344. "Decriminalizing Politics" Society (March/April 2001), pp 43-49.

In several earlier eras and in recent years, American politics has broken out of bonds of civility, causing gridlock in Washington and worse: the criminalization of politics. The resulting climate of personal attacks, followed by vendettas, can be captured by the following anecdote told by Republican Congressman Tom Campbell (Calif.). He was walking down the Hill with several Democrats and Republicans after the GOP removed former Speaker of the House James Wright (D.-Tex.) from office following relatively minor ethics violations in 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!"

Some years later, Democratic Speaker of the House Dan Rostenkowski (Ill.) was driven out of office as were GOP Speaker Newt Gingrich (Ga.) and GOP representative Bob Livingston (La.), and of course President Clinton was impeached. 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. 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 politics of personal destruction is threatening to destroy politics itself. Although under some conditions public officials are reimbursed for "reasonable" legal fees, they might not receive such reimbursement until years later. Moreover, if they are not exonerated, if the prosecutor merely closes the case, no reimbursement is forthcoming, as is the case for President Clinton. And, if relatives and friends of those investigated are summoned--often as a way to pressure the number one suspect--they are stuck with their bills, as was the case for several people in social circle of former Housing and Urban Development Secretary Henry Cisneros.

While the vicious cycle of personal attacks and counterattacks has subsided recently, it could easily escalate again on short notice. For instance, in May 2000 the Democrats brought a suit against House Majority Whip Tom DeLay (R.-Tex.) which charged him with extortion, racketeering, and money laundering.

To contain conflicts, the representatives of both major parties need now to get together to work out a new reinforced 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, so to speak. 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. Indeed, in retrospect it seems evident that the kinds of transgressions committed by several of the elected officials mentioned here may have merited an informal or formal ethical reprimand or some other form of censure but not removal from office, overriding the electorate's choice. (This applies when the person has been directly elected; one can argue that in the case of Speakers, the colleagues who chose them in the first place can remove them from this post. Still, the damage to the public trust and to the working of the political system stands.)

Nor does failure to adhere fully to all rules and regulations--such as those governing the use of publicly provided stamps or the places from which phone calls are made--justify years of investigations, public hearings, great expenditures of taxpayers' moneys and the ensuing personal destruction. Both the public and party leaders must recall that under such close scrutiny, almost everybody could be subject to attack. There must be a better way of protecting the integrity of public office and maintaining respect for the law.

Most urgently, a bipartisan group of legal scholars and legislators should be convened to formulate new rules for dealing with the presidency. These new rules should be future-oriented; they should not aim to review past troubles from Richard Nixon to Clinton, nor to exonerate anything former occupants of the White House did or are alleged to have done. Their purpose ought to be to prevent future damage to the democratic political system and to office holders.

There follows a tentative list of examples of the kinds of issues that must be addressed. I cannot stress enough that their purpose is merely to show the kinds of issues that should be studied, not to conduct such a study here.

1. Partial Immunity for Acts Preceding Office, While in Office?

The question of whether or not a sitting president should be forced to stand trial while in office for acts allegedly committed before his or her election needs to be re-examined. 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.

Thus, we must now revisit the question of whether or not a sitting president (and possibly other officeholders, whose terms are limited) should be accorded any kind of immunity while serving. If the answer is in the affirmative, we should examine which allegations such immunity should encompass and under what conditions it could be revoked.

Views on this matter range to both extremes. Laurence Tribe argues that "the notion that the president would be like a king was implicitly rejected in our founding documents." This position, which seems to reject any notion of immunity, disregards the fact that kings did not have set terms after which action against them could have been brought (assuming the clock on the statute of limitations would be frozen for those in office).

In contrast, 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." When Judiciary Committee Chairman Emmanuel Celler proposed this amendment to Congress, Dellinger notes, Celler maintained that "the nation cannot permit the office of the President to be vacant even for a moment." The implication is that the large-scale distraction caused by a prolonged trial would amount to disabling the president.

Akhil Reed Amar writes that "admittedly, the Constitution does not create executive privilege in so many words. But it does create a system of federalism and separation of powers. As a matter of federalism, state and local prosecutors cannot be allowed to disrupt the proper performance of national executive functions." He recommends the enactment by Congress of "an omnibus presidential privilege bill" to include

rules for when (if ever) a sitting president can be sued in civil cases; providing for tolling of statutes of limitation in the event of temporary presidential immunity... The statute should also reaffirm the historically sound and structurally sensible rule that a sitting president cannot be forced to stand trial against his will in an ordinary criminal court. (Akhil Reed Amar, "The Unimperial Presidency," The New Republic, 8 March 1999, 34.)

