MUCH MORE THAN the career of a single individual will be at stake when the Senate Judiciary Committee meets this week to again consider the nomination of Edwin Meese III to be attorney general. If Meese is confirmed, we will be taught a dismaying lesson about the state of our public ethics, and about the moral code of the United States Senate.
In Washington, it seems, the finding of the independent counsel named to investigate that there was insufficient evidence to prosecute him for actual crimes is being interpreted as a clean bill of health that should lead to his speedy confirmation by the Senate. But the independent counsel's 385-page report is anything but a vindication.
It contains detailed, largely uncontested evidence of Meese's own low regard for ethics in government and of his willingness to engage in behavior that raises the most serious questions about his fitness to become our country's chief law enforcement officer.
Consider several specific examples from the report of Independent Counsel Jacob A. Stein -- all stories brought before the Senate Judiciary Committee and publicized last year, and now, thanks to the Stein report, elaborated in telling detail:
* Meese first received a $40,000 loan arranged by John McKean to relieve Meese's financial distress. Later he received not only a further loan but also McKean's agreement to defer $12,000 in interest payments, some of which were already in arrears. McKean wrote Meese soliciting his help in obtaining a full term on the Postal Board of Governors. Later, Meese was one of two members of the four-member White House senior staff personnel committee to urge that McKean be given the term he desired. Meese never disclosed to the personnel committee that he had a financial relationship with McKean.
* In January 1981 Mrs. Meese -- with her husband's approval -- received an unsecured, interest-free $15,000 loan from Edwin Thomas, a close friend, which Mr. Meese omitted from his financial disclosure report, although its inclusion was plainly required. Thomas went to work under Meese as assistant counsellor to the president.
* At a time when Meese was heavily in debt to Great American First Savings Bank of San Diego, after he had received forbearance on monthly payments on some of his loans and had defaulted on one loan, he participated in decisions to name officers of the bank to government positions -- without disclosing the danger of conflicting interests.
* Meese joined others on the four-member senior staff personnel committee in recommending for assistant secretary of commerce Thomas Barrack who had eased Meese's financial embarrassment by arranging a quick sale, on favorable terms, of Meese's California house. As in the McKean case, Meese never tod the personnel committee of the financial help he had received from Barrack.
* Even though the secretary of the army telephoned Meese especially to alert him to a memorandum pointing out that his prompt promotion to the rank and pay of colonel in the Army Reserve would not be "a regular and normal affair," Meese raised no objection and allowed the apparently preferential treatment to go forward. Gen. William Berkman was one of the principal actors in arranging Meese's promotion. During the same period, Meese, then counsellor to the president, called the secretary of defense to urge the reappointment of Gen. Berkman as head of the U.S. Army Reserve.
Stein concluded that these largely undisputed facts furnished no basis for prosecuting Meese, primarily because there was no direct evidence that Meese encouraged these appointments to federal jobs because of the financial favors he had received, or that the favors were given with the express or implied understanding that Meese would assist in the appointments.
Does this vindicate Meese and remove the last obstacle to confirmation, as many have said? No. On the contrary, Stein's report fleshes out many of the ethical violations and reveals an amazingly bad memory on Meese's part concerning events that would alert a man of ethical sensitivity. In fact, the independent counsel, Stein, explicitly denied requests to pass judgment on the charges of unethical conduct or on Meese's fitness to be attorney general.
In the past, receiving personal financial benefits, as Meese did, and then exercising governmental power in favor of the benefactor has been condemned as grossly unethical -- even when there was no proof of a causal connection.
"Thou shalt not mix personal financial affairs with the exercise of governmental power." This simple and direct precept has long been observed by honorable public officials. It does not, and as a practical matter cannot, mean that officials must cut themselves off entirely from persons with whom they dealt in private or political life. But it does preclude, at the very least, accepting financial favors from those who may seek appointments or may have other business with government that the official, or the use of the official's name, may influence.
