The Prosecutorial State

When Richard Holbrooke was chosen to be United States ambassador to the United Nations last June, the State Department's inspector general received an anonymous letter charging that Holbrooke had violated ethics rules. The writer, who described himself as a department employee, said he based his charges on hearsay.

Over the next four months, agents of the State and Justice Departments investigated Holbrooke in this country and abroad. One subject was his failure to list as income, in his financial disclosure form, the use of a room in a friend's home in Washington when he was assistant secretary of state. Holbrooke had a real estate agent value the use of the room and amended the disclosure form to include the estimate, $12,000. The investigation focused finally on whether he had had improper contacts with U.S. diplomats after he left the job of assistant secretary in 1996 to become vice president of Credit Suisse First Boston. (He met with many diplomats on his frequent trips to Europe as special mediator on Cyprus.) The investigation was still going on when Holbrooke conducted his grueling negotiations with Slobodan Milosevic on Kosovo. Everyone knows that Richard Holbrooke is ambitious—but not for money. The Cyprus and Kosovo assignments were unpaid. His yearning is for what Dean Acheson called the "exhilaration" of public office. The notion that he would try to gain improperly from the use of a room in a friend's house is laughable, as is the idea that he had financial motives when he met American diplomats abroad. "We trust him to go over there and talk with Milosevic," a friend of his said, "but not to have dinner with someone. That is where the craziness with 'ethics' has taken us."

The Holbrooke episode is about more than an overdone preoccupation with ethics. It is indicative of a transformation in our politics. Instead of debating issues of public policy, we focus more and more on allegations of personal wrongdoing—and deal with them not politically but by law and lawyers.



The most dramatic example is of course the subjection of the President to permanent investigation by a prosecutor whose power is limited only by his judgment, if any. But the phenomenon is far more pervasive than the behavior of Kenneth Starr.

Think about what happened to David Baltimore, the Nobel Prize– win ning microbiologist. As a leading figure at the Massachusetts Institute of Technology, he co-authored a paper with Theresa Imanishi-Kari in 1986. Margot O'Toole, a post-doctoral student who fancied herself a whistle-blower, charged that Imanishi-Kari had fabricated the results of the experiment described in the paper. Two employees of the National Institutes of Health who had made themselves into grand inquisitors of scientific fraud took the matter to Representative John Dingell, the overbearing Democratic chairman of the House Energy and Commerce Committee. Dingell held hearings, called Baltimore as a witness, and berated him. He had a government laboratory examine Imanishi-Kari's notebooks, and they were reported to have been doctored.

David Baltimore became president of Rockefeller University in 1989. But the uproar over the charges of scientific fraud, fed by antagonistic newspaper stories, undermined his position at Rockefeller; he resigned in 1991. As the hunters in Washington and the press saw it, it was the downfall of an elite scientist corrupted by his own arrogance.

But the whole drama itself was a fraud. Neither Imanishi-Kari nor Baltimore in fact had done anything improper. Further inquiry showed that her notes had not been doctored. Both were exonerated, but only after they (and the scientific community) had suffered much damage. A doubting graduate student had managed to bring down on them the prosecutorial machinery of the National Institutes of Health and a ruthless congressman.

The Baltimore case shows how far the prosecutorial culture has permeated our society. A learned paper written by two scientists at a private university became the target of a grand inquest by two branches of the federal government. How could that happen? It happened because, in the postwar years, Congress undertook in various ways to aid higher education—a development welcomed by me and other liberals. But the piper turned out to call the tune. Federal aid led to federal rules for universities—and a federal investigative process. John Dingell seized on that opening, and not just in the Baltimore case. Another target of his was Donald Kennedy, president of Stanford University, again a ranking private institution. There were questions about how Stanford allocated a share of its running costs in billing the government under contracts. The questions could have been settled quietly. But Dingell held hearings, called Kennedy, and subjected him to many hours of public scorn. It was a prosecutorial process designed, like Kenneth Starr's, to humiliate its object. And it succeeded. Worn down, Donald Kennedy resigned from the Stanford presidency.

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Criminalizing Politics

Nor is Kenneth Starr the only counsel who has made overzealous use of the Independent Counsel Act. Some of the other cases brought under the act are in their way just as indicative of the criminalization of our politics.

