The Hypocrisy of Absolute Privilege

...They represent First Amendment Ku Kluxery...

...Typically, Walter Cronkite declared (May 2, 1973) that reporters' sources must be granted an absolute privilege or the free press is finished: '~he only remedy is a law that states simply, and therefore eloquently, that the First Amendment means what it says and no reporter can be hailed before any government body and forced to reveal confidential sources of information...

...Trial by the Supreme Court was voted down on the ground that the Court might be in the position of reviewing its own judgments in case a convicted chief executive was later tried for other offepses...

...The Senate, argued Hamilton, was a body "sufficiently dignified and sufficiently independent" and "confident enough of its own situation" to be able to preserve a judicial attitude...

...Nay, even more likely, because a The Alternative May 1974 9...

...Most journalists and newspapers were demanding "absolute privilege" for themselves last spring...

...But nobody went to jail for the theft...

...Since the Clean Air Act of 1970, cars have had inefficient low-compression engines with elaborate smog devices, and these changes have increased gasoline consumptionby some 300,000 barrels a day...

...The Alternative May 1974 As Justice Holmes once put it, a man's rights often depend upon his estimating correctly what a jury will later decide...

...But too few of our journalists have any comprehension of this historic tradition and process...

...I would suggest that lawyers arrange with the law schools to swing the doors wide for journalists to enter as special students, to take such courses as legal method, practice and procedure, evidence, and constitutional law...

...What's sauce for the gabbling geese of the Fourth Estate ought to be sauce for thegreat big gander in the White House...

...Later Anderson's sidekick asserted he would indeed have put the documents to use for their column if there had been anything interesting in them--but it turned out to be only a law book, among other things...

...Where should the power to impeach a chief executive for ~ligh crimes and ~ misdemeanors" reside...

...Some of the delegates thought impeachment should be a function of the courts...

...After all, what were those Watergate burglars going to do with any interesting documents they found, but leak them to Jack Anderson...

...And certain it is that extremism begets extremism...

...Indeed, the Pulitzer Prize selection cornmittee, composed of our most distinguished journalists, voted to honor Anderson for that coup...

...I confess to being puzzled at the journalistic outrage over the Watergate break-in...

...I bet you didn't know we journalists have a Constitutional right to steal, o r at least to receive stolen documents, did you...

...Commoner must own a very old car...

...Lawyers are accustomed to winning some and losing some...

...It asserts that one should be above the law, that he will not trust our time-tested institution of due process adjudication...

...Among stockholders, howevdisagreed with more strongly than an ob- er, only those who got in before the tax noxious speech by the president of the _9 break would stand to benefit from it...

...The solution finally adopted was believed to have avoided the danger that the leaders of popular factionswould proceed against a president for political reasons...

...As an illustration of his theory, Commoner complains that '~we now use . . . high-compression smog-generating engines instead o f low-compression smog-free engines...

...Thus, while many t a x breaks may have been a mistake from the start, they are not easy to get rid of...

...Few journalists have any concept of our time-tested constitutional and legal methods, or of the case-by-case definition of rights and balancing of conflicting rights through due process of law...

...Did anyone notice that the very session of the Ervin Committee that voted to subpoena the President was held in the secrecy of executive session...

...Besides, the senators, being members of the smaller body, would be less likely than the House to "partake of the infirmities of their constituents...

...Madison agreed that the senators "should come from and represent wealth...

...So far as we can see," says the Journal, %he only possible interpretation of this is that profit margins in the oil industry have been under competitive pressure, and because of the same pressure the effect of tax breaks has been passed along in lower prices t o t h e consumer...

...The Nation's Pulse by Frederic Nelson Some Thoughts on Impeachment THE MAKERS OF the American Constitution took impeachment very seriously...

...It is outrage at the news media's super righteousness and--in many instances, demonstrable carelessness with the truth and reputations of innocent individuals or with public welfare and tranquility: People are fed up with the attitude represented by Jack Anderson's ballet in the Eagleton affair--that it is more important to lynch a suspected scoundrel in the media than to check the facts first and be absolutely fair and accurate...

