High Noon for Ashcroft, Stewart, and the Defense Bar

Dozens of Lawyers Appeared at the Arraignment

Previously, when a lawyer's files have been scooped up by the FBI—in certain drug and money-laundering cases—the Justice Department has set up a screen. A group of lawyers in the Justice Department who are not connected with that particular case sift through the files; they do not show the prosecutors anything not related to the case at hand.

These screeners are supposed to be independent, a way of sheltering evidence that ought to remain in the defense lawyer's private files. But in view of the politicalization of the Justice Department under Janet Reno, and now under John Ashcroft, it is not unduly cynical to wonder how truly independent any screening panel will be—especially in a "terrorism" case so important to the department's zealous boss.

Accordingly, Lynne Stewart's lawyer, Susan Tipograph, an experienced and astute counselor, has asked the judge to assign a special master to go through everything taken from Stewart's office before Ashcroft's prosecutors can inspect it. The judge is considering the request, and the files will remain insulated from the prosecutors until both sides agree to a review procedure.

The prosecution says it will take about eight weeks to provide the defense with all the discovery material—videotapes, audiotapes, transcripts, copies of warrants, etc. At that point, a schedule for motions can be set up. There will be a status conference before the court on June 12.

Among other things, the prosecution claims to have hundreds of secretly recorded phone conversations from the other defendants.

Lynne Stewart is free to continue practicing law for as long as she is free on a $500,000 bond, but much of her time will now be otherwise occupied, and both clients and potential clients may be concerned that her notoriety in a terrorism case could result, for example, in their getting a worse deal from the prosecutors in their own cases.

Apart from what happens to Lynne Stewart, the result of this indictment of a defense attorney for aiding terrorism will, according to Jonathan Turley, "create a huge, chilling effect—indeed, a glacial effect—on attorneys approached by highly controversial clients to represent them." This is all the more likely if John Ashcroft does increase the warrantless monitoring of lawyer-client conversations.

Some highly combative defense attorneys will not be intimidated, but much depends on the prosecution's evidence in this trial, on how it was obtained, and, of course, the verdict.

What concerns Stephen Gillers, an expert on legal ethics and evidence at New York University School of Law, are the signs—evident to me from Ashcroft's emphasis at his press conference on going ahead with listening in on lawyer-client consultations without a previous court order—that this monitoring will indeed multiply.

"Ashcroft," says Gillers, "is abusing his authority as attorney general. He should not be doing this invasion of lawyer-client privilege on his own. He is a prosecutor, and needs to get a court order first—showing probable cause that illicit communication is going on."

Defense lawyers will also be watching to see if Lynne Stewart can get a fair trial, in view of the inevitable pre-trial publicity that has already linked her in the public mind with terrorism. With suicide bombers being so effective in Israel, and with "sleepers"—hidden terrorists who could also eventually use their bodies as weapons—among us here, it may be difficult to get a reasonable, open-minded jury.

One of the counts against Stewart, for instance, is that when Yousry, the translator, read letters to Sheikh Rahman from his confederates in the terrorist Islamic Group, Stewart "actively concealed the conversation . . . from the prison guards by, among other things, making extraneous comments in English to mask the Arabic conversations between Sheikh Abdel Rahman and Yousry."

But since Stewart doesn't understand Arabic, what was she "masking"? The prosecution may have an answer to that and to other charges—like the one that accuses Stewart of announcing to the media that after an internal debate in the Islamic Group the sheikh had decided to withdraw his support for a cease-fire in the group's terrorist activities. The defense claims that decision was already a matter of public record. Still, Stewart did technically violate her agreement not to relay messages from Rahman to the outside world.

If much of the other prosecution evidence is as slight as that, the defense might be more concerned about the jury being aware of this 1995 New York Times interview with Stewart—from which the Times reprinted excerpts on April 10, the day after she was arrested: "Ms. Stewart suggested that violence and revolution were sometimes necessary to right the economic and racial wrongs of America's capitalist system. 'I don't believe in anarchistic violence, but in directed violence,' she said. 'That would be violence directed at the institutions which perpetuate capitalism, racism, and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support.' "

How would a juror react to that credo? Particularly when Stewart is repeatedly described in the press as a "radical lawyer," with an apposite partial list of highly controversial former clients? (Her client Sammy "the Bull" Gravano is a terrorist of a non-ideological sort.)

There are high stakes for John Ashcroft in this trial, as well as for Lynne Stewart, the defense bar, and the future health of the Constitution as the administration's open-ended domestic war on terrorism proceeds.

Lynne Stewart faces up to 40 years in prison.

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