Undue Process

...Second, there must be some oversight...

...I'm doing so because there aren't very many people who have gone through the kind of ordeal that the author of this book describes...

...If some future President doesn't even the scales, the usurpation of power will continue and spread, to the detriment of all Americans...

...As things stand today, only people with deep pockets can afford the luxury of going to the mat with the Special Prosecutor...

...it would only shift the venue of the Ordeal to federal courthouses...

...In Elliott Abrams's case, despite all the threatening talk about "criminal acts," they finally got him to admit to withholding information from Congress in two instances: once when, in keeping with the promise of the American government to the Sultan of Brunei, Abrams failed to tell a committee about Brunei's promise of money for the contras, and on another occasion when he failed to say that he knew that Oliver North had ongoing contacts with the private American network that also gave help to the contras...

...Victims should at least get the chance to defend their honor without bankrupting themselves...

...If she'd had her druthers, she'd have dueled with Craig Gillen with submachine guns and nuclear warheads...

...for that, Undue Process would be a valuable contribution to public understanding of our political and judicial systems...

...After all, the actions that Judge Walsh calls "crimes" have never before been so considered, so his prey constitute sacrificial trailblazers of sorts...

...Elliott singles out Sen...

...and that he had met with the representatives of the Sultan of Brunei, using a false name...

...The rage that a parent experiences in such circumstances has rarely been so well expressed as in a letter from Rachel Abrams to a friend, beginning: "I am sitting here going mad, crawling out of my skin, feeling this worm of rage turning, turning inside me, and I don't know what to do with it...

...Since I have had my own extensive dealings with the Office of the Independent Counsel (the Special Prosecutor), and since I, like Elliott Abrams, have had a taste of Ordeal by Scandal, I think I'm in a particularly good position to evaluate what my friend Elliott Abrams has to say...

...He praises Leonard Garment, as if Garment had not permitted poor Bud McFarlane to testify without immunity at a time when McFarlane was so distraught that he could not possibly reconstruct what had happened...

...But I doubt it...

...He complains, as has everyone involved in a Washington scandal, of the outrageous lies about him in the press and on television...

...It may be that this state of affairs is largely the product of divided government, and that the problem will go away if there is a Democratic administration and a Democratic Congress...

...Undue Process is a gripping account of what it is like to be in the jaws of the Special Prosecutor—that modern version of the Star Chamber presided over by Judge Lawrence Walsh and his junior Savonarola, Craig Gillen...

...But he does not go on to point out that it is virtually impossible to win a libel suit in this country because here, unlike every other civilized country, you must demonstrate that the journalist who libeled you wrote (or spoke) with full knowledge that it was libelous...

...As North and Poindexter showed, Walsh can be beaten, but it is hardly a fair fight, and it is an enormously costly one...

...To understand Abrams's real choice, you must relive the events and the absurd decisions he'd had to endure before reaching the crucial moment...

...Good reasons, it always seemed, but I've agreed to break my own rule in this case...

...Toward the end of Undue Process, Elliott convinces himself that this sort of thing is unique to Washington, .and urges would-be public servants either to stay in the private sector or to limit their public service to local government...

...If they were right—and some pretty smart Washington lawyers thought they were—then Elliott would have put himself and his family through a year of Kafkaland, with his career on hold and his finances in ruin and his children traumatized and confused...

...Now for the substance...

...But it was not that at all, it was war, and it had to be fought, not negotiated...

...But the family can only sit at home, or go to work or school, and wait it out, or—at best—attend meetings with the accused's lawyers, and that is why the ordeal is much, much tougher on the family than on the victim himself...

...With that excuse, here's the consumer warning: Elliott is a friend of long standing, back to the days when I first came to Washington and he was working for Daniel Patrick Moynihan...

...His in-laws are both editors of mine, and friends as well...

...We gave money to his defense fund, and wished we could have given more...

...It may be that psychologically (and obviously only in this limited sense) such an ordeal is more difficult than the gulag, for in the gulag the lines are clearly drawn and you must fight just to survive...

