dissenting in part:
I agree that the district court’s refusal to allow defense counsel to cross-examine Anthony Chandler concerning his treatment for hallucinations violated the Confrontation Clause rights of Pryce, Antonio, and Gaskins. I also agree that appellants’ remaining arguments are without merit. I disagree, however, with my two colleagues’ determinations — based on different rationales — that Pryce’s and Antonio’s appeals can be rejected under the harmless error doctrine notwithstanding the government’s inexplicable failure to argue that the error was harmless.
I admit that it makes me more than a little uncomfortable to base my position on what seems an obvious mistake on the part of the U.S. Attorney. There are surely some who would argue that this is one more example of a judge embracing a technicality to overturn convictions of “obviously guilty” felons and who would then ask “whose side is the judiciary on anyway?” But that is the very point — the judiciary is on no side. That proposition is not a technicality; it is fundamental. We judges must be strictly neutral with respect to all eases that come before us in the manner in which we treat the parties and particularly as to the consequences of our opinions. That does not mean, of course, we should be blind to the implications of any principle of law as applied in a given case. We certainly may not, however, let a desired result lead us to a decision without fully explaining our reasoning in general enough terms to have articulated the applicable principle of law. This process is not without intellectual pain, but it is the single most important restraint on the exercise of judicial power. See generally Scalia, The Rule of Law as a Law of Rules, 56 U.Chi. L.Rev. 1175 (1989).
The government’s failure (or refusal for reasons not apparent) to argue harmless error puts the judiciary’s neutrality at issue because another related tenet of our system of justice is that we “recognize[] an adversary system as the proper method of determining guilt.” Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). And “[t]he premise of [that] adversarial system is that appellate courts do not sit as self-directed boards of inquiry and research, but essentially as arbiters of legal questions presented and ar*94gued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir. 1983). We thus ordinarily have no right to consider issues not raised by a party in either briefing or argument, both because our system assumes and depends upon the assistance of counsel, see id., and because of the unfairness of such a practice to the other party, see, e.g., McBride v. Merrell Dow and Pharmaceuticals, Inc., 800 F.2d 1208, 1210 (D.C.Cir.1986).
Applying these principles to the present case, I do not believe we may consider whether the grave error appellant’s counsel presses upon us was harmless. As the government did not argue that the harmless error exception applies, “respect for the adversary process makes it inappropriate to address [harmless error] at all.” In re Barr Laboratories, 930 F.2d 72 (D.C. Cir.1991).
Judge Randolph’s concurring statement seems to present the broader challenge to the principles I have outlined above. It appears to me that Judge Randolph, unlike Judge Williams, does not wish to endorse United States v. Giovannetti, 928 F.2d 225 (7th Cir.1991), but is nevertheless not prepared to commit to any other rationale for reaching and deciding the harmless error issue apart from saying that the record is relatively short. Insofar as that position differs from Judge Williams’, it does not seem to be based on any principle that I can discern. Judge Randolph does not appear to embrace the arguments he puts forth at pp. 1351-52 sufficiently to fashion any general principle of law that would serve to justify that which the majority has done in this case.
Nor am I prepared to place any weight at all on Judge Randolph’s observation that no federal court prior to the Seventh Circuit this year has discussed the issue. It may well be that the issue had not arisen before 1990; after all, it would not normally unless a U.S. Attorney makes a rather spectacular mistake. Or it may be that it was at some time implicitly presented, but a court did not realize that it passed by the threshold issue in determining that an error was harmless. The same thing sometimes happens with respect to jurisdictional' issues — which is why, for instance, the Supreme Court has said that cases implicitly deciding jurisdictional issues have no precedential value with respect to those issues, see, e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 n. 4, 109 S.Ct. 2304, 2307 n. 4, 105 L.Ed.2d 45 (1989).
