CONGRESS COMES AFTER A FEDERAL JUDGE

Congress is coming after a federal judge in Minnesota who, it asserts, has
let drug offenders off too easily, triggering a tug-of-war over the
independence of the judiciary.

One side is pulling to retain discretionary power on the bench. The other
is yanking for more oversight.

At issue is an effort by Congress to subpoena U.S. District Judge James
Rosenbaum's records on drug cases over the last four years.

In an unprecedented and controversial move that has judges nationwide
expressing concern, the House Judiciary Committee has threatened to issue
subpoenas for records relating to Rosenbaum's sentencing decisions, and has
requested a federal review of the entire Minnesota federal bench as part of
a broader inquiry into drug sentencing.

"I think there are constitutional implications regarding this particular
congressional inquiry," said U.S. District Judge Ann Montgomery, who also
sits on the Minnesota federal bench. "I have a concern about how this
impacts on the independence of the judiciary. I'm concerned that they might
be overstepping their boundaries."

Rosenbaum, a Reagan appointee, is accused of imposing unlawfully light
sentences for drug offenders and misleading the judiciary committee last
year during testimony about minimum drug-sentencing guidelines.

The dispute apparently began on May 14, when he was invited to testify
about a Republican bill on sentencing guidelines.

A committee report quoted him as saying defendants convicted of drug
offenses "frequently have no idea what they are carrying or receiving."

Later in the hearing, Rosenbaum corrected his statement to say that persons
who had been convicted did know they were carrying or receiving illegal
drugs, the report said. The committee concluded: "That a sitting federal
judge would suggest, as he did in his prepared statement, that persons can
be and are convicted on no more evidence than receiving a package at the
request of a boyfriend is remarkable."

Republicans later learned that Rosenbaum imposed lighter sentences -- known
as downward departures from the federal sentencing guidelines -- in three
cases.

Lungren said the commission decided to investigate Rosenbaum further to see
if he had issued any more such sentences.

Issue Of Control

Some observers fear the dispute has wider implications with Congress
threatening the separation of powers.

"Who decides sentences is what this is about," said Barry Feld, a law
professor at the University of Minnesota who specializes in criminal
procedure. "Here, Congress is trying to assert its authority over judges in
the area in which judges retain their sentencing discretion. It's an effort
to chill and intimidate judges by subjecting their decisions to this kind
of data and collection and review."

The Capitol Hill backers of the inquiry deny any such intentions,
maintaining they are acting within their powers in seeking the judge's records.

"It's part of our constitutional oversight role," said Jeff Lungren,
spokesman for the judiciary committee.

"We found that Judge Rosenbaum misled the committee with his testimony.
When we further pursued the issue, we found out that Judge Rosenbaum was
disregarding the law with respect to issuing illegal sentences. We asked
for some documents related to this, and those requests were rebuffed, and
so we were forced to consider issuing a subpoena."

And as for lawmakers' unfairly putting Rosenbaum in the hot seat, Lungren
said Rosenbaum has only himself to blame.

"Judge Rosenbaum chose to mislead the committee," he said. "Judge Rosenbaum
chose to issue illegal sentences. Judge Rosenbaum chose not to cooperate
with the committee in providing documents. This notion that if you're a
federal judge, you don't have to reply to any requests by anyone else is
absolutely false."

According to Lungren, one of Rosenbaum's questionable sentences was
reversed by the 8th U.S. Circuit Court of Appeals. In that case, U.S. v.
Heilman, 235 F.3d 1146, Rosenbaum gave the defendant a 48-month sentence,
instead of the 57 to 71 months called for under the sentencing guidelines.

Rosenbaum is also accused of giving two other drug offenders sentences that
were 30 days shorter than the minimum requirement. One of those cases
involved a young, immigrant drug offender who got 10 years. U.S. v. Eduardo
Pelayo-Ruelas, No. CR-01-228.

According to a House Fairness in Sentencing Act of 2002 report, Rosenbaum
told the defendant during his sentencing hearing on Aug. 2, 2002: "I just
sentenced you to one month less than the guidelines. The guidelines were
calculated by a computer, which apparently was not satisfied with the fact
that 10 years is 120 months. And so we have a ridiculous extra month, which
I have taken off. Now that represents an illegal departure. And if the U.S.
wants to appeal, I presume they will have a right to take that appeal. My
guess is that they will decline."

Supporters of the inquiry say that the testimony is proof that Rosenbaum
made an illegal departure, and that he admitted it himself by using the
word illegal.

Rosenbaum's lawyer, Victoria Toensing of di Genova & Toensing of
Washington, said politicians are taking Rosenbaum's comment out of context,
that Rosenbaum used the word "illegal" merely as a way to explain the
sentence to a young man who didn't understand the English language.

"He was explaining the law to a young kid who didn't understand the law,
and trying to make it clear to him," Toensing said. "He was obligated to
inform a young kid that the prosecutor could appeal, and [illegal] was a
simple word to use for someone who did not understand the law."

