Politics & Policy

The Forest and the Trees

When will we finally grasp that every problem is not a legal problem?

Arlen Specter has caused a stir in recent days, suggesting that his fellow senator, Larry Craig, may have acted too precipitately in resigning after his guilty plea to a misdemeanor disorderly conduct charge. The plea, as if you hadn’t heard, stemmed from a June arrest for allegedly soliciting sex in the men’s room at a Minneapolis airport.

At a Saturday press conference, Craig indicated that he would leave the senate at the end of the month. That was before Specter told Fox News Sunday,

I’d like to see Larry Craig go back to court, seek to withdraw his guilty plea and fight the case[.] … I’ve had some experience in these kinds of matters since my days as Philadelphia district attorney, and on the evidence, Senator Craig wouldn’t be convicted of anything. And he’s got his life on the line and 27 years in the House and Senate, and I’d like to see him fight the case, because I think he could be vindicated.

I happen to be fond of Sen. Specter, who is a superb lawyer. But like many lawyers he has conflated the saliently different concepts of vindicated and acquitted.

No doubt, the criminal-justice system might find Craig not liable for whatever went on in the adjoining stalls. Only in the most artificial sense, though, would that constitute vindication.

We know what Craig was accused of. We know he reacted to the accusation without the indignation that we’d naturally expect from someone wrongly accused. Then he made an admission of guilt — to a lesser charge, sure, but a plea rational only if his conduct was disorderly. The only thing that can have made his conduct disorderly was the solicitation of sex — no one, and certainly no United States senator, pleads guilty for inadvertently brushing against another guy’s shoe in the john.

Legalistic fiddling while Rome burns is not new for Sen. Specter. As National Review’s Kate O’Beirne recalled on “The Corner,” his Jesuitical acrobatics in straining not to convict President Clinton at the 1998 impeachment trial included resort to Scottish-law precedents.

Why turn something simple into jurisprudential esoterica. Why not just say, “Look, impeachment is a political check, not a legal issue. While I’m sure he did what he’s accused of, I don’t think it’s serious enough to impeach a president over”?

Because lawyers can never cop to politics.

Because lawyers seem constitutionally incapable of grasping a commonsense principle: Every problem in life is not primarily a legal problem.

Every issue is not suitable for resolution by impartial jurists scouring antecedent rules — including Scotland’s, if, inexplicably, our own bursting statute books don’t do the trick.

Unfortunately, Washington is run by lawyers. Their occupational hazard is thus our national syndrome. It is a very unwise way to go through life.

First, many (if not most) problems are not legal problems, even if — thanks to a half-century’s explosion of litigation, statutory schemes and regulation-writing — they are bound to have some legal aspects.

If the guy at the door who’s come to take your daughter out has been arrested twice for rape, it probably would not matter much to you whether he’s been “vindicated” by the system. Yes, you may be one of those autodidacts who’s grasped — after surfing Law & Order or Nancy Grace — that mere arrests, as opposed to convictions, are inadmissible for impeachment purposes under the Federal Rules of Evidence. Still, it’s a safe bet your Sugar and Spice and Everything Nice will not be steppin’ out tonight.

Second, we are not smart enough creatures to enact laws that anticipate and sensibly cover every possible contingency. And even if we were, it sometimes takes forever to get the right legal answer. Many problems need an answer a lot sooner than forever. Others are simply not worth the trouble of waiting forever. In either event, at some point we have to rely on (shudder!) judgment.

On a very personal level, Sen. Craig’s problem is a legal issue … for him. For the country, however, and for Republicans more specifically, it is a political issue.

I am very sympathetic to the arguments made this weekend by Mark Steyn and Mark Levin. As a lawyer, I find very appealing the Steyn argument against entrapment and the Levin arguments about ambiguous proof and double-standards. If I were Craig’s lawyer, they’d make me think I’d have a shot with a jury. I could get him acquitted. So sure, Sen. Specter may be right. On the narrow question of guilt, Craig may have been able to beat the case.

Nevertheless, the narrow question of courtroom guilt often doesn’t tell us much of importance. Al Capone is not remembered as a tax cheat, even though that’s all the government was ever able to prove in court. One can almost hear Sen. Specter telling Chris Wallace, “The concept of income is infinitely complex. Why, under the law of Sierra Leone …” Yet, on gazing at Capone, mafia racketeer would still probably pop into your head before Form 1040A (or whatever form they are using in Sierra Leone these days).

And on gazing at Craig, no one is going to be thinking, hey, that’s the guy they entrapped.

Where it counts, the senator’s situation is a severe political problem. For a public servant, the issue is not whether he’s indictable or convictable. It’s what his conduct implies about his ability and fitness to do his job, which involves the gravitas to lead and persuade on public policy. It’s whether he is such an asset in the senate that the distraction caused by this incident — and how it fits into the general Democratic narrative about Republicans — is worth the toll on other initiatives, like supporting General Petraeus, getting a worthy new attorney general confirmed, reforming FISA, etc. We are all sinners and we are all flawed. We can feel for Craig and still conclude he is not worth the trouble.

Too frequently, Republicans are not profiles in courage, and they are not nearly as steadfast as Democrats when it comes to closing ranks around their beleaguered members. Can we really blame them, though, for not rushing to Sen. Craig’s defense? Who wants to defend what Craig himself opted not to defend?

When he was asked to plead guilty, it wasn’t, as Sen. Specter suggests, about the charge of disorderly conduct. It was about the behavior. Legally, he could have forced a trial on lewdness charges, put all the tawdriness out into the open, and quibbled over entrapment and ambiguity. Politically, however, the only defense to the behavior was: “I didn’t do it, no way, no how, and how dare you suggest such a thing.”

President Clinton, a much better politician than Craig, understood this implicitly. Legally, his famously indignant “I did not have sexual relations with that woman …” riff was foolish. Politically, however, it was crucial to his survival. Of course it was dishonorable to lie and it would have been better for the country (and for the Democrats) if he had resigned. The point, though, is that there are some situations when “guilty with an explanation” is not gonna cut it if clinging to power is the objective.

In any event, obsessing over statutes and legal defenses when far more weighty issues are at stake has become Washington’s M-O. It’s what causes Rep. Jerrold Nadler to say he’d rather not have had electronic surveillance on Mohamed Atta on September 10 because there wasn’t yet probable cause as required by the FISA statute — we should let him blow the place up rather than ask whether FISA just might be a stupid law.

It’s what causes Senator Specter to insist that the NSA program should be submitted to a court for an assessment of whether it passes muster under FISA when we ought to be asking: Is it reasonable and are we safer because of it (to say nothing of: Is it appropriate for a court to dictate to the president regarding what foreign threats may be subjected to surveillance)?

As law, domestic and international, proliferates, we increasingly miss the forest for the trees. We are the worse for it.

 –  Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.


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