Dellums v. Smith

• Decision Date: 10 January 1984
• Docket Number: No. C-83-3228 SAW.,C-83-3228 SAW.
• Citation: 577 F. Supp. 1449
• Parties: Ronald V. DELLUMS, Eleanor Ginsberg, Myrna Cunningham, Plaintiffs, v. William French SMITH, individually and in his official capacity as Attorney General of the United States, D. Lowell Jensen, individually and in his official capacity as Assistant Attorney General, Criminal Division of The United States Department of Justice, Defendants.
• Court: U.S. District Court — Northern District of California

577 F. Supp. 1449

Ronald V. DELLUMS, Eleanor Ginsberg, Myrna Cunningham, Plaintiffs, v. William French SMITH, individually and in his official capacity as Attorney General of the United States, D. Lowell Jensen, individually and in his official capacity as Assistant Attorney General, Criminal Division of The United States Department of Justice, Defendants.

No. C-83-3228 SAW.

United States District Court, N.D. California.

January 10, 1984.

Jules Lobel, University of Pittsburgh Law School, Pittsburgh, Pa., Ellen Yaroshefsky, Michael D. Ratner, Margaret L. Ratner, Sarah Wunsch, Peter Weiss, Center for Constitutional Rights, New York City, Marc Van Der Hout, Nat. Lawyers Guild, San Francisco, Cal., for plaintiffs.

J. Paul McGrath, Asst. Atty. Gen., Richard K. Willard, David J. Anderson, Vincent M. Garvey, David H. White, Attys., Dept. of Justice, Washington, D.C., Joseph P. Russoniello, U.S. Atty., John F. Barg, Asst. U.S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM AND ORDER DENYING MOTION TO ALTER JUDGMENT

WEIGEL, Senior District Judge.

This matter is before the Court on defendants' motion to alter the Court's judgment of November 3, 1983.

Background

Plaintiffs filed suit to require the Attorney General to conduct a preliminary investigation as to whether the President, the Secretary of State, the Secretary of Defense and other federal executive officers have violated the Neutrality Act, a federal criminal law, by supporting paramilitary operations against Nicaragua. The Neutrality Act, 18 U.S.C. § 960, declares that:

Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or any colony, district, or people with whom the United States is at peace, shall be fined not more than $3,000 or imprisoned not more than three years, or both.

Plaintiffs' complaint was founded upon the Ethics in Government Act, 28 U.S.C. §§ 591-598, which directs the Attorney General to conduct a preliminary investigation upon receiving specific information from a credible source that federal criminal law has been violated by any federal official designated in the statute.

The Court found, and the Attorney General has since admitted, that the information presented by plaintiffs was sufficiently specific and that it came from a sufficiently credible source. Dellums v. Smith, 573 F.Supp. 1489 at 1504-1505 (N.D.Cal.1983).¹ The Court also determined that officials covered by the Ethics in Government Act may have violated the Neutrality Act. See id. at 1502 n. 11. For these reasons, the Court ordered the Attorney General to conduct a preliminary investigation as required by the Ethics in Government Act. Id. at 1504-1505. Pursuant to the same statute, the Court also ordered that unless the Attorney General makes a determination within ninety days that there are no reasonable grounds to believe that further investigation is warranted, he must apply for the appointment of independent counsel. Id. at 1505.

Defendants, in opposing plaintiffs' motion for summary judgment and moving for dismissal of the action, argued that plaintiffs lack standing to sue, that the Ethics in Government Act does not grant a private right of action to plaintiffs, that the ruling sought requires an impermissible advisory opinion, and that the action presents a nonjusticiable political question. The Court rejected each of these contentions and granted plaintiffs' motion for summary judgment.

For more complete details of the facts and law underlying the Court's decision of November 3, 1983, see Memorandum for Judgment filed on that date.

The Motion To Alter Judgment

Relying upon Federal Rule of Civil Procedure 59(e), defendants now move to alter judgment. They argue for the first time that the Neutrality Act does not apply to any action authorized by the President. They now argue further that, in any event, a preliminary investigation is not required because the Attorney General has established a policy that federal executive officials will not be prosecuted under the Act.

Plaintiffs urge that these claims come too late. They point out that their first brief in support of their motion for summary judgment argued extensively that the Neutrality Act applies to government officials, including the President, and that the allegations presented by plaintiffs showed a violation of the Act. Despite full opportunity to do so, defendants did not contest the plaintiffs' position on these issues until after the Court handed down its decision on November 3, 1983.

