Temperament Tantrum on the Federal Bench

When David Brock was working on his now-notorious “Troopergate” article for The American Spectator magazine in the fall of 1993, he approached two friends for professional counseling. Mr. Brock felt uneasy even then about reporting lurid allegations regarding Bill Clinton’s personal life.

As Mr. Brock recalled in his repentant letter to the President in Esquire last April, he was uncertain whether the story was newsworthy and was concerned about its potential effect on his journalistic career. He needed advice. “I discussed my dilemma with two Washington wise men who had been mentors of mine, and the verdict was split.… One adviser told me flatly that I was sitting on perhaps the most devastating portrait of a president ever to be published–the biggest story of my career. The other warned that the allegations, even if proved, would be dismissed as tabloid trash and could therefore hurt my reputation …”

Asked recently about the identities of his two mentors, Mr. Brock said the more cautious adviser was William Kristol, then a Republican activist and consultant, now editor of The Weekly Standard and commentator for ABC News. The more eager adviser was a member of the U.S. Court of Appeals for the District of Columbia circuit–a conservative jurist who happened to make news the other day with his bitterly worded concurring opinion denying the “protective function privilege” claimed by Secret Service agents guarding the President. That gung-ho advocate of Troopergate was Judge Laurence Silberman. The judge generally confirmed Mr. Brock’s recollection, noting that he told the young writer that Troopergate ” if it were true … would not be dangerous” to Mr. Brock’s career. “I never read the story until it was submitted to The Spectator and have no knowledge of any of the facts asserted therein, nor do I know any of the personalities involved.”

Mr. Brock has not heard from the judge since the Esquire article appeared. But he recalls many convivial evenings at dinners and cocktail parties hosted by Washington’s conservative social elite, enjoying the wit and hospitality of Mr. Silberman and his wife Rosalie, attorney and American Spectator board memberTed Olson and his wife Barbara–and, quite often, a certain mutual acquaintance of the Silbermans and the Olsons, the eminent Kenneth W. Starr.

Somehow, Mr. Silberman neglected to mention his ties to Mr. Starr–he said they “haven’t seen each other socially for years”–in his July 16 opinion upholding Mr. Starr’s right to question members of the Secret Service about the Monica Lewinsky matter. Although his opinion had no particular effect on the court’s unanimous decision, it was widely quoted nevertheless, perhaps not so much for its legal brilliance as for its typically aggressive style. Mr. Silberman is reputed to suffer from a bad temper, which he has displayed over the years. On one famous occasion, in the presence of Mr. Starr, who was then a member of the same court, Mr. Silberman heatedly informed their liberal colleague Abner Mikva, “If you were 10 years younger, I would be tempted to punch you in the nose.” This kind of collegial attitude is one reason the very talented Mr. Silberman has been passed over for nomination to the Supreme Court a couple of times.

There are those who would say Mr. Silberman showed poor judgment when he decided to add his partisan two cents in the Secret Service case. But apparently Mr. Silberman could not resist the opportunity to gloat over the ill effects of the independent counsel statute, which he declared to be an unconstitutional invasion of executive power 10 years ago in Morrison v. Olson. (The defendant in that case, ironically, was Ted Olson, who became the target of a lengthy independent counsel probe when he served as an assistant attorney general in the Reagan Administration. Small world, eh?) Mr. Silberman’s argument back then was rejected by the Supreme Court, and he now suggests with a bit of a smirk that no Government official has standing to oppose a duly appointed independent counsel.

As a legal argument, this bizarre view may stand. But Mr. Silberman indulged in personal attacks on Attorney General Janet Reno for defending the Secret Service.

“The Attorney General is, in effect, acting as the President’s counsel under the false guise of representing the United States,” Mr. Silberman wrote. “I am mindful of the terrible political pressures and strains of conscience that bear upon senior political appointees of the Justice Department when an Independent Counsel … is investigating the President of the United States. Those strains are surely exacerbated when the President’s agents literally and figuratively ‘declare war’ on the Independent Counsel (can it be said that the President of the United States has declared war on the United States?).” Litigating against Mr. Starr, he scolded, was not something the Attorney General could “honorably” do.

Right or wrong, it is hard to see any dishonor in Ms. Reno’s action on behalf of the Secret Service. There seems at least as much honor in her choice as in Mr. Silberman’s impulsive screed siding with his former colleague, Mr. Starr.