October 06, 2003, 9:04 a.m.
Rush Clarification
Reading into Limbaugh’s words.

By Randy E. Barnett

Radio talk-show host Michael Graham says this on his website about Rush's opening of Friday's show:

The comments about how Rush can't speak out until he hears all the facts, until the story plays out — that's pure Clinton. What do you mean you can't tell us whether or not you did drugs until the reporters settle on a story? When Clinton tried that, Rush pointed out (rightly) that Clinton was just waiting to find out what he had to lie about.

OK, Rush — What's YOUR excuse?"

I understand Graham's reaction as a good law professor friend of mine who heard the opening of the show with me immediately reacted the same way. Rush's comments are open to that interpretation and I do not think his statement was as clear as it needed to be under the circumstances. But there is another interpretation that is far less Clintonian and which I strongly suspect is what he meant.

Rush does not know what legal situation he is dealing with yet. Rush must by now have a good lawyer (word is he has), and any good lawyer would tell him that he absolutely cannot discuss any facts with anyone until there is some arrangement with the authorities. Anything Rush says, no matter how exculpatory it may be to his audience, is likely to be legally incriminating to the charges he may be facing — if he is facing any. As a prosecutor, most of the statements I took from defendants were incriminating attempts by them to be exculpatory.

As a straight-talking talk-radio host, Limaugh is in a far more awkward position than nearly any other subject of a criminal investigation. While a politician can decline to comment, Rush has a daily show in which he is expected to express his opinions. Yet anything he says can and will be used against him in a court of law. So he must remain silent until the legal situation is made clear by the authorities — unless he wants to incriminate himself. It may be as simple as this.

Of course, if there were absolutely no illegal drug use involved, he could issue a blanket denial (like Karl Rove on the Plame affair), so Rush's silence certainly suggests some confirmation of the Enquirer story. Graham is right about this, but who is now surprised given the details of the story? Graham pleads in an open letter, "Say it ain't so, Rush, say it ain't so." Unfortunately, that may not be possible and still remain truthful and, I do not expect Rush to lie about this when he speaks, as he eventually will.

If the allegations that came out Wednesday night are true, Rush is indeed in an awful mess, both legally and physically. But the fact that he is a public personality and talk-show host does not obligate him to willfully incriminate himself before he knows the state of the criminal investigation. The overwhelming majority of these sorts of cases are dealt with by diversion. Rush may be too prominent for that politically, but it would be a shame if he must pay a higher legal price than other similarly situated Americans. At minimum, his lawyers must confer with the prosecutors. Rush may even offer his cooperation with the investigation in return for diversion. We must wait to see.

My only point here is that Rush's opening statement did not necessarily mean, and I do not believe did mean, that he was waiting until he heard all the evidence to concoct a favorable story that fits. When he is legally free to explain everything he did and why, I am sure we will hear more than we care to know.

— Randy E. Barnett is the Austin B. Fletcher Professor at Boston University School of Law and author of The Structure of Liberty: Justice and the Rule of Law. His forthcoming book, Restoring the Lost Constitution: The Presumption of Liberty, will be published this fall by Princeton University Press. He is a senior fellow of the Cato Institute.