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Laurence Silberman: the Right Man or the Right's Man?

Press Release
Tarek Rizk or Nathan Richter
People For the American Way
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Is retired federal judge Laurence Silberman the right person to co-chair the Iraq intelligence commission? Those who know him—including onetime Nixon aide and respected author Kevin Phillips, former independent counsel and Eisenhower deputy attorney general Lawrence Walsh, and reformed right-wing hit man David Brock—raise serious concerns about Silberman’s past activities, his temperament, his judgement and his unyielding commitment to right-wing orthodoxy. After reviewing this criticism, along with Silberman’s own statements, it becomes clear that Silberman is ill suited for a role on the intelligence commission.

“October Surprise”
Both Phillips and Walsh allege that Silberman was involved in the Reagan campaign’s purported efforts to delay the release of American hostages in Iran until after the 1980 presidential elections.

In a commentary on National Public Radio, Phillips notes:

“Silberman has been more involved with cover-ups in the Middle East than with any attempts to unravel them [including] the October surprise episode in 1980 in which the Republicans were later accused of colluding with the revolutionary government of Iran to keep 52 American hostages confined in Iran so that they could not be freed by the Jimmy Carter administration in time to influence the 1980 presidential election….[I]n 1980 as part of that year's Republican campaign, he attended at least one of the October surprise meetings where an Iranian representative discussed what Iran would want in exchange for keeping the hostages.”

Walsh’s book, Firewall: The Iran-Contra Conspiracy and Cover-Up, provides a similar account:

“...Silberman had been on the fringe of the negotiations to avoid the possibility of an 'October surprise'--the pre-election release of the U.S. embassy staff held captive by Iranian radicals. He and Robert McFarlane had represented Reagan in at least one meeting with a person who claimed to have influence with Iranians who might affect the timing of the release of the hostages. Among some career officers in the State Department, he was jokingly referred to as 'our ambassador to Khomeini.'”

Equal Justice?
Silberman’s strikingly different views on independent counsel investigations of the executive branch suggest that Silberman has two standards of justice: one for his friends and ideological soul mates and another for those perceived as his enemies.

In 1987, while independent counsel Alexia Morrison investigated the Reagan administration, the U.S. Court of Appeals for the D.C. Circuit ruled that the independent counsel statute was unconstitutional. According to Silberman, a Reagan appointee, who penned the decision:

“[The office of independent counsel] so deeply invades the president's executive prerogatives and responsibilities [for law enforcement] and so jeopardizes individual liberty as to be unconstitutional.... A statute that vests the appointment of an officer who prosecutes the criminal law in some branch other than the executive...obstructs the president's ability to execute the law. [And creating a prosecutor free of the usual restraints] has troubling consequences for those who find themselves the target of the independent counsel."

In a 7-1 decision, the Supreme Court reversed the ruling written by Silberman, holding that the independent counsel law was constitutional, with only Justice Scalia dissenting.

However, in 1998, when independent counsel Kenneth Starr investigated the Clinton administration, Silberman’s take on the independent counsel was decidedly different. Gone were worries about "the president's ability to execute the law." Instead, in a case concerning whether Secret Service agents could be forced to testify about private conversations involving the President, Silberman went further than any of his colleagues in arguing for deference to the independent counsel. In the ruling, the court of appeals rejected the arguments of the Treasury and Justice departments that a “protective function privilege” should be recognized with respect to Secret Service agents who guard the President. Silberman not only agreed with that ruling, but also argued that “no one” in the federal government, including the Treasury and Justice departments, should be permitted even to appear in court and disagree with the independent counsel on the issue. Although Silberman claimed that this result was compelled by the Supreme Court’s ruling upholding the independent counsel law, not a single one of his colleagues agreed with his opinion. Silberman went even further, claiming that “the President’s agents literally and figuratively ‘declare[d] war’ on the Independent Counsel”. Noting that the independent counsel “represents the United States,” Silberman went on to ask, “Can it be said that the President of the United States has declared war on the United States?”

Silberman and Oliver North
Walsh, the independent counsel who investigated the Reagan administration’s involvement in the Iran-Contra affair, found that his staff could not get a fair hearing from Silberman. According to Walsh, when the counsel’s office tried to make the case against Iran-Contra conspirator Lt. Col. Oliver North in one argument, Silberman cut them off at every turn:

“Silberman’s bias had been so intrusive that it had almost prevented [Gerard Lynch, who represented the independent counsel's office] from presenting a coherent argument…. [R]arely had [Lynch] reached the fourth sentence in any answer before Silberman interrupted him--not seeking clarification but simply badgering him to make some concession. At times, the judge's sole purpose seemed to have been diversion and obstruction....[Silberman’s interrogation] had been an overbearing effort to coerce a concession if not just to block a fair statement of our position. His performance had been ugly."

Walsh even considered reporting Silberman for judicial misconduct. Ultimately, North’s conviction was overturned by the court on procedural grounds in a 2-1 decision, with Silberman in the majority.

A Question of Temperament
Walsh notes Silberman's badgering, ugly, obstructionist performance during Oliver North’s appeal. His sarcastic display was hardly an isolated instance. Supreme Court Justice Ruth Bader Ginsberg, who once served with Silberman on the D.C. Circuit Court of Appeals, reportedly referred to some of the judge’s opinions as “disrespectful.” During a particularly animated debate, Silberman warned another of his colleagues, Judge Abner Mikva, “If you were 10 years younger, I'd be tempted to punch you in the nose.”

