American Tali-lawyer: Defending John Walker Lindh - James Brosnahan

National Review, Feb 25, 2002 by Byron York

In the days after the parents of American Taliban John Walker Lindh hired San Francisco lawyer James Brosnahan to represent their son, several observers took pains to point out Brosnahan's history of supporting leftist causes. It was all true. But perhaps the real issue is not Brosnahan's politics but his history of politicizing the cases in which he's been involved.

Until recently, Republicans in Washington knew him best for prosecuting former defense secretary Caspar Weinberger in the Iran-contra case. Brosnahan and his boss, independent counsel Lawrence Walsh, made headlines by indicting Weinberger on October 30, 1992 -- the Friday before the election in which the first President Bush lost to Bill Clinton. Brosnahan and Walsh included in the indictment the full text of a January 7, 1986, note written by Weinberger that seemed to suggest that Bush knew more about the arms-for-hostages deal than he had let on.

There was no legal requirement to release the note; Weinberger was charged with making false statements to Congress, which the note had nothing to do with. But making the note public set off a media storm about Bush's credibility that raged through the precious few days before the election. Bush aides were appalled. Speaking to the Washington Post, one senior White House official called the timing of the indictment "an incredibly low blow by a mean, political hack." Many White House aides believed the wave of anti-Bush coverage killed the momentum that Bush had gained before the Weinberger indictment.

Nonsense, replied Brosnahan. "Let me explain that this case has nothing to do with politics; it has everything to do with government," he told reporters on November 24, 1992, the day Weinberger pleaded innocent to the charges. "Nobody need be concerned that this trial will be [anything] other than a fair trial for Mr. Weinberger. You can take that to the bank."

Republicans were not persuaded. Bob Dole, then the Senate majority leader, pointed out that Brosnahan had contributed to the Clinton campaign. Indeed, Brosnahan had contributed to every Democratic presidential candidate going back decades, as well as to a long list of liberal Democrats in California. But the extraordinary thing about the Clinton/Gore contribution was that Brosnahan made it while working on the Weinberger case -- indeed, at almost the same moment the Weinberger indictment was announced. According to Federal Election Commission records, the Clinton campaign received Brosnahan's $1,000 contribution on October 29, 1992, the day before Weinberger was indicted. It was hardly the sort of act designed to give the impression that a prosecutor is acting in a manner above politics. (Brosnahan's prosecution ended when Bush pardoned Weinberger on December 24, 1992.)

The Iran-contra case was actually Brosnahan's second foray into Washington law and politics. Six years earlier, in 1986, Brosnahan made news when he testified against Supreme Court justice William Rehnquist. (Rehnquist was first confirmed to the Court in 1971; he underwent a second confirmation in 1986 when he was nominated to be chief justice.)

Brosnahan told the Senate that in 1962, when he was an assistant U.S. attorney in the Kennedy Justice Department, he was assigned to investigate complaints of voter intimidation in Phoenix. Brosnahan testified that during the investigation he saw Rehnquist, who was then a local lawyer, harassing voters at a mostly black and Hispanic polling place. Rehnquist, Brosnahan said, was vigorously challenging voters' credentials. "Because the challenges were so numerous, the line of voters in several precincts grew long, and some black and Hispanic voters were discouraged from joining or staying [in line]," Brosnahan testified. "It was my opinion in 1962 that the challenging effort was designed to reduce the number of black and Hispanic voters by confrontation and intimidation." Three other Democrats said they saw Rehnquist doing the same thing.

There were substantial problems with Brosnahan's story. First, eight other witnesses who had been present said they never saw Rehnquist doing anything of the kind. Second, the man who headed the Phoenix Democratic party at the time testified that he had never heard the accusations about Rehnquist. And third, Brosnahan -- despite his apparent strong feelings -- had not come forward when Rehnquist was first nominated and confirmed to the Court in 1971.

As it turned out, Brosnahan was encouraged to speak out against Rehnquist in 1986 by The Nation Institute, a non-profit organization affiliated with the left-wing Nation magazine. The institute runs something called Supreme Court Watch, which maintains a network of activists dedicated to opposing Republican judicial nominees. As they geared up to fight the Rehnquist nomination, the institute's staffers sought out Brosnahan. "We are proud of the role played by our sister institution, The Nation Institute, in the examination of Rehnquist's record," the editors of The Nation wrote in August 1986. "As witness Brosnahan explained, his participation in the hearings had been set in motion when he was interviewed by . . . two reporters hired by the institute's Supreme Court Watch project."