The Nation's Pulse / Governing by Appearances
Eastland, Terry
Governing by Appearances by Terry Eastland I n the first weeks of 1994, when Attorney General Janet Reno was resisting calls for her to appoint a special counsel for Whitewater, she opened a press...
...Appearance ethicists on the op-ed pages of the nation's leading dailies—including the New York Times, the most doctrinaire of the lot—immediately applauded the change of counsels...
...We live," Morgan writes, "in an appearance ethics heyday" in which public officials are supposed to avoid even the slightest appearance of the slightest impropriety...
...Governing by Appearances by Terry Eastland I n the first weeks of 1994, when Attorney General Janet Reno was resisting calls for her to appoint a special counsel for Whitewater, she opened a press conference by distributing to reporters xeroxed copies of a recent Stanford Law Review article...
...The individual, said the Post, "spoke on condition of anonymity and said he called" the newspaper because "he believed [the discussion he saw] was inappropriate...
...Reno's argument was the kind repeatedly used to justify the independent counsel statute, first enacted in 1978 and renewed in 1983 and again in 1987...
...Peter Morgan (thank you, Janet Reno) has warned about the manipulation of appearance ethics for dubious ends...
...Have appearances ever been clearer...
...After all, which appears worse: having a career Justice lawyer on the case reporting to the attorney general, or having a private lawyer appointed by the attorney general but who remains outside the department...
...CI The American Spectator October 1994 59...
...On August 12, the Washington Post carried a front-page story that used appearances to open a new line of attack—against the court that picked Starr...
...Morgan himself wasn't even aware his article had been handed out until I told him, in August...
...Attorney (Paula Casey, a friend of Bill's whom he'd appointed in September 1993) to a career lawyer in the criminal division...
...Reno's attachment to the appearance argument that prevented her from naming an outside counsel and kept the case in-house (a manipulation of appearance ethics...
...Her seemingly principled position was that if an outside lawyer were to investigate Whitewater, the person would have to be chosen not by her but pursuant to the statute...
...Like most Democrats, Reno and Clinton himself were strong supporters of reviving the law, which vests the appointment of a counsel in a special three-judge division within the D.C...
...It was scarcely concealable that conservatives wanted a tougheron-Clinton special counsel, someone who would at least seek some indictments...
...Morgan also points out (among other things) that it's possible for people to manipulate the appearance argument in order to achieve nefarious ends...
...Later he was President Bush's solicitor general...
...The fact of this seemingly uninteresting hand-out was not reported in news accounts, and I only learned about it by asking the Justice Department's press office whether any paper had been given to reporters...
...An appearance problem, in other words...
...But if that were true, I think she would have done more to try to impress the beat reporters, who so far as I can tell did other things with their time than read even the first sentence of Morgan's article...
...Very quickly, Reno named New York attorney Robert B. Fiske...
...On July 14, while Reno's request was pending, Judge David B. Sentelle, the chief judge on the panel, met with Sen...
...Once Reno named Fiske, satisfying the appearance-oriented political culture, Whitewater became much less of a story—not reviving until late February and early March, when reports of the White House–Treasury contacts emerged...
...John Bryant, the Texas Democrat, said the meeting was "alarming" and quickly drafted legislation to meet this new challenge...
...But did the source want to manipulate appearance ethics...
...This rather weak argument from appearances was kept alive in second-day stories reporting that in July congressional Republicans had written the judges and also Reno, questioning Fiske's independence from the administration (and his work on the case...
...t is at this point that the appearance business became especially fascinating...
...Justice spokesman Carl Stern told me the article was just "something she'd read and wanted to share...
...is how we distinguish murder from an accident...
...Carl Levin, an author of the independent counsel law, wrote Sentelle, demanding a written explanation from the judge as to why Starr can be trusted to carry out an impartial investigation any more than Fiske...
...A White House official (anonymously, of course) said the meeting did not "convey the appearance of impartiality" and is therefore "extremely troubling...
...On account of his politics, Starr "lacks the necessary appearance of independence," said Levin...
...As a private lawyer, he had publicly argued against the Bennett position that the president enjoys immunity against lawsuits involving pre-presidential acts and was planning to advance this position in an amicus brief in the Jones case...
...Preemptively questioning any criminal case Starr might develop might be just what he had in mind...
...58 The American Spectator October 1994 Nonetheless, the appearance ethic, historically pushed by Democrats and enforced against Republican executive-branch officials, proved to be a game everyone could play, as congressional Republicans and conservative commentators increasingly criticized the Fiske appointment on appearance grounds: Nussbaum and Fiske were professional acquaintances who had worked on two cases in the past...
...Now, what is notable about the White House decision to have a special counsel is that it, too, constituted an effort to govern by appearance...
...Democrats must have found it particularly galling to have been told byjudges two of whom were named by Republican presidents that they had failed to live up to the appearance standard by wanting to stay with Fiske (a Republican, yes, but their kind of Republican...
...Recall that at the turn of the year calls mounted for her to name a private lawyer to handle the criminal investigation of Whitewater, which had been transferred from the Little Rock U.S...
...Embracing the heretical thought that the modern concern about appearances is only to some extent valid, Morgan warns against judging solely on the basis of appearances, succinctly explaining why: "Appearance ethics is problematic because it distracts our attention from its primary referent, motive...
