348. "The politics of accusation." National Law Journal (March 5, 2001), p A18.


Increasingly, our elected officials charge one another with criminal conduct and initiate criminal proceedings against one another. In the resulting culture of mutual recriminations, one act invites another, undermining the legitimacy of our political institutions. The recent brouhaha about the election results is merely the latest twist in the escalation of partisan hostilities.

The impeachment of President Clinton is fresh in most of our minds. But he has hardly been the only one who faced attempts to remove him from public office. Democratic former House of Representatives Speaker James Wright was driven out of office by the GOP following minor ethics violations. Some years later, Speaker Newt Gingrich and Representative Bob Livingston, both Republicans, were chased out of office, as was Democrat Dan Rostenkowski. Numerous cabinet members of both parties, as well as President Ronald Reagan, have been charged with ethical and legal violations.

The tendency to use inflammatory language, even when there is little call for any charges, has been highlighted by Senator Kit Bond (R-Mo.), who charged that St. Louis Democrats during the 2000 elections engaged in "fraud." His reason? A judge responded to a request to keep the polls open for an extra hour.

The issue is not whether the judge's ruling was a valid one. Even those who hold that it was mistaken must wonder where the esteemed senator saw fraud being committed.

Was it by those who filed a legal petition before a judge and asked for a legal ruling about a matter that troubled them? Was it the judge who ruled on a matter well within his jurisdiction, according to the law as he understood it to be? Even Sen. Bond did not claim that the judge was in any way inappropriately influenced or offered inducements or a political advantage.

Partisan hacks

One of the most civil things said about the Florida Supreme Court was uttered by House Speaker J. Dennis Hastert, who called the judges a "bunch of partisan hacks." House Majority Whip Tom DeLay was among the many Republicans who charged the Democrats at the time with trying to "steal" or "kidnap" the elections. Nor were these charges flying only in one direction. Far from it. Alan Dershowitz called Florida Secretary of State Katherine Harris "a crook." New York Democratic Representative Greg Meeks talked about a Republican "coup d'etat."

The escalation of hostilities has not been limited to the national arena. In 2000, the New Hampshire House of Representatives voted to impeach Chief Justice David A. Brock. This was the first time in U.S. history that a chief justice of a state supreme court had been impeached. What drastic deeds did Justice Brock commit? He was charged with having made a phone call 13 years earlier in an attempt to influence a case, of allowing justices to comment on cases from which they have recused themselves, and trying to influence the proceedings of a fellow justice's divorce case. Nobody was able to show and few claimed that any of these inappropriate acts (and others by Mr. Brock) actually affected the outcome of any of the cases involved.

One may argue that everyone knows that these heated words and provocative acts are merely political posturing. But the hard feelings left -- as well as the thinly veiled calls for revenge that follow -- in the wake of such inflamed rhetoric suggests that the criminalization of politics is hardly without adverse results.

Bipartisan commission

To reduce the temperature of public life, we might best start with a bipartisan commission for public civility. It could serve as a voice when the next situation arises in which charges are leveled on an elected official. It would remind one and all about the dangers of further undermining trust in all elected officials by levying criminal accusations with so little evidence or reason to make them. It would urge public officials to draw more careful distinctions between venal offenses and all others. And it would urge the House and state legislative bodies to adopt the rules of civility that govern the conduct of the U.S. Senate.

The bipartisan commission might do well to define much more narrowly what is meant by high crimes and misdemeanors. During the Clinton impeachment hearings, we learned that the phrase is very vague indeed. Some legal scholars suggested that it meant that one could remove a president for any violation of the law, technically even if he was only jaywalking or running a red light. Others argued that it almost never applies.

Raising the bar is clearly one step toward reducing the criminalization of politics. It is enough to consider what would have happened if one president were to be removed from office, and then the president next elected were removed, to realize how much such acts would check the confidence of the people in the democratic form of government.

In addition, the commission would study ways for legislative bodies to express their disapproval of the conduct of elected officials short of removing them from office. Congress has considered passing critical resolutions or fining various members while still allowing them to continue to serve. There seems no obvious reason why an erring president should be treated differently.

The commission also may wish to revisit the question of whether a sitting president should be charged with crimes he committed before his inauguration. 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.

Most effective of all is probably the public voice. If elected officials were to hear more complaints from their constituents when these officials use overblown rhetoric, especially involving criminal charges, they would be more likely to practice self-restraint. This assumes, of course, that constituents themselves will exercise self-restraint in their communications.

Mr. Etzioni, who teaches at George Washington University, is the author of Next: The Road to the Good Society (Basic Books, 2001), from which this article is drawn.

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