...If that sounds strange, you have been listening to the Big Lie too often, instead of browsing through any good economics text...

...So, I will now demonstrate the proper way to attack the oil industry...

...Needless to say, I believe in checks and balances...

...You're a born journalist...

...They've all sought to liberate the secret files of Washington with equal zest and a common methodology...

...But tax subsidies, and direct subsidies, are usually at least partly capitalized within the price of the favored commodity...

...Journalists ought to have considerable sympathy for the burglars...

...We had another celebrated case a few years back involving filching files and bugging the office of a State Department security officer...

...But journalists are accustomed to being right always...

...The Seventeenth Amendment, adopted in 1913, decreeing that senators should be chosen by popular vote, changed the picture radically...

...But it is incredible to claim that only profits would be affected...

...After all, I went to both journalism school and law school, and both teach you to ask mean questions...

...The Washington Post found that: the President's assertion of executive privilege "comes very close to an assertion that certain aspects of the presidency are apart from and above the rule of law" (July 29, 1973...

...i s will mean . . . fuels allocation, and it probably will mean fuels rationing . . . . But any rationing program must be predicated on a sound priorities system . . . . Personal comfort and convenience must--of necessity--rank below the priority c l a s s e s . . . " Ugh...

...Constitution feared two extremes --tyranny and anarchy, an unchecked centralized authority, and a disintegration of authority into popular tumult...

...And legislators know full well they can never write rules to cover every case...

...Second, the oil industry wrongly blames high consumption on naughty consumers rather than on low prices...

...The job of filling the void necessarily must devolve Upon the men of the bar, schooled in law and history...

...Now they are denouncing the President for daring to claim "executive privilege" for himself and his White House tapes...

...Well, if we knew for sure that the corporate tax was completely shifted to consumers, rather than also coming out of stockholder income and funds available for growth, then we might be able to say that reductions in the corporate tax only benefit consumers...

...These people simply don't understand the significance of statistics, the role of profit, or the nature of taxes and monopolies...

...And it grants a right to confront witnesses, not faceless, anonymous "sources close to" somebody...

...Let's get more journalists into the law schools, and more lawyers into the press box and on camera...

...Commoner's theory would lead one to believe that labor productivity (and real wages) should fall, and that we should substitute human for nonhuman energy--a strange conclusion indeed...

...In fact, the thieves were praised for patriotism and idealism--though they were actually motivated by the basest personal vengeancy...

...New models are carrying an extra couple of hundred pounds of costly bumpers, which few would voluntarily pay for, and this too cuts mileage...

...The Columbia trustees stopped them...

...So why don't they have the decency and humility to just shut up...

...And juries and jadges must decide these cases and controversies "in the totality of circumstances," to quote one pregnant legalism...

...Yet both newspapers a few months ago were assuring us that the free press would be dead without absolute privilege...

...A hint: If the oil industry could increase profits by cutting supply, why did it wait until 1972-1973 to do so...

...He needs a press card...

...This surely contributed to the paucity of investment capital in the industry, which is sometimes (e.g., by Tom Wicker) called a "failure" to build sufficient capacity...

...Making municipal bonds tax-free drives up in 1969 imposed a rather unfair windfall loss on those who had purchased stock at a price reflecting any tax advantage...

...derwriting of losses (e.g., airlines, trucks, railroads, telephones, stock b r o k e r s . . . ) . Have you ever heard of a regulated industry asking to be deregulated...

...So I would offer one small proposal to advance the cause of the law...

...Thus, tax advantages for homeowners drive up the price of houses and residential property...

...They had experienced under the British Crown the consequences of unregulated executive power and were determined not to see such an experience repeated...

...In the space of three months, we areseeing some of the wackiest reveri i sals in the history of circus acrobatics...

...All in the name of "the people's right to know...

...No capacity for business, no knowledge of law, no sympathy with art, no pretension to philosophy, only a simple knowledge of the secret that has puzzled all the philosophers, bamed all the lawyers, muddled all the men of business, and ruined most of the artists: the secret of right and wrong...

...Journalistic partisanship in asserting our own rights results in large areas of public ignorance and confusion...