A good place to start further examination of the matter is to assume, as so often is the case, that both extremes (which are also often highly partisan positions) are not satisfactory. Allowing any and all civil cases regarding actions of the president prior to election to proceed, disregarding how such cases hobble the president, seems untenable. 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 however strong the evidence. Which intermediary positions should guide us needs urgent attention before another case is brought up.

2. Limiting or eliminating special prosecutors?

Congress originally passed the independent counsel statute in 1978 as part of the Ethics in Government Act, which grew out of a response to President Nixon's firing of Special Prosecutor Archibald Cox. The statute was designed to free future investigations from interference by the president. The law set up a special panel of three appeals court judges who may appoint a special prosecutor at the request of the attorney general, and the new law gave the Attorney General alone the power to fire a prosecutor.

President George Bush allowed the Independent Counsel Act to expire during his term, as demands were made to launch an investigation into "Iraq-gate" allegations that the US government had helped Saddam Hussein build his war machine. (Bush had already had to deal with special prosecutors during the Iran-Contra affair.) President Clinton resurrected the law on June 30, 1994. Five weeks later, Kenneth Starr was appointed.

Since then, independent counsels have come under much attack for being unsupervised, taking too long, costing too much, allowing partisan politics to interfere with investigations, and undermining the political system. The process of appointing an independent counsel starts when there is suspicion that a violation may have occurred. It may well be impossible to fully specify how strong such evidence needs to be before action is expected to be taken, but perhaps it can be made at least a bit cleared than it is now, thus somewhat scaling back the charges and recriminations that have been made around this issue. Furthermore, in recent years independent counsels have had a very broad license, allowing them to examine a large variety of events and documents. It might well serve the nation to limit those investigations considerably.

Because this law must be reauthorized approximately every five years to remain in effect, Congress has stepped in several times to try to correct some of its perceived problems by imposing some cost controls and by giving the attorney general more discretion to keep an investigation in-house rather than turning it over to an independent counsel. (In addition, Congress has changed the term from "special prosecutor" to the current "independent counsel" to remove the implication that the officials targeted are criminals.)

But these changes in the law have done little to rein in the scope of investigations. Despite the criticism of previous investigations, the appeals court panel has continued to give independent counsels enormous latitude to follow whatever leads they come across. In appointing Starr, for example, the panel ruled that he could investigate almost any evidence of any crime that came out of his probe. Political pressures often make it difficult for an attorney general to refuse to appoint an independent counsel, or to decline to expand his or her jurisdiction, when it is claimed that such expansion is required to complete the investigation.

Congress did allow the independent counsel law to expire in mid-1999. Nonetheless, there have been continued demands for Reno to investigate Vice President Al Gore's alleged role in illegal campaign fund-raising by appointing an independent counsel. Republicans, notably Representative Dan Burton (R.-Ind.) and Senator Arlen Specter (R.-Pa.), have charged that Reno's decision not to appoint a special counsel on this matter was influenced by her political biases. Clearly, the controversy and charges of partisan politics surrounding independent counsels have not expired along with the statute.

To reform the way an independent counsel is chosen and operates, William Safire made these suggestions in The New York Times:

1. Build some oversight into the way an attorney general selects outside, "special"--though not independent--counsels. An advisory board of judges appointed by all three branches could provide the names of outsiders capable of giving ethical cover to an administration under public pressure to show no conflict of interest.

2. Put more subpoena-power bite and professional investigators into judiciary committees to act as a whip on the backs of Justice Department investigators.

3. Make the currently ineffective Office of Public Integrity (under the Chief Justice) confirmable by the Senate.

Surely there are other ways to proceed, but the need both to have some way of investigating specific allegations against serving presidents (and vice presidents)--and to prevent them from turning into limitless expeditions and public spectacles--is clear and present.

3. Clarifying the Meaning of "High Crimes and Misdemeanors"?

Even if there are fewer charges that can be brought against a president and if the ways he or she can be investigated are curbed, the possibility that a president is found to have violated one law or another obviously cannot be ruled out. This leads to the question of how we should treat such violations. Few would argue either that any and all violations--speeding? jaywalking?--should lead to removal from office, or that none should.

We obviously need a clearer and stricter definition of what constitutes "high crimes and misdemeanors." Abbe D. Lowell 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." Lowell also quotes Alexander Hamilton as stating that grounds for impeachment require there to be "injuries done immediately to the society itself." Similarly, Representative Edward Hutchinson (R.-Mich.), a senior member of the Judiciary Committee under President Nixon, stated, when reviewing the conduct of President Nixon, that impeachable presidential offenses had to be "high in the sense that they were crimes directed against or having great impact upon the system of government itself."

