I was prepared to witness the worst oral argument in history today. Allan J. Favish—an obsessive California conspiracy theorist who's been trying to get his hands on death-scene photographs of former Deputy White House Counsel Vincent Foster for almost a decade—is like every other zealot intent on arguing his own case before the high court: He's more interested in hogging the spotlight than in his legal claims. I'd practically written the " … fool for a client" concluding paragraph for this dispatch before I took my seat this morning.
But today's oral argument revealed more about the justices' obsessions than about Favish's. Even when he was practically invited by the court to spew his kooky conspiracy theories, Favish declined the invitation. In a case that will define the meaning of "privacy" and thus constrain the media, it was the justices doing the ranting.
Foster was found dead of a gunshot wound to the head in a Virginia park in July 1993. A close friend of the Clintons, he had been working on the Whitewater case, and his death spawned a hysterical loco-fest of speculation that still lives on the Internet: He'd been killed by the evil Clintons. (Hillary, although gay, was also his lover, the story goes.)
Whatever. Favish has been at it for years now, and if you really want to make him happy, you can check out his Web site for all the details on the alleged cover-up or his brief in the Supreme Court. His case began in 1997 when he filed his first request under the Freedom of Information Act for 150 photos of the Foster death scene and autopsy, hoping to prove Foster had been executed. The Office of the Independent Counsel refused, citing an exemption in FOIA for documents that need not be disclosed if they "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The case was filed in California, and a second was filed in the District of Columbia. The California case has now been up to the 9th Circuit, back to the district court, and back to the 9th Circuit. What originated as a request for 150 photos has dwindled to a dispute over 10, after the OIC agreed to release most of them. The 9th Circuit eventually found that five photos could be kept from Favish, reasoning that Foster's survivors have a privacy interest in keeping the grisliest of the shots from the public.
The OIC and Foster's family appealed that decision, arguing that Favish has no interest in the photos; they will tell him nothing about the alleged cover-up. Favish cross-appealed. He thinks those last five photographs are going to blow this case wide open. The sole question for the court—and it's an issue the justices have never addressed—is whether "privacy" under the FOIA exemption survives the dead and extends to his family.
Patricia Millett, an assistant to Solicitor General Ted Olson, argues for 20 minutes that this expansive view of privacy is appropriate. Justice Antonin Scalia wants to hold her to the narrowest definition of privacy, telling her that if Congress had been worried about families of the dead, legislators would have used the word "sensitivity" as opposed to "privacy" when they drafted FOIA. Millett urges that families have three privacy interests: in preserving their memories, in controlling the disposal of the remains, and in seclusion and closure.
Sandra Day O'Connor wonders what test the government proposes for overcoming the privacy exemption. Millett says it's not enough to have an "unsubstantiated assertion of government misconduct"; the FOIA requester needs to provide "clear evidence" that the government did something wrong. Scalia wonders if it needs to be a "willful cover-up" or if it's enough that there was government "sloppiness." Millett says you can't overcome the privacy exemption just because "someone can identify more that should have been done, or because they disagree with the result."
James Hamilton represents Foster's widow and sister, who also oppose the release of the photographs. Hamilton's 10-minute presentation is emotional, urging the court not to subject Foster's family to harrowing images in "grocery store tabloids and ghoulish Web sites." Scalia gives him a few moments, then asks him to balance that privacy interest against Favish's interest on the other side. "There is no interest on the other side," says Hamilton. "There have been five independent investigations of Foster's death. All have concluded it's suicide." He cites to the thousands of documents OIC has released, none of which has revealed Favish's smoking gun.
Scalia presses Hamilton on one of the documents cited as proof of the cover-up, the so-called "Haut Report" in which Favish claims the word "neck" was whited out by conspirators and replaced with the word "head" to cover-up the fact that Foster was shot in the neck, and didn't kill himself. Scalia, never afraid to call a wing nut a wing nut, tells Hamilton: "What he and other conspiracy theorists would say is that the fact that there were five investigations only shows the extent of the conspiracy."
Favish sits impassively as Scalia calls him a crackpot. And Hamilton keeps a straight face as he responds to Scalia's concern: "Yes, Judge Starr conspired with the members of the Clinton administration in order to protect that administration." Hoots from the gallery. Hamilton continues uninterrupted for a moment or two until Scalia proffers a better conspiracy theory: "Mr. Starr may have been protecting Newt Gingrich …"
Justice Anthony Kennedy queries whether the Supreme Court can decide the case or must remand it back to the District Court. Hamilton urges him to decide the issue. "I want this case to end in this court," he says. "It's been 10 years and it's time to give this family some peace."