...Walsh, after all, has an unlimited budget, which guarantees the corruption of the Special Prosecutor's office...

...During the next break in the hearings, Cohen told inquiring journalists that he had misspoken, so they didn't write it, but despite numerous requests, Cohen would never publicly correct the record...

...William Cohen of Maine for his egregious repetition of statements Cohen knew to be false, and my own singularly unpleasant experience with this slick solon during the Iran-contra hearings abundantly confirms Abrams's judgment...

...CI 68 The American Spectator November 1992...

...So the balance has shifted against the executive branch, to the benefit of the legislature, the judiciary, and the media...

...In telling the tale, Elliott Abrams takes us through all the Kafkaesque discussions with his team of lawyers, their bizarre shadow-boxing with the Walsh mob as they try to decide whether to plea-bargain (without even knowing the charges...

...He is obviously of two minds on this question, as he is obviously ambivalent about all those lawyers who nudged him toward accommodation with Walsh and Gillen rather than toward confrontation...

...And one of his lawyers—on Elliott's account, only one—clearly wanted to fight it, and was willing to fight it to the end even if Elliott ran out of money to pay him...

...Although she knew within minutes that Cohen's implied accusation was a lie, she permitted the false impression to stand...

...To achieve anything like fairness in these political wars, at least three steps are required...

...Even corporate executives—who have altogether too much to do with lawyers in their work--cannot imagine the UNDUE PROCESS: A STORY OF HOW POLITICAL DIFFERENCES ARE TURNED INTO CRIMES Elliott Abrams The Free Press /250 pages/$22.95 reviewed by MICHAEL LEDEEN 66 The American Spectator November 1992 extent of lawyers' hegemony over both procedures and content of policy in Washington, and in that regard Walsh is simply an extreme case of a little-recognized problem: the way issues are turned into legalistic debates...

...I think that Ordeal by Scandal has become a fixture of American public life, because it is actively promoted by two classes fighting for supremacy in our political system: the lawyers and the journalists...

...Such lawyers, with rare exceptions, treated Iran-contra as just another legal case, in which sweet reasonableness would eventually bring about an equitable outcome...

...There must be some limit on the amount of damage some of these McCarthyites dole out in the ostensible fulfillment of their official responsiThe American Spectator November 1992 67 bilities, and since much of their dirty work is done in tandem with the media, the two belong in the same category...

...And Rachel Abrams wanted to fight it, too...

...Cohen asked McFarlane if he knew that "Mr...

...I will never forget the day my daughter came home from school, badly shaken because one of her teachers had leered at her and demanded, "Well, is your father guilty...

...But what makes this book so precious is that it provides us with the first full account of what Ordeal by Scandal does to a man and his family, something that the other "scandal" books haven't dealt with adequately, if at all...

...it's a legalistic debate in which Walsh and Gillen would have charged Elliott with a dozen or so of these petty offenses, and they were willing to bet that a jury would compromise on at least a couple of them, and convict...

...Discussions and arguments with lawyers, the cost of lawyers, the odd language and bizarre reasoning of lawyers, and the rather dubious ethical and moral standards of lawyers, particularly Walsh's lawyers...

...W e needed this book because with very rare exceptions the debate about the Special Prosecutor has been either so abstract, or so politicized, that the human effects were ignored...

...It will inevitably be asked, as many of us wondered at the time: Well, if it's such small potatoes, why didn't he fight it...

...So, while it's depressing and infuriating and frustrating, it's also a bit exciting and, as Abrams shows us so well, it's even quite interesting...

...His wife, Rachel, is one of my wife's very best friends...

...He did not—but that such a strong person could have become so confused demonstrates the intensity of his ordeal...

...At least, in some weird and distorted way, the victim gets at least the semblance of a fight because he sits in front of his accusers and does some intellectual sparring...

...Nor, for that matter, did Elizabeth Drew, who was commenting on PBS, and exulted at the "revelation" about me...

...In his case, it was falsely "reported," inter alia, that he had known about the Saudi contributions to the contras and had lied about it...

