Politics & Policy

‘Optics’ of Lynch–Clinton Meeting Are Not Just Bad, They’re Disqualifying

Attorney general Loretta Lynch (Joshua Roberts/Reuters)
Just ask Pete Rose.

Why isn’t Pete Rose in the Hall of Fame?

So he gambled. So what? There’s no code of ethics for athletic prowess. There are plenty of baseball players who’ve done far worse — racists, druggies, sex abusers, fathers who abandon their children. And on the other side of the coin, many players who were stellar enough to make it to Cooperstown couldn’t hold a candle to Charlie Hustle.

Yet almost 30 years after the Hall’s doors were slammed shut on the all-time major-league leader in base hits, Rose is still banned from baseball because he bet on games. Why? After all, gambling is legal in many places and generally considered a harmless vice even where it is outlawed. In the greater scheme of things, it is not in the same league as much of the thuggery despite which pro athletes are routinely given second chances, third chances, and chances ad infinitum.

Rose, however, remains disqualified. And rightly so.

In the narrow world of baseball, his offense is unpardonable. The place of the game in our history, culture, and consciousness depends on its being perceived as on the up-and-up. Professional baseball was nearly destroyed in 1919 by a conspiracy to fix the World Series — the famed “Black Sox” scandal dramatized in Eight Men Out. The cautionary lesson for the Powers That Be was stark: The public’s willingness to buy tickets and hot dogs and jerseys and caps and bobblehead dolls (to say nothing of the beer and Viagra sales that drive networks to plunk down billions for broadcast rights) hinges on its confidence that the fix is not in. The integrity of the game is why people live and die with every pitch, why they accept the final score with joy or mourning — not with the eye-rolling that attaches to such scripted performance art as professional wrestling.

I couldn’t help but think of Rose’s ban-for-life when news broke about the totally “spontaneous” meeting between Attorney General Loretta Lynch and former president Bill Clinton.

The latter, it so happens, is not just married to Hillary Clinton, the subject of the former’s most significant criminal investigation; he is quite possibly a subject in his own right — and, at the very least, a key witness. Meantime, the attorney general is the ultimate maker of what will be the Justice Department’s epic decision whether to indict Mrs. Clinton, the presumptive Democratic nominee for the nation’s highest office — the Obama administration having turned a deaf ear to Republican calls for a so-called special prosecutor.

Baseball’s seemingly draconian ban on Rose sprang to mind when I read the pained but forgiving tweet by Democratic media-plant David Axelrod. He took the AG and former president “at their word” that there had been no discussion of the FBI’s Hillary probe during what we are to believe was an unplanned meeting — just one of those chance encounters between two of the most tightly guarded officials of the world’s only superpower, whose Praetorian phalanxes leave nothing to chance.

Maybe Axelrod is right. After all, who on earth could be more trustworthy than (a) a former president who has been impeached and disbarred for giving false testimony that obstructed judicial proceedings and (b) the steward of American history’s most politicized Justice Department, who swore to enforce the laws right after testifying (at her confirmation hearing) that the executive branch need not enforce the laws?

Still, though this duo runneth over with probity, Axelrod conceded with all due tongue-clucking that Clinton and Lynch had been “foolish to create such optics.”

I’ll say. Under the ethical standards that apply — if standards actually matter to anyone anymore — bad optics are not merely foolish; they are disqualifying. They require that Lynch recuse herself. Not that she merely agree to accept the determination of the FBI and career prosecutors, as she would have us believe she will do (just as we are to believe that President Obama, the real — and conflicted — decision-maker, has agreed to defer to Lynch). She should wall herself off from any further involvement in the case.

Optic is a fashionable Beltway synonym for the word Axelrod was at pains to avoid — appearance . . . as in “appearance of impropriety.”

Unlike great athletes, attorneys who practice in the American judicial system are bound by a code of ethics. The system’s most important rule is, quite deliberately, very simple and very easy to follow: Lawyers are supposed to avoid the “appearance of impropriety.” Not just impropriety, not just actual misconduct; they are to steer clear of — as opposed to, say, willfully orchestrating — the mere optic of corrupt behavior.

The rule applies to all lawyers, of course. That makes it especially critical that the system’s highest-ranking lawyers honor it. And no lawyer in the system outranks the attorney general of the United States, who is obliged not only to follow the rule but to affirm it as the ethos of the nation’s principal law-enforcement department.

Nothing is more essential to the functioning of a free society than the integrity of the justice system.

This prohibition on bad optics in the justice system mirrors the logic of baseball’s aversion to gambling. To justify the lifetime ban, there is no need for baseball’s commissioner to prove that, after betting on baseball games, Pete Rose actually took any action aimed at cashing in on the wager instead of playing to win. The game is rendered a sham by the presumption that a player or manager will act corruptly if, despite the well-known rule against gambling, he has voluntarily bet on the game. Since we can never really know for sure, and since the game cannot afford to be seen as a sham, we assume that someone who willfully puts himself in a compromised position proceeds to act corruptly.

Nothing is more essential to the functioning of a free society than the integrity of the justice system. That is even more important, the most diehard baseball fan must admit, than the integrity of the diamond. The rule of law is the foundation of a free society. There can be no rule of law unless the public is confident that law-enforcement agencies go about their business without fear or favor; that the same rules and procedures apply equally to everyone; that people in power are not putting their thumb on the scales; that outcomes are just.

That means the appearance that everything is on the up-and-up is just as important as the fact that it is. The most critical thing about decisions the system reaches is not that they are right but that we can have confidence they are arrived at in good faith.

People will always grumble about decisions that go against them, or that they disapprove of. But their willingness to accept those decisions — the thing that gives us peace and security — is not the rightness of those decisions but the public trust that the decision-making process is just.

By contrast, the appearance of corruption signals that the system is rigged. Once that perception takes hold, decisions have no integrity. In the justice system, integrity is not an outcome that seems plausible under the relevant laws and precedents. Integrity is a public perception that the outcome, right or wrong, is dispassionate. It is our collective confidence that justice is blind, that everyone gets equal protection of the law.

If your spouse were the subject of a major, high-stakes criminal investigation, do you suppose you would get a meeting with Loretta Lynch?

Is it possible that, in an individual case, a compromised attorney general could defy any corrupting incentives she has created and make a fair, well-reasoned decision? Of course it is. But that is irrelevant. The standard does not call for disregarding corrupt influences; it requires an attorney general to avoid courting such influences in the first place — to avoid the appearance of impropriety.

Simply stated, the perception of injustice becomes the reality of injustice. We avoid the erosion of the rule of law and the downward spiral toward systemic corruption by barring bad optics. If we don’t even let it look bad, chances are it won’t be bad.

Unlike David Axelrod, I don’t take Bill Clinton and Loretta Lynch at their word. I have abundant reason not to, but that’s beside the point. In a legal system with integrity, I don’t need to prove they are corrupt; the burden is on them to refrain from the appearance of corruption.

They haven’t. Just ask Pete Rose.

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