Henry Cisneros was President Clinton's first secretary of housing and urban affairs. He performed well in a difficult job, replacing bad public housing and making the department more efficient. But the wisdom of his policies and the effectiveness of his administration were not the business of the independent counsel who investigated him, David M. Barrett. In 1997, after he left office, Cisneros was indicted on 18 counts focused on the fact—much publicized in his home state, Texas—that he had a mistress. He told FBI agents about her when he was questioned before his nomination; but, the indictment charged, he understated what he paid her and for how long. He was also charged with lying when he told the agents that he had had no more than two extramarital affairs. Each of the 18 counts carries a maximum sentence of five years, so in theory Cisneros could go to prison for 90 years for what he did in connection with his sexual straying. To date, counsel Barrett has spent $7.3 million in pursuit of Henry Cisneros.

Mike Espy, the former secretary of agriculture, was indicted on 38 counts. He is charged, notably, with having accepted tickets to five football, basketball, and tennis events from companies that could be affected by Agri culture Department decisions. There is no claim that he actually did anything for the companies, and the law requires none. Even though some of the alleged "gratuities" are duplicated in different counts of the indictment, the total amount charged by the prosecution is $35,000. For this sum, Espy could go to prison for more than 100 years.

Donald Smaltz, the independent counsel in this matter, has spent $17.5 million so far trying to put Mike Espy away for his $35,000 sins. Along the way, he also had Sun-Diamond Growers of California, a raisin and nut cooperative, indicted for giving gifts to Epsy. A jury convicted Sun-Diamond, and the company was fined $1.5 million; but a court of appeals reversed the conviction, ruling that the mere fact of gifts was not enough for conviction without proof of an intent to reward past favorable acts or make future ones more likely.

The range of Smaltz's activities was stunningly described by David Grann in the New Republic last February. Smaltz subpoenaed from Richard Douglas, a Sun-Diamond executive, all his telephone records since 1987 and his income tax returns. He brought before a grand jury a man who had been a pilot sixteen years earlier for Tyson Foods—and asked him not about Espy but about whether Tyson had ever bribed foreign officials. Smaltz has given "relevance" a new meaning. I can think of nothing that he is not ready to investigate.

The Espy case is a perfect example of the criminalization of politics. If it was wrong for a cabinet member to accept football tickets, the public could have handled it. In short, it was a matter that could have been dealt with politically—and in fact was. When the Wall Street Journal wrote about Espy's gift-taking in 1994, he resigned. But in addition to this, we have had a Smaltzian process that has dragged literally thousands of people into legal proceedings as witnesses or defendants.


Starr's Chamber

Kenneth Starr's investigation raises unique problems because of its unique target. The Framers of the Constit ution designed a system in which a single person embodied the executive branch. Put that person under continuous prosecutorial inquiry, and you inevitably weaken the presidency in the constitutional balance of powers. That was the central point made by Justice Antonin Scalia when he alone dissented from the Supreme Court's 1988 decision upholding the independent counsel concept. The Court's majority found that an independent counsel was an "inferior officer" subject to effective control by the president—a laughable notion in light of events—and hence did not offend the doctrine of the separation of powers. Justice Scalia's dissent reads now like a prophecy by Cassandra. "How easy it is," he wrote, "for one of the President's political foes . . . to trigger a debilitating criminal investigation of the Chief Executive under this law. . . . What if [the judges who appoint the counsel] are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the Administration . . . ?"

"What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to [an independent counsel] be an investigation that ought to go on for another year." The point of having a single head of the executive branch, Justice Scalia said, was to make the president responsible politically—so that the public could hold the president accountable.

Impeachment was seen by Madison and the other Framers as the ultimate political control over the president. But here again the process has been criminalized. Kenneth Starr acted as an agent of Congress for impeachment, using the terrible force of the criminal law. He had several grand juries as his instruments, with their power to compel testimony. And then he destroyed the one protection citizens do have, the secrecy of grand jury proceedings. President Clinton was treated as a criminal suspect—with fewer rights than any other.



These are just a few highlights of our progress toward a prosecutorial state. Richard Holbrooke is not the only official tormented by a lengthy ethics investigation over frivolous charges. Tony Lake and Sandy Berger, successive assistants to President Clinton for national security affairs, were each investigated by the Justice Depart ment for two years over stock holdings. Large numbers of state officials are now subjects of federal criminal inquiries. And civil litigation has become much more prosecutorial. If the price of shares in a young company falls, shareholders will sue, alleging that the drop is a result not of economic forces but of malefaction by company officials.