...A scattering of delegates favored popular election of senators, but the sense of the ~ convention was pretty well summarized by Eldridge Gerry of Massachusetts who thought "the commercial and moneyed interests would be more secure in the hands of the State legislatures than of the peoples at large . . . . The people are for paper money when the legislatures are against it...

...Don't the people have a right not to know a few things...

...So how can a Bill of Rights do so...

...For example, is there really any difference between stealing Ellsberg's psychiatrist's files or a Democratic senator's files, and stealing the Democratic Party's files or Defense Department files, so that the public might learn the secrets hidden there...

...So why should the Watergate burglars have thought they were engaging in any serious felony...

...I have seen few things that I their prices and lowers the yield...

...Anderson's own top investigator was recently arrested and charged with possessing documents stolen from the Bureau of Indian Affairs...

...I confess once again to being thoroughly confused...

...Now it looks as though the journalists are about to abolish the Administration and put everybody in the White House and Justice Department in jail...

...But is there competition in the American energy industryT' Freeman doesn't bother to answer the question, but it's a red herring anyway...

...ConAmerican Petroleum Institute in Los An- versely, reducing the depletion allowance geles, December 4, 1973: 'WVe are all going to have to really tighten our energy belts," said Frank Ikard...

...The trouble is that the discussion is so uniformly poor, especially when conduct~ by natural scientists and journalists...

...Labor has been relatively costly because 'r productivity rose, which in turn is largely due to the use of energyusing machines...

...If things can change so fast, it just goes to show you shouldn't take the present mess too hard...

...he cackles...

...Third, the Wall Street Journal (February 7, 1974) notes that after-tax profits in oil have not been quite as high as elsewhere, despite supposedly preferential tax treatment...

...The men who wrote the U.S...

...When we watch the performance of such reporter-lawyers as Fred Graham and Clark Mollenhoff, we cannot help but be inspired to hope for this trend to grow...

...James Madison of Virginia and Charles Pinckney of South Carolina thought well of this idea, fearing that impeachraent by the legislature, more widely advocated, would make the executive overdependent on the legislature...

...Once a monopoly has found the wealthmaximizing combination of price and output, it responds to changing supply and demand conditions exactly as a competitive firm would...

...But it seems silly to blame special-interest legislation on the special interests rather than on (a) the mixed economy which allows such things, and (b) corrupt and foolish legislators...

...A grand jury had the good sense to no-bill the case...

...That's the same reason reporters need a reasonable confidentiality for their sources...

...Finally, the monopoly issue is as irrelevant as it is implausible...

...Most journalists, it seems, have not read the Bill of Rights beyond the First Amendment--to the Sixth Amendment, for example, which gives a criminal defendant an unadulterated right to compulsory process --presumable against reporters, too...

...Remember that great scene from Bernard Shaw's Major Barbara...

...Those who are buying at this late date get no net advantage...

...The journalist's demand for an absolute privilege of secrecy for his sources violates a basic rule of checks and balances--that no man shall be a judge in his own cause...

...In theory," says S. David Freeman, director of the Ford Foundation Energy Policy Project, '~higher prices will not only dampen demand but provide the incentive for increased supply...

...And people a r e talking economics even when they don't realize it...

...This means there will necessarilybe perpetual static between the press and the bar...

...We see journalists claiming the right to publish anything they can glean or steal from government files during wartime, even if it jeopardizes the government's capacity to negotiate secretly through foreign governments to end the killing...

...Well, these are complex matters...

...As energy costs rise, events may follow Commoner's prescription...

...The New York Times declared, '~Phis new Nixon Doctrine virtually sets the person of the President above law and public ethics" (July 24, 1973...

...These considerations bulked large in the debate in the Philadelphia convention of 1787, and in the later campaign to persuade the states to adopt the new Constitution...

...I think, when Chief Justice John Marshall asserted the right to declare acts of Congress unconstitutional, some journalist should have asked instantly who would declare acts of the judiciary unconstitutional...

...Frequently, lawyers must tell clients about the limits on their legal rights...

