Recent Historical Society Events
Preservation of Non-Official Judicial Papers
On Friday, June 5, 2009, members of the DC Circuit Historical Society Committee on Archival Preservation and Historical Research participated in a lively two-hour panel presentation on the preservation of judges' non-official papers at the DC Circuit Judicial Conference at the Bedford Springs Resort in Bedford, Pennsylvania.
Committee members Maeva Marcus, Director, Institute for Constitutional Studies, The George Washington University Law School, and Daun van Ee, Historical Specialist, Library of Congress, joined Professor Polly Price, Associate Dean of Faculty and Professor of Law, Emory Law School and author of Richard Arnold: A Legacy of Justice on the Federal Bench, and Bruce Ragsdale, Chief Historian, Federal Judicial Center ("FJC"), on the panel. Committee chair George W. Jones, Jr., Sidley Austin LLP served as moderator.
Not surprisingly, one of the most hotly debated topics was the age-old question of whether judges should make any of their work product or communications about cases other than final opinions available to the public. Whether judges should preserve electronic correspondence with colleagues presented this issue in 21st Century garb. Points of view all along the spectrum of opinion were ably represented at the conference. Suffice to say, the historians on the panel had a very different view than some of the judges.
The key "takeaways" from the presentation are:
- the non-official papers of federal judges may constitute indispensable supplemental material for historians and scholars trying to understand and describe the history of the United States, the operations of the federal judiciary, and the role that individual judges played in the great events of our times; it is impossible to determine today what will be relevant and important to the questions that will be studied 50 years from today;
- as participating witnesses to the history of the United States, all federal judges - not just those who have established national reputations or who have participated in cases of national import -- should consider preserving their non-official papers; it is never too early for a judge to begin thinking about preserving his or her non-official papers;
- preserving non-official papers is not nearly as burdensome as some may fear;
- the first step is to identify those repositories that may be most interested in taking a particular judge's non-official papers; judges who have national reputations or who have handled cases of national significance should consider the Library of Congress; others should consider repository institutions the judge attended or with which the judge has some other relationship, institutions that already have the papers of other judges from the judge's court, or institutions that have an interest in a particular subject matter that makes up a portion of the judge's work;
- some institutions want everything; others may be more selective and can provide useful guidance as to what should be preserved; and
- concerns about confidentiality or sensitive materials can be addressed by restricting access to the papers for some specified time or limiting access to particular scholars or appointing one or more trustees with authority to determine access to the papers.
The FJC recently completed work on a second edition of A Guide to the Preservation of Federal Judges' Papers, its useful primer on what types of papers should be preserved and how to go about preserving them. Copies of the recently released second edition were distributed at the conference.
For judges considering which repositories might be most interested in archiving their papers, the Historical Society website includes a list of all repositories that currently house the papers of judges who have served on the Courts of the District of Columbia Circuit. The list was prepared by the FJC.
Mock Court Program for Washington Area High School Students
On Friday, April 3, 2009, the Courts of the D.C. Circuit hosted 80 Washington, D.C. high school students participating in the Historical Society's fifth annual Mock Oral Argument Program. (See scenes from the Mock Court Program.) Each student prepared and presented arguments before one of eight judges of the U.S. Court of Appeals or the U.S. District Court. The students addressed issues, selected from actual cases decided by the Courts of the Circuit, including whether private property may be condemned for the benefit of a school athletic field, the implementation of a curfew for juveniles, the Fourth Amendment considerations involved in police traffic stops, and whether WMATA has authority to arrest a student for eating a french fry on a METRO platform. Students from every public, charter, and private high school in Washington, D.C. were invited to participate. This year's participants attend Cardozo Senior High School, Collegiate Academy, McKinley Technology High School, St. Albans, Theodore Roosevelt Senior High School, Thurgood Marshall Academy, and Woodrow Wilson Senior High School.
Attorneys from Washington, D.C. law firms helped students prepare their arguments. Each week during the months of February and March, attorneys from Covington & Burling, Goodwin Procter, Howrey, O'Melveny & Myers, Shook Hardy & Bacon, and Wilmer Hale met with a group of the students to discuss the constitutional issues in the cases and to help the students hone their arguments. Each student selected a case to argue from among nine decisions considered to be of particular interest to young people.
Torrential rains had not put a damper on the students' spirits when they began their day in the Ceremonial Courtroom of the E. Barrett Prettyman United States Courthouse. Following opening remarks by Historical Society President, Stephen J. Pollak, Esq. of Goodwin Procter and Program Chair Kate McSweeny of Chadbourne & Parke, the students moved to their assigned courtrooms to present their arguments. Following the arguments, each of the judges talked with the students and answered their questions, after which the students and their attorney-mentors returned to the Ceremonial Courtroom where they were joined by the judges for the awarding of prizes. The top three advocates in each courtroom were awarded a cash prize, and all participants received a Certificate of Participation.
