intransigence and mindless opposition to its own agreement. Id. at 33.
An interpretation of Rule F(3) must begin with an analysis of the motivations underlying its promulgation. Rule F(3) is designed to foster the effectiveness of the IRB by ensuring the fairness of its members and furthering the general membership's perception that the IRB is a neutral entity. The Rule recognizes the potential threat to impartiality created by simultaneously serving on the IRB and occupying a position with either the Government or the IBT. It thus allows this Court to assess whether, in a given situation, an affiliation with either the IBT or the Government threatens an IRB member's fairness or presents an unacceptable appearance of partiality.
The Rule, for instance, is primarily designed to prevent and would certainly prohibit a full-time Government or IBT employee from serving on the IRB. Such a situation is unacceptable because it is a paradigm of partisanship; it falls within the rubric of Rule F(3), however, not due to some mechanistic application of the Rule, but rather because such full-time employment at the very least will create the appearance of divided loyalties. In the absence of such a conflict of interest, it becomes necessary to assess whether an IRB member's affiliation with the Government or the IBT threatens neutrality or promotes the appearance of partisanship.
This Court finds that Judge Lacey's role as Independent Counsel is not a "position with the Government" as contemplated by Rule F(3). The duties Judge Lacey will perform as Independent Counsel pose no significant threat to his impartiality. In fact, far from promoting a pro-Government bias, the nature of Judge Lacey's assignment may place him in an adversarial posture toward the Government. Judge Lacey is charged with, among other tasks, searching for "improprieties" in the Justice Department's investigation of the BNL matter and investigating "all aspects" of CIA document production in connection with the BNL matter. Letter from William P. Barr, Attorney General of the United States, to Frederick B. Lacey, Independent Counsel (October 16, 1992) (on file in the Southern District of New York). In discharging this function, Judge Lacey enjoys "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice." See 28 C.F.R. § 600(a). It would savage credulity to say that Judge Lacey, in the process of investigating and possibly prosecuting those in Government, including employees of the Department of Justice, would lose his impartiality as a member of the IRB and suddenly become predisposed to rule in the Government's favor. Judge Lacey must critically evaluate the Government's conduct, not ratify it.
Furthermore, although appointed by the Attorney General, Judge Lacey is not the Attorney General's clone. Judge Lacey enjoys, as his title suggests, independence from the Government. An Independent Counsel "may be removed from office, other than by impeachment and conviction, only . . . for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of the Independent Counsel's duties." 28 C.F.R. § 600.3(a)(1). Even if dismissed, Judge Lacey is entitled to judicial review of the removal decision, and may obtain reinstatement or other appropriate relief. See 28 C.F.R. § 600.3(a)(3).
In reality, his sole "ties" to the Government are his appointment by the Attorney General and his use of Department of Justice resources. Having been appointed, his mandate is to uncover wrongdoing within governmental agencies and expose flaws in governmental investigations.
In sum, the position of Independent Counsel requires Judge Lacey not only to be independent of the Government, but also to adopt an adversarial stance toward it. Moreover, Judge Lacey is not an entrenched member of the federal bureaucracy, or employed full-time with the Government, but rather is an individual employed in the private sector who has consented to perform a specific task at the request of the Attorney General. Such temporary service by one not otherwise associated with the Government does not, in this instance, implicate the concerns that motivated the promulgation of Rule F(3). Thus, the argument that Judge Lacey is technically "within" the Department of Justice or an "inferior officer" of the United States, see In re Sealed Case, 264 U.S. App. D.C. 265, 829 F.2d 50, 56 (D.C. Cir. 1987),
makes no relevant point for purposes of Rule F(3). The nature of his role as Independent counsel, and the tasks he will perform in that capacity, simply do not subvert Judge Lacey's ability to serve as an impartial member of the IRB nor do they create an "intolerable appearance of bias." IRB Rules Opinion, at 83.
The IBT nevertheless contends that because Judge Lacey is paid by the Government for performing the discrete function of an independent counsel and because Judge Lacey took an oath as Independent Counsel to support and defend the Constitution, he occupies a position with the Government. Once again, the IBT tortures Rule F(3) by proffering a robotic reading of the Rule. Rule F(3) bars an IRB member's affiliation with the Government or the IBT only when such an affiliation threatens impartiality. The IBT has proffered factors that go to whether, in a literal sense, Judge Lacey is a Government employee, rather than whether he will be, in actuality and appearance, an impartial member of the IRB. As already noted, Judge Lacey's impartiality is not threatened by his serving as Independent Counsel. An example illuminates the shallow nature of the IBT's argument. Like an Independent Counsel, a federal judge is paid by the Government, and also must take an oath to support and defend the Constitution. Taking the IBT's argument to its logical conclusion, all federal judges occupy "positions with the Government," such that they could not impartially address matters where the Government is a party. Nevertheless, it is the unquestioned responsibility of every federal judge to try all cases in a just and impartial fashion. More often than not, the Government is a party in the matters heard in federal court; nevertheless, the fact that the Government issues a judge's paycheck in no way compromises his or her ability or duty to render fair and impartial decisions. It is ludicrous even to suggest that a federal judge be barred from adjudicating matters where the Government is a party. Similarly, the fact that Judge Lacey is paid by the Government for serving as Independent Counsel and the fact that he took an oath of office in no way negates or impairs his ability to render impartial decisions.
The IBT's opposition to Judge Lacey's appointment as Independent Counsel is all the more striking given that originally it opposed Rule F(3) and wanted to allow one of the current members of the IRB, Harold E. Burke, to continue as Special Assistant to the IBT General President. In contrast to Judge Lacey's relationship with the Government, Mr. Burke, as the General President's aide, was not in an adversarial stance toward the IBT, was certainly not independent of the IBT, and was a full-time employee of the IBT. Nevertheless, as already noted, the IBT originally urged rejection of a Rule that prohibits such blatant partisanship. It desired to further a situation where Mr. Burke, as an IRB member, could be called upon to investigate both his immediate supervisor, General President Carey, and his full-time employer, the IBT, and where his own actions on behalf of the IBT could be subject to IRB scrutiny. The IBT's stances in these matters are not just in conflict, but are wildly contradictory positions that in both cases advocated extreme results that had opposite effects. This leads to one of two conclusions: the IBT and its counsel have exhibited intellectual myopia, or, perhaps more chilling, a desire to stymie the work of the IRB at all costs.
The application of Frederick B. Lacey, to clarify that his role as Independent Counsel in the BNL matter does not conflict with IRB service, is hereby granted.
DATED: NOVEMBER 2, 1992
New York, New York
David N. Edelstein