In contrast, Representative 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."

Further indicating how open-ended the clause is, Senator Robert Byrd (D.-W.Va.) quoted Gerald Ford on the matter as having said, in remarks to the House of Representatives in April 1970,

The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history; conviction results from whatever offense or offenses two-thirds'--not just 60--of the other body considers to be sufficiently serious to require removal of the accused from office.

Byrd attempted to narrow the definition: "even though the debates and actions at the Philadelphia Convention regarding impeachment appear on the record to have been comparatively sparse," to him the term refers to "corruption, maladministration, gross and wanton neglect of duty, misuse of official power, and other violations of the public trust by officeholders."

Many other intermediary positions have been articulated. The need to narrow, at least to some extent, the possible interpretations of the clause before another case arises seems evident. We have learned from recent and previous experience that the bar should be set high, because overriding the electorate's choice severely strains the democratic process. It is sufficient to imagine how much our democracy would be undermined if a president from one party were to be driven out of office, following protracted and partisan impeachment hearings, and then the next president from the opposite party were to be subjected to the same process.

Recent deliberations have led to suggestions that there might be room for Congress to express its disapproval of the ways a sitting president conducts him- or herself--short of driving the president out of office. Proposed measures that could be taken by Congress include issuing a formal censure of the president that would condemn him for wrongful acts, but would carry no sanctions; drafting 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 even obligating the president to reimburse the government for all or a portion of the estimated cost of an independent counsel's investigation into alleged misdeeds.

At the same time, the bar cannot be set so high that it undermines the profound understanding that no one is above the law when it comes to serious offenses. We may well never completely define these offenses, but narrowing the definition is essential if the politics of mutual destruction is to be curbed.

4. Change 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 outcomes 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, given that the presidency might be in play. How this act might be modified to remove such an incentive, deserves much consideration. One possibility is to make the secretary of state third in line, secretary of the treasury fourth, and the speaker fifth.

5. Unblocking Presidential Appointments, Delayed en Masse for Long Stretches?

The system by which candidates are confirmed by the Senate for judgeships and positions in the administration must be modified. Currently, any one senator can hold up numerous nominations literally 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 number of such delays in recent years has been so large that an independent study by the Presidential Appointee Initiative (a project carried out by the Brookings Institution and funded by the Pew Foundation) established that those delays damage the government and the judiciary. It determined that during the Clinton Administration, the nomination and confirmation process took longer than six months for 44 percent of all appointees. In contrast, between 1964 and 1984, the process took this long for only 5 percent of all appointees.

Although such large-scale and extended delays in confirming judges and officials do not "criminalize" anybody, they constitute one of the forms that excessive partisanship has taken in recent years. And such delays significantly hobble the president's ability to do the job, poison the political climate, and undermines the efficacy, legitimacy, and prestige of the political system.

To make the appointment process less partisan, confrontational, and political it has been suggested that senators who place a nomination on hold should be required to publically air their concerns. Too often, one Clinton appointee told the Presidential Appointee Initiative "the major holdup is often that a member of the Senate or members of the Senate oppose the nomination, but it's very difficult to determine who is opposing the nomination and for what reason." Paul C. Light, the head of the Presidential Appointee Initiative, has asserted that there are now too many positions subject to presidential appointment. He believes that cutting the number of presidential appointees roughly in half "could be just the bargaining chip needed to win a streamlined Senate confirmation process." Additionally, in "Obstacle Course," its 1996 report sponsored by the Century Foundation, the Task Force on Presidential Appointments suggested that the length of time a senator can place an appointee on hold be limited to a week or ten days; that a minimum number of senators must request a hold before one takes effect; and that any member of the Senate be allowed to offer a privileged resolution on the Senate floor whereby a vote of a simple majority of those present and voting could end a hold. Such changes in rules may not be sufficient. Still other ways to preserve the right of the Senate to advise and consent, while preventing it from excessive partisanship, must be found in short order.

6. Executive Privileges for 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, U. S. District Court Chief Judge Norma Holloway Johnson articulated a rather limited definition of executive privilege. She 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. She thereby withheld the privilege from those asked to testify about any other parts of the president's official business.

The effect of this and other such rulings has been devastating. White House staff members, it has been reported, 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 (i.e. more than a handful but not all) to refuse to testify on any deliberations or documents unless there were compelling prior evidence that such materials pertained to a serious offense. There surely are other possible ways to proceed. But clearly, if stronger executive privileges are not extended to key White House staffers, investigations will tend to be unnecessarily invasive and the work of the presidency severely damaged.

