Ethics Complaint Filed Against Ashcroft

W A S H I N G T O N, July 3, 2001 -- A pro-gun control group and a citizens' watchdog organization today accused Attorney General John Ashcroft, the nation's top law enforcement officer, of undermining one of the very laws he took an oath to defend.

"[W]e believe that Attorney General Ashcroft has blatantly violated numerous ethical guidelines that govern his conduct as an attorney toward his client, the United States of America," Michael D. Barnes, president of the Brady Center to Prevent Gun Violence, and Scott Harshbarger, president of Common Cause, wrote in an ethics complaint.

In the complaint, filed today with the Justice Department's Office of the Inspector General and the D.C. Court of Appeals, they called for a full federal investigation.

The allegation stems from a May 17 letter from Ashcroft to the National Rifle Association, the country's largest gun-rights advocacy group. In it, the attorney general described his view that the Constitution protects the private ownership of firearms.

"[L]et me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms," he wrote in the two-page letter addressed to NRA Executive Director James Jay Baker.

"While some have argued that the Second Amendment guarantees only a 'collective' right of the States to maintain militias, I believe the Amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The NRA boasted of Ashcroft's interpretation of the much-debated article in speeches and publications.

"[It] marks a decided reversal from the days of the Clinton/[Attorney General Janet] Reno Department of Justice," read a May 25 "Fax Alert" released by the organization. "Please feel free to contact Attorney General Ashcroft and thank him for his public support of our Right to Keep and Bear Arms."

The Case of U.S. vs. Emerson

Ashcroft is a longtime member of the NRA and was a staunch opponent of gun-control measures during his tenure as a U.S. senator from Missouri. The legal interpretation Ashcroft offered is one espoused by countless gun rights' advocates both in and out of government.

The problem, the attorney general's accusers say, is that it contradicts the government's legal position in a pending federal court case.

When Timothy Joe Emerson, a Texas man, was charged with violating a federal statute barring people under domestic violence restraining orders from possessing guns, his lawyers argued their client's constitutional right to bear arms had been violated.

In a 1999 legal brief cited in today's ethics complaint, however, the Justice Department argued that "possession of the firearm must be 'reasonably related' to the preservation or efficiency of the militia before the Second Amendment will shield such possession."

The charges were thrown out, but the case is currently under appeal. The NRA has filed an amicus brief in support of the defendant.

Common Cause and the Brady Center claimed Ashcroft undermined the government's case against Emerson and thus violated the Rules of Professional Conduct.

"With the Emerson case now pending before the Fifth Circuit Court of Appeals, anything that the Attorney General says with respect to the Second Amendment is of mroe than passing interest," Barnes said in a written statement. "What's at stake here is the integrity of the U.S. Department of Justice."

Barnes and Harshbarger's complaint was accompanied by a letter written by Georgetown University Law Professor Samuel Dash.

"Attorney General John Ashcroft now, in an extrajudicial communication, has advocated a legal position challenging the constitutionality of that statute and, in effect, supporting the dismissal of the indictment," wrote Dash, a legal ethcis expert. "This act of disloyalty to his client, the United States, constitutes an impermissible conflict of interest."

But the Justice Department insists Ashcroft did no such thing and that the complaint against him is "based on inaccurate information."

"We haven't changed our position on the Emerson case at all," said Mindy Tucker, director of public affairs for the departmment. "We don't have to change our position on this case in any way."

She argued Ashcroft's position that the Constitution guarantees an "individual" right to bear arms does not conflict with the gun control statute in question.

"He believes they are reasonable restrictions to gun ownership," Tucker said of the attorney general. "But he does believe it's an individual and not a collective right — those are not mutually exclusive."