When it became known that Sherman Adams, the senior White House aide to President Dwight D. Eisenhower, had accepted a vicuna coat, the loan of an expensive oriental rug and the payment of his hotel bills from Bernard Goldfine, a textile executive who had matters pending before other departments of the government, Adams was forced to resign, even though he had committed no crime. Sen. Barry Goldwater (R-Ariz.), a leader in forcing Adam's resignation, succinctly stated a few years later: "There is much more to (maintaining) the high standard of public officials than merely staying within the law . . . . It is a question of moral purity in public service."
When it became known that Supreme Court Justice Abe Fortas accepted a gift of $20,000 from financier Louis Wolfson and agreed to accept annual retainers, he too was forced to resign, even though he neither gave nor promised official favors.
William Safire, a White House aide in the Nixon Administration, has written that the independent counsel's report "means only that their (Meese and his wife's) actions were not indictable as crimes. They did nothing criminal but they did plenty to provoke suspicion, which in a public official is wrong."
In recently opposing the Meese nomination the Los Angeles Times observed: "There may indeed be nothing illegal about a government official conferring public rewards on those who have done him private favors, but, unproscribed or not, such actions are ethically indefensible. They are particularly so for a person who seeks to become the nation's chief law-enforcement officer."
Such reasoning seems to have moe appeal beyond the Beltway than in Washington. Editorials in newspapers from coast to coast -- the Buffalo News, the Virginian-Pilot, the Charlotte Observer, the Cleveland Plain- Dealer, the Kansas City Star and Times, the Des Moines Register, the Austin American Statesman, the Arizona Star and the Seattle Times -- have similarly opposed the Meese nomination.
For the Senate to confirm Mr. Meese on the ground that Stein's investigation found no basis for criminal prosecution would assert that, in passing on the fitness of a nominee to be the nation's chief law officer, the Senate is indifferent to ethical violations, provided only that the nominee has committed no crime. A vote to confirm Meese on the strength of the Stein report would say to thousands of government officials and employes:
We, United States Senators, think that anyone in public office should feel free to accept large financial favors that might not otherwise come to him. Dont worry that those who do you a favor may later look for government appointments or have business with the government that you may affect. Don't even worry about later participating in their appointment, or their receipt of other government benefits. We, as Senators, see nothing wrong in this. Just be sure not to commit a crime.
To declare that the president's nominee for attorney general should be approved whenever there is no basis for his criminal prosecution would have disastrous consequences. The attorney general has more opportunity to set the ethical tone of an administration than any official other than the president. He must symbolize the fair-minded, impartial, sensitive but impersonal administration of justice. But he cannot do so if he himself has repeatedly accepted material favors and then used his official position in a way that helps his benefactors.
The ethical standard I describe is firmly rooted in our traditions, and in law. It has been embodied in slightly different language in Executive Order 11222, which forbids an employee in the executive branch to do anything that "might result in, or create the appearance of . . . giving preferential treatment to any organization or person" or of "losing complete independence or impartiality of action."
A public official who accepts financial favors risks "losing complete independence or impartiality of action." All the more plainly his acceptance of the favors creates that appearance. And surely one who accepts financial favors and thereafter participates in naming his benefactor to a government office engages in conduct "which might . . . create the appearance of . . . giving preferential treatment."
The reasoning behind these ethical standards is simple and straightforward. The public is entitled to the independent judgment of officials whose impartiality has not been tainted by the receipt of financial benefits from those wose cases he must judge.
The world is full of men who, like Bernard Goldfine, are happy to earn the acquaintance and the gratitude or good will of high government officials by doing them financial favors, not because they are seeking to induce some particular official action, but because some day and in some way the acquaintance of one of the powerful may help advance the benefactor's affairs.
The government official cannot be blind to that possibility, certainly not in the case of any but the closest family or friend. The official is also bound to know that if he accepts a personal financial favor in his hour of need, then it will be hard for him later -- if the occasion should arise -- to act upon a request of his benefactor wholly without some possible sense of obligation or gratitude. He can never be sure. The only assurance is to refuse the favor or -- if the gift were mistakenly accepted from one who seemingly could have no government business -- to stand aside.
