In the Loop of McCarthyite Investigations

Jonathan Rauch is national correspondent for National Journal

Long ago, before the permanent culture of investigation had laid siege to Washington--meaning, in the early 1990s--a formal congressional investigation was considered major if it issued a few dozen subpoenas. That was then. In the year or so since the House Government Reform and Oversight Committee began its wide-ranging probe into Democratic fund-raising practices, it has issued 479 subpoenas. Those forced to appear are grilled in private, sometimes for hours at a stretch, with few of the protections from badgering that shield witnesses in the real world.

Here is a congressman deposing a former Interior Department official:

Congressman: One of your sentences was, 'I don't believe there is a shred of evidence that Mr. Ickes ever called the secretary.' Is that correct?"

Witness: Yes.

Congressman: Was that because it had been shredded . . . . ?

Witness: No.

Congressman: You are not aware of that?

Witness: No.

Congressman: And you did not do any?

Witness: No.

Congressman: Or did you?

This would be funny if it were not redolent of a mentality that Washington has not seen for some decades. The term "McCarthyism" is used too often and too loosely, but there are times when it is useful, and one of those is now.

What made the McCarthy phenomenon so sinister was less the ruthless opportunism of Sen. Joseph R. McCarthy than several grotesque characteristics of the investigations themselves. First, the investigations could be triggered by legal political conduct. Second, they probed broadly, even indiscriminately, on the ground that some people actually turn out to be guilty. Third, anything you said to one investigation could be used against you in another, creating boundless jeopardy for anybody questioned. Fourth, merely being investigated could ruin honest and dishonest alike.

All those things are happening now, albeit driven by a mindless legal process rather than Cold War paranoia. Consider the investigation of Interior Secretary Bruce Babbitt, to find out if he lied to Congress about an Indian casino deal.

* The conduct Babbitt was initially accused of is not illegal. In fact, it's indistinguishable from ordinary politics. The charge is that Babbitt and the Interior Department favored one group of Indians over another in a casino dispute because one side lobbied successfully and, after getting its way, made large campaign contributions to the Democrats. Babbitt says this simply is not so, but assume for a moment it is. In 1991, the Supreme Court ruled that only an "explicit" exchange of campaign contributions for favors is a crime. Otherwise, the court reasoned (correctly), any politician could be investigated for making decisions that benefited his supporters.

In the Babbitt case, no one has charged that there was a bribe or an explicit deal, only favoritism motivated by campaign donations. Improper political influence is certainly bad, which is why people who believe they are victimized by it can sue for redress, as they have done, and are doing in the Indian casino case. But turning "political influence" into corruption opens startling new vistas in criminology, because being influenced by supporters is what politicians do for a living.

* The investigations know few limits. The Monica S. Lewinsky affair, with its subpoenas of White House lawyers, interns, schedulers, media handlers and Lewinsky's own mother, has made vividly clear the astonishing breadth of the investigative dragnet. Such breadth has become the rule. In the Babbitt case, the special prosecutor's mandate is narrow: Find out if Babbitt lied on a fine point of recollection when he testified before the Senate last fall. But, to determine if Babbitt intended to deceive Congress, the prosecutor will need to know if Babbitt had anything to hide. So he will have a vast mandate to examine all aspects of the casino deal, and anyone involved with it.

In ordinary criminal law, the government can't start broad investigations on the basis of alleged conduct that is apparently legal--and it certainly can't keep issuing subpoenas to everyone in sight until it finally turns up evidence of conduct that is illegal. Formal investigations by both Congress and by independent prosecutors, however, have effectively cast such protections aside.

* Each investigation triggers another, in a seemingly endless loop. Babbitt and his staff at Interior already have faced three formal investigations of the Indian casino dispute: one by the FBI; one by the Senate, and then a third by the House--all going over the same ground. One career Interior bureaucrat, a civil servant of 20 years, was deposed for a cumulative total of 16 hours. None of those investigations came up with criminal wrongdoing--not surprising, given that no apparently criminal wrongdoing was alleged to begin with.

Nonetheless, the mere possibility that Babbitt committed perjury in the second probe has triggered yet a fourth probe, by the most feared investigator of all, an independent prosecutor. According to Charles Tiefer, a University of Baltimore law professor, the "Travelgate" scandal set a record, with five formal investigations. The people caught in this hall of mirrors found themselves in virtually endless jeopardy, as their responses in each round become grist for the next. "The system of triggering formal investigations and independent counsels has thrown off the historic formal and informal constraints," says Tiefer, "and now seems to escalate almost with a mind of its own."

* Being investigated can ruin the honest and dishonest alike. Financially and emotionally, receiving a subpoena in a corruption investigation is akin to having your house hit by a tornado. According to press accounts, Margaret A. Williams, the first lady's former chief of staff, faces legal bills of $350,000 for the dubious privilege of answering investigators' questions; other current and former White House aides put their bills well into the hundreds of thousands. A former White House functionary named Mark E. Middleton paid more than $100,000 in attorney's fees to answer multiple congressional subpoenas, according to his lawyer, Robert J. Luskin.

Remember, hardly any of these people are ever charged with anything, and many are mid-level officials and staff, guilty of nothing more than bad luck. "The criminalization of politics--which is really a phenomenon of the last 10 years--is incredibly burdensome to individuals who have ventured into public life," says Luskin. "It's just crushing. I've seen it again and again."

In Washington, pundits are puzzling over the supposedly strange fact that the public is more angry with Kenneth W. Starr than with President Bill Clinton. But the matter is not hard to explain. The public recoils at the sight of an implacable machinery of justice bearing down on someone suspected of an inconsequential offense--as many believe is the case in the Lewinsky affair--or, as in the Babbitt affair, someone suspected of no clearly identifiable offense at all.

The public's instincts are right. The independent-counsel law needs reform, which it will doubtless get when it comes up for renewal next year. But more than that: Politics must be decriminalized. Since 1970, the number of federal, state and local officials indicted in corruption prosecutions has risen almost twentyfold. A few years ago, it was still possible to say that the extension of the "zero toleration" mind-set into politics was a noble experiment. Now, however, when even honesty offers no protection, it is clear that the experiment has failed. This new, legalistic sort of McCarthyism brings to politics not more honesty, only more fear.

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