360. "It's a Crime, the Way Politicians Go at It." The Washington Post (August 5, 2001) p B1.
I feel as though I've been watching a new show in Washington lately: I call it "Everyone's a Criminal." Here are the highlights of the latest episodes:
Democrats, in full outcry, demand that White House senior adviser Karl Rove be investigated for possible violations of conflict of interest laws for meeting with representatives of a large computer corporation in which he owns substantial shares, and with lobbyists for the pharmaceutical industry, in which he has some modest holdings.
Under prodding from Democratic lawmakers, the General Accounting Office, Congress's investigative arm, begins looking into Vice President Cheney's contacts with oil companies while he was developing the administration's energy policy to see whether large contributors to the Bush campaign had undue influence on the outcome.
Then there was the spectacle of Sen. Joe Lieberman threatening to subpoena the White House, and two advocacy groups close to the Democrats filing an ethics complaint against Attorney General John Ashcroft.
What's behind all these charges and court filings and threats of flying subpoenas, delivered in such tones of full-throated outrage? Are Rove and Cheney and Ashcroft really committing any crimes? George W. Bush may have promised us a bipartisan lovefest in Washington, but what we're witnessing now is the ultimate partisanship -- what I have come to call "the criminalization of politics." By this I mean the desire to paint normal political activity as potentially criminal conduct for partisan political benefit. Rather than allowing voters to decide whom they want to represent them, politicians are increasingly calling on the FBI, the courts and special investigators to determine the outcome of partisan battles. It's politics by legal brief, not by the ballot.
Its effects are only ill -- from continuing the erosion of public respect for politicians, to diminishing the pool of good people willing to run for office, to making it impossible to maintain a political climate conducive to the negotiation and compromise that is essential for democratic governance.
And if you think this recent round of sound and fury is coming only from Democrats seeking revenge for what the Republicans did to Clinton, think again. This is one area where there's definitely bipartisan interest.
In June, GOP Rep. Dan Burton of Indiana said he would take his Government Reform Committee to Miami-Dade County in Florida to conduct hearings into charges of prosecutorial misconduct that supposedly took place when former attorney general Janet Reno was Dade County state's attorney -- nine years ago. It's probably no coincidence that Reno is considering a run for Florida governor against President Bush's brother Jeb.
Ashcroft turned over to U.S. Attorney Mary Jo White an investigation of all 177 pardons Clinton granted before leaving office, even though the Constitution sets no limits of any kind on the presidential power to pardon, suggesting an investigation would serve little legitimate purpose.
Independent counsel David M. Barrett is still digging away in the case of former Clinton administration official Henry Cisneros, trying to determine whether the Internal Revenue Service obstructed his earlier, failed probe into the former Cabinet member's affairs.
Demands for investigations and charges of criminal conduct are nothing new in the history of American politics. Nor are there any statistics to prove that the tendency to head for the courthouse has escalated since the special prosecutor law was passed in the wake of Watergate. And there are, of course, cases where an investigation is legitimately called for -- there were clear and significant violations of law in Watergate and Iran-contra, as well as in some of Clinton's ill-doings. But all too often these days, it seems that any misstep made by any official -- even something like making a phone call to a donor from the wrong building -- leads to cries to call in the dogs.
A number of factors account for the increasing tendency to criminalize our politics, from the general loss of civility in our society to the success of negative politicking. Elected officials of both parties, protected against libel charges, have free range to lob baseless accusations. The media are often all too happy to collaborate. Charging a highly visible public figure with a possible crime is a story on which the press can self-righteously feast for years, maintaining that it is simply serving the public by exposing misconduct on the part of those who should not be above the law.
But while screaming headlines are often the first place we learn of severe charges being leveled, the headlines over stories about the outcome of many of the investigations and court cases tend to be in rather smaller type. How many people, for instance, know what happened to the case the House Democrats filed against Majority Whip Tom DeLay last year? This is an especially telling example of the problem I'm talking about. DeLay has long been a thorn in the Democrats' side, but they have little hope of unseating him in his Texas district, where his tough conservative stance is widely popular.
So they filed a civil suit in U.S. District Court in Washington, charging him with extortion and money laundering under the Racketeer Influenced and Corrupt Organizations Act (RICO). That's a charge usually leveled against drug lords and mafiosi. But the allegedly illegal activities the Democrats listed in their 21-page charge were hardly different from those in which elected officials of both parties regularly engage when raising money for election campaigns.