Has American leadership become more corrupt? By all accounts, wrongdoing by politicians was more common in the last century, whether nationally (the Grant Administration) or locally (the Tweed Ring). Nor can I believe that corporate or academic life is more laced with crime than it used to be. Something must have happened to us, the citizens, to make us more suspicious of our leaders, more eager to see them proved sinners.

Watergate is surely a proximate cause. I remember watching Nixon at the 1973 press conference when he said, "I am not a crook." Coming from a generation that regarded the presidency with instinctive respect, I was shocked. Subsequent disclosures—Nixon's use of thugs, the enemies' list, his anti-Semitic and locker room language, his attempt to have the CIA and FBI help cover up the Watergate break-in—went far toward destroying that presumption of respect.

Cynicism about public life has gone a long way since then. Polls showing contempt for officials are a familiar reality. Lloyd Cutler, who served in the Carter administration and again in the Clinton White House, remarked on "the difference in the tone and virulence of the hate mail—and the frequency of four-letter words—not just toward the personality of the President but toward the White House itself and anyone foolish or crooked enough to work in the building."


Men and Angels

Watergate had a further consequence. After it was over, Congress passed the Ethics in Government Act, which institutionalized the idea of the independent counsel. Now, instead of special prosecutors being used by the attorney general as an ad hoc response to political problems—as was done at Teapot Dome and in Watergate—an elaborate process was set up to bind the attorney gen eral. How constricting a process it is was made clear when Attorney General Janet Reno last May called for an independent counsel to investigate corruption charges against the secretary of labor, Alexis Herman. She did so, Reno wrote, "not because we possess affirmative evidence that Secretary Herman actually received money—we do not—but because we have not been able to answer all of the questions surrounding the alleged payments." In other words: in the absence of evidence, make the accused official bear the enormous financial and psychological burden of investigation by a counsel with no other object in life and no limitation of time or money.

The institutionalization of the independent counsel has had a profound political result as well. The demand for the appointment of a counsel has become the standard response to all kinds of issues. In campaign finance, for example, some people rightly exercised about abuses have devoted most of their energy to demanding a criminal investigation by an independent counsel rather than focusing on the need for changes in a financing system that invites abuse.

The search for purity has been a constant element in American history, expressed in recurring waves of liberal reform. Alas, reform can have unintended consequences. The substitution of a civil service regime for political appointments below the top level of government may have stopped the spoils system, but it has also made it hard to dislodge the lazy and incompetent. Some think the post office was more efficient, and less costly to customers, in the bad old political days. Former Senator Eugene McCarthy, writing recently in the New York Times, criticized the "current disposition to assign all difficult problems in American government to independent agents and procedures in which no elected official is held to account. By doing so, we have de-democratized much of government and criminalized much of politics."

There is a deeper cause, I think. Madison and the rest deliberately avoided creating a populist democracy, in which the mass of the public directly controlled government policy. They devised a representative republic, in which the judgment of the representatives would dampen the swings of public passion. But in recent years we have gone far toward a plebiscitary democracy in this vast country. Politicians look to polls and focus groups. Television has brought events into everyone's living rooms, and the public reaction tells officials what to do. The idea of actual leadership by men and women of wisdom seems hopelessly old-fashioned. Not many in Congress would say, as Edmund Burke did to his voters, "your representative owes you not his industry alone but his judgment, and he betrays instead of serving you if he sacrifices it to your opinion."



Change in the press has accelerated the populist trend. Think about the period after World War II. Scotty Reston of the Times, Walter Lippmann, and a few other columnists and editors prepared the way, by what they wrote, for the great shift from this country's historic isolationism to the embracing of international institutions: the United Nations, NATO, the IMF. To recall that kind of journalism now is to feel as if one is describing a distant century. Today we have a journalism seemingly governed by Gresham's law, with the cheapest and most vulgar driving others down to that level in order to compete. We have 24-hour cable television channels devoted in large part to condemnation of President Clinton's sex life. In the once more-serious broadcast networks we have the likes of George Will and Tim Russert and Sam Donaldson lecturing us on morality.

