Last month, U.S. District Judge Royce Lamberth ruled that White House aide Ira Magaziner--the architect of President Clinton's 1993 health-care proposal--and White House lawyers had "deceived" his court in a 1993 affidavit. Officials had "run amok" in their response to a suit filed against the government, said Lamberth, and he ordered the government to cover the $285,864 legal bill incurred by the plaintiffs.
The "deception" that Lamberth complained about was contained in one sentence of a 13-page affidavit filed by Magaziner in response to the suit. Did Magaziner deceive the court, as Judge Lamberth insists he did?
F irst, a little history: President Clinton formed a 12-member task force in the first month of his presidency, appointed Hillary Clinton as chair, and gave them 100 days to draft new health-care legislation. Magaziner, a member of the task force, organized an "interdepartmental working group"--comprising bureaucrats and health-care experts--to supply the task force with facts and policy proposals. Magaziner divided the working group into 12 "cluster groups" and 38 "subgroups." The number of working-group members grew from 100 to 630.
The task force and working group conducted their proceedings in secret. Soon after the working group convened, the American Association of Physicians and Surgeons Inc. and two government-ethics watchdogs filed suit, arguing that the closed meetings violated the Federal Advisory Committee Act of 1972. FACA, designed to check the power and proliferation of presidential commissions, requires that the meetings of working groups appointed by the executive branch be open to the public. However, FACA exempts committees consisting entirely of federal employees. AAPS argued that because Hillary Clinton and other members of the task force and working group were not federal employees, the meetings should be open. (Later, the courts ruled the first lady should be treated as a federal employee.)
Judges routinely criticize FACA as ambiguous and overreaching. The law even fails to define "government employee" and does not specify what constitutes "membership" on an advisory board. Responding to FACA's ambiguities, the courts have whittled down the law. For instance, fact-finding panels that don't propose policy have been exempted. Congress has further limited its scope, passing amendments that exclude from FACA an American Bar Association committee that rates the qualifications of judicial nominees for the government, the National Academy of Science, and other lesser-known panels. But the courts have also upheld it. In 1983, the Reagan administration beat back a FACA suit to make public the meetings of an advisory panel of CEOs.
AAPS's request for a temporary injunction against Clinton's health-care task force was rejected by a U.S. Court of Appeals for the District of Columbia Circuit in 1993, which concluded that more information was needed to determine whether the working group qualified for a FACA exemption. In 1994, the Clinton administration abandoned the health-care initiative and released all documents from the working group.
On Dec. 21, 1994, Lamberth dismissed the suit against the government, but he asked U.S. Attorney Eric Holder (now deputy attorney general) to investigate whether Magaziner should be held in criminal contempt for supplying false information in his affidavit, filed March 3, 1993. The investigation turned on a single sentence in which Magaziner states, "Only federal government employees serve as members of the interdepartmental working group." Lamberth insisted that this sentence contradicted indisputable evidence that private citizens attended the working groups, and that some of them played supervisory roles. The judge was especially irritated by the presence of executives from managed-care conglomerates who stood to profit from the new legislation--exactly the sort of conflict of interest FACA was intended to check. Judge Lamberth says that the appeals court took at face value Magaziner's "only federal government employees" declaration when it ruled against the request for a temporary injunction.
Although Holder chided government lawyers for formulating a "sloppy," "overly aggressive" response to the AAPS lawsuit and took Magaziner to task for using ill-defined legalistic language supplied him by White House counsel Vincent Foster, he concluded his investigation by declining to prosecute Magaziner for criminal contempt. He found no factual errors in Magaziner's affidavit, and no evidence that he had intended to willfully mislead the court. Indeed, deep into the affidavit, Magaziner volunteers the information that consultants who were clearly not government employees played a prominent role in the working group. Charges of criminal contempt hinge upon proving beyond a reasonable doubt that there was an intention to deceive, and even Lamberth accepts that such proof is unattainable. Holder also acknowledged that Magaziner's much-contested one-sentence statement was not an important element of the government's FACA defense. Unlike recent Justice Department investigations of the White House, Holder's earned near universal acclaim. Even Lamberth deemed it "commendable" in his ruling last month.
Yet Lamberth still believes that Magaziner deliberately misled the court and that government lawyers acted in "bad faith," and he maintains that the appeals court might have issued an injunction against the task force and working groups if Magaziner had not made his now-famous one-sentence declaration. He writes, "The most outrageous conduct by the government in this case is what happened when it never corrected or updated the Magaziner declaration."
The government's lawyers suspect that the real source of Lamberth's ire is not the sloppy sentence in an affidavit but the government attorneys' hardball tactics and unwillingness to compromise, which drew the case out for four years.