...It was, after all, the New York Times and the Washington Post that first made wholesale theft of documents .in this town stylish by making much hoopla over Jack Anderson's subornation of the burglary of Senator Tom Dodd's office...

...Stephen, I've found your profession for you...

...The Philadelphia Framers recognized the indistinct boundary when they deposited "the judicial power" and "the legislative power" into separate laps, without any effort to define the limits of judicial review and legislative supremacy...

...On the other hand, they knew a great deal about mob violence and the fickleness of public opinion...

...It seems to me we're not teetering between the two extremes, with each ogre chasing us toward the other...

...I have been accused of simply making "a concise summary of the oil industry's arguments," and favoring "artificial devices which interfere with the free-market mechanisms" (B~it Hume, the New York Times Magazine, January 6, 1974...

...On that round there was no outcry from the Fourth Estate of "foul" or "cover-up...

...You see how far we've come in the fifty years since Holmes spoke in transferring power from juries to judges...

...Pinckney predicted that, if a president should "oppose a favorite iaw, the two houses will combine ' against him and under the influence of heat and faction, throw him out of office": all this before the press had become more than an occasional nuisance with power to create "heat and faction" on its own...

...Try Alchian & Allen's University Economics or Roger Miller's Economics Today...

...This hugely tickles the cannon king: '~'hat...

...Here we have a disguise for lawlessness that is as dangerous as the spirit embodied in the Watergate scandal: that any action under cloak of a high-minded cause is constitutional, lawful, laudable...

...or maybe professional services at some future date...

...At 24, too...

...Similarly, when the depletion allowance was introduced in 1926 it presumably increased the price of oil Stock, and attracted producers who would otherwise be unable to c u t t h e mustard...

...This was the case because senators were not to be e l e ~ by popular vote, but "appointed" by state legislatures...

...More than half the new cars sold are compact or mini, but they don't get better mileage than a 1954 Cadillac...

...Probably he was hoping for a few useful documents in gratitude...

...Unfortunately, life itself does not grant any absolute certainties...

...The latter, after all, was the intended effect...

...Okay, one--natural gas--but no others...

...John Dickinson of Delaware opined that election of senators by state legislatures would "draw forth the first characters, whether as to family or talent...

...That's the definition of an increase in the real wage...

...And lawyers will have to tell the journalists they can't have their way all the way, all the time, either...

...And a good lawyer today would add: upon his estimating correctly what five justices will later agree on...

...I find it hard to see why a reporter should be allowed to refuse a subpoena while the President of the United States should be required to answer it...

...The billionaire cannon king asks his freshly graduated son how he plans to make a living, since he repudiates the cannon business: '~Is there anything you know or care for...

...Yet we are now assured that freedom will The Alternative May 1974 7 be equally dead if the President succeeds in maintaining confidentiality of the White House tapes...

...It is as arrogant in its way as was Attorney General John Mitchell's assertion of an absolute right to wiretap or bug any person he chooses in pursuit of domestic tranquility...

...Most industry spokesmen have also supported government allocation (with favoritism to big business) and rationing, which is hardly the essence of my position...

...It wouldn't surprise me a bit if the scoundrels were behind all this talk about federal regulation, since everyone (except" Tom Wicker) knows that's the road to minimum price enforcement and taxpayer un...

...Checks and balances...

...He wrote: "Such a 'use' of Government documents--stolen or not--has been protected by the Constitution" (New York T/rues, February 8, 1973...

...Mencken: '~The American form of government is the most entertaining form of government ever devised by man...

...And that attitude is all too widespread...

...I cannot give you stone tablets telling you the difference between right and wrong...

...If you believed what you read in the newspapers and saw on the newscasts, it looked as if the White House and Justice Department were about to abolish the First Amendment and put all the journalists in jail...

...We can laugh at the contradiction in the Fourth Estate's stance...

...First, I have always openly opposed oil import quotas, and would have few objections to eliminating depletion allowances on new wells...

...That disposed of the popularly elect~ House of Representatives as the judges of the accused...

...The dissenters are seldom heard...

...Otherwise, we'd be obliged to weep--because it means we've lost all sense of moderation, all ability to see other sides of an argument...

