Criminalizing Politics

But there was a huge problem with what’s become known as the “1-2-6” story–one source, two leakers, six journalists–a problem exposed only recently. Hubris, the new book on the Plame case by Michael Isikoff and David Corn, discloses that the six calls to journalists almost certainly came after Plame’s name had been revealed by Novak. A Washington Post editor had inserted the words “before Novak’s column ran” in later editions of the paper, according to Hubris.

The timing of the calls is enormously important. If they came before the Novak column, they might constitute an illegal disclosure of a CIA officer’s name, which is classified information. However, if the calls by White House officials came after, they were perfectly legal because the officials were merely pointing to a published fact. As it was, the 1-2-6 story drove the notion of a White House conspiracy to smear both Plame and Wilson. Plame, Novak had written accurately, helped arrange the trip to Niger for her husband as part of an official CIA investigation.

All this leads to Karl Rove, the conservative White House political strategist loathed by partisan and ideological opponents of the Bush administration. He had already been fingered by Wilson and others (they offered no substantiation) as the source of Novak’s column. Wilson, in a widely reported jibe, had said Rove should be arrested and “frog-marched” out of the White House. Now, with the Post story, Rove was suspected of being a major figure behind what was deemed a conspiracy. Investigators at the Justice Department and later special counsel Patrick Fitzgerald would look into the possibility of an illegal plot against Plame and Wilson carried out by Bush officials.

It turned out, of course, that Rove was innocent. He was not Novak’s source. Richard Armitage, then deputy secretary of state, was. Nor was there a White House smear campaign, before or after Novak’s column appeared. But Rove paid for his non-sins. He suffered badly and unfairly. He was questioned twice by Justice investigators and five times by a federal grand jury. He was vilified by foes in the political community and the press. His Washington home was staked out by the media. His indictment was reported, though he was never indicted. Rove was attacked not because of any evidence against him–there was none–but largely because of his politics. He was a victim of the criminalization of politics.

This is an ugly phenomenon that has struck others–especially conservatives–in the Bush era. It’s not new. It has claimed victims of both parties in the past: Democrats Mike Espy and Henry Cisneros, Republicans Ted Olsen and Caspar Weinberger, among others. But lately, along with Rove, it’s the turn of Ken Tomlinson, former chairman of the Corporation for Public Broadcasting, who was subjected to a full-scale inspector general’s investigation of his conduct when he sought to bring ideological balance to PBS. Later, when he was head of the Broadcasting Board of Governors (BBG), another IG’s probe was ordered.

Another victim, Scott Bloch, the chief of the U.S. Office of Special Counsel, has been investigated six times, all subsequent to his removal of “sexual orientation” from the list of conditions covered by anti-discrimination laws. He cited federal law, court rulings, and the statute governing his agency, none of which put sexual orientation in the same protected class–that is, legally protected against acts of bias–as race, religion, national origin, or gender. His “crimes,” like Tomlinson’s, are purely political, yet both he and Tomlinson were the subjects of probes involving criminal charges.

On its face, the criminalization of politics is harmful. It distorts the political system by giving judges and prosecutors and investigators of all sorts a large role. Accountability shifts from the political process to the criminal justice system, where it doesn’t belong in matters of policy. The customary way of dealing with policy differences is through congressional action and elections. But criminalization takes political decisions out of the hands of voters and their representatives.

And there is a malicious aspect. Criminalization leads to persecution. It’s a kind of perverted variation on the Al Capone approach. Prosecutors couldn’t nail Capone for his major crimes, so they went after him for income tax evasion. That was justified because Capone was a genuine gangster. Now, instead of defeating a politician through the political process, his foes ferret out some infraction–any peccadillo, no matter how small–and get law enforcement to treat it as a crime, thus eliminating their opponent. It’s the same thing prosecutors did with Capone–only the targets here are not criminals, they’re dedicated government officials.

Over the years, a pattern has developed in the criminalization process. It has seven stages that lead, at best, to a sullied reputation, at worst, to jail time and financial ruin. Once the process gets started, it gains momentum. It’s almost impossible to stop. That’s especially true if a criminal investigation, rather than an inquiry into civil charges, has begun. Investigators, especially inspector generals in government agencies, are eager to find some wrongdoing. Otherwise, they may fail to satisfy those who asked for the investigation in the first place, often members of Congress.

The starting point, at least during the Bush presi dency, is a conservative act–a decision, a policy, a public statement–that arouses liberals. Tomlinson put a Wall Street Journal television show on PBS, a liberal sacred cow, to balance the left-liberalism of Bill Moyers’s weekly show. Bloch dropped “sexual orientation” as a ground for claiming discrimination in cases of federal employees. Rove’s “crime” was not specific or narrow. A conservative Republican, he is the most effective political strategist in America and Bush’s most important White House adviser. Driving him from Bush’s side is what some Democrats dream of.

Stage two is the accusation. Tomlinson was charged with politicizing PBS, as if it were not already politicized by its liberal programmers. Later, he was zinged for trivial, unintentional misuses of government funds at the BBG for which his staff was responsible. Bloch had supposedly broken various regulations when he restructured his agency and reassigned staff. With Rove, it was allegedly leaking the name of a CIA official.

Then comes the actual investigation–stage three. It can be brutal. At Tomlinson’s BBG office near the Capitol, his email and phone records were seized. In an unannounced raid, State Department investigators grabbed his files. (Tomlinson held the BBG and CPB posts simultaneously for two years.) The House Government Reform Committee sent a bipartisan group of 18 staffers to rifle through Bloch’s files. Bloch was beset: He went from one investigation to the next, and the results of Government Accountability Office probes are yet to be determined. The fact that Rove was a suspect in the Plame leak investigation was a matter of public discussion and grounds for political attacks on him for three years.

Stage four: silence. Lawyers representing targets of criminalized politics routinely require them to make no public comments. So they can’t defend themselves against political assaults. And their lawyers don’t say much either. The fear is that public remarks might cause an investigator to recommend criminal charges. This is what kept Tomlinson quiet. Perhaps this tactic worked. The State Department IG who handled his BBG investigation was critical but didn’t urge criminal action.

Stage five is isolation. As a general rule, few defenders step forward. After all, there’s a formal investigation going on that shouldn’t be interfered with. Even the White House doesn’t always defend its own, and in some instances–Bloch’s, for one–turns against them. Friends go into hiding. Meanwhile, in the case of conservatives facing possible criminal charges, the media go into the familiar “kick ’em when they’re down” mode. Rove was hit with a media onslaught that included critical stories attributed to unnamed administration officials, his putative allies. He didn’t respond publicly.

Then comes the finding of fault. That’s stage six. Even a picayune violation becomes big news. Tomlinson was found guilty of using his email for private communications, particularly to his horse stable. Those averaged probably one a day. What government worker doesn’t do that routinely? A finding of fault makes it difficult to remain in office. An indictment makes it impossible.

Stage seven is the worst. It’s the taint. Anything short of full exoneration leaves a blotch on one’s reputation. Ray Donovan, labor secretary in the Reagan years, was tried on charges brought by a special prosecutor and acquitted, but still felt stained. “Where do I go to get my reputation back?” he asked. There was no place to go. There still isn’t.

Let’s look at the three individual cases, starting with Rove. After more than 30 years in politics, Rove “is more resilient than most people and has a thicker skin,” Robert Luskin, his attorney, says. But when facing possible criminal charges, “you think about it 100 or 200 times a day. If it’s not in your consciousness, it’s right below it.” In 2003 and 2004 and into Bush’s second term in 2005, Rove showed no signs of being affected by the high-visibility investigation. He was consistently cheerful, according to White House aides.

But as the federal grand jury neared its end in late 2005 and Scooter Libby, Vice President Cheney’s chief of staff, was indicted, Rove grew distracted. A White House aide told several reporters that Rove was hunkered down, though that was an exaggeration. “Within the White House, the most you ever heard was that Karl was slightly distracted, and I emphasize slightly,” a Bush official said. “I thought he held up amazingly well.” Still, the Washington Post quoted Rove “associates” as saying his preoccupation with legal matters “contributed to the troubled handling of Harriet Miers’s nomination to the Supreme Court.”

The press was relentless in speculating about an indictment. Last fall, CNN anchor Heidi Collins asked, “Is the man some call Bush’s brain about to be indicted?” Ted Koppel of ABC said the indictment of Rove “had risen to the level of expectation.” The Washington Post found a “warning sign for Rove” in the language of Libby’s indictment. “Official A” was assumed to be Rove. “This kind of awkward pseudonym is often used for individuals who have not been indicted in a case but still face a significant chance of being charged,” the Post reported.

These stories weren’t painful to Rove, but others were. One TV and radio anchor joked on the air with a reporter about prison rape and a possible jail term for Rove. A Post article said “top White House aides”–Rove’s colleagues–were discussing his future “with some expressing doubt that President Bush can move beyond the damaging CIA leak case as long as his closest political strategist remains in the administration.”

Today, having been cleared by special counsel Patrick Fitzgerald, Rove still faces attacks on his reputation. “He leaked the name of an intelligence operative at a time of war,” Democratic national chairman Howard Dean said in June 2006. This is not true. Rove, at most, acknowledged to two reporters that he’d heard Wilson’s wife worked for the CIA. Meanwhile, Plame and Wilson have filed a frivolous lawsuit against him. And Democratic senator Chuck Schumer of New York has prodded Fitzgerald to issue a report that examines the role of Rove and other White House officials in the leak case. For Rove, restoration of his reputation must wait.

That may be true as well for Tomlinson. He weathered the storm of two IG investigations prompted by Democratic House members and intends to stay on, defiantly, as BBG chairman. In August, a bid by Democratic board members to oust him failed. The board oversees government broadcasting outlets abroad such as Voice of America and Radio Sawa. Tomlinson has been active in international broadcasting since he headed VOA from 1982 to 1984.

Tomlinson first encountered trouble after he became chairman of CPB, which funds public TV shows, in 2003. He did not propose to take any show off the air, but said PBS needed ideological balance. He wrote to PBS that Now with Bill Moyers doesn’t “contain anything approaching the balance the law requires for public broadcasting.” Tomlinson arranged for a show hosted by Paul Gigot, editorial page editor of the Wall Street Journal, to be broadcast on PBS stations.

In 2005, Tomlinson got a double whammy for his modest but brave effort to counteract the liberal tilt at PBS. First came a front-page story in the New York Times alleging “his actions pose a threat to editorial independence” of public broadcasting. That was followed a week later by a congressional request to CPB’s inspector general to investigate Tomlinson for “making personnel and funding decisions on the basis of political ideology.” Virtually all those decisions had been made with the approval of CPB officials. Nonetheless, the IG wound up faulting Tomlinson for being too political.

He wasn’t accused of breaking the law at CPB, but he was at his other post at the international broadcasting board. The sequence of events here is indicative of how the criminalization of politics works. Tomlinson had frequently clashed on the BBG board with Norman Pattiz, the billionaire founder of the Westwood One radio group and a lavish Democratic contributor. After Pattiz signed a newspaper ad calling for President Bush’s defeat in 2004, he was not nominated for a new term on the board. Then came a Novak column noting that Democratic senator Joe Biden had put a hold on a separate Bush nominee to force the renomination of Pattiz. That ploy failed. But several weeks later, three Democratic members of Congress asked the State Department IG to investigate Tomlinson.

The result was an IG’s report breathtaking in its attention to trifling matters. The most serious charge was double billing BBG and CPB for work on the same day. Because of clerical errors, Tomlinson had overbilled BBG by $2,145 and CPB by $900. Tomlinson immediately reimbursed both. The New York Times had a field day with the report, saying the IG found that Tomlinson “used his office to run ‘a horse racing operation’ and that he improperly put a friend on the payroll.” Tomlinson owns a stable with racing horses in rural Virginia and used office email and phones to keep in touch with that operation. His BBG job is part-time. The so-called friend was a 35-year veteran of VOA.

Tomlinson hasn’t suffered Bloch’s fate of being abandoned by the White House. But he has been informed that he must drum up votes himself in the Senate Foreign Relations Committee for his confirmation to a new term as BBG chairman. Bloch has been ostracized by the White House and was privately sent word that he should resign. Twice, he was threatened with firing if he didn’t back away from protests he’d made about an IG investigation of his role at the Office of Special Counsel (OSC), a small agency assigned to protect whistleblowers and the rights of federal employees.

One of Bloch’s first decisions when he arrived at OSC from the Justice Department in early 2004 was to strip “sexual orientation” from its special status in discrimination cases. It had been added by his predecessor–even though Congress and the Supreme Court had taken up the issue and failed to elevate sexual orientation to the status of race, religion, national origin, and gender. His decision quickly drew complaints from Democrats in Congress and pro-gay groups.

The struggle over Bloch’s stand is largely symbolic. OSC has received few complaints of bias against gays. But it led to a detailed complaint to Congress and a withering barrage of investigations. And Bloch soon learned that the White House did not want to get involved in his fight–quite the contrary. A few weeks after Bloch’s decision, a presidential spokesman delivered a public in-your-face rebuttal to Bloch. “Longstanding federal policy prohibits discrimination against federal employees based on sexual orientation,” the spokesman said.

Bloch has endured, despite the six investigations, which have included questions about his and his staff’s religious views. Bloch, a lawyer from Kansas, is a Christian. He and his wife Catherine have seven children. The investigations have gone from one by a House committee staff, to a committee hearing, to three probes by the Government Accountability Office, to one by the IG of the Office of Personnel Management. Contrary to Bloch and OSC, OPM, by the way, includes sexual orientation as grounds for filing a discrimination complaint. The criminal actions Bloch is accused of include making retaliatory reassignments of dissident personnel, imposing an illegal gag order on staffers, illegally barring staffers from communicating with Congress, and creating a hostile work environment.

It’s worth noting that only one of these instances of the criminalization of politics–Rove’s–can be blamed on the naming of a special prosecutor. It’s no wonder special prosecutors have a record of overzealous prosecution. Unlike normal prosecutors, they don’t have to weigh a potential indictment against all the other possible uses of their time and resources. Their sole purpose is to go after a single target or small number of targets. But the special prosecutor law has expired, and the decision to name Fitzgerald as a special counsel was an aberration, caused by unusual conflicts of interest at the Justice Department. Neither Tomlinson nor Bloch, however, was the victim of a special prosecutor. Enough investigative and oversight machinery is now part of the normal structure of government that determined foes can always find a lever to use against an officeholder. Inspector generals can be as aloof and stringent as special counsels.

Besides, law enforcement officials aren’t the source of the problem. It’s politicians who demand investigative frisks of their political and ideological opponents, along with those in media who encourage them, who are to blame. At a time when legislators are taking pains to define fair treatment for accused terrorists in U.S. custody, there should be at least equal concern for fair treatment of public servants. But that’s not how political war is waged in Washington.

Fred Barnes is executive editor of THE WEEKLY STANDARD.