...fell apart after a call from then White House Counsel Bernard Nussbaum, who asked her to name a private lawyer in Whitewater...
...Against this overwhelmingly dominant view of the law, then Associate Attorney General Rudolph Giuliani dissented, aptly describing the statute as an effort at "governing by appearance...
...As Fiske was appointed by the incumbent administration, the court therefore deems it in the best interest of the appearance of independence contemplated by the Act that a person not affiliated with the incumbent administration be appointed...
...The same day the new law was passed, Reno used it to ask the special panel of judges to name a Whitewater independent counsel...
...During the 1982-83 debate over extending the law, for example, Lloyd Cutler testified: "[I]t'sa matter of appearances . . . to preserve faith in the system...
...No, it went on, because the statute contemplates "apparent as well as...
...Sentelle replied correctly that the judges have no power of supervision or termination over independent counsels...
...Then Robert Bennett, the president's lawyer in the Paula Jones case, and congressional Democrats went after Starr himself on appearance grounds...
...The argument directed at Starr was that, however fair-minded he has proved to be throughout his career—and no one contended that he had been anything but that—his political involvements created for him an appearance problem...
...In her application, Reno bowed to congressional will by asking that the court name Fiske, the only known regulatory independent counsel at the time of the law's enactment...
...A cynic (the president says we're all cynics now) might say Reno wanted merely to appear to be interested in appearance ethics and its problems...
...Predictably, on August 18, the New York Times repudiated its earlier endorsement, made on appearance grounds, of the Starrfor-Fiske choice, and now told Starr he should step down, for appearance reasons...
...The independent counsel law happened to be on Reno's mind last January...
...Sen...
...Also, he had contributed money and time to two Republican friends running for public office...
...But the judges would have none of this...
...The panel observed that its decision "reflects no conclusion" on its part that Fiske lacks "actual independence...
...But having watched the story of the Whitewater criminal investigation unfold over the past nine months, I'd have to say that Peter W. Morgan's article on "the appearance of impropriety" is essential reading for anyone trying to understand the coming and going of the administration-named Whitewater special counsel and his replacement by a court-appointed independent counsel...
...Circuit...
...One of them is that the independent counsel law is a Democratic statute, meant to operate in ways only Democrats approve...
...Lauch Faircloth, one of Fiske's strongest critics...
...Attorneys general since 1875 have in exceptional cases named outside lawyers to investigate charges of malfeasance...
...The two—friends from North Carolina who share the same political roots—had eaten lunch in the Senate dining room...
...Reno did not, however, follow precedent by declining to suggest a name...
...both Sentelle and Faircloth have said they didn't discuss Fiske or Starr or Whitewater...
...Another is that the judiciary has been caught up in a regrettable political morass, thanks to the independent counsel law (a new reason to get rid of it...
...A Democrat who served as Elliott Abrams's lawyer in his brush with Independent Counsel Lawrence Walsh, Morgan traces the history of appearance ethics to the Black Sox scandal of 1919, showing that the concept became central to public life only since Watergate...
...Circuit Court of Appeals and was finally enacted on June 30, 1994...
...actual independence," someone else must be named...
...I also wonder why Democrats decided to push so hard the appearance argument—put on hold when they wanted Fiske to be kept on the job—against Sentelle and Starr...
...Rep...
...The Post did not say it had learned from its anonymous source what Faircloth was talking about, and presumably the source had no idea...
...Bennett said he should voluntarily quit...
...As the Justice Department then explained her request, appearances were beaten out by practicality: A new counsel would have to get up to speed, hire people, change the drapes...
...A day after Starr's appointment, news stories were published in which the political backgrounds of the judges were examined and the fact duly noted that they were picked by Chief Justice William Rehnquist (a Nixon and Reagan appointee...
...Indeed...
...But Reno steadfastly refused to do that, arguing that anyone she might name, no matter how well the person conducted the probe, would be tainted, simply because she, Clinton's attorney general, had made the selection...
...Wanting Fiske to stay on the job, a congressional majority had written into the new law this language: The division "may appoint as an independent counsel any individual who, on the date of the enactment of this Act, is serving as a regulatory independent counsel...
...In January, however, there was no statute, as it had expired in December 1992...
...His books include Ethics, Politics, and the Independent Counsel (1989...
...I n any event, Reno in January was a willing prisoner of appearance ethics...
...The newspaper found out about the lunch after "an individual [it reported] who saw Faircloth and Sentelle board a tram underneath the Capitol complex" called to report "an animated discussion in which Faircloth did most of the talking...
...I don't know whether anything in particular motivated Reno to distribute Morgan's article...
...E ven so, the July 14 sighting of Sentelle and Faircloth facilitated an appearance argument vigorously directed at the judge...
...To agree with Reno's request, the panel said in its order naming Kenneth W. Starr, "would not be consistent with the purposes of the Act...
...Motive, after all, Terry Eastland is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center in Washington...
...Howard Metzenbaum went whole hog: Sentelle should resign from the panel, Starr from his new post...
...Starr (a friend of mine) served in the Reagan Justice Department before President Reagan named him to the D.C...
Vol. 27 • October 1994 • No. 10