Even if the official ca maintain complete impartiality, the sight of a government official using his office to help or simply to deal with individuals who have done him financial favors undermines public confidence in government. Free government cannot survive that loss of confidence.
Sherman Adams was, and Edwin Meese is, a high White House official. But the license would run on a smaller scale to the tens of thousands of officials constantly engaged in making decisions ranging from the letting of multi-million dollar contracts to appointing junior personnel to granting or denying claims for social security benefits.
Presently, Executive Order 11222 forbids them to act on any matters involving individuals or organizations to whom they may owe some personal obligation if only a debt of gratitude for a financial favor. Harry Pollak, Director of Personnel at the Securities and Exchange Commission for 17 years, has recently written senators to say: "I had occasion to recommend the disciplining, suspension and/or firing of individuals for violation of the SEC'S Conduct Regulation, for infractions in many cases of a lesser severity than those that involved Edwin Meese."
But how could a government personnel officer or higher official continue to take any disciplinary action in such cases if the Senate of the United States has endorsed the principle that one who, as a high White House aide, has repeatedly violated the same regulation and moral standard is fit to be attorney general? On the ground that the same standards do not apply to the really powerful officials? Or to the president's friends?
The danger of eroding both morale and public confidence is not fanciful. Before the case of Sherman Adams, there were similar favors bestowed upon two of President Harry S Truman's aides which, when uncovered, created a political scandal. Investigations in the late 1940s and early 1950s shook the Bureau of Internal Revenue, the Reconstruction Finance Corporation, and the Maritime Commission. By the searchlight of publicity, by the promulgation of ethical standards, and by their enforcement, both morale and public confidence were improved.
The effect of such a precedent on the Department of Justice also deserves note. An attorney general who has repeatedly accepted financial favors and thereafter joined in appointing his benefactors to office can be expected to see no objection to the appointment of assistant attorneys general and other officials who have themselves accepted or will accept such favors and then made such appointments. The Senate could not consistently refuse to confirm them, and the rest of the Justice Department could not fail to get the message.
The department's lawyers are constantly called upon to make recommendations or to decide whether to authorize criminal prosecutions, civil actions or appeals. Every now and then a lawyer finds on his desk a case involving someone to whom he is indebted or someone he knows. In the past, no lawyer has doubted his obligation to stand aside.
Organized society depends upon a wide network of obligations that cannot be enforced by criminal punishment but that are honored, must be honored, by most of us if free society is to survive. To tell men and women to forget such moral obligations and feel free to say, "The law does not require me to do that, therefore I won't do it," would destroy the trust and confidence upon which we all depend.
For a young reporter to fabricate a fascinating story about drug abuse is not criminal. Is the fabrication henceforth to be acceptable? Suppose that an employe of a realty company is charged with finding parcels of land that his employer may buy and sell at a profit. He finds acreage that offers opportunity for extraordinary profit and therefore buys it for himself. Should it henceforth be tolerated because it is not a crime? The appointed administrator of a dead person's estate invests $100,000 from the estate in his own business venture, believing that the investment is sound. Such conduct has long been regarded as a breach of trust. It is rarely a crime. Are we therefore to say that henceforth it is acceptable? A businessman gives the Federal Bureau of Investigation a false account of the activities of an associate with whom he has bitterly quarreled. Are we henceforth to say that such fabrications are acceptable if the witness neither took an oath nor put the statement in writing, and therefore committed no crime?
One's spontaneous response to all these questions is, "No, of course not." Yet affirmative answers are the inevitable logical consequence of espousing the proposition that one is fit to be attorney general because the ethical derelictions with which he is charged have been found not to be prosecutable as crimes.
The president of a large university asked me last spring: "How can you and I continue to try to teach young men and women to recognize moral standards, if the Senate votes that what Ed Meese did does not bar his confirmation as attorney general of the United States?"