I am also not persuaded by his tentative suggestion that the “mandatory language,” Conc.Op. at 1351, of Fed.R.Crim.P. 52(a), which states that “[a]ny error ... which does not affect substantial rights shall be disregarded,” gives the court inherent power to find error harmless and makes the issue non-waivable. As the Seventh Circuit recognized, “[i]t is true ... that the language of Rule 52(a) is mandatory. But this is a general feature of legal rules, and does not make their provisions non-waivable. Specific rules of conduct or procedure are promulgated against a background of understandings concerning the procedure for invoking the benefits of rules, or for waiving those benefits.”1 Giovannetti, 928 F.2d at 226. For this reason, “[i]t cannot lightly be assumed that ... [a rule is] intended to distort [the adversary] process.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978). Rules creating an exception to the adversary process thus are generally quite explicit on the matter, see, e.g., Fed.R.Civ.P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”) (emphasis added); see also Fed.R.Civ.P. 11, 21, 26(g), whereas rules or statutes which we have never thought of as imposing obligations on us to proceed without regard to the parties’ submissions are phrased in the same way as Rule 52(a), see, e.g., Fed.R. Crim.P. 6 (“The court shall order one or more grand juries to be summoned at such time as the public interest requires.”); 5 *95U.S.C. § 706 (“The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law____”).
The Supreme Court has, moreover, repeatedly stated that the government bears the burden of demonstrating on appeal that an error was harmless. See, e.g., Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829,17 L.Ed.2d 705 (1967). Surely this settled allocation of roles necessarily implies that the issue can be waived. How can the government discharge its burden when it fails to mention the issue at all? Even if Parlton v. United States, 75 F.2d 772 (D.C.Cir.1935), holding that this court will independently examine the record in a criminal case notwithstanding a government confession of error, were thought to control the issue with which we are presented (see my discussion of the Supreme Court’s treatment of a government confession of error, infra), I do not see how that reading could survive Chapman, which makes clear that typical adversarial norms govern appellate consideration of harmless error. When there is tension between one of our opinions and subsequent Supreme Court cases, I would have thought that it would be readily accepted that the Supreme Court’s view would prevail.
And it simply cannot be, as Judge Randolph suggests, that the government may not waive harmless error because it possesses no “rights” regarding harmless error. Unlike defendants, the government in criminal cases almost never possesses a “right” with respect to any issue, yet it may still waive them. See, e.g., United States v. Malin, 908 F.2d 163, 167 (7th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990) (government did not argue on appeal and therefore waived the argument that the defendant failed to preserve an objection to jury instructions). And, after all, the government might honestly believe that if the trial judge’s conduct was erroneous, the error had an impact on the trial. If that were so (and we cannot really be certain that is not true here), we would not expect the government to argue harmless error. If the government refuses to argue the point (as it did here), I do not see how the court can sua sponte raise the issue without encroaching into the executive branch’s prosecutorial prerogatives. Nor do I consider the Supreme Court’s treatment of confessions of error to be apposite. The Supreme Court reviews . appellate opinions, ones which it more often than not views as incorrect. If a party could eliminate the Courts’ power to act on a case simply by confessing error and thereby allow the appellate precedent (though not the judgment) to stand, the party would be able to employ the adversary process illegitimately to insulate favorable precedents from.reversal. Compare Air Transport Ass’n v. Dep’t of Transportation, 933 F.2d 1043, 1043-44 (D.C.Cir. June 4, 1991) (Silberman, J., concurring). Accordingly, the Supreme Court must be able, as Judge Randolph agrees is the current practice, to vacate the opinion below and remand for reconsideration. On the other hand, when “[t]o accept ... [a] confession of error would not involve the establishment of any precedent,” the Court has not hesitated to follow the adversary system. Casey v. United States, 343 U.S. 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952).2 Of course, we would not allow a precedent to stand if we held the government to its “waiver” in this case.