The Historical Society was honored to have the Honorable Royce C. Lamberth, Chief Judge of the District Court for the District of Columbia, provide the closing remarks. A reception for the students, their mentors and teachers followed in the Atrium of the Courthouse.
A Special Historical Exhibition
Many of the highlights of the 200-year history of the Courts of the D.C. Circuit are revealed in an exhibition prepared by the Historical Society for the Courts. The exhibition was unveiled at the opening of the William B. Bryant Annex to the Courthouse. Ten display panels which capture the Courts' history include photographs, articles, and text on the creation of the Courts and many of their high-profile cases as well as a tribute to Judge William Benson Bryant, who was appointed to the U.S. District Court in 1965, served as the Court's Chief Judge, and was one of the Court's most respected judges.
"FCC Indecency Cases in the D. C. Circuit: An Historical Perspective"
The Hon. Patricia M. Wald, Hon. Timothy B. Dyk and Hon. Glen O. Robinson discussed the FCC indecency cases heard in the D.C. Circuit in a wide-ranging panel discussion on October 14, 2008. The panel was moderated by Christopher J. Wright, Esq. Mr. Wright, who previously served as General Counsel of the FCC and argued the Action for Children's Television case before the en banc D.C. Circuit in 1994, provided an overview of the FCC's indecency jurisprudence.
Professor Robinson from the University of Virginia was an FCC Commissioner in 1975 when the Commission issued its decision in the Pacifica case arising from the late George Carlin's famous "seven dirty words" monologue. Professor Robinson described the Commission's decision holding that Carlin's monologue was not suitable for broadcast and his own concurring statement which emphasized his conclusion that indecent language is a "nuisance" when broadcast at times when a large number of children are likely to be in the audience.
Judge Dyk of the Federal Circuit, who represented broadcasters in numerous indecency cases before taking the bench in 2000, provided perspective on the FCC's regulation of broadcasters in the 1970s through the 1990s. He also reviewed the decisions the D.C. Circuit issued reversing the FCC's judgment - in a majority opinion by Judge Tamm, a concurring opinion by Judge Bazelon, and a dissenting opinion by Judge Leventhal - and the Supreme Court's subsequent decision overturning the D.C. Circuit's decision.
Judge Wald, who served on the D.C. Circuit from 1979 to 1999, addressed the lengthy litigation culminating in Action for Children's Television, in which the en banc court upheld the 6 a.m. to 10 p.m. ban on indecent broadcasting. Judge Wald also described the en banc decision concerning indecency on cable channels that was heard by the en banc court on the same day as the broadcast case, and noted how indecency is now regulated very differently depending on whether it is on a broadcast channel or a cable channel, even though only 14% of households now obtain free over-the-air signals.
A lively question-and-answer period included discussion of whether counsel in the upcoming Supreme Court case involving the FCC's decision to ban "fleeting expletives," FCC v. Fox Broadcasting, should use those expletives in oral argument. You may watch the entire video or a particular segment: the panel discussion or the discussion and conclusion following the panel using Windows Media Player.
"Technology in the Courtroom: Could it Change the Course of History?"
On July 31, 2008, the Historical Society sponsored "Technology in the
Courtroom: Could it Change the Course of History?" The program explored
the relative advantages and disadvantages of the use of technology to
present evidence and arguments in a jury trial.
As a catalyst for discussion of the issues, two mock closing arguments
were presented from the historic District of Columbia trial of Charles
Guiteau, the assassin of President James Garfield. An overview of the
historic setting of the 1881-1882 trial was first provided by Suzanne M.
Woods, Esq., professor of history at St. Albans School in the District
of Columbia. David Kendall of Williams & Connolly then presented a traditional closing
argument, without the use of technology, much of it drawn directly from
the transcripts of the prosecution's closing argument in the Guiteau
trial. Judge James Boasberg of the Superior Court of the District of Columbia then followed with a newly-created mock closing argument for the prosecution, which was supported with a variety of
technological images and animations.
The mock arguments were followed by a panel discussion moderated by Eva
Petko Esber of Williams & Connolly LLP. The panelists for the program
were Judges James Robertson and Rosemary M. Collyer of the United States
District Court for the District of Columbia, Francis D. Carter of
Zuckerman Spaeder LLP, as well as Mr. Kendall and Judge Boasberg.
