342. "Breaking Loose" Legal Times (January 22, 2001), pp 82-83.


If both major parties are willing to curb the tendency to charge each other's leaders with criminal conduct, and to correct for the damages past mutual accusations have caused, what specific legal and constitutional measure might be suggested?

The current climate of personal attacks, followed by vendettas, is well- captured by an anecdote told by Rep. Tom Campbell (R-Calif.). He was walking down the Hill with several Democrats and Republicans after the GOP removed former Speaker of the House James Wright (D-Texas) from office, following relatively minor ethics violations involving the selling of his book. Campbell expressed some regret about this action and suggested, "We must stop doing this to each other." The Democrats responded: "By all means-immediately after we get your guy!"

This tendency to criminalize politics has only worsened since then. For example, former House Ways and Means Committee Chairman Dan Rostenkowski (D- Ill.) was driven out of office. House Speaker Newt Gingrich (R-Ga.) was assailed for his own book deal. Former Rep. Bob Livingston (R-La.), briefly tapped to become the next speaker, bowed out after revelations regarding his personal life. Further, a number of special prosecutors have been appointed who have charged numerous Cabinet members of both political parties, as well as President Ronald Reagan, with all kinds of ethical and legal violations. And, of course, there is President Bill Clinton's impeachment.

Most recently, in May 2000, the Democrats brought a suit against House Majority Whip Tom DeLay (R-Texas), charging him with extortion, racketeering, and money laundering. Many of the accused were eventually exonerated, but only after incurring huge legal costs and irreparable damage to their reputations-and to the trust the people put into elected officials. The recent brouhaha about the election results is thus merely an extension of politics the way they ought not to be.

To nurture civil politics, the representatives of both parties now need to work out a new set of rules that curbs political strife. This does not mean that if someone commits a serious offense the other side should let the offender get away with murder. It is necessary, however, to significantly raise the bar as to which kinds of transgressions should lead to attempts to drive elected officials out of office, or hobble their work.

Most urgently, a bipartisan group of legislators and legal scholars should be convened to formulate new rules for dealing with the presidency.

The following is a tentative list of examples of the kinds of issues that must be addressed.

1. Unblocking presidential appointments, delayed en masse for long stretches. The system by which candidates are confirmed by the Senate for positions in the administration and judgeships must be modified. Currently, any senator can hold up numerous nominations for years. Their reasons may vary from personal pique to an attempt to extract approval from the administration for measures unrelated to the candidates. The length of time a senator can place an appointee on hold might be limited to 10 days; a minimum number of senators may be required before a hold takes effect; and a simple majority of those present and voting should end a hold.

2. Granting partial immunity while in office for acts preceding office. The Supreme Court allowed a lower court to proceed with the case brought by Paula Jones against President Clinton on the presumption that such a trial would not hamper the president's ability to carry out his duties. The events that followed leave little doubt that this assumption was erroneous.

Views on whether this matter should be fixed range to both extremes. Harvard law professor Laurence Tribe argues that "the notion that the president would be like a king was implicitly rejected in our founding documents." In contrast, former Acting Solicitor General Walter Dellinger argues in favor of executive privilege. He points out that "when (the United States) adopted the 25th Amendment governing Presidential disability, it was a recognition by Congress and the courts that the President's office was singular."

Both extremes seem unsatisfactory. Allowing all civil cases regarding actions of the president prior to election to proceed disregards how such cases hobble the president. At the same time, few would favor allowing the president to be completely immune from all infractions committed before his or her election, no matter how heinous the crime or how strong the evidence. Deciding which intermediary positions should guide us needs urgent attention before another case arises.

3. Clarifying the meaning of "high crimes and misdemeanors." We need a clearer and stricter definition of what constitutes "high crimes and misdemeanors." Abbe Lowell, who served as chief minority counsel to the House of Representatives during the impeachment proceedings against President Clinton, decries what he calls "the broadest and the least forgiving definition of the constitutional definition of high crimes and misdemeanors." He suggests that the constitutional text refers only to those crimes that, in the words of George Mason, constituted "great and dangerous offenses to subvert the Constitution."

In contrast, Rep. Lindsey Graham (R-S.C.) argued during the Clinton impeachment hearings that the term "high crimes" might refer to "an important person hurt(ing) somebody of low means." Graham added that a high crime " doesn't even have to be a crime. It's just when you start using your office and you're acting in a way that hurts people."

Recent deliberations have led to suggestions that Congress might express its disapproval of a sitting president, short of driving the president out of office. Proposed measures include Congress issuing a formal censure that would condemn the president for wrongful acts but carry no sanctions; a " findings of fact" resolution that details the president's wrongful conduct but lacks the force of impeachment articles to remove him or her from office; and obligating the president to reimburse the government for the estimated cost of an independent counsel's investigations.

4. Changing the Succession in Office Act. Currently, if the speaker of the House hails from a different party than the president and vice president, the speaker's party may have a strong incentive to remove the president and the vice president from office, given that the speaker is third in line of succession. I am not suggesting that the opposition would drum up false charges merely to try to reverse the outcome of a presidential election in this manner. However, when charges have already been brought up for some other reason, the institutional set-up favors pushing them harder than might otherwise be the case. How this act might be modified to remove such an incentive deserves some consideration.

5. Granting executive privileges to White House staff. It is difficult to imagine that future presidents will be able to perform their job well if they fear that any staff member could be forced to publicly disclose the contents of their private deliberations. This potential impediment to presidential action may be removed by according a given number of White House staff members a comprehensive executive privilege.

In her ruling on this matter during the grand jury proceedings against President Clinton, Chief U.S. District Judge Norma Holloway Johnson held that executive privilege should be used to keep presidential confidants from testifying only when their testimony would reveal "national security or diplomatic secrets" or confidential deliberative communications about official governmental matters.

The effect of this and other such rulings has been devastating. White House staff members often refrain from taking notes, writing memos, and so on because they fear future disclosure of these materials. The number of people attending meetings in which sensitive matters are explored has been limited. The net effect is to engender a climate in which proper work cannot be effectively conducted at the highest level of government.

One way to proceed might be to grant executive privilege that would allow a significant number of White House staffers to refuse to testify on any deliberations or documents unless there is compelling prior evidence that such materials pertain to a serious offense. Clearly, if a stronger executive privilege is not extended to key White House staffers, the work of the presidency may be damaged.

One may disagree with the rules suggested here yet still see the merit of keeping partisan conflicts from turning into all-out slugfests.

Paul Begala, who served as a counselor to President Clinton, understood this when he criticized the congressional Democrats' racketeering lawsuit against Rep. DeLay as "wrong ethically, legally, and politically. . . . In a free society, political differences are most legitimately resolved by voters, not courts."

Luckily, reforming the rules and the culture go hand in hand: The more new rules are agreed upon, the less destructive politics becomes; the less destructive it becomes, the easier it is to formulate new beneficial rules.

Amitai Etzioni is the University Professor of the George Washington University in Washington, D.C. This column is drawn from his book Next: The Road to the Good Society (New York: Basic Books, 2001).

The Communitarian Network
2130 H Street, NW, Suite 703
Washington, DC 20052
202.994.6118
comnet@gwu.edu