Who Do You Trust: The Ephemeral Nature of Reputation in Public Life
The nation’s newest independent counsel, former Solicitor General Kenneth W. Starr, is finally starting his investigation of Whitewater.
There was a brief hitch: Sen. Carl Levin (D-Mich.) asked the federal judges who named Starr to un-name him, on the grounds that the appointment process and Starr himself were too partisan. But the judges speedily answered they had no authority to do such a thing.
If he doesn’t agree, the senator can appeal to the U.S. Supreme Court, where it takes the votes of four justices to put a case on the court calendar. Getting four votes in this matter would require disinterring William O. Douglas, Hugo L. Black and probably two more of those old-time judicial activists. So Starr can now start. But his reputation and work are already under a cloud.
How come we don’t seem to have in our national life what used to be called public men, whose honesty was beyond question and whose judgment was trusted by political partisans on both sides.
In the beginning, such individuals did exist. They were the permanent panjandrums of national affairs, people like Henry L. Stimson, Dean G. Acheson and--well, Clark M. Clifford. They could be found in the federal government, where after World War II they constituted a foreign-policy Establishment and where as late as the 1960s they populated significantly bipartisan Cabinets. They also existed in law enforcement, where they were called on by federal and state governments to serve as special prosecutors for big cases.
Virtually none of them, measured by modern standards, could pass investigative muster. Recent historians have exposed their personal vices and their activities as agents of international capitalism. But in their day, their word was enough to settle even the most rancorous political arguments.
Then, after the turmoil of the 1960s, came Watergate--in which President Richard M. Nixon fired Archibald Cox, a special prosecutor very much in the mold of the traditional public man. There was national uproar. Nixon had to name another special prosecutor to continue the investigation.
You might see this as heartwarming proof of the power of the trustworthy individual in public life. But people enraged by Watergate found it intolerable that Nixon held the power to fire Cox in the first place, even if this theoretical power proved an empty one.
Yet, they did not make their argument in this highly personal, anti-Nixon tone. Instead, they said that all investigations of high-government officials were tainted if conducted by special prosecutors who had been appointed by Presidents and could be removed by Presidents.
Thus arose the post-Watergate special-prosecutor legislation, a real piece of work, designed to produce special prosecutors untouched by human hands. This law detailed the circumstances under which an attorney general had to seek the naming of such an official; actual appointment and removal were in the hands of the federal courts. Moreover, a special prosecutor could be fired only for “good cause"--an administrative-law phrase meaning, roughly, “not unless you actually catch him on a boat to China with the family jewels.”
Over the years, “special prosecutor” was changed to the more polite “independent counsel.” People fought over just how much power an attorney general should have in the process, and they grumbled at the length and expense of independent-counsel investigations.
But the institution stuck. Opponents succeeded in scrapping the law only to be forced to reinstitute it. The idea had become engrained, not just for investigations but for government in general--only individuals thoroughly insulated from politics can be trusted with power.
Then the Clinton Administration started trying to extricate itself from Whitewater. It laid in a supply of traditional public men whose reputations could help restore public trust. The President named Lloyd N. Cutler as White House counsel. With the independent-counsel law expired, Atty. Gen. Janet Reno appointed another such man, Robert B. Fiske Jr., as Whitewater special prosecutor.
But despite their illustrious careers, neither bought the Administration much in the way of increased respectability, and both saw their own reputations dimmed.
When Cutler insisted, during congressional testimony, that he was giving his independent legal judgment on Whitewater, that he was not talking as a partisan and that because of his past career he should be believed, reactions ranged from cynical to more cynical.
Fiske followed the experts’ advice, developed out of the Iran-Contra fiasco, by demanding that Congress delay public hearings on Whitewater so as not to compromise any criminal proceedings that might arise from his investigations. In his first two investigative verdicts, he concluded that White House aide Vincent W. Foster Jr. had indeed committed suicide, contrary to sinister rumor, and that no one had done anything criminal during the Resolution Trust Corp.'s inquiry into a Clinton-connected bank.
For these findings, Fiske was accused of covering up on behalf of the Clintonites. What could you expect, critics asked, of a man who owed his job to Reno?
When the independent-counsel law was revived, the Administration tried to regularize Fiske’s status by having the courts name him an official, authentic independent counsel. But the judges, rigorously following post-Watergate logic, gave the job to someone never appointed by the Clinton Administration--someone, in other words, who was more formally independent than Fiske.
They chose Starr--the soul of prudence and a man who even ideological opponents consider fair. But none of these qualities was enough to still suspicion; not even a court appointment, we discover, can bestow purity today. Starr is a conservative, his pro-Clinton critics say. In the Paula Corbin Jones case, he talked about filing a friend-of-court brief to make the constitutional argument that a President is not immune from being sued. Starr, still relatively young, has even considered running for the Senate--as a Republican!
Worse, one of the judges who named Starr has Political Connections: He was seen lunching with a conservative senator. So how can Starr be fair-minded?
We had better watch it. Too many scandals, producing results that many consider ludicrous, are making us cynical and embroiling us in the paradoxes that cynicism brings. Thus, bad people in politics can no longer be truly ruined by scandal, while good people can no longer preserve their reputation for virtue.
When the political community so loses the ability to discriminate, we will find out what it really means to be governed by people whom we can not trust.