...The real motivation behind the use of energy is the desire to have more goodies with less work...

...In fact, if anything can rationally explain the self-confessed .conduct of John Mitchell, Jeb Magruder, and John Dean in covering u p behind the Watergate burglars, it is an exaggerated fear of exactly this kind of mass-media extremism...

...We see the Fourth Estate asserting that reporters must not even be summoned into a grand jury room...

...He said: "It is no more acceptable to have the press all powerful than to have the government all powerful...

...Today a senator, instead of being the sublime elder statesman envisaged by the Founding Fathers--beyond the reach of popular clamor and free to judge controversial issues on their m e r i t s l i s as likely to be a demagogue as his junior in the House...

...Aristotle noted this natural tendency in popular governments two thousand years ago...

...Stephen answers: '~I know the difference between right and wrong...

...They all used the stolen Dodd documents to stage one of the most celebrated mass media lynehings of recent times...

...And I shouldn't leave out those stolen FBI files from the Media, Pennsylvania, office...

...And those listening closely to the grassroots can hear a strong counterpoint behind the noise and public outrage over Watergate...

...In every case, some lawyers are losers...

...But I can pass along one certain observation be by a great journalist, H.L...

...The Boston Tea Party was a memory and Shays Rebellion was a contemporary event...

...If Jack Anderson deserves a Pulitzer, so do G. Gordon Liddy and E. Howard Hunt...

...The media are filled with ex parte self-assertion and adulation...

...Only a fair press will remain a free press...

...The senators wanted to cloak their deliberations in secrecy so individuals could speak their minds...

...Just listen to some of them...

...In fact, Anderson reportedly has known one of the Watergate burglars for years-Frank Sturgis--and got him out o f jail after the break-in...

...For my part, as one journalist, I not only find such assertions abhorrent, I find them among the gravest threats to a free press in my memory...

...President Nixon doesn't need a good lawyer...

...Drowned out was the still, small murmur of those who doubted the propriety of such burglaries in pursuit of "the people's right to know...

...The fact remains: rights must be asserted and defended in specific cases, and circumstances, and against other parties asserting conflicting rights and values...

...As Senator Sam would say, it seems to me either one could respond to orderly inquiry in proper cases, and "the heavens wouldn't fall...

...And when journalists assert the right to refuse subtxmnas, some lawyer must ask who will call them to account...

...That may be a necessary cost of reasonable air quality, though even Congress is having doubts, but it is hardly a result of the "profit motive...

...1 Eugene H. Methvin The Hypocrisy of Absolute Privilege Jus-r A F~W MONTHS ago, it seemed as if every reporter in the nation was being chased by a sheriff with a subtx~na...

...It seems to me New Jersey's governor gave us a wiser guide in vetoing a bill to give newsmen a broad privilege...

...As Alexander Hamilton put it in the Federal/st, "the difficulty of placing it [the power of impeachment] in a government resting entirely on the basis of periodical elections will be readily perceived when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the object of scrutiny...

...This is true if an industry behaves in a competitive manner...

...Would the fearless purveyors of the stolen D~d papers and the stolen Pentagon papers and the stolen FBI papers have turned up their noses at any juicy scandal offered in some stolen Democratic National Committee papers...

...And they must be opposed by thoughtful friends of the First Amendment...

...Thus selected, the Senate was expect~ to be, in the words of Madison, a small body of men able to "proceed with more coolness, more system and with more wisdom than the popular branch...

...And of course when the President asserts such a right, the same question must be raised and resolved...

...His sin was testifying truthfully under subpoena before a Senate comm i ~ . The bugging boss in that case gave false testimony, and was rewarded with a cushy job in--of all places--the'Federal Communications Commission...

...And it's the same reason the President wants to maintain the confidentiality, of his White House conferences and papers...

...Is it okay if you don't actually execute the burglary yourselfNif you only take the burglars' swag and ask no questions about where they got it...

...As a practicing shoe-leather reporter corrupted by the study of law, I'd like to say a few words on the ethics of burglary and cover-ups and the people's right to know...