cunningham, Mobile, Alabama 1972 William S. Frates, Miami, Florida (1917-1984) 1973 Philip G. Peters, Manchester, New Hampshire 1974 Richard R. Bostwick, Casper, Wyoming 1975 Carlton R. Reiter, Portland, Oregon (1920-1980) 1976 Douglas W. Hillman, Grand Rapids, Michigan 1977 Alex S. Keller, Denver, Colorado (1928-1996) 1978 Alex W. Newton, Birmingham, Alabama 1979 Stan Siegel, Aberdeen, South Dakota (1928-1996) 1980 William D. Flaskamp, Minneapolis, Minnesota 1981 Walter R. Byars, Montgomery, Alabama 1982 John J. Greer, Spencer, Iowa 1983 M. J. Bruckner, Lincoln, Nebraska 1984 Ray H. Pearson, Miami, Florida 1985 Joel M. Boyden, Grand Rapids, Michigan 1986 William T. Egan, Minneapolis, Minnesota 1987 Carleton R. Hoy, Sioux Falls, South Dakota 1988 Mark P. Robinson, Los Angeles, California 1989 Perry S. Bechtle, Philadelphia, Pennsylvania 1990 William J. McDaniel, Birmingham, Alabama 1991 Frederick H. Mayer, St. Louis, Missouri 1992 Tom Alexander, Houston, Texas 1993 Charles F. Blanchard, Raleigh, North Carolina 1994 Con M. Keating, Lincoln, Nebraska 1995 David L. Nixon, Manchester, New Hampshire 1996 Richard E. Day, Casper, Wyoming 1997 STATEMENT OF OWNERSHIP, MANAGEMENT, AND CIRCULATION (PS Form 3526) 1. Title of publication: International Society of Barristers Quarterly 2. Publication no. 0074-970 3. Date of filing: September 30, 1998 4. Frequency of issues: Quarterly 5. Number of issues published annually: Four 6. Annual subscription price: $10.00 7. Mailing address of known office of publication: 3586 East Huron River Drive, Ann Arbor, MI 48104-4238 8. Mailing address of headquarters or general business office of the publisher: 3586 East Huron River Drive, Ann Arbor, MI 48104-4238 9. Names and addresses of publisher, editor, and managing editor: Publisher: International Society of Barristers, 3586 East Huron River Drive, Ann Arbor, MI 48104-4238 Editor: John W. Reed, University of Michigan Law School, Ann Arbor, MI 48109-1215 Managing Editor: John W. Reed, University of Michigan Law School, Ann Arbor, MI 48109- 1215 10. Owner: International Society of Barristers, 3586 East Huron River Drive, Ann Arbor, MI 48104-4238, a nonprofit corporation. 11. Known bondholders, mortgagees, and other security holders owning or holding one percent or more of total amount of bonds, mortgages, or other securities: None 12. The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes have not changed during preceding 12 months. * * * 15. Extent and nature of circulation: Actual no. copies Average no. copies of single issue each issue during published nearest preceding 12 months to filing date A. Total no. copies printed 908 925 (net press run) B. Paid circulation 1. Sales through dealers and carriers, street vendors, and counter sales 0 0 2. Mail subscriptions 48 48 C. Total paid circulation 48 48 D. Free distribution by mail 800 806 E. Free distribution outside the mail 0 0 F. Total free distribution 800 806 G. Total distribution (sum of c and f) 848 854 H. Copies not distributed 1. Office use, leftovers, spoiled 60 71 2. Returns from news agents 0 0 I. Total (sum of g, h(1), and h(2)) 908 925 J. Percent paid circulation 5.7 5.6 * * * 17. I certify that the statements made by me above are correct and complete. John W. Reed, Editor THE OFFICE OF INDEPENDENT COUNSEL: PAST HISTORY AND FUTURE CHANGES† Robert B. Fiske, Jr.* HISTORY AND OPERATION OF THE STATUTE As you probably know, the statute authorizing the appointment of inde- pendent counsel had its origin in the infamous Saturday night massacre back in 1973 after Archibald Cox subpoenaed the tapes as to which President Nixon claimed executive privilege. At that time, there was no independent counsel, but Attorney General Elliot Richardson, recognizing his own inher- ent conflict in investigating the President of the United States, had appointed Archibald Cox and had given Cox all the authority that Richardson had to conduct the investigation of the President. When Cox subpoenaed the tapes that Nixon didn’t want to produce, Nixon instructed Richardson to fire Cox. Richardson refused and resigned. Nixon turned to the Deputy Attorney Gen- eral, William Donald Ruckelshaus, and gave him the same instructions. Ruck- elshaus refused and resigned. The next in line was Solicitor General Robert Bork. Richardson and Ruckelshaus talked to Bork and urged him to carry out the inevitable order and fire Cox; they felt they had made the point, and they considered it important that there be a person of stature in the position of At- torney General. Bork did fire Cox. The result, of course, was a huge outcry from the public and Congress. After a lot of debate and discussion, Congress passed the Ethics in Gov- ernment Act.1 The basic reason for the statute was to give the American people confidence that an investigation of high-ranking government offi- cials could be carried on completely impartially, completely independently, without any interference or control from the executive branch people who were under investigation. Most of us are familiar with the basic elements of the statute’s operation. The Chief Justice of the United States appoints three judges, one of whom has to be a member of the District of Columbia Circuit Court of Appeals, and they comprise a three-judge court having the exclusive authority to retain and su- † Address delivered at the Annual Convention of the International Society of Barristers, Hyatt Regency Grand Cypress, Orlando, Florida, March 12, 1998. * Davis Polk & Wardwell, New York, New York; formerly Whitewater Independent Counsel. 1 28 U.S.C. §§ 49, 591 et seq. 315 316 INTERNATIONAL SOCIETY OF BARRISTERS pervise independent counsel. When there is an allegation of criminal conduct by a so-called “covered person”—which includes not only the President and the Vice President but virtually the entire Cabinet, the head of the CIA, the head of the IRS, and a number of people on the White House staff—the alle- gation goes to the Attorney General, who has a period of time—thirty to sixty to ninety days—to conduct an investigation. This is a very limited investiga- tion because she can’t use the grand jury, she can’t give immunity, she can’t plea bargain. At the end of the specified period of time, unless she is in a po- sition to say there are no reasonable grounds to proceed with an investigation, she is required to apply to the three-judge court for the appointment of an in- dependent counsel.
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