Notes From the Halls — and Chambers — of Justice

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A Surprising Advocate of Medical Marijuana
Drug czar designate John P. Walters is likely to surprise his critics on the left if, as is likely, he is asked about medical marijuana during his confirmation hearings. Although staunchly conservative on drug and crime issues, Walters is expected to testify that he thinks the government should consider loosening federal rules so that doctors can prescribe or recommend marijuana for certain seriously ill patients.

During the Bush I administration, then drug czar William Bennett and Walters, his deputy, opposed a decision by the Department of Health and Human Services to end the so-called "compassionate exemption" permitting doctors to use marijuana to alleviate the suffering of people with cancer, AIDs and other chronic or debilitating ailments. Bennett and Walters argued that while zero tolerance was appropriate in most circumstances, there was nothing to be gained by denying marijuana to individuals who were suffering, even though the medicinal worth of the drug had not been proven scientifically.

It was more important, they argued, to remember that public support was crucial to the effectiveness of a national policy on drugs. If a lot of people thought the government's policy was cruel and unfair, the government needed to make a better case for its position, or else drop its opposition to experimental marijuana use for humanitarian purposes. Walters' position today, as it was then, says a source familiar with his thinking, is that "drug policy, if properly formulated, needs to be humane and responsible to be effective." Since polls show that many Americans support the use of medical marijuana, Walters is expected to be an advocate for marijuana policy reform on this narrow but highly emotional issue.

Replacing Mary Jo White
Rumors continue to swirl that U.S. Attorney Mary Jo White will leave her job in the southern district of New York this summer — especially now that the East Africa bombing trial is nearly over. In the early days of the Bush administration, a source said that she would be kept on at least as long as the trial continued. Guilty verdicts on all 302 counts against the four defendants were handed down May 29, a major coup for White's office. Now the case enters the penalty phase. Two of those convicted, Mohamed Rashed Daoud Al-'Owhali, 24, of Saudi Arabia and Khalfan Khamis Mohamed, 27, of Tanzania, face the death penalty. The process calls for a mini-trial in which prosecutors and defense lawyers will put on witnesses for and against each man. Al-'Owhali's proceedings started Tuesday and are expected to run for roughly two weeks. Mohamed's sentencing phase will take another two weeks. If the administration sticks to its earlier statements, that means White has at least a month to order her affairs.

White's office has been working at a rapid clip on the pardons investigation as well as the probe of New Jersey Sen. Robert Torricelli. In the Marc Rich portion of the pardons inquiry, former White House counsel and Rich lobbyist Jack Quinn testified before the grand jury a total of four times — and none of the occasions were pleasant. Two Texans who claim they were defrauded by Roger Clinton, the former president's brother, are scheduled to testify in June. In the Torricelli probe, prosecutors are trying to amass enough physical and other evidence to overcome the fact that the senator's chief accuser, David Chang, is a known and profligate liar.

Among the names that have floated to replace White are Gov. George Pataki's counsel, James McGuire, and criminal lawyer Thomas Engel, a former federal prosecutor in N.Y. and a Federalist Society member. But the change in control of the Senate could give Democratic Sen. Chuck Schumer a bit more sway in the choice.

Ashcroft and the Second Amendment
John Ashcroft's letter to the National Rifle Association saying that the Constitution protects individual gun ownership rights prompted a frantic call from a U.S. Attorney's office in Texas to Department of Justice headquarters at 10th & Pennsylvania. The Attorney General's position isn't in sync with court rulings over the last six decades, including a 1939 Supreme Court decision, holding that the Second Amendment right applies to the states, rather than individuals.

Furthermore, lawyers in the department's criminal division, which handles gun crimes, weren't given a heads-up that the reversal in policy was coming. Nor were federal prosecutors in Texas, who have handled the one recent case in which the defendant has argued that his Second Amendment rights were violated when he was charged for possessing a small arsenal of pistols and semi-automatic weapons while under a restraining order taken out by his wife.

In that case, a federal judge in Lubbock bought the argument and dismissed the gun charges against defendant Timothy Joe Emerson, a doctor. The government is awaiting a decision of its appeal. If this decision too goes against the government — which seems unlikely, given the bulk of precedent favoring the feds' position — the question is now whether the Ashcroft Justice Department would try to take the case to the Supreme Court or simply let it drop. Also at issue is whether Ashcroft's letter, which was read aloud by an NRA official at the group's convention in Kansas City, will prompt gun-rights groups to begin an onslaught of lawsuits challenging restrictions on firearms ownership.