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In the Loop of McCarthyite Investigations

March 15, 1998|Jonathan Rauch | Jonathan Rauch is national correspondent for National Journal

WASHINGTON — 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.

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