Therefore, it would be proper for the Court to deny defendants relief under Rule 59. See Briggs & Stratton Corp. v. Baldrige, 544 F.Supp. 667, 668 (E.D.Wis.1982); see Grumman Aircraft Engineering Corp. v. Renegotiation Board, 482 F.2d 710, 721 (D.C.Cir.1973), rev'd on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). However, because of the importance of the issues presented by this case, the Court exercises its discretion to address the merits of defendants' motion. See Briggs & Stratton, 544 F.Supp. at 668.

The primary argument now advanced by defendants is that the refusal to conduct a preliminary investigation should be upheld because the facts presented by plaintiffs are "legally insufficient" to establish a violation of the Neutrality Act. The facts presented by the plaintiffs consist of specific and credible information to the effect that the President and other officials in the executive branch have sponsored paramilitary activities directed against the Government of Nicaragua. The defendants say that because the activities alleged by plaintiffs were authorized by the President, there can be no violation of the Neutrality Act.

Defendants also urge that even if the Attorney General may be wrong about this, so long as his interpretation is "reasonable", it should be given deference, and no preliminary investigation should be required. The difficulty with this claim is that it is supported neither by the provisions of the Ethics in Government Act nor by the policy underlying the statute.

As delineated in the Court's prior opinion, a fundamental purpose of the Ethics in Government Act is to ensure that serious allegations of unlawful action by federal executive officials are subject to review by counsel independent of any incumbent administration. The Ethics in Government Act does not require a showing that "all legal elements of a crime exist" as a prerequisite for preliminary investigation. S.Rep. No. 496, 97th Cong., 2d Sess. 13, reprinted in 1982 U.S.Code Cong. & Ad.News 3537, 3549. The Act's mandate in favor of investigation even in cases where a law violation is doubtful is illustrated by the declaration in the Senate Report that "as soon as there is any indication whatsoever that the allegations involving a high level official may be serious or have any potential chance of substantiation, a special prosecutor should be appointed to take over the investigation." S.Rep. No. 170, 95th Cong., 1st Sess. 54 (1977), U.S. Code Cong. & Admin.News 1978, pp. 4216, 4270.

There may be instances in which the Attorney General can properly decline to conduct a preliminary investigation, even though he has received specific information from a credible source. If such information, however specific and credible, could not reasonably be construed as involving a federal crime, the Attorney General would not be obliged to conduct a preliminary investigation. But if the information may reasonably be construed as involving a federal crime, the Attorney General may not refuse to investigate merely because his opinion is to the contrary. To make the Attorney General's opinion on a disputed question of law the ultimate measure of enforcement of the Act would subvert its very purpose. The present question is thus limited to whether the view is reasonable that the Neutrality Act proscribes the activities alleged by plaintiffs. For reasons set forth below, the question must be answered in the affirmative.

The contention that the Neutrality Act reaches executive officials is at least as persuasive as defendants' claim that it does not. The statute itself contains no exception for any person or official. Thus, the doctrine espoused by defendants finds no support on the face of the statute. Consideration of the English statutes upon which the Neutrality Act was modeled supports the conclusion that the American statute's broad language was chosen purposefully. The English statutes provide express exceptions for acts done with leave or license of the crown, i.e., the executive. See Lobel, The Rise and Decline of the Neutrality Act: Sovereignty and Congressional War Powers in United States Foreign Policy, 24 Harv. Int'l L.J. 1, 31-33 (1983) (hereinafter cited as "Lobel"). The absence of such provisions from the American Act reflects a decision to retain and protect the Constitution's delegation of war power to the legislative branch. See U.S. Const. art. I, § 8. In addition, uncontradicted authority holds that the President cannot aid or authorize private expeditions against foreign nations without the approval of Congress.

In 1806, two civilians were indicted and tried for aiding an attempt to launch an expedition against Spanish America in violation of the Neutrality Act. United States v. Smith, 27 F.Cas. 1192 (C.C.N.Y. 1807) (No. 16,342). As part of their defense, they sought to subpoena Secretary of State James Madison and other federal executive officials to prove their claim that their acts had been authorized by President Jefferson. Id. at 1228.

The Court declined to issue the requested subpoenas on the ground that such testimony of the cabinet members was immaterial. William Paterson, a Supreme Court Justice and participant in the Constitutional Convention,...