...If only Michael Ledeen is resident scholar at the American Enterprise Institute and the author of Perilous Statecraft: An Insider's Account of the Iran-Contra Affair (Charles Scribner's Sons...

...Here again, I think he misunderstands the true nature of the problem and the dimensions of our peril...

...F or those interested in the more formalistic aspects of Ordeal by Scandal, there are many pages—and, grim news, they make up the bulk of the book—dealing with lawyers...

...Pretty small potatoes, and indeed the judge in the case was so unimpressed that he refused to assess a fine, and directed Elliott to perform "community service" by giving advice to Washington lawyers...

...Alas, because almost all the lawyers treated it as a normal procedure, the Special Prosecutor is still with us...

...the Special Prosecutor should justify his existence and periodically convince an appropriate judicial body (I suppose the Federal Appeals Court in Washington) to renew his mandate...

...First, the government should pay legal expenses for any official who is either not indicted or found innocent...

...The Garments of this world didn't act as if they understood that (or, worse still, they opted for appeasement instead of standing and fighting with every available weapon...

...This is a very important book, one that should be given to anyone thinking of a career in what used to be called "public service...

...For the past two decades, the executive has surrendered at several key battlefields, Elliott's case—which saw Ronald Reagan abandon his people to the mercies of Congress and then the Special Prosecutor—being one of the more dramatic...

...Elliott wants the Special Prosecutor abolished, and I emphatically agree, but that won't cure the disease...

...If I had been able to sue Cohen, and had there been reasonable standards for libel, I have little doubt that both would have quickly retracted and apologized (indeed, I doubt Cohen would have had the gall to smear me in the first place...

...But it's not that kind of a fight...

...Ledeen entered the country carrying large amounts of cash," and McFarlane replied that he did not...

...The other changes would still be necessary...

...The third major change has to do with the media, and it is odd that Abrams does not discuss it: a change in the definition of libel...

...These are the people who suffer the most, for they are subjected to the stress, the social ostracism, the unthinking and the deliberately cruel remark, and they develop the same rage as those involved in the process, but they cannot strike back...

...even top officialscan recover legal expenses from the government only if they are not indicted, a ghastly inversion of logic that greatly strengthens the Special Prosecutor (the threat of indictment becomes far more menacing...

...We need to go back to the traditional definition of libel: if it is false and damaging, it is libel, and the court should do what it can to make you whole again, by making the libelers pay you a fair settlement and make public amends for their crime...

...And he is much too soft on the lawyers...

...When any element abandons the fight, or is prevented from fighting, dangerous shifts in the balance of power are produced...

...In Kafkaland the lines are not clear, and the Special Prosecutor's steel mace is wrapped in a genteel glove of legalisms...

...Remember Bert Lance...

...And finally, it contains an unforgettable, blood-curdling chapter on how, worn down by the ordeal, momentarily broken in spirit and intellectually disoriented, Elliott convinced himself that his enemies were his friends, and that the only way to gain redemption was to collaborate with Walsh and Gillen at the expense of his friends and colleagues...

...The Abrams family is a solid one—indeed, the best observations come from Rachel and the children—but even so the process took a terrible toll on them, as it did on every family caught in the grips of the Special Prosecutor...

...That is an unbearable burden for most plaintiffs, and a commodious escape hatch for most journalists...

...and the ultimate decision to plead guilty to two misdemeanors that no self-respecting prosecutor would ever have taken to trial...

...Undue Process brings our attention to the children of the accused, the parents of the accused, the wives...

...The re-establishment of reasonable standards for libel should extend to members of Congress...

...It was usually dealt with as if it were a kind of legallpolitical Olympics, with Walsh trying to outscore the Reagan guys...

...It is they who have turned Washington into Kafkaland, and almost all the important moves in these Ordeals by Scandal are made by them, not by the victims, even though it is the victims' reputations, careers, and freedom that are actually at stake...

...Our system of government is built on a theory of conflict in which everybranch of government and every component of the political system is expected to fight for its rights and prerogatives...