Let the Rule of Law Prevail

By Terry M. Neal
washingtonpost.com Staff Writer
Tuesday, October 25, 2005 6:00 AM

In the 1990s, "rule of law" was hot.

In the 2000s, not so much.

Republicans, who impeached and tried to remove a president who lied about his private sex life, have now decided that the whole "rule of law" thing really isn't all it's cut out to be.

Some Republicans -- anticipating the possible indictment of top White House aides -- are launching a preemptive public relations strike that is stunning in its audacity.

Sen. Kay Bailey Hutchinson (R-Tex.) outlined the strategy on NBC's "Meet the Press" on Sunday, when moderator Tim Russert asked her whether White House spokesman Scott McClellan's previous denials that anyone in the administration had anything to do with the leak of covert operative Valerie Plame's name to the media lacked credibility.

"Tim, you know, I think we have to remember something here," Hutchinson admonished. "An indictment of any kind is not a guilty verdict, and I do think we have in this country the right to go to court and have due process and be innocent until proven guilty. And secondly, I certainly hope that if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars. So they go to something that trips someone up because they said something in the first grand jury and then maybe they found new information or they forgot something and they tried to correct that in a second grand jury.

"I think we should be very careful here, especially as we are dealing with something very public and people's lives in the public arena. I do not think we should prejudge. I think it is unfair to drag people through the newspapers week after week after week, and let's just see what the charges are. Let's tone down the rhetoric and let's make sure that if there are indictments that we don't prejudge."

So now perjury is a "technicality"?

If caution, judiciousness, respect for people's lives in the public arena are good enough for White House officials such as Karl Rove and I. Lewis "Scooter" Libby, why were they not for President Clinton?

If people should only be sent to jail for a basic criminal charge that sparked an investigation in the first place, why did Martha Stewart go to jail?

Today's strategy differs quite remarkably from the 1990s, when Republicans sought to hold Clinton, Vice President Gore, first lady Hillary Rodham Clinton and their aides and advisers to the strict letter of the law, in Whitewater, Travelgate, the Chinese campaign finance scandal, and of course, the Lewinsky imbroglio.

"Rule of law!" was the rallying cry.

On Jan. 23, 1998, within days of media reports that Clinton may have had an affair with a young intern named Monica Lewinsky, Hutchinson appeared on a local Texas television program, WFAA-TV (Dallas-Fort Worth) to make the case that perjury was an impeachable offense. (Only a summary of the interview, rather than a full transcript is available on Nexis.) And certainly many other Republicans were reminding the public throughout the Lewinsky scandal that telling the truth under oath was fundamental to democracy and the rule of the law.

As you may recall, Clinton was asked about Monica Lewinsky in a deposition for the Paula Jones sexual harassment case. Republicans continued to pursue impeachment, even though Lewinsky was a side question in that lawsuit. The lawsuit was dismissed in April 1998 by a Republican judge, Susan Webber Wright, who wrote in her decision that Jones's "allegations fall short of the rigorous standards for establishing a claim of outrage under Arkansas law."

Other conservatives, including pundit Tucker Carlson on Friday's Bill Maher show on HBO, have made similar statements to the one Hutchinson made on Sunday, signifying that it is not a random thought, but a concurrent strategy passed around by party operatives. The strategy mirrors the one that has emerged to insulate the former House majority leader Tom DeLay (R-Tex.), who has been indicted on what is essentially an allegation of a campaign-financing money-laundering scheme.

The strategy is simple: Undermine the prosecutors by raising questions about professionalism. The tactic is basic: In every television or print interview, claim a liberal cabal of baddies is out to undermine the Republican Revolution. Assert that since said liberal baddies could not win politically, they are using the courts as recourse.

Conservative commentator and Weekly Standard editor William Kristol has promoted the persecution theory both on Fox News and in his magazine. He wrote on Oct. 24,  "it's a reasonable bet that the fall of 2005 will be remembered as a time when it became clear that a comprehensive strategy of criminalization had been implemented to inflict defeat on conservatives who seek to govern as conservatives. And it is clear that thinking through a response to this challenge is a task conservatives can no longer postpone."

In fact, this theme has been peddled ad nauseam on Fox News in recent days, as the liberal Web site Think Progress has noted.

[Other liberal bloggers, including DailyKos and AmeriBlog, have been writing about this issue extensively.]

The conservative Free Enterprise Fund, a Washington-based group that promotes conservative economic policies, is underwriting a national ad campaign aimed undermining District Attorney Ronald Earle's credibility. And because it is reportedly running in especially high concentration in the Austin market, where the DeLay trial will be held, it's clear FEF is trying to influence the jury pool.

The text of the ad, which features a ferocious-looking, snarling and barking black dog and titled "Bad Ronnie, Bad," goes like this:

"A prosecutor with a political agenda can be vicious. When liberal Democrat Ronnie Earle went after Republican Kay Bailey Hutchinson, the judge threw out the case. But now Earle is after another Republican, Tom DeLay. When one grand jury rejected Earle's case, he kept it quiet and ran to a second grand jury. He's helping make a movie hyping the case. Earle even exploited the DeLay case for liberal contributions for liberal politicians. That's wrong. Bad Ronnie, Bad."

The ad closes with a picture of Earle and the phone number to his district attorney's office.

"Tell Earle he's wrong. It's not a crime to be a conservative."

The ad does contain an element of truth. As Bloomberg News reported a few days ago, "Earle accused Hutchinson of tampering with evidence and using state employees to work on her Senate campaign while she was treasurer. On the first day of the trial, Earle asked the judge to rule that the evidence he wanted to present would be admissible. The judge refused to give that assurance and then rejected Earle's attempt to withdraw the charges so he could file them again later. The judge instructed the jury to acquit Hutchison, now 62."

So Earle's shoddy attempts to indict a Republican prove his bias?

What the FEF ad doesn't mention is that Earle has prosecuted more Democrats than Republicans.

"In 29 years as district attorney in Travis County -- which, since it includes Austin, the state capital, makes him the only Texas prosecutor with power to investigate state officials -- Earle has brought charges against 11 Democrats and only four Republicans. He has won plea agreements or convictions against 12 of the 15," Bloomberg News reported.

No one in the media knows at this point what information Fitzgerald has or whether it will meet the standards necessary for indictment. And no one can predict the outcome of the DeLay case.

The same, however, could be said of the various Clinton scandals in the 1990s. Perhaps before rushing to judgment on either side of the aisle, the best thing to do would be to sit back, take a deep breath and let the rule of law prevail.

Comments can be sent to Terry Neal at commentsforneal@washingtonpost.com.