FOIA, National Security and the D.C. Circuit: A Safeguard or a Sham?
On November 29, 2007, the Historical Society of the D.C. Circuit presented a program on the role of the Courts of the District of Columbia Circuit in developing the law respecting the Freedom of Information Act ("FOIA") and national security. Particular attention was given to the origins and history of Exemption 1, 5 U.S.C. § 552(b)(1), pertaining to national defense and foreign policy; problems such as delay and over classification; how the line should be drawn between the public interest in disclosure and the needs of national security; what the drafters envisioned and whether those objectives are feasible in today's circumstances; and relevant judicial interpretations. You can now view in full the Society's program on the role of the Courts of the District of Columbia Circuit in developing the law respecting the Freedom of Information Act and national security. You may watch the entire video or a particular segment: the introduction or panel discussion using Windows Media Player.
The Hon. Patricia M. Wald, formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, moderated the discussion, which was in Q and A format. Panelists included Stewart A. Baker, Assistant Secretary for Policy for the U.S. Department of Homeland Security and former General Counsel of the National Security Agency; Thomas S. Blanton, Director of the National Security Archives at George Washington University; the Hon. Royce C. Lamberth, U.S. District Judge for the District of Columbia; and James T. O'Reilly, Professor of Law, University of Cincinnati College of Law, and publisher of the FOIA Reporter.
The Steel Seizure Case in Historical Perspective
June 2007 marked the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia, which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society analyzed the decision and its enduring ramifications. "The Steel Seizure Case in Historical Perspective" is available for viewing. You may watch the entire video or a particular segment: introduction, panel discussion, or Q&A using Windows Media Player. Panelists included: Patricia Bellia, Constitutional Law Professor, Notre Dame Law School; John Q. Barrett, Professor, St. John's University School of Law and Biographer of Justice Robert H. Jackson; Louis Fisher, Senior Specialist in Separation of Powers with the
Congressional Research Service of the Library of Congress and Author of "Presidential War Power;" Maeva Marcus, Author of "Truman and the Steel
Seizure Case;" and Stanley L. Temko, Senior Counsel, Covington & Burling LLP, and Attorney for Petitioner United States Steel Corporation in the
Steel Seizure Case. Carl Stern, former Legal Affairs Correspondent for NBC-TV, moderated the discussion. Over 250 judges, lawyers, professors, law clerks, law students and others attended the panel discussion.
The program was held on July 25, 2007, in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse. A reception followed the program.
Panel Discussion on The Pentagon Papers: Did the Courts Get it Right?
Attorneys directly involved in the Pentagon Papers cases and law professors who have written about the cases talked with moderator Carl Stern about their experiences in a panel discussion sponsored by the Historical Society on November 30, 2006. On July 26, 2006, the Historical Society staged a reenactment of the cross examination of
a government witness from the Independent Counsel prosecution of former Secretary of
Agriculture, Michael Espy. The Honorable James Robertson presided over this unique program
and moderated a discussion among the participants afterward on the art of cross examination and
the unusual challenges presented by the Espy trial. The Ceremonial Courtroom was packed
with an audience that included numerous judges and prominent members of the Bar along with
many summer associates and law clerks.
Barry Coburn, a partner with Trout, Cacheris PLLC, played the witness, Richard Douglas,
a former executive of agricultural corporation Sun-Diamond Growers. Coburn was very familiar
with the facts of the case, having served on the Espy trial team while working for the Office of
Independent Counsel. Reid Weingarten, head of the White Collar Criminal Defense practice at
Steptoe and Johnson, and Michele Roberts, a partner with Akin Gump Strauss Hauer & Feld,
took turns demonstrating the cross examination and serving as government counsel for purposes
of objections during the other's cross.
Weingarten opened his cross of Douglas by eliciting many sympathetic highlights of
Espy's career and personal history. To defeat the bribery charges, Weingarten had Douglas
admit that the gifts he provided Espy were given in friendship and not in exchange for official
acts. Though the cross examination was mostly friendly, Weingarten forced Douglas to admit
that he would lie to protect his own interests, an important point to help defeat some of the
testimony that would have damaged Espy.
Roberts then demonstrated a different approach, mostly using Douglas to paint the
Independent Counsel as the bad guy. Displaying the physical nature of effective cross, Roberts
pointed repeatedly at Weingarten, who had switched roles to play the Independent Counsel,
asking whether "that man" had singled Douglas out for persecution and scrutinized every aspect
of his life and career. Douglas agreed wholeheartedly, which of course is atypical for a witness
who was supposed to be cooperating with the government, but proved true in this unusual
prosecution. As Roberts later explained, these points supported the defense theory that the
government had overcharged the case.
