In his final act as attorney general of the United States, Edwin Meese III took what is essentially a sound idea--making the members of Congress live by the same ethics laws that bind officials of the executive branch--and made a mess of it.
The order that Meese signed on his last day in office would require future attorneys general to appoint special counsel to investigate congressmen and senators suspected of criminal wrongdoing. He said that the order would end the disparity between the way members of the executive branch and of the legislative branch are treated when criminal allegations surface. He had to resort to a special order, he said, because Congress exempted itself from the 1978 Ethics in Government Act, which authorizes the appointment of independent counsels to investigate the President, members of his Cabinet and other executive branch officials.
On Capitol Hill, Meese's move was regarded as vindictive, a crude effort to get even with Congress by an attorney general who was twice investigated himself by independent counsels. We are a bit surprised by Meese's show of devotion to the Ethics in Government Act, which his Justice Department tried unsuccessfully to overturn. But what really concerns us is that his order cannot possibly live up to the claims that he made for it.
Far from ending the disparities between ethical investigations of congressmen and of executive officials, this order will heighten them. Meese would require future attorneys general themselves to select special prosecutors to investigate members of Congress. But the 1978 law vests the power to appoint independent counsels for the executive branch in a special three-judge court. The court-appointed counsels are truly independent of the Justice Department; in the post-Watergate years that independence was critical to lawmakers dubious that any attorney general could be trusted to prosecute his colleagues in the White Houseor the Cabinet. Meese's order, by contrast, would keep the special counsels investigating Congress under the attorney general's thumb.
Within the Justice Department, doubts have been voiced about whether the order is needed. The department already has sufficient authority to prosecute members of Congress; just recently, in fact, Rep. Mario Biaggi (D-N.Y.) was convicted by a federal jury of extorting stock from Wedtech Corp. Some lawyers argue that the 1978 law could conceivably cover members of Congress because it provides for a court-appointed counsel to investigate anyone whose case presents a "personal, financial or political conflict of interest" for any Justice Department official. That language might apply, say, to a Senate leader of the President's own party. This interpretation has never been tested in court--and now won't be, because Meese, by requiring his successors to appoint special prosecutors themselves, has tied their hands.
There is a double standard in Washington, but not the one that Meese addressed. The real problem is that Congress has exempted itself from every conflict-of-interest statute that it has enacted. Members of the executive branch cannot supplement their salaries with honorariums for speeches and public appearances; they are prohibited from acting on matters in which they have a personal financial stake; once they leave office, they cannot immediately lobby their former colleagues. Yet congressmen and ex-congressmen do all these things, all the time, no matter that such activities smack of corruption and influence-buying.
Criminalizing behavior by one branch of government while permitting it for another makes plenty of congressmen uncomfortable, though so far they are a minority. Somehow Congress needs to muster the requisite courage to subject itself to conflict-of-interest laws, even if it means granting itself large pay raises to compensate for the lost honorarium income. That's a problem that only Congress, not a meddling attorney general, can solve.