Malcolm Wilkey, 90; judge led inquiry of House bank scandal

In a long and varied career, Judge Wilkey prosecuted international drug smugglers, led federal efforts to integrate public schools in the South, and participated in key rulings on the US Circuit Court of Appeals in Washington from 1970 to 1985.

His greatest impact in Washington might have come in 1992, when Attorney General William P. Barr - once Judge Wilkey’s law clerk - asked his former boss to investigate improprieties related to the House of Representatives’ private bank.

Despite the grumbling of many lawmakers, Judge Wilkey subpoenaed the bank’s records and found evidence, he said, of a “classic check-kiting scheme.’’ During a 39-month period before the bank closed in December 1991, he discovered that House members had more than 24,000 overdrafts without paying any penalties. The privilege was criticized as a form of interest-free loans available only to legislators.

“By honoring literally thousands of checks that most commercial banks would have returned for insufficient funds,’’ Judge Wilkey said, “the House bank permitted members to engage in conduct that would have been impossible, and in some circumstances even criminal, for the general public.’’

Several lawmakers attempted to have Judge Wilkey’s subpoenas quashed, but in the end he cited more than 300 House members for overdrawing their private bank accounts, sometimes by hundreds of thousands of dollars. Three House members were convicted of felonies, and a fourth pleaded guilty to a misdemeanor.

The manager of the bank, House Sergeant-at-Arms Jack Russ, was convicted of embezzlement and other crimes.

There was immediate fallout from Judge Wilkey’s nine-month investigation, as 77 members of the House resigned, retired, or lost reelection bids, including Joseph Early in Massachusetts. Democrats, who were disproportionately implicated, accused the Republican judge of leading a partisan witch hunt.

“He was a man of conservative outlook, but he was too much the scholar to be involved in partisan politics,’’ a longtime friend, former Washington Times publisher James R. Whelan, said last week.

Malcolm Richard Wilkey grew up in Madisonville, Ky. He won a scholarship to Harvard University, from which he graduated in 1940. During World War II, he was an Army officer under General George S. Patton and participated in the Battle of the Bulge. After the war, he returned to Harvard and graduated from law school in 1948.

He practiced law in Houston before joining the 1952 presidential campaign of Dwight D. Eisenhower. After Eisenhower’s election, Judge Wilkey was named US attorney in Houston, where he prosecuted Mexican drug traffickers and a Texas political boss.

In 1958, Eisenhower dispatched Judge Wilkey to Little Rock, where the state’s governor, Orval E. Faubus, closed the city’s public schools rather than comply with a federal desegregation order. Judge Wilkey, backed by US marshals, tried to enforce the order, but the Little Rock schools remained closed for the entire year. They reopened in 1959, fully integrated.

“Coming from Texas, Kentucky, and Tennessee, I had never been any civil rights campaigner,’’ Judge Wilkey wrote in “As the Twig Is Bent,’’ his 2004 memoir. “But I had always agreed with the view of the president and the attorney general: the Supreme Court had issued an opinion 9-0, based on the Constitution, calling for desegregation ‘with all deliberate speed.’ ’’

In 1970, President Nixon appointed him to the US Court of Appeals for the D.C. Circuit. He replaced Warren E. Burger, who had been named chief justice of the United States.

Judge Wilkey twice voted to support the White House in cases related to the Watergate break-in. He dissented in a landmark 1973 case, in which the appeals court ruled 5 to 2 that Nixon had to turn over White House tape recordings to special prosecutor Archibald Cox and a grand jury. The decision was unanimously upheld by the Supreme Court.

One of Judge Wilkey’s most significant rulings came in a 1982 case involving the Federal Energy Regulatory Commission. In his decision, Judge Wilkey declared the “legislative veto,’’ or “one-house veto,’’ unconstitutional. Under that practice, a single branch of Congress could overturn the actions of federal regulatory agencies without the president’s approval.

He wrote that the congressional veto violated the separation of powers doctrine of the Constitution by allowing Congress “to expand its role from one of oversight, with an eye to legislative revision, to one of shared administration.’’ The principle was upheld a year later by the Supreme Court in a separate case.

After retiring from the bench, Judge Wilkey served as US ambassador to Uruguay from 1985 to 1990.

Judge Wilkey settled in Santiago, Chile, in 1990 with his Chilean-born wife, Emma Secul Wilkey, whom he married in 1959. She is his sole survivor.