Even former Clinton staffers were appalled. George Stephanopoulos called the suit "sad civics," while former White House counsel Paul Begala termed it ". . . wrong ethically, legally, and politically. . . . It is wrong to treat the legal system as nothing more than politics by other means," Begala said. "In a free society, political differences are most legitimately resolved by voters, not courts."
G. Robert Blakey, a visiting law professor at the University of Michigan who helped write the 1970 RICO statute, agreed. "This is politics, not law," he said. "My guess is it will be out of court quicker than a flash of summer lightning." And indeed, after having milked their accusations for all they were worth in the media, the Democrats quietly agreed to dismiss the suit. DeLay probably suffered no serious harm to his reputation. But many others who have been charged and cleared, and who have endured the probings of a special prosecutor, may well lament, with former Reagan administration official Ray Donovan, "Where do I go to get my reputation back?"
One charge begets another, endlessly. Listen to this story California GOP Rep. Tom Campbell told me about a conversation he had with two Democratic colleagues not long after the GOP forced then-Speaker James Wright, a Texas Democrat, from office. Campbell expressed some regret about this action and suggested that the parties should stop doing this to each other. To which the Democrats responded: "By all means -- right after we get your guy!" When I recently mentioned to some politicians in conversation that Washington could use some mutual restraint on this score, one of them, a former liberal congressman from New York, exploded. "Rove and Cheney violated the law!" he exclaimed. "They broke the law! Go get them, I say!"
Distressingly, this extreme attitude is not only raging in Washington but has spilled over into the country at large. Last month, the Oregon Democratic Party initiated a drive to impeach the five Supreme Court justices who in effect decided the last presidential election, with former congressman Charles Porter accusing them of "high crimes and misdemeanors."
That phrase has been heard more in the last three years than in the preceding 200. Only one Supreme Court justice has ever been impeached -- in 1805. And of course we all know Bill Clinton's only predecessor in the presidential dock was Andrew Johnson, more than 130 years earlier.
But impeachment -- the political court -- is being increasingly seized upon as the remedy of first, rather than last, resort whenever a politician or a member of the judiciary is perceived as crossing some ill-defined political or ethical line. Last year, for instance, the New Hampshire House of Representatives voted to impeach the state's chief justice, David A. Brock -- the only time in American history that a chief justice has been impeached. Brock's alleged "high crimes and misdemeanors" were: calling another judge and reminding him that one of the litigants before him was a powerful senator; allowing judges to comment on cases from which they had recused themselves; and initiating a "hallway conversation" about a fellow justice's divorce case. If the charges seem frivolous to you, you're not alone: The state senate acquitted Brock on all four counts against him, but not until he'd been put through the public wringer.
The rules of engagement among politicians have broken down. But I'm not sure how we create new ones. Not long ago, I tried to get a discussion going among a bipartisan group of professors of constitutional law and political theory in the hope of formulating a set of tighter rules by which politicians might vie with each other. I hoped that once we had come up with such rules, we could try to "sell" them to Congress and seek public support. But my experiment failed dismally.
Some of my colleagues wondered if anything could be done, short of amending the Constitution (for instance, narrowing the definition of high crimes and misdemeanors to restrain a rush to impeach). Others didn't see any problem, viewing criminalization as an expression of healthy partisanship, as old as democracy itself. Worse, one of the Republican members implied that other members of the group were trying to retroactively whitewash Clinton, while one of the Democrats was only too happy to re-vilify Kenneth Starr. When another ended up as part of the team representing the GOP before the Supreme Court in Bush v. Gore, the exercise was over, a victim of the same partisanship I had hoped it might help curb.
What needs to be done is not, as some insist, restoring civility or redirecting the adversarial tendencies of political opponents. At issue is not vigorous advocacy of valid political positions. What we do need is a renewed mutual understanding between the two parties that the best way to resolve major differences is to submit them to voters for a ruling -- not to try to win elections or set aside the results of past ones by using special prosecutors or FBI agents or the courts.
Amitai Etzioni is a professor of sociology at George Washington University and the author of the recently published "Next: The Road to the Good Society" (BasicBooks).