Imagine you’re hired to defend someone in a sensitive position in the government. After a lengthy search through top-secret documents, you think you’ve found the information that will make your case. But what you’ve found are classified documents, and they can’t be released to the public, even in a trial. What do you do?
This has been a dilemma faced numerous times by Jones Day attorney John Cline. Cline’s specialty is criminal cases with national security implications, and he’s used secured information to defend government figures like Oliver North.
He calls his work as part of the team defending Oliver North from Iran-Contra charges “the greatest experience a young lawyer could possibly have” and refers to North himself as “a terrific person and a delight to be around.” He also expresses great satisfaction with the jury’s verdict.
“He was left with no convictions. I think it was the right outcome. It was a long, hard case, but we prevailed,” he says.
More recently Cline joined a legal team defending another controversial figure linked to a Republican president. In November 2005, he agreed to help with the defense of Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, who has been charged with lying to a grand jury.
But don’t assume those cases necessarily reveal Cline’s political leanings. Subsequent to assuming a role in the Libby case, the graduate of the University of Texas Law School and his colleagues in the San Francisco office of Jones Day took on the defense of a young man accused of gang-related activities in a case involving a capital crime.
“I have always thought that lawyers should take on cases for people who are indigent, particularly when the death penalty is involved,” he says. “To my delight, Jones Day agreed, and they agreed to do it at California Juvenile Authority rates. I think it’s a wonderful thing.”
Words like “delightful” and “wonderful” seem to pop up frequently in conversation with Cline.
He doesn’t seem to have any cynicism about his work, the American legal system or law in general.
Quite the opposite, in fact. “I love what I do,” Cline says. “Every morning when I come to work, I’m delighted to be doing what I’m doing, helping individuals deal with what usually are the worst problems they’ve ever faced.”
In addition to North and Libby, his clients have included Wen Ho Lee, the Los Alamos scientist accused of giving out nuclear secrets, and James Smith, an FBI agent charged with negligently permitting his mistress to obtain classified information. He can also boast a long list of high-ranking corporate officers accused of various white-collar crimes.
The son of an airline pilot, Cline did not start out to be a lawyer, or anything else for that matter. As a teenager, he was kicked out of a New England boarding school for having a girl in his room. As a young adult, he dropped out of Washington & Lee University in Virginia for lack of interest, taking a year off from studies before returning to college at the University of New Hampshire. He managed to graduate from UNH, but even then he lacked direction, taking another year off to work in a sawmill after obtaining his degree.
Thinking he might like to teach, Cline eventually applied to graduate school for English at the University of Texas in Austin. The decision turned out to be serendipitous. While studying English, he unexpectedly discovered an interest in the law, prompting him to take the LSAT and switch to the university’s law school.
That’s when things began clicking. During his third year, he took a course in criminal law from Luis Stelzner. By the year’s end, Cline knew he wanted to be a criminal defense lawyer, and following graduation and a year-long clerkship in the Fifth Circuit of the U.S. Court of Appeals, he joined Williams & Connolly in Washington, D.C.
It was while working at Williams & Connolly that the novice attorney got the opportunity to assist on the Oliver North case. And it was his experience on that case that more or less set the direction for his career.
“I couldn’t believe my good fortune,” he says. “The legal issues were fascinating. And the whole way we had to work was totally different from anything I’d been exposed to. We were moved to a SCIF, where we had to do all our work.”
A SCIF, Cline explains, is a “sensitive compartmented information facility” created and run by the federal government for work involving classified documents. The limited-access office is outfitted with security devices, as well as special computers, copiers, phone systems and other equipment that can be secured.
“Everything is designed to ensure complete security. It’s the kind of environment where you’re always on your toes. It’s a kind of charged atmosphere that as a young lawyer I found very exciting and challenging,” he recalls.
But it wasn’t just the case that impressed him. Cline relished the opportunity to work under the guidance of Williams & Connolly partner Brendan Sullivan Jr., a man Washingtonian magazine describes as “the quintessential litigator, the first choice of almost everyone in trouble — if you can get him.” He emphasizes he also benefited from being able to observe the work of those on the opposite side of the courtroom, especially chief prosecutor John Keker.
In general, Cline regards his adversaries in court with respect. In the Lee case, in which the defendant pleaded guilty to one felony charge of mishandling government secrets and the more serious charges of treason were dismissed, he lauds the work of the prosecution as much as that of the defense. This despite a scathing critique from the bench of the government’s actions, with the judge censuring the departments of Energy and Justice for having “embarrassed the entire nation.”
Nonetheless, Cline states without equivocation, “Collectively, we all did good work. It was well litigated on both sides, and the result was a reasonable one, not what either side would have hoped for, but well considered. The government overcharged the defendant to begin with, but the resolution was fair.”
