Saturday, August 25, 2007

Dark clouds following Rove back to Texas

So writes someone who should know, former Nixon adviser John Dean who speculates on the statutory provisions that may have been violated by Karl Rove and that may have prompted his recent exit from the Washington scene. Here is an excerpt from Dean's Friday column including some of the provisions Dean zeroes in upon:
Given the basically un-cracked secrecy of the Bush Administration, it is not unreasonable to suspect that Rove has managed to accomplish what Nixon failed to do, and that the Bush Administration has undertaken a large-scaled politicalization program throughout the Executive Branch during the past six-plus years.

This, I suspect, is the reason for Rove's resignation. Chairmen Conyers, Leahy, and Waxman are looking closely for such an operation, as are a number of similar but less visible inquiries underway by the Democratic Congress. Thus, the potential for such activities becoming known is very real, and this gathering storm means a few dark clouds are following Rove back to Texas. Should they burst, Rove may have far more serious problems than being in contempt of Congress.

Misusing Federal Powers Can Be a Crime Although Seldom Prosecuted

The Senate Watergate Committee's report set forth an array of civil and criminal laws that are applicable to misuse of government for political purposes. For example, the Hatch Act contains a broad proscription that an employee of an executive agency may not use his or her official authority or influence for the purpose of interfering with or affecting the result of a federal election. Such conduct has a civil sanction of dismissal from Federal service.

More seriously, it can also be a crime for a federal official to use his or her power for political purposes. On of the broadest federal criminal laws is the conspiracy statute that prohibits defrauding the government. Under federal law, which prescribes punishment by up to five years in prison, such a fraud has been broadly defined.

The leading case is the Supreme Court's 1923 ruling in Hammerschmidt v. United States. There, the Court stated, "To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicanery, or the overreaching of those charged with carrying out the governmental intention." Misuse of federal power for political purposes, thus, can fall rather easily within this statute.

There are other criminal statutes that the evidence suggests Rove might have violated, as well. Section 595 of Title 18 prohibits "a person employed in any administrative position" of the Federal Government from using his or her "official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives…" Violation of this statute can result in a fine or prison up to a year, or both.

Section 600 of Title 18 prohibits promising any Government benefit or "any special consideration in obtaining such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party" in connection with a Federal election. Violation of this "bribery-lite" statute can result in a fine of $1000 or prisons up to a year, or both.

Often, violations of these broad prohibitions, and related laws, are not discovered until an administration has departed, as occurred with the Reagan Administration. By that time, Congress has lost interest and federal prosecutors are not inclined to go after the political behavior of predecessor officials - a judgment call which is probably appropriate, for these are not the most egregious of crimes. Still, these crimes certainly represent conduct that is considered unacceptable.

Such behavior is best dealt with when Congress can expose it to voters, who know exactly what to do with a political party that the places the politics of self-interest above those of the public's interest. This is not to say that if Rove has made an utter mockery of the clear restrictions on politicizing the processes of the Executive Branch, he should be given a pass. To the contrary, Congress should double its efforts to find out why he has left town, and if he has crossed the line, refer the matter to the Department of Justice.

I would be willing to wager that Rove and his cohorts have violated one or more of these laws prohibiting uses of authority at the White House for purely political purposes, but they should only be prosecuted if their behavior was in pure defiance of these restrictions. If that is the case, such laws will, in the end, be meaningless and future Karl Roves will simply ignore laws that seek to protect the public interest.
That Hammerschmidt case holding is very interesting, isn't it? Information to keep in mind as the congressional investigations continue into the fall and in light of Rove's suspicious departure.