The press had a great moment in Watergate, when the reporting of Bob Woodward and Carl Bernstein led to the investigations by a Senate committee and by special prosecutors Archibald Cox and Leon Jaworski. The press's performance in publishing the Pentagon Papers—and generally in bringing home the reality of the Vietnam War—was another high achievement. But to a significant extent the serious work of investigating and analyzing large events has degenerated into "gotcha journalism," which aims to point fingers at sinners and demand their punishment.

There lurks in all of us a lust to see the great brought low. Scandal builds audiences—and sells advertising. So the television networks increasingly mimic the cable channels to feature scandal, while closing their news bureaus around the world. And our hunger for prosecutorial solutions to political problems grows apace.

The worst of it, for me, is the way the focus by the press and politicians on personal wrongdoings obliterates the distinction between the public and private spheres of life. Without privacy, Milan Kundera wrote, "nothing is possible—not love, not friendship." Which of us would want to live in a situation in which nothing one said to a friend, a colleague, even a lawyer would be confidential—in which any one of them could be forced to testify against you? That is the life that Kenneth Starr has secured for presidents—that in addition to insisting that this president testify about an illicit sexual relationship and have the prosecutorial inquisition played on national television.

In Orwell's imagined totalitarian future, Big Brother watched every moment of the hero's life. We are not there, not by any means, but we are heading in that direction.

The costs of the prosecutorial state are high. The loss of privacy, or even understanding the need for it, is one. The coarsening of society is another. A third is the disincentive it creates for people to enter public life. Anyone appointed to a significant job in the federal government now must undergo excruciating examination of his life, his finances, his friends, his medical history. And then, after appointment, he may be drawn into an investigation by an independent counsel or an antagonistic congressman. Whether he is a target or merely a witness, he will have to retain a private lawyer. He will pay the fees, and they are not likely to be modest. Lloyd Cutler, drawing on the experience of officials he has known, said in a speech that their legal fees amounted to as much as half their government salaries. He asked, "with these very high personal and financial costs, are there any mothers left who want their children to grow up to run for president or Congress or be appointed to executive office?"

There is also a question of simple justice. By now the institutionalized independent counsel system has damaged the lives of thousands of innocent individuals. When I wrote a column criticizing the indictment of Henry Cisneros, I received a telephone call from Raymond Donovan, who as secretary of labor in the Reagan administration was investigated by an independent counsel and cleared—but only after extended public humiliation. He agreed with my column, Mr. Donovan said, "though it comes a bit late to give me and my family comfort. I went to the public library recently with my latest grandson, who was doing a little paper. While I was waiting, I typed my name into a computer, and my knees went weak that my children and grandchildren would have to read such things."

The criminalizing of politics has a broader, more insidious impact. A decisive step in the development of free, self-governing polities was the acceptance of opposition as legitimate: the loyal opposition. Looking at less happy countries, we used to say that in democracies we could lose elections without losing our fortunes or our lives. But as our politics becomes criminalized, as we look for prosecutorial solutions to problems, partisan rancor and fear rise. The independent counsel process, Michael Walzer wrote in the New Republic recently, "became a kind of surrogate politics for people like me—and it has turned out to be a very bad politics. The legal process, set loose from its everyday constraints, will always turn up criminals. But what we should want, what democratic politics requires, are opponents."



If we are going to stop the movement toward a prosecutorial state, we must do a number of things. One is to see past our partisan instincts and recognize the harm done by a hunger for prosecutorial solutions whether the victim of the moment is friend or foe. After Watergate, liberals were for independent counsels, conservatives, opposed. The conservatives were right. Liberals should admit that—and hold conservatives to their principles now that the target-in-chief is a Democratic president. The urgent need is to do away with the Independent Counsel Act, letting it expire in mid-1999: not amend, not reform, but expire. [See Cass Sunstein, "Unchecked, Unbalanced," TAP, May-June 1998.] Similarly, the Supreme Court's disastrous decision in the Paula Jones case, allowing her lawsuit to go ahead while President Clinton was in office, should be overruled by legislation—no matter who the next president is. Otherwise every president will be vulnerable to strike suits financed by the opposition.

"If men were angels," Madison wrote in The Federalist, "no government would be necessary. . . . In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." The Constitution's answer to the problem was political: a structure of balanced, competing powers answerable in the end to the people. Criminalization is a corrupting substitute for that structure. It seeks, vainly, to see to it that men are angels.

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