THE CURIOUS ORDER OF JUDGE SMITH

By Solomon L. Wisenberg  

In the course of a recent puff piece on United States District Judge Walter Smith (Western District of Texas-Waco Division), The Dallas Morning News' Lee Hancock noted the judge's reputation as "a tough jurist with a precise legal mind." I thought about this when reading Judge Smith's stinging

Solomon L. Wisenberg  
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November 2 order giving the Department of Justice until November 15 to complete the turnover of Waco related materials to the court, in connection with a pending wrongful death action. Judge Smith ordered that if all required records were not transferred to him by the appointed date, "J. Michael Bradford, the United States Attorney for the Eastern District of Texas, and James William Blagg, the United States Attorney for the Western District of Texas, shall appear personally at 10:00 a.m. on that day and explain why they and the United States should not be held in contempt of cou rt." Recall that Blagg has already recused his entire office, which encompasses Waco and other divisions, from participation in any remaining matters relating to the Branch Davidians. The Department Of Justice assigned Bradford and the Eastern District to take Blagg's place. There thus appears to be no valid reason for requiring Blagg's presence at a show cause hearing. According to Judge Smith, however, "the Court is not persuaded that it has jurisdiction over the United States Attorney for the Eastern District of Texas, and nothing in the Department's 'recusal' indicates that any such jurisdictional issues have been waived. The Court does have unquestioned jurisdiction over Mr. Blagg."

This is hardly the reasoning of a "precise legal mind." Congress has given Attorney General Reno the authority to send Department of Justice attorneys into any federal court in the land. Moreover, United States Attorney Bradford has clearly submitted himself to the court's jurisdiction through his presence at hearings and the filing of various motions. What is going on here then? Has Judge Smith suddenly lost his smarts? Don't count on it. It is far more likely that he is simply attempting to embarrass and send a warning to Blagg. Smith's protégé, Assistant United States Attorney ("AUSA") Bill Johnston, has all but accused Blagg, who is Johnston's boss, of retaliating against Johnston's Waco Division due to Johnston's past criticisms of the FBI. Johnston has also created the impression, directly and through allies in the press, that Blagg is attempting to make Johnston a scapegoat for alleged Department Of Justice wrongdoing relating to the Branch Davidians. Both of these allegations appear to me to be groundless, and the scapegoating charge is particularly pernicious. (Johnston has also suggested that others in the Department Of Justice may be trying to scapegoat him. I express no opinion as to those charges.) Be that as it may, Judge Smith appears to be reminding Blagg in the November 2 order that, recusal or not, Smith retains the power to make life difficult for him. My analysis of Smith's order is consistent with his phone call to Attorney General Reno, wherein Smith told Reno, according to the Dallas Morning News, that "he would not tolerate departmental retribution" against Johnston. That is a curious statement for an official in the judicial branch to make to the Attorney General Of The United States about one of her executive branch subordinates.

Judge Smith, as the only Article III federal judge in Waco, is used to wielding power as he sees fit. (I am aware of two separate instances in which he threatened to bar particular Western District AUSAs from appearing in his courtroom.) As the national spotlight begins to focus more sharply on him, it will be interesting to see if Judge Smith can fade the heat. His judicial rulings and behavior, however, should always be viewed against the sometimes Byzantine political backdrop of the Western Judicial District Of Texas.

*   In the interest of full disclosure I should state that I formerly prosecuted cases in the Western District of Texas, though I had no involvement in the Branch Davidian matter. AUSA Johnston has often been mentioned as a future United States Attorney, and in the past I have also considered applying for that position. The opinions expressed in this article are my own, and are not those of my law firm, its clients, or Findlaw.


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