7. Protective Function Privilege for the Secret Service?

Historians may one day point to the refusal to grant the men and women who protect the life of the president an equivalent of executive privilege, as a peculiar and extreme expression of partisanship.

Justice Stephen Breyer, in Rubin v. United States, put the issue as follows:

[P]hysical security of the President of the United States has a special legal role to play in our constitutional system. The Constitution vests the entire power of one branch of Government in that single human being, the 'President' of the United States. . . . He and the Vice President are the only officials for whom the entire Nation votes. . . . He has been called "the sole indispensable man in government." Thus, one could reasonably believe that the law should take special account of the obvious fact that serious physical harm to the President is a national calamity--by recognizing a special governmental privilege where needed to help avert that calamity.

Justice Breyer goes on to state that if Secret Service agents can be forced to disclose anything they see or hear while on the job, the president might be inclined to keep them at a distance, not because he is engaging in criminal activity but because

the complexity of modern federal criminal law. . . make[s] it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation. Thus, without the privilege, a President . . . would have to assume, in respect to many Presidential conversations, some genuine risk that a nearby Secret Service agent might later have to divulge their contents.

In contrast, Judge Norma Holloway Johnson held that denying this privilege would not endanger the life of a president: If his conduct is legal, he would have no reason to keep a distance from his protectors. In her decision on this case, Johnson writes,

When people act within the law, they do not ordinarily push away those they trust or rely upon for fear that their actions will be reported to a grand jury. It is not at all clear that a President would push Secret Service protection away if he were acting legally or even if he were engaged in personally embarrassing acts. Such actions are extremely unlikely to become the subject of a grand jury investigation. The claim of the Secret Service that 'any Presidential action - no matter how intrinsically innocent - could later be deemed relevant to a criminal investigation' is simply not plausible.

When the issue was brought before the U. S. District Court for the District of Columbia, the Secret Service asked the court to recognize a new "protective function privilege" as a basis for withholding testimony before a federal grand jury. The Service characterized its proposed privilege as "an absolute privilege that would preclude the Office of the Independent Counsel from compelling any testimony regarding information learned by Secret Service agents and officers while performing protective functions in physical proximity to the President where the information would tend to reveal the President's contemporaneous activities." According to the Secret Service, this privilege would extend to the agents' or officers' observations of conduct and of individuals' identities as well as to statements overheard.

In addition, the Secret Service suggested certain exceptions to its proposed privilege. The protective function privilege would not include observations made or statements overheard by an officer or agent who is not performing a protective function. There would also be an exception allowing testimony for observed actions or overheard statements that were, at the time of their perception, "sufficient to provide reasonable grounds to conclude that a felony has been, is being, or will be committed." Finally, the Secret Service suggested that compelling circumstances, such as national security concerns, could override the suggested privilege.

One need not endorse the details of the Secret Service's position, although their professionalism and nonpartisanship recommends paying close attention to their suggestions. But if partisanship is to know any limits, they must be found in allowing the Secret Service to do all that is necessary to protect the life of the president, while not concealing information about a serious crime if agents do indeed witness one.

In Conclusion

One may disagree with any and even all of the revisions of the rules of the game listed here yet still see the merit of shoring up the boundaries that keep partisan conflicts from turning into all-out slugfests.

Paul E. Begala, who served as a counselor to President Clinton, put it very well when he criticized his fellow Democrats for filing charges against House Majority Whip, Tom DeLay. Begala wrote:

The Congressional Democrats' racketeering lawsuit against Tom DeLay... is wrong ethically, legally, and politically... [It] represents everything I hated about the politics of personal destruction as it was waged against President Clinton... It is wrong to treat the legal system as nothing more than politics by other means. In a free society, political differences are most legitimately resolved by voters, not courts.

Once revised rules are provided for the conduct of the president, the same restructuring might be achieved for other elected offices, beginning with Congress. Reforming the rules and the culture go hand in hand: The more new rules are agreed upon, the less destructive politics become; the less destructive it becomes, the easier it is to formulate new beneficial rules.

For the same basic reasons, participants in conflicts within the society at large should abide by rules of civility rather than demonizing opponents. We should move from what Deborah Tannen has called "the argument culture" to a culture in which differences are openly discussed, while the disputants take care not to turn them into culture wars. The recent subsiding of identity politics and the renewed quest for common ground among races and between genders, show that this line of thinking has considerable realism and presence.

Drawn from Amitai Etzioni, Next: On the Way to the Good Society, forthcoming (New York: Basic Books, 2001). I am indebted to Jason Marsh for research assistance, to Jennifer Ambrosino for editorial comments, and to Susan Bloch for criticism of a previous draft.

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