Then it's the crackpot's turn. Except Allan Favish is not a crackpot. Instead of treating the argument as the culmination of a yearslong quest for legitimacy (in his writings, he whines relentlessly about newspaper rejections of his articles), he treats it as a serious legal matter and confines most of his presentation to the narrow legal question: whether the right to privacy survives the dead man and attaches to his family. Favish opens by citing to the court's own definition of privacy in the 1989 FOIA case, Department of Justice v. Reporters Committee. That case characterized privacy as "the individual's control of information concerning his or her person." Ginsburg points out that Reporters Committee didn't involve "survivor privacy" but the privacy of an individual. Favish insists that the definition controls this case.
Breyer invokes a "tradition going back to Antigone, Euripides … and every religion" that respects death and survivors. Favish replies that there's no evidence Congress wanted to make that tradition a part of the FOIA exemption. Scalia says, "I would think your answer would be that the word 'privacy' isn't the word you use for respecting the dead."
Here Justice David Souter starts to unravel. He starts by citing to Justice Louis Brandeis' famous definition of privacy as the "right to be left alone." Then he unlooses a parade of nightmares that occur when people are "subject to intrusive inquiries," ending with evil reporters who "take pictures of the front of your home!" Souter is, of course, the most famously private of the current justices, known for the line about TV cameras rolling in over his dead body. But it's fascinating to watch his horror of the media erupt.
Favish continues to cite almost exclusively to Reporters Committee except when he deviates to cite to two cases from 1969. Chief Justice William Rehnquist asks why these two cases didn't make it to his brief, and Favish (showing his only sign of craziness today) says he "filled up his 50 pages." He in fact filled up at least 20 of those pages with demented conspiracy theory crap, but, OK. It's his brief.
O'Connor says he may want to address the other (read: crazy) part of his case, explaining his compelling need for these photos. It's an embossed, engraved invitation to be bonkers, but Favish acquits himself admirably. Instead of plunging headlong off the grassy knoll, he limits himself to the claim that the government was at least negligent in investigating Foster's death.
Now it's Breyer's turn to lose his marbles, positing a strange hypothetical in which "hundreds of thousands" of innocent suspects in criminal investigations will see their rap sheets plastered on the front page of their local papers, once all the angry victims come forth with FOIA requests. "If you win," he says, "these people have no protection whatsoever." But he's not talking about family members, he's talking about the individuals themselves—who are of course protected by the FOIA exemption. Souter and Breyer go on and on with odd hypotheticals about "every police investigation in America," until Favish finally gives the correct answer: that states can protect autopsy and other documents by legislation, as they did in the Dale Earnhardt case in Florida.
Scalia, the only justice on Favish's side today, puts it bluntly to him: "We have relatives here who will be very much harmed. You've demonstrated some foot faults, the investigators made mistakes. Who cares?" He asks Favish if he really thinks this investigation and alleged cover-up represent a major moment for the country. But even here Favish won't take the bait. He disputes the characterization of foot faults, but adds that it may truly have been a suicide. He just wants to know for sure. "The government can no longer be trusted to filter the raw evidence to the public in this case," he concludes, leaving one to wonder how, to adopt for a moment Favish's way of thinking, a government capable of killing a high-ranking official, persuading his widow and sister to lie, and orchestrating a cover-up that includes five independent investigations wouldn't be able to retouch a photo.
It takes a truly twisted mind to pull the justices into the cover-up, but Favish, for all that he comes across as pretty normal, should be spared the trouble. The collective evil geniuses of the press corps did it for him today after argument. It's quite simple: Favish will lose this case because Stephen Breyer worked closely with Ted Kennedy, most likely on the cover-up of Chappaquiddick. And isn't it funny how another justice on the court is also named Kennedy? Ginsburg is a feminist, so naturally she's going to side with Hillary, and Souter's morbid fear of the media must mean he has something to hide. Rehnquist likes to walk in parks, just like Vince Foster. O'Connor shot Abraham Lincoln. And Clarence Thomas … don't even get me started.
The truth is out there.