Of particular concern is Silberman’s treatment of yet another colleague from the D.C Circuit, Judge Patricia Wald. According to David Brock—former right-wing hit man and columnist for the American Spectator—Silberman “hated [Wald] with a passion.” In The Real Anita Hill, Brock portrayed Judge Wald as a conspirator in the campaign against Clarence Thomas, a frivolous allegation. In Blinded by the Right, Brock’s 2002 mea-culpa memoir, he indicates that “it had been none other than Judge Silberman who gave me the false information on his colleague Pat Wald.” As it turns out, President Bush has nominated both Silberman and Wald for the intelligence commission. How can Wald and her colleagues on the commission expect fair and respectful treatment from Silberman given his record?

David Brock’s Surrogate Father
During the early years of the Clinton administration, Brock wrote stories—which he now disavows—accusing Anita Hill of lying in her testimony against Supreme Court Justice Clarence Thomas. Brock also wrote smear pieces concerning rumors of President Bill Clinton’s alleged sexual improprieties, including the now infamous “Troopergate” scandal. According to Brock, who has since cut his ties with the Right, Silberman and his wife Ricky were his “surrogate parents” during this period and played “an absolutely key role” in what he wrote.

In Blinded by the Right, Brock notes that the Silbermans provided grist for the Anita Hill rumor mill even as he was serving as a judge on the Court of Appeals:

“If Republican aides were eager to abet my savaging [Anita] Hill, so were Thomas’s closest friends [including] D.C. Circuit Court Judge Laurence Silberman [and] his wife, Ricky…. [Judge] Silberman speculated that Hill was a lesbian, ‘acting out.’ Besides, Silberman confided, Thomas would have never asked Hill for a date: Did I know she had bad breath?”

Such groundless speculation eventually served as part of backbone for Brock’s 1993 book, The Real Anita Hill.

Brock also indicates Ricky Silberman viewed investigations of the Clintons as payback for the Clarence Thomas hearings:

“[I]t was actually Ricky Silberman's idea to approach Ken Starr to file that friend-of-the-court brief in the Paula Jones case. And Ricky knew the Jones case was simply payback for the Anita Hill affair. She thought, wouldn't it be delicious that Clinton would now be accused of sexual improprieties in the same way that Clarence Thomas had been?”

And, according to Brock, Silberman pressed him to write a controversial piece on Troopergate:

“Though he was a sitting judge who would rule on matters to which the Clinton administration was a party, Larry [Silberman] strongly urged me to go forward…. The trooper story would be much bigger than the Anita Hill book, he predicted. Clinton would be ‘devastated’…. [T]he judge told me he felt sure that if the same story had been written about Ronald Reagan, it would have toppled him from office. Clinton, he surmised, might be toppled as well.”

Refusing Recusal
Why didn't Silberman recuse himself in 1998 when he was part of a three-judge panel settling disputes between Ken Starr and the Clinton administration? After all, he was a friend of Starr's and had served with him on the D.C. Circuit Court. Meanwhile, his wife, Ricky, hired Starr to write an amicus brief for her organization in the Paula Jones suit against Clinton. And, as Brock notes, Silberman frequently crossed the line from impartial jurist to unabashed partisan as he devised strategies to attack Hill and Clinton: “Larry would often preface his advice to me with the wry demurrer that judges shouldn’t get involved in politics—‘That would be improper,’ he’d say—and then forge ahead anyway.” Such involvement in political activities would be in violation of judicial ethics.

Incredibly, in spite of his intense political involvement, Silberman has sharply criticized other judges for much less political activities. For example, in 1991, he responded with indignation to a piece by federal Appeals Court Judge Jon Newman of Boston, which urged President George H.W. Bush to withdraw the Clarence Thomas nomination. Silberman said, “I do not see how it could possibly be suggested that Judge Newman's dramatic entry into the intense political controversy was appropriate conduct for a federal judge.” In another instance, after Judge A. Leon Higginbottham Jr. wrote an open letter to the newly-confirmed Justice Thomas, Silberman said:

“The letter's patronizing tone, telling a new justice how to vote, was surely in shockingly bad taste, but its political cast - it could have served nicely as an election campaign speech - breached any conceivable standard of judicial ethics.”

Not that this has prevented Silberman from criticizing the Supreme Court when it suits him. In a November 2002 speech, Silberman, by this point a senior judge on the Court of Appeals, sharply criticized Supreme Court decisions on abortion, religion, and gay rights, declaring,

“I do not think it even can be seriously argued that any of these lines of decision had a shadow of true constitutional justification…. How does the court get away with it? It maintains its legitimacy so long as its activist opinions coincide with the views of a broad national consensus of elite opinion.”

Clearly Silberman understands judicial ethics. However, he apparently doesn’t believe that they apply to him.

Federalist Society Connection
For additional insights into Silberman’s political philosophy, one need look no further than his involvement with the Federalist Society, the right-wing group that screens President Bush’s judicial nominees. Silberman is a member and a frequent guest speaker at Society events. At an April 2002 event, Silberman advised Bush judicial nominees to avoid questions posed to them regarding their ideology or controversial issues. In fact, he took credit for stealthily guiding Justice Scalia through the confirmation process by avoiding such issues. Can a man who urges secrecy to protect his ideological compatriots be expected to uncover secrets as co-chair of the intelligence commission?

Wrong Man for the Job
His hyper-partisan activities, belligerent temperament and questionable ethics make Laurence Silberman the wrong choice to help lead the U.S. intelligence commission. Given that the American people are relying on the commission to answer troubling questions about issues as large as war and peace, President Bush should replace Silberman with someone worthy of the nation’s trust.