Judge Williams, by contrast, is rather firm as to his reasons for considering whether the harmless error exception applies notwithstanding the government’s failure (waiver) to raise the point. He would have the court follow the approach the Seventh Circuit adopted earlier this year on rehearing in Giovannetti, 928 F.2d at 226-27, in which the court held that it had discretion to overlook the government’s waiver if it could be readily deter*96mined by the court that the error was harmless.3 Otherwise, the costs to innocent third parties, whose access to the district court is at least in some measure impaired because of a new trial for the appellant- — a new trial that is extremely unlikely to change the result — outweighs the need to “sanction” the government. See Giovannetti, 928 F.2d at 227. Judge Williams would prefer to describe the costs of a new trial as borne by “the public” rather than by innocent third parties, but I gather he otherwise accepts Giovannetti’s logic.
Although I have long believed that lawyers and judges tend to disregard the costs the legal process imposes on society, see generally Silberman, Will Lawyering Strangle Democratic Capitalism?, Regulation 15 (Mar/Apr 1978), I do not think Judge Williams’ (and the Seventh Circuit’s) “solution” to this problem is appropriate or wise. I hold that view because to adopt the Giovannetti rule is to put an aberrant twist on the adversary model. To be sure, the model is probably not the most cost-effective method of finding truth or ascribing guilt or innocence, but it hardly needs repeating that it is a fundamental aspect of our legal tradition which judges have no warrant to disregard. However sensitive to the costs and benefits of the legal process we should be in understanding the legal rules we apply, it is hard for me to see how efficiency concerns can be the source of our power.
Certainly United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), upon which Judge Williams relies, does not confer authority on the courts of appeals to decide questions in favor of the government in criminal cases where the government does not even argue them. The issue which the Supreme Court reached in that case — whether a warrant was nevertheless justified by untainted evidence (after holding that other evidence was tainted) — was expressly raised by the government in the court of appeals. See, United States v. Karo, 710 F.2d 1433, 1440-41 (10th Cir.1983). To be sure, Justice Stevens objected that the question exceeded the scope of the writ of certiorari, see Karo, 468 U.S. at 736, 104 S.Ct. at 3314 (Stevens, J., dissenting), but that is a question that goes to the Court’s management of issues presented to it and decidedly does not even implicate an issue of the government’s waiver. Nor can it be said, in any case, that the question whether or not an error is harmless is somehow not a significant or “main” issue. It is one of the more difficult analytic questions that appellate judges encounter — the resolution of which is not without significance to defendants.
It is difficult, moreover, to see a principled stopping place to Judge Williams’ balancing test. Should we be willing to overlook counsel’s failure to raise a clearly winning argument — even in civil cases — if by doing so we can save the expense of a new trial (or other societal costs)? Or is this a rule for criminal cases only? And if it is the latter, is that because the courts have some unstated responsibility to help the government in its prosecution of defendants? I think not — we have only the duty to apply the law neutrally in both criminal and civil cases.
When judges think of themselves as bearing responsibility for the results dictated by a neutral application of the law, whether in the civil or criminal field, they tend to exceed appropriate bounds of judicial restraint. By compromising its neutrality, I think the court does so here. That “cost” far exceeds the costs of a new trial for Pryce arid Antonio.4
. The concurrence relies on United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), but Hasting held only that courts may not ignore the harmless error doctrine simply because they are proceeding under their supervisory powers. See 461 U.S. at 505, 103 S.Ct. at 1979. There is no indication that the government did not argue that the error was harmless.
. The distinction between not citing a case and not raising an argument is so well-known as to be beyond dispute. The former never bars a court from relying on the precedent; the latter virtually always precludes the court from relying on the argument.
. The Giovannetti court originally held that the government waives harmless error when it fails to raise the issue. See United States v. Giovannetti, 919 F.2d 1223, 1229 (7th Cir.1990).
. In this case there will have to be a new trial for Gaskins anyway (with which the proceeding for Pryce and Antonio could again be consolidated), so the cost of holding the government to its waiver of the issue will not be high. And I *97rather doubt the government would make this mistake (if it is a mistake) again.