The highly irregular June letter from House Judiciary Committee Chairman Rep. James Sensenbrenner (R-WI) attempting to undo a judge's sentencing decision in a Chicago drug trafficking case has created a hornet's nest of controversy in the two weeks since it became public. Now that controversy has cost the letter's author, House Judiciary Committee Crime Terrorism and Homeland Security Subcommittee counsel Jay Apperson his job. The bad news is that the episode has revealed an atmosphere on Capitol Hill where just about anyone who has or could have business before Sensenbrenner's committee is afraid to say anything about it. And Sensenbrenner's people aren't talking, either.
That opinion still holds. "That Sensenbrenner sent that letter was truly jaw-dropping," said Harvard University law professor Carol Streiker Thursday. "It was completely out of line. It violated House rules and it violated legal rules. We have an adversarial judicial process in this country, and when the legislative branch attempts to intervene not as an adversary but in an effort to control judicial decision-makers, the essential elements of fairness under our system are breached," she told DRCNet.
"In federal criminal cases, the Justice Department and the US Attorney represent the government, not the legislative branch," Streiker continued. "The idea that the legislative branch should think it has a separate interest in individual judicial proceeding undermines the whole idea of having an independent judiciary. From a legal, ethical, and constitutional standpoint, Sensenbrenner's actions were simply outrageous."
That's not what Apperson, the man who drafted the letter for Sensenbrenner, thought. When the letter was first made public, Apperson defended it as a legitimate exercise of congressional oversight. "We can't have judges violating the law," he told the Chicago Tribune on July 10.
House Judiciary committee spokesman and Sensenbrenner aide Jeff Lundgren, who also alluded to congressional oversight duties, defended the letter as well. The fact that Sensenbrenner sent the letter to the Justice Department -- one of the parties in the case -- but not to defense counsel, as required by law, was an oversight, Lundgren said at the time.
But after taking heat over the Sensenbrenner letter, Apperson's bosses apparently thought again. Last week, Apperson was suddenly gone from his counsel position. Because no one will comment, it is unclear whether he was fired outright, given the opportunity to quit, or given an offer he couldn't refuse. What is certain is that he was unceremoniously let go.
Given Apperson's career as a hard-line drug warrior, reformers will cheer his departure. Apperson first appeared on the radar as a tough Assistant US Attorney determined to go after the assets of lawyers who defended drug defendants more than a decade ago. Parlaying the prominence gained from that tactic into a job in Washington, Apperson played a key role in negotiations in the 1994 sentencing bill that created the safety valve for federal drug defendants. Again, his role was malign, as he lobbied successfully to remove a provision that would have made the safety valve retroactive. And while he escaped sanction, it was noted in media at the time that Apperson and a colleague had lobbied on taxpayer staff time to achieve that.
"He's been a real thorn in our side for a long time," said one sentencing reform advocate who asked not to be named. "He is the real engineer of the attack on the federal judiciary."
Apperson led the attack on chief Minnesota federal Judge James Rosenbaum, a conservative jurist appointed by Ronald Reagan who dared to make a speech decrying the lack of judicial discretion in sentencing. Using the House Judiciary Committee as a platform, Apperson subpoenaed Rosenbaum and threatened legal action against him. Although nothing came of the assault, Rosenbaum was forced to hire an attorney to defend himself, and federal judges across the country were put on notice to keep their heads down and their mouths shut. Apperson reportedly played a key role in the Feeney Amendment, a successful 2003 effort by congressional conservatives to further rein in the federal judiciary by effectively requiring that judges report and justify every downward departure from the federal sentencing guidelines.
But now Apperson is gone, and the people who supported him aren't talking. Three Drug War Chronicle calls to committee spokesman Lundgren have yet to be returned. Sensenbrenner's office also failed to respond to repeated requests for clarification on the letter and whether Sensenbrenner still stood by it.
They're not the only ones who don't want to talk about the whole affair, and fear of getting on Sensenbrenner's bad side is one reason why. "You don't want to cross him," said another advocacy group member who demanded anonymity. "He's mean and he has a memory like an elephant."
Groups who must deal with Sensenbrenner and his committee who were contacted by DRCNet declined to go on record about the Sensenbrenner letter. The National Association of Criminal Defense Lawyers' Jack King limited himself to saying, "The drug penalties are already way too harsh -- Congress doesn't need to make them any harsher."
House Judiciary Committee Democrats didn't want to say anything either. The office of Rep. John Conyers, the ranking minority member, to whom Sensenbrenner also copied the letter, responded to DRCNet inquiries with a terse "no comment," while the office of Rep. Bobby Scott (D-VA) failed to respond to three phone calls. The congressional watch-dog newspaper The Hill reported two weeks ago that Democratic Judiciary Committee staffers were huddling to craft a response to the letter, but nothing has happened yet.
While the Democrats are yet to act, a legal and social justice advocacy group, the Alliance for Justice, announced Wednesday it had asked the House Ethics Committee to open an investigation of Sensenbrenner over the letter. House ethics rules bar private communications with judges on legal matters, but Sensenbrenner did just that, the Alliance said. In a letter to committee head Rep. Doc Hastings and ranking member Rep. Alan Mollohan, Alliance president Nan Aron wrote, "From the facts at hand, it appears that the Chairman may have violated the ethical rules of the House of Representatives. Accordingly, I urge the committee to open an investigation to determine whether or not such rules have been violated." That's not all, said Aron. "Chairman Sensenbrenner's interference in the Rivera case raises serious questions about his respect for a fair and independent judiciary."
The US Attorneys Office in Chicago also declined comment on the letter, referring DRCNet to the Justice Department in Washington, which in turn declined comment except to say it had received the letter.
At least one Hill lobbyist wasn't afraid to speak up. While professing no inside knowledge of what actually happened to Apperson, Drug Policy Alliance director for national affairs Bill Piper said there have been a number of embarrassing gaffes coming from Sensenbrenner and his counsel lately. "There is this letter, but there was also the provision in Sensenbrenner's drug bill that essentially created mandatory minimums for every federal offense. He has since said he didn't realize how broad that provision was after even some of his fellow Republicans started backing away. That suggests to me that his staff person may have gone too far," Piper told DRCNet. "And it's the same thing with those snitch provisions in the bill. As counsel, Apperson likely oversaw the drafting of that bill. Those provisions seemed so over-the-top, so ludicrous that you have to wonder if maybe that played a role in Apperson's departure."
Jay Apperson may be gone, but the conservative campaign against the federal judiciary continues, and the Sensenbrenner letter should be seen within that context, said Harvard law professor Streiker. "You see this in a number of things, such as the Feeney Amendment, which caused outrage among federal judges who saw it as perhaps an attempt to intimidate individual judges. That raised incredible ire in the judiciary. It is also reflected in Attorney General Gonzalez' speech last month calling for more mandatory minimum sentences."
Congress and the executive branch see the judiciary as a weak link, said Streiker. "They think the judiciary is insufficiently tough on crime, but the irony is that the overwhelming majority of the federal judiciary has been appointed by Republicans."