Though he had quickly worked his way up to become a partner at his prestigious Washington firm, ambition took second place to what he considers a more important calling: parenthood. After a divorce and remarriage, he followed his former wife, a psychiatrist, to Albuquerque to remain close to their son.
“My wife and I were looking to move from Washington anyway because it’s so hard to raise a family there, but I didn’t want to lose contact with my son,” says the devoted father, who has three more sons with his second wife.
The move to New Mexico was not, however, a matter of moving to the outback of the legal world. In fact, Cline refers to Freedman Boyd as “one of the premier criminal defense firms in the country.” Partner Nancy Hollander, with whom he worked closely, is a former president of the National Association of Criminal Defense Lawyers and a council member of the International Criminal Bar.
Cline and Hollander worked together on the Lee defense, which was led by California attorney Mark Holscher of O’Melveny & Myers. Brian Sun, then a partner at O’Neill, Lysaght & Sun in Santa Monica, was also involved in the case, and subsequently worked side by side with Cline on the FBI Agent Smith case. At the time, Sun’s practice was being absorbed into the Los Angeles office of Jones Day, which was seeking to beef up its white-collar defense team.
It was only a matter of time before Sun persuaded the firm to recruit Cline to develop a similar white-collar defense team in the San Francisco office. He accepted the challenge and moved his family to Kentfield, a Marin County town 20 minutes from the city. His second wife, also a criminal defense lawyer, has taken time off to see their three children through the challenges of growing up.
Though Cline does not exclusively handle federal cases, he has clearly become the man to hire for disputes involving the Classified Information Procedures Act. In an interview for the San Francisco Recorder, a weekly legal newspaper, Sun labeled Cline “the best lawyer in the country for CIPA,” while Joseph Goldberg, another of Cline’s former partners in Albuquerque, credited him with crafting the argument that undid the government’s case against Lee.
“The main difference between these cases and other criminal cases,” Cline explains, “is the need for acute sensitivity to protecting information. Lawyers always have duties of confidentiality, but in these cases it’s a particularly strong duty because so much of what you learn is classified.”
Regarding CIPA cases, Cline describes a complex and arduous process that can take up to a year for the defense and prosecution just to agree on what evidence to allow. Simply getting on a CIPA-case team first requires a high-level security clearance to access classified documents, which can be examined only within the specially constructed SCIF.
Once in the SCIF, the attorneys and client assiduously pore through material to determine which information is necessary to the defense. They then file a notice listing what they want to present at trial. After that, a sealed hearing is held, during which the government can challenge documents’ relevancy and offer substitutions it believes provide equivalent defense without compromising national security. When the court has determined which information can be presented at trial, the government has to decide whether to go forward.
According to Cline, it’s hard to overemphasize the importance of the court’s evidentiary determination. If the government believes the information is too sensitive to reveal publicly, it may seek a settlement. Oliver North was one of the few CIPA cases that went to trial. Both Lee and Smith were settled out of court.
“It’s a real challenge to have a fair and public trial in a case that’s immersed in classified information,” Cline observes. “It’s difficult for both sides. You don’t want to go to court without exculpatory evidence. They don’t want to reveal national secrets.”
Going to court presents additional challenges, he continues, because you have to watch everything you say.
“A trial is like hand-to-hand combat. It’s not exactly an antiseptic, carefully scripted setting. The defense wants to fight back, ask hard questions, move at a quick tempo to keep the witness off balance. But that’s difficult to do while worrying about what you can or can’t reveal. That’s why the real fight usually goes on behind closed doors,” he says.
A man who enjoys “long, hard battles,” Cline admits to being captivated by this somewhat hermetic branch of law, saying, “You get glimpses into very interesting areas of government, areas not usually in public view. The whole Iran-Contra transaction, nuclear weapons, Chinese counterintelligence — very few people ever get to see the inner workings of these. It’s endlessly fascinating.”
Fascinating, but far from easy.
“There’s this whole tension between the need for secrecy and the need for the defendant to make his defense,” he points out. “It’s exceptionally difficult to balance what are often completely contradictory needs. You have to find a way to bring out the facts needed for an acquittal without revealing information in the courtroom that would itself be a criminal act. It takes a lot of preparation and deft maneuvering.”
Cline will undoubtedly need to refresh those skills for the Libby defense, for which he says the U.S. Attorney’s office appears to be pulling out all the stops.
“They view the prosecution as extremely important,” he says. “We, of course, will be taking a different view of the situation, but the case, I’m sure, will be very hard fought. We’re looking forward to the challenge.”