Toensing also defended Rosenbaum's sentencing record, saying any downward
departures he has ever made were legal and covered under the 1996 U.S.
Supreme Court ruling in Koon v. U.S., 518 U.S. 81, which recognized a
judge's authority to depart downward in unusual circumstances.

"All of Judge Rosenbaum's sentences were correct under the law," said Toensing.

According to Justice Department data obtained by the nonprofit group
Transactional Records Access Clearinghouse, Rosenbaum's drug sentences were
on par with the median drug sentence of five years handed out by the
state's other judges from 1986 to 2002. The report also showed that federal
judges in Minnesota imposed median sentences longer than the national
median each year from 1998 to 2002.

Toensing said Rosenbaum has also complied with the committee's request to
turn over his records.

"As of Dec. 20, we have turned over all the information of the cases in
which he testified about," Toensing said.

Judges' Concern

The situation appears to have stirred wide concern among federal judges.

"There's a general sense that any action that could pose a potential threat
to judicial independence is of great concern to judges," said Dave Sellers,
a spokesman for the Administrative Office of the U.S. Courts. "Anything
that could potentially represent an infringement on judicial independence
is going to concern any federal judge."

Sellers said news of Rosenbaum's case is spreading quickly in the judicial
arena. At a meeting last week of the Judicial Conference, the chairman of
the U.S. Sentencing Commission issued a briefing "that this is an issue
that is out there. You should be aware of it. And stay tuned."

U.S. District Judge Richard Kyle of Minnesota has been tuned in for the
last month, reading news reports about his colleague's troubles.

Like other judges, he is concerned about the separation of powers.

"I don't want to be the one to say they have no right to come in and look
at us ... but I think each of the branches has to pay respect to the
other," said Kyle, who said the system should not be tampered with. "I
think the checks and balances are there."

One of the checks and balances that assure fair sentences is the appeals
process, Kyle said.

"If the government doesn't like [our sentences], it appeals," he said. "If
the defendant doesn't like it, the defendant appeals. And if the circuit
court of appeals doesn't like it, it tells us."

Judge Montgomery agreed, saying judicial oversight is the job of the
appellate court, not Congress. "In the judicial branch, the check or
balance created so that a judge doesn't abuse their sentencing authority is
the right of appeal."

Another Minnesota judge, U.S. District Judge Donovan Frank, a Clinton
appointee, said Congress' suggestion that Rosenbaum acted illegally "goes
against every judicial bone" in a judge's body.

"I know how much Judge Rosenbaum, and all judges, cherish the oath of
office," Frank said. "Rosenbaum was a Reagan appointee. I'm a Clinton
appointee. ... There aren't a lot of differences. We understand our role
here and how important it is."

Judges also argue that if in fact they were too lenient in punishing drug
offenders, the U.S. Attorney's Office would be crying foul.

Tom Heffelfinger, the U.S. Attorney in Minnesota, said Minnesota has one of
the best federal benches in the country. He said the judges generally
adhere to the sentencing guidelines. When they don't, and his office
doesn't like it, it appeals, he said.

Avenue Of Appeal

"When Judge Rosenbaum or any other judge in Minnesota departs from the
guidelines and we feel that an appeal is appropriate, we have in the past
and we will in the future appeal those sentences," Heffelfinger said. "And
our experiences has been that that works."

Heffelfinger, who has known Rosenbaum for 20 years, defended him on several
grounds, saying he departs from the guidelines less often than judges
nationwide do.

"No criminal lawyer in Minnesota would ever accuse Rosenbaum of being a
bleeding heart," Heffelfinger said. "Judge Rosenbaum has been a very good
judge. ... He is tough. He is fair. And he has operated his courtroom
consistent with the law."

Kyle said, "All I know is, I know Jim Rosenbaum. And I'd be very surprised
if he did anything that rises to the level of illegal. He's what I call a
straight shooter."

Kyle went on to defend the entire bench, which is also being looked at for
possible lenient drug sentences.

"I don't track everybody else's sentencing record around here, but knowing
what I know about these members of court, I'd be very surprised that
anything out of the ordinary is done in Minnesota," Kyle said.

Coincidentally, his supporters point out, the same day that Congress
announced the possible subpoena, an appellate court ruled that Rosenbaum's
6 1/2-year sentence of a white-collar criminal may have been too harsh.

On March 12, the 8th Circuit remanded a case involving a
multimillion-dollar insider trading scheme back to Rosenbaum, who tacked an
extra two years onto the defendant's prison sentence.

The 8th Circuit said it needs more facts from Rosenbaum to support the
tougher sentence. U.S. v. Kline, No. 02-2127.

Meanwhile, the subpoena request, spearheaded by House Judiciary Committee
Chairman James Sensenbrenner, R-Wis., was put on hold following a
last-minute effort by other House members to settle the dispute.

The committee on March 12 decided to hold off voting on the subpoena after
the committee's top Democrat, John Conyers, D-Mich., stepped in to broker a
deal between the panel and Rosenbaum. No deal has been made.