Judge Robertson, who presided over a related case prosecuted in District Court, began the
discussion by asking questions of the participants drawn from the reenactment. Coburn
described the facts of the direct examination and the cross from the actual case, offering
fascinating commentary on the obvious antipathy between Independent Counsel Donald Smaltz
and witness Douglas.
One of the most significant points to emerge from the lively discussion was the tendency
of Independent Counsel investigations to venture too far. Weingarten, who defended Espy at
trial, expressed his view that the Espy case should have never been brought. President Clinton
fired Espy after learning about his conduct, which should have ended the matter, according to
Weingarten. Coburn offered a slightly different view, suggesting that the prosecution might have
turned out differently had the investigation remained narrowly focused on violations that would
not have made the prosecution look so overzealous. All agreed, however, that the case illustrated
some of the inherent problems with the Independent Counsel statute, which may help explain
why Congress has ultimately allowed the statute to lapse.
The trial spawned activity on Capitol Hill as well. Gene Kimmelman described the extensive lobbying efforts on behalf of AT&T and how they affected debate in the Senate and the House. Interestingly, as Kimmelman pointed out, the drive to break up the company was not a populist campaign, as consumers were overall not unhappy with the status quo. Given the uncertainty of these efforts, the company eventually pushed to settle the case. Trienens suggested that Judge Greene's handling of the trial was one of the most influential factors that led AT&T to negotiate; convinced that it would lose at trial, the AT&T Board ultimately agreed that a consent decree was the best alternative for the company.
Michael Kellogg described how the industry has evolved since the breakup and the difficulties that plagued the companies and regulators prior to the passage of the 1996 Telecommunications Act. The general consensus of the panel was that overall, the market has benefitted from the breakup, and the problems that the Defense Department and others predicted might result have not been realized.
Chief Judge Greene is unfortunately no longer here to add his thoughts, but thanks to the Society's Oral History Project, he left us with these words on the case: "I'm perfectly content with my own view that the breakup was a good thing. It brought competition into a field where there hadn't been any competition, and that's the American way." Hear those words for yourself in Judge Greene's unique voice by visiting his Oral History page on the Society's website and selecting the sound clip "Reflections on the AT&T Case." You may also wish to review the transcript of his oral history on the website.
The United States District Court for the District of Columbia will present the first annual Daniel M. Gribbon Pro Bono Advocacy Award at the D. C. Circuit's Judicial Conference in June of this year. The Award will recognize an individual or a law firm that has demonstrated distinguished advocacy in a pro bono matter before the U. S. District Court for the District of Columbia within the 18 months prior to the nomination date.
The Gribbon Award has been graciously endowed by the family and friends of Daniel M. Gribbon, a life-time supporter of pro bono legal services. Among many activities serving the public interest, Daniel M. Gribbon was the first President of the Historical Society of the
D. C. Circuit. Nominations are being managed by the D. C. Circuit Judicial Conference Standing Committee on Pro Bono Legal Services. Nominations for the first Gribbon award were submitted by March 1, 2006. Nominations for future awards will be due on the first day of March of each year.
On November 17, 2004, the Society put on an exciting program, "Reflections on Watergate." Nearly 30 years after the jury returned its verdict finding President Nixon's closest advisors guilty of obstruction of justice, the key participants in that historic trial came together for the first time since the trial to discuss its historic significance and the lessons learned. Lead prosecutor, James F. Neal; Attorney General John Mitchell's counsel, Plato Cacheris; the lead government witness, former Counsel to the President John Dean; and Judge John Sirica's law clerk, D. Todd Christofferson, gave their unique perspectives on the events that led to President Nixon's resignation and the subsequent cover-up trial. Former NBC News Correspondent Carl Stern moderated the panel discussion.
In a unique program, Chief Judge Thomas F. Hogan, Judge Royce C. Lamberth, and Judge Joyce Hens Green of the District Court candidly discussed the special problems they have faced when handling high-profile civil and criminal cases over the years. With Chief Judge Douglas H. Ginsburg of the Court of Appeals as moderator, the judges talked about the handling of juries in high-profile cases, the special problems of discovery in international cases, special technology advances in the courtroom, and relations with the press in novel and long-running criminal trials.
Attorneys and journalists who were there, playing lead roles in Iran-Contra, were the featured panelists in the first of the Society's "Historic Cases" panels on December 3, 2003. Discussing the roles, activities, and perspectives that the three branches of government and the press played during Iran-Contra, panelists revealed what went on in front of, and behind, the cameras, shedding new light on a complex matter that captured the attention of prosecutors, courts and the public in the late 1980's.
