August 4, 1994 - Part 11
August 4, 1994 - Part 11
(22:35:36) He told us that the RTC would have to reach a decision by that date about whether there was a prima facie case of fraud or willful misconduct. He said the RTC would have three options: 1, bring a lawsuit if there was a good faith basis for one; 2, do nothing and let the statute of limitations expire; or 3, seek from potential defendants-including possibly the Clintons-tolling agreements extending the statute of limitations, He indicated that the RTC staff would be in a position to act before February 28, 1994. Mr. Altman said that the RTC investigation was headed by Jack Ryan, the RTC's Deputy Chief Executive Officer, and Ellen Kulka, the RTC's General Counsel. He told us that he had confidence in them and would be inclined to rely on their recommendations. He said they had both recently come from the Office of Thrift Supervision, the OTS. I said that I had heard of Ms. Kulka when she worked for the OTS and that she was one of a group of tough OTS litigators. Mr. Altman then turned to a subject that had not been previously identified as a topic for discussion. He said he was considering recusing himself from the Madison Guaranty investigation. He 471 said he had discussed this with Ms. Hanson and Secretary Bent. sen, and they agreed it would be best. Mr. Altman went on to say, almost in the next breath , that he received ethics advice to the effect that he was not--I repeat not-, legally or ethically required to recuse himself. This meant two things to me- First, that Mr. Altman believed he could act impartially in the Madison Guaranty matter; and second, that Mr. Altman and his ethics advisor believed that his acting in the matter would not raise an appearance of partiality within the meaning of the relevant ethical standards. Notwithstanding this ethics advice, Mr. Altman said he was inclined to recuse himself, Mr. Altman added that he did not believe his recusal would have any effect on the RTC's decisionmaking process, since he expected to follow the recommendations of the RTC staff in any event. I felt that what Mr. Altman had said raised an important policy issue for the Executive Branch. I was concerned that Mr. Altman's recusal might set a bad precedent for the Clinton and future AdministrMy experience as a la' lawyer, the world where I come from, has WY taught me that if a judge has a legal or ethical reason for recusing himself or herself from a matter under adjudication, he or she should promptly do so. But if there is no legal or ethical reason for recusal-and Mr. Altman said that there was no such legal or ethical reason-then that individual should do his or her sworn duty Now, this principle was eloquently expressed by Justice Rehnquist in Laird v. Tatum in 1972 when shortly after he was appointed to the Supreme Court, he was asked to recuse himself from a case. After examining the law carefully and finding he was not legally required to recuse himself, he wrote words which I remembered. That "the duty of a Federal judge to sit when not disqualified is equally as strong as the duty to not sit where disqualified." I believe that the same principle applies to the Executive Branch and regulatory agencies. Public officials should not have the option of avoiding their responsibilities simply because they are difficult, or inconvenient, or because the officials find it personally or politically expedient to step aside. When I testified last week before the House Banking Committee, I made the same point, Since then, the nonpartisan Office of Government Ethics issued a report which supports this position. The OGE wrote [on page 20 of its report]: