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We Should Sink the Partisan Ship

...published1997...and applying NOW more than ever...

Note: I added all the images. Full article follows...

His complete article follows:

By Robert S. Bennett March 16, 1997

For the past quarter of a century I have had a ringside seat at many of the nation's political scandals. I have served as counsel to congressional committees, directed criminal investigations as a federal prosecutor, and represented members of Congress and the executive branch as a defense lawyer. So let me say it plainly: Partisan politics is polluting our most important legal and ethical processes, whether they be independent counsel investigations or congressional hearings, and is damaging our political system.

Many of these proceedings, while billed as impartial fact-finding missions, have become little more than "witch hunts" designed to humiliate the opposing political party. The scandal machine bankrupts individuals, who are little more than pawns in larger political agendas. It threatens the ability of the political system to attract and retain the bright, dedicated people that our nation deserves. It threatens the ability of prosecutors and defense attorneys to fulfill their assigned roles within our system. It undermines public confidence in our government, its leaders and in the fact-finding process itself.

I wish to emphasize that I have no partisan motivation in speaking out -- nor am I advocating on behalf of any particular client. In fact, I must admit that Washington's current obsession with scandal has been a boon for my law practice. And let me acknowledge that in the heat of the moment, there are things I have said and done in defense of a client that have contributed to the very concerns I am addressing.

A criminal or ethical investigation is simply not an appropriate place for partisan politics. The partisan's role is to advocate certain policies, move voters in a certain direction, elect candidates and defeat opponents. But these techniques of the political marketplace are completely out of place in the world of dispassionate investigations.

Our legal system is replete with rules designed to limit partisanship in criminal investigations. But in the new world of political investigations, these principles are turned upside down. A president's political opponents argue that the Justice Department is not sufficiently adverse to the executive branch, and so they insist that an independent counsel be appointed. If the independent counsel does not come to the conclusions they want, these same partisans attack him as being "too soft."

There is great hypocrisy on both sides of the aisle. During the Reagan administration, the Republicans were highly critical of the independent counsel statute when my client, then Secretary of Defense Caspar Weinberger, was in the cross hairs of Iran-contra independent counsel Lawrence Walsh. But the Republicans don't think the independent counsel is such a bad idea now that President Clinton is on the receiving end. The Democrats, who complain about Whitewater independent counsel Kenneth Starr, had no problem when Walsh was pursuing Weinberger.

What are the results of such partisan investigations? Consider the costs, financial and personal, of defending yourself against a politically motivated investigation. President Clinton's former adviser, George Stephanopoulos, told me recently that he believed he had a successful run in Washington because he left the White House with less than $100,000 in legal fees. He was only half-joking. Only a generation ago, it was unusual for members of Congress, justices of the Supreme Court or the president himself to be subject to intense scrutiny, much less criminal investigation, under circumstances that were less than extraordinary. All that changed with Watergate. Congress became much more willing to launch investigations into the executive branch. New ethics laws were passed, creating the potential for more investigations. The press became much more aggressive in reporting potential scandals; many young reporters, without a sense of history, context or proportion, saw scandal where none existed or at least treated any mistake, no matter how minor, as worthy of being called a " 'gate."

Moreover, after Watergate, the executive branch was no longer trusted to police itself. The Ethics in Government Act of 1978 created the office of "independent counsel," a prosecutor appointed by a judicial panel to investigate potential wrongdoing within the executive branch. The independent counsel law is all right in theory, but in practice we have created an unbridled monster free to roam the landscape in search of high profile prey to devour, to the clamoring approval of the media. Beware of the lawyer with only one case and an endlessly deep pocket to finance it.

Watergate taught both parties that scandal could serve as a shortcut to political success. The Democrats achieved big gains in the 1974 mid-term elections, held soon after President Nixon resigned, and won the White House two years later. The lesson was learned: Since Watergate, both parties have eagerly looked for wrongdoing -- but only by members of the opposite party. It seems so much easier than old-fashioned politics. Rather than debate your opponent's proposals, simply attack his character. Rather than try to win a battle of ideas, try to tie up your opponents with subpoenas and prosecutors. What is it like to be a target or a defendant in such an environment? Consider what happened to Weinberger. After we successfully moved to dismiss a key part of an indictment against him, the independent counsel returned a second indictment just a few days before the 1992 election. This indictment not only attempted to repackage the dismissed charge against Weinberger, but unnecessarily included critical references to then President Bush. Although we successfully argued that the new charge was filed beyond the statute of limitations, the impact of the news coverage on Weinberger -- and possibly on the election -- was irreversible.

Consider the circus that has surrounded some of my other clients, who are witnesses in the Whitewater affair. At the insistence of congressional Republicans, Robert Fiske, a moderate Republican, was appointed as special counsel to investigate the Whitewater allegations. Fiske, a former federal prosecutor and a man of well-known independence and integrity, issued a report in 1994 that exonerated Clinton White House staffers of certain Whitewater allegations. Instead of rejoicing that government officials had committed no wrongdoing, a Republican congressman attacked Fiske's character and demanded that he be replaced.

Fiske was replaced by Kenneth Starr, a well-known conservative and former judge on the U.S. Court of Appeals for the District of Columbia. This appointment set off criticism from Democrats, who claimed Starr was too partisan. But the most stunning development came a few weeks ago, when Starr announced his intentions to resign and become dean of Pepperdine University Law School. Conservatives who had celebrated Starr now turned on him.

Faced with such relentless criticism, Starr reversed his decision and said he would stay on the job. Imagine how you would feel being investigated by a man who was under such pressure to bring indictments and who so quickly changed his mind in the face of criticism. As for Starr, it no longer appears that conservatives want him to be truly "independent" at all, and the Democrats are concerned that his quick reversal shows malleability and a desire to please his critics.

Or consider the controversy that recently bedeviled the Senate Governmental Affairs Committee. Sen. Fred Thompson, the committee's Republican chairman, pushed for a broad-based inquiry of political fund-raising in all federal races. Fellow Senate Republicans Mitch McConnell and Rick Santorum resisted at first, saying the committee should focus solely on the 1996 presidential race. It just so happens that Sen. McConnell heads the National Republican Senatorial Committee, which raises millions of dollars for GOP Senate campaigns.

Meanwhile, Sen. John Glenn, the committee's ranking Democrat, announced that a former prosecutor -- described in the press as a "pit bull" -- had been appointed the chief minority counsel for the investigation. Sen. Glenn stated: "I believe, at this point in the investigation, that we need someone with a strong prosecutorial background to lead this inquiry for the Democrats."

Can anyone believe that an investigation born in such a partisan environment will be devoted primarily to finding the truth? Such partisan motives have no place in objective fact-finding. As far as we know, Lady Justice is neither a Republican nor a Democrat.

So what can we do? We seem to have started a scandal machine that we can't control, much less stop. It won't be easy to change the habits of the past 25 years, but I believe it can and must be done.

First, we must remember the importance of having professional, nonpartisan investigators and prosecutors. Just before World War II, then Attorney General Robert H. Jackson (who was later appointed to the Supreme Court) stated that "the prosecutor has more control over life, liberty and reputation than any other person in America."

And independent counsels are the most powerful of all prosecutors. An independent counsel is not limited by the demands of other cases. His investigation can cover almost anything or anyone he chooses. His budget is practically limitless. He has a built in conflict of interest because he loses his job -- and the trappings of power it confers -- as soon as he determines that the subject of his investigation is innocent. Most significantly, he has no superiors and suffers no punishment if he bungles his assignment. We must radically change the independent counsel statute. Congress has always had the power to investigate any matter it chooses and is unlikely to relinquish such power. To the extent Congress feels such investigations are necessary, it should adopt procedures to ensure they are run in a non-partisan manner. Any investigation into a serious criminal or ethical matter should be conducted by a committee created for that occasion, with a term that will expire at the next election. The committee should include equal numbers of Republicans and Democrats. If the House and Senate wish to investigate the same matter, they should form a joint committee so that those under investigation have to deal with only one panel.

History shows, time and again, that our politicians ultimately respond to us. If we really want to stop the politicization of the legal and ethical process, we must inform our political leaders that we will not tolerate it. We must reject those who build their political careers on personal attacks and character assassination. We must punish those members of Congress who abuse their investigative authority.

James Madison once noted that "if men were angels, no government would be necessary." Political leaders are not angels, but they are not devils either. We must recognize that our government is largely made up of honorable men and women, Republicans and Democrats, who do not deserve the "hell" that partisanship has wrought upon them -- to the detriment of our nation. Robert Bennett, a Washington lawyer, is defending President Clinton against the sexual harassment civil lawsuit filed by Paula Jones. This article is adapted from a lecture he delivered at Hastings College of Law in San Francisco.


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