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Brady Center/Common Cause
FOR IMMEDIATE RELEASE
JULY 3,
2001
1:55 PM
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CONTACT: Brady Center / Common Cause
Brendan Daly or Amy Stilwell, 202/898-0792 of the Brady Center
Jeff Cronin or Susan Quatrone, 202/736-5770 of Common Cause
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Brady Center and Common Cause File Ethics Complaint Against
Attorney General Ashcroft
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WASHINGTON
- July 3 - The Brady Center to Prevent Gun
Violence and Common Cause today filed an ethics complaint against
Attorney General John D. Ashcroft, asserting that the Attorney General
violated his ethical obligations to his client, the United States,
by sending a letter to the National Rifle Association (NRA) that impermissibly
undermines the official U.S. legal position in pending litigation.
Specifically, Ashcroft outlined his interpretation of the Second Amendment
in a May 17 letter to the NRA, an amicus party to the United States
v. Emerson, a pending lawsuit regarding the Second Amendment. In the
letter, which was printed on official letterhead from the U.S. Department
of Justice, Attorney General Ashcroft unequivocally contradicts the
United States position in this case - despite vowing, during his Senate
confirmation hearings, to put aside his personal views and uphold
the nation's gun laws.
"We believe that Attorney General Ashcroft has blatantly violated
numerous ethical guidelines that govern his conduct toward his client,
the United States of America, said Michael D. Barnes, President of
the Brady Center. "Not only did he mislead the Senate and the American
people during his confirmation hearings by vowing to defend the nation's
gun laws, Mr. Ashcroft has publicly stated he supports the fundamental
legal position of the defendant in a case that the United States is
prosecuting. If the Attorney General had written a similar letter
to the defendant's attorneys in the case, there would be no question
as to the letter's impropriety. That the letter was sent to an amicus
party supporting the defendant makes his statements no less objectionable."
The Brady Center and Common Cause filed the ethics complaint today,
asking the Inspector General of the U.S. Department of Justice, the
D.C. Court of Appeals' Board on Professional Responsibility, and the
White House Counsel to investigate Ashcroft.
Scott Harshbarger, President of Common Cause, said: "With the Emerson
case now pending before the Fifth Circuit Court of Appeals, anything
that the Attorney General says with respect to the Second Amendment
is of more than passing interest. What's at stake here is the integrity
of the U.S. Department of Justice. If the Attorney General believes
that the Justice Department should change its long-held position on
the Second Amendment, the proper place to address that issue is in
the federal courts, not in a letter to the NRA."
The Brady Center and Common Cause also submitted a concurring opinion
letter from Professor Samuel Dash of Georgetown University Law Center,
who was ethics adviser to former Independent Counsel Kenneth Starr.
Dash wrote that Ashcroft "violated a number of the governing Rules
of Professional Conduct" by writing to the NRA, and that these violations
were of an "egregious nature."
"Attorney General Ashcroft now, in an extrajudicial communication,
has advocated a legal position challenging the constitutionality of
that statute, and in effect, supported the dismissal of the indictment
in the Emerson case," Dash wrote. "This act of disloyalty to his client,
the United States, constitutes an impermissible conflict of interest."
Background:
In a May 17, 2001 letter to James J. Baker of the National Rifle Association,
sent on the eve of the NRA Convention, Ashcroft presented a strongly
worded argument in favor of the view that the Second Amendment to
the Constitution guarantees an individual right to be armed. Ashcroft's
letter directly contradicts the arguments made in a legal brief filed
by the Department in United States v. Emerson, an ongoing case in
which the Department is defending the indictment of a Texas doctor
for gun possession while under a domestic restraining order. Dr. Emerson
had brandished a gun in front of his estranged wife and young child.
In its legal brief to the U.S. Court of Appeals for the Fifth Circuit,
the Department of Justice argued that Emerson's indictment did not
violate the Second Amendment because the Amendment guarantees only
the rights of citizens to be armed as part of an organized state militia,
a view adopted in 1939 by the United States Supreme Court and by every
federal appeals court. The NRA has filed an amicus brief in support
of the criminal defendant, Dr. Emerson, and against the United States
in Emerson.
The Second Amendment reads: "A well regulated Militia, being necessary
to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed." In a 1999 legal brief filed in
U.S. v. Emerson, a constitutional challenge against the federal statute
barring gun possession by persons under domestic violence restraining
orders, the Justice Department stated: "…a 'reasonable relationship'
between the possession or use of a firearm and preservation or efficiency
of a well regulated militia must be demonstrated before a person can
invoke any Second Amendment protections."
Ashcroft's letter to the NRA contradicts this view. In his May 17
letter he wrote: "While some have argued that the Second Amendment
guarantees only a 'collective' right of the States to maintain militias,
I believe the amendment's plain meaning and original intent prove
otherwise."
During Ashcroft's confirmation hearings in January, several members
of the Senate Judiciary Committee raised concerns about whether Ashcroft's
personal and political views would conflict with the Attorney General's
duty to defend the laws of the United States of America with which
he personally disagrees. During vigorous questioning from several
Senators, Ashcroft assured them that he would put aside his personal
beliefs and uphold the nation's gun laws. When asked specifically
about how he would approach the Emerson case and other legal attacks
on federal firearms laws and regulations, Attorney General Ashcroft
responded: "I believe these are all enactments of the Congress signed
by the president, laws of the United States that are under attack.
I would expect to defend those vigorously."
"It is hardly a 'vigorous defense' to make public statements and advance
legal arguments that undercut the arguments made by the Department
of Justice in support of the constitutionality of the statute," Barnes
said. "Further, communicating his personal view to an adverse party
in litigation is a clear violation of fundamental legal ethics."
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