Aguilar Case Tests High Court's Ability To Police Its Ranks

IT is a case from the judicial twilight zone.

For eight years Robert Aguilar has lived a strange half-life on both sides of the federal bench -- as a convicted felon and as a federal judge dispensing justice.

Today, however, in one of the more wrenching cases this term, the Supreme Court hears arguments that will determine Judge Aguilar's fate -- though it will not deal with the ethics charges.

Mr. Aguilar, who sits on a US trial court in San Jose, Calif., was prosecuted in 1989 on racketeering charges, but convicted of obstructing a grand jury investigation. An appeals court overturned that ruling but found him guilty of a different offense, disclosing a wiretap. Throughout, Aguilar has refused to step down, donning his robes daily and collecting $133,000 a year.

Last May, in fact, it seemed Aguilar was home free when an 11-judge panel in the Ninth Circuit cleared him of all charges. But the Justice Department pressed on. In November the Supreme Court agreed to take the case.

US v. Aguilar is important not for the legal questions it raises -- a squabble over statutory interpretation. It is being watched for the message it will send about how the Supreme Court polices its own ranks. It is uncertain whether the court will dispense a tough ruling or simply put on a tough face.

Court-watchers say the central issue in Aguilar won't even be argued: What to do when officials charged with the highest trust are accused of violating those trusts. ''These are unique lifetime appointments, and the judges have enormous power, power over life and death,'' says University of Southern California law professor Erwin Chemerinsky. ''They have to be entirely above reproach.''

Certainly, the story is complicated. Here's the short version:

Aguilar's name was overheard in 1987 on an FBI wiretap of convicted San Francisco Bay-area teamster Rudy Tham and Abe Chapman, a mobster who was also a distant relative of Aguilar's by marriage. Mr. Tham wanted Mr. Chapman to use his connection to Aguilar to reverse embezzlement charges so he could rejoin the teamsters.

When FBI agents saw Chapman and Aguilar together, they told District Judge Peckham, who had authorized the wiretap. Later, at a social event, Peckham told Aguilar that Chapman was under a wiretap and that ''associating with a notorious felon would create an appearance of impropriety,'' as Peckham put it in later.

Aguilar continued, however, to have contact with Chapman and with Tham's lawyer, and the FBI wiretapped the judge's phone. When Chapman visited Aguilar on a family pretext, the judge spotted FBI agents outside his house and warned Chapman through his nephew that Chapman's phone might be tapped. In fact, it no longer was.

Some months later Tham's lawyer, Edward Solomon, began cooperating with the FBI. Solomon twice asked Aguilar out to lunch and wore a tiny tape recorder. During the sessions Aguilar told the lawyer not to mention they had discussed the Chapman investigation but, if asked, to make up a story. Aguilar then lied to FBI agents about tipping off Chapman.

Disclosing a federal wiretap is a federal crime. The question is whether the law covers disclosure of an expired wiretap. Whether lying to the FBI in an informal interview is illegal is another question. ''The judge didn't know the wiretap expired,'' says Justin Brooks of the Thomas M. Cooley law school, who has studied the case extensively. ''His intent was to disclose.''

Those familiar with the case say Aguilar never profited in any way. The problem was the coverup once Aguilar realized he was being watched. Even if the Supreme Court upholds the lower court, Aguilar still faces a state ethics panel. ''In a tough case like this, you either indict him or ignore him,'' says one legal expert in San Francisco. ''There's not much middle ground.''

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