In a highly unusual move, Rep. James Sensenbrenner (R-WI), head of the House Judiciary Committee, privately demanded last month that a US appeals court alter its decision in a drug case because he thought the defendant did not receive a harsh enough prison sentence. According to the Chicago Tribune, Sensenbrenner sent a five-page letter to Chief Judge Joel Flaum of the US 7th Circuit Court of Appeals in Chicago asserting that the court had erred and demanding "a prompt response" as to what actions Flaum would take "to rectify the panel's actions."
His interest apparently extends to the micro level, as evidenced by his intervention in the case of drug courier sentenced to only 97 months instead of the 120 months required by the drug conspiracy law. While prosecutors were satisfied by that sentence for a bit player in a drug ring, Sensenbrenner was not. In his letter to Judge Flaum, Sensenbrenner complained that the panel's sentencing decision was "illegal," citing a 1992 ruling as precedent for arguing the prison term should have been longer.
Judge Flaum responded to Sensenbrenner, but refused to tell the Tribune what he said, saying he did not publicly discuss matters before the court. The 7th Circuit, however, did amend its opinion to expressly cite a Supreme Court case showing Sensenbrenner was wrong.
Not only was Sensenbrenner wrong, he was way over the line, said legal experts consulted by the Tribune. The judiciary committee chair's action violates House ethics rules, which prohibit communicating privately with judges on pending legal matters, as well as court rules that bar such contact with judges without informing all parties to the case, they said.
"I think it's completely inappropriate for a congressman to send a letter to a court telling them to change a ruling," said David Zlotnick, a law professor at Roger Williams University in Rhode Island and an expert on federal sentencing law. "To try to influence a court ruling is entirely inappropriate, particularly in an ex parte [without notifying all parties] proceeding. They are trying to intimidate the judiciary."
"I don't think it's appropriate, but I don't know if it rises to the level of an ethical violation. It's unseemly. It's not something members ought to do, but they do it... The context is troubling," said Stanley Brand, a Washington, DC, attorney and former House counsel.
Sen. Dick Durbin (D-IL), a member of the Senate Judiciary Committee, said the Sensenbrenner letter was only the latest in a series of threatening actions aimed at the federal judiciary by Republican House leaders. "This is part of a broader and very disturbing pattern that goes to the heart of the separation of powers," Durbin spokesman Jim Shoemaker told the Tribune.
To give credit where credit is due, Jay Apperson, chief counsel of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, is the intellectual author of the letter. He insisted the letter was "appropriate... This is the committee with oversight of the judiciary -- that's exactly what we are supposed to do."
Charles Geyh, a law professor at Indiana University and expert on separation of powers, disagreed. "This is contrary to the judicial system. Proceedings are initiated by parties," he said. "The federal judiciary has a lot less clout and a lot less power when it comes to control of its budget, and when you have someone like Mr. Sensenbrenner -- this is a thinly veiled attempt to exercise control over judges and their decisions. The way to resolve matters in the courts is that the losing party appeals. This hybrid... of in the middle of litigation having someone rattle a saber -- this is potentially dangerous to the process."
Sensenbrenner is now keeping mum. A spokesman told the Tribune he would not comment on the letter. "The letter speaks for itself," said Thomas Schreibel, Sensenbrenner's chief of staff.