Dear Philip Heymann,
I applaud your mortification over the 1996 White House political fund-raising scandals, and others, which you seem to concede bristled with the criminal sale to tycoons of “special consideration” for receipt of government benefit. Thus, Roger Tamraz bought special White House consideration to promote a $1-billion oil-pipeline project for a $300,000 contribution to the Democratic National Committee. Equally malodorous is the deposition of Paul Eckstein, an attorney for the Chippewa Indian tribe then seeking a gambling-casino license from Interior Secretary Bruce Babbitt over the opposition of neighboring tribes that had contributed $273,000 to the DNC. In discussing the valuable license, according to Eckstein, Mr. Babbitt interjected: “Do you know how much these [opposing] tribes have given to the Democratic Party? It’s something like half a million dollars.” In other words, Mr. Babbitt acknowledged the special consideration the opposing tribes had purchased because of their handsome political contribution.
You and I thus seem agreed that Vice President Gore, President William Jefferson Clinton, former Deputy Chief of Staff Harold Ickes, DNC fund-raising sachems, and their chief lieutenants should be prosecuted for both conspiracy and the substantive offense of selling White House influence to benefactors of the DNC and the Clinton-Gore re-election campaign. Your heated objection to adding anti-solicitation charges to the multicount influence-peddling indictment seems both trivial and unpersuasive.
It is no novelty for the Justice Department to awaken long-slumbering criminal laws for premier or novel applications. For instance, the insurance industry was prosecuted for a violation of the Sherman antitrust law in Southeastern Underwriters (1944), despite 50 years of conventional understanding that the crime did not reach insurance practices. Ditto for novel applications of the insider-trading prohibitions of the Securities Exchange Act sustained by the Supreme Court in U.S. vs. O’Hagan (1997). The vice president deserves less–not more–indulgent prosecutorial treatment because his example teaches moral norms to the American people.
Further, President Clinton, like Gore, is under scrutiny for anti-solicitation violations, and suspected congressional scofflaws may be added. As a prosecutor might overlook petty larceny but pursue grand larceny, an isolated violation might be forgiven without absolution for the scores of fund-raising calls the vice president made from the White House.
Gore’s solicitations sought to extract contributions from fat cats with business interests riding on White House decisions, e.g., casino-gambling licenses, the construction of oil pipelines abroad, or an “open skies” airline agreement with Japan. The 1883 law aimed precisely at that type of “extortion lite.” Your protest that the “core purpose” of the law was to prevent extortion from government employees misses the point. No canon of interpretation confines prosecutions to core violations and reduces perimeter prohibitions to the sound and fury of Jackson Pollock-like inkblots. Further, the legislative history of the 1883 act understandably focused on employee extortions because that was the prime contemporary abuse before the federal government ballooned into a ubiquitous economic presence during the New Deal and its aftermath.
Employers routinely forbid personal–but permit business–telephone calls by employees, and the 1883 law makes the same sensible distinction. Government property held in trust for the American people, it says, should not be the pack horse of a party’s or candidate’s campaign. No heavy intellectual workout is needed to understand why.