If they are carried on in the spirit which created them, the congressional hearings into the conduct of the FBI during the Abscam investigation will only lower, again, the public regard for Congress and will fail to address the real issues to which Abscam should direct our attention.
During the debates on the expulsion of former Sen. Harrison Williams, Sen. John Stennis (D-Miss.) described the conduct of the FBI as a "national disgrace," and Sen. David H. Pryor (D-Ark.) said that the behavior of the bureau revealed a "total, callous disregard for the rights of citizens." Various senators and representatives demanded an investigation, not of Congress--seven of whose members had been convicted of corruption--but of the agency that detected the corruption and gathered the evidence that stood up in court.
The hope that Congress would make a more dispassionate inquiry into the affair seems forlorn in the light of recent comments, such as those of Rep. Don Edwards (D- Calif.), who thought the FBI investigation had a "totalitarian smack to it."
To judge by such remarks, too many congressmen are addressing the wrong issue. They seem to suggest that offering senators and representatives, who have willingly come to a meeting arranged for them by a bagman, money in exchange for political favors and then arresting them is an improper, outrageous, undemocratic police tactic. It is nothing of the kind. Such undercover operations are essential if law enforcement agencies are to make any serious inroads into narcotics trafficking, political corruption, white-collar crime, and other consensual offenses.
For decades the FBI was unwilling to tackle these problems; now that it has decided to do so --in no small part after being denounced by Congress, during the Watergate episode, for having failed to do this--it finds itself hauled before hostile committees demanding, in effect, an end to such methods. It took a great deal of courage for the director of the FBI and the officials of the Justice Department to proceed with these investigations after so many years during which a past director of the FBI contented himself with merely filing away reports of congressional indiscretions, or possibly using them privately in ways designed to exert influence over Congress.
The record ought to be clear as to what did not happen during Abscam. There is not a shred of evidence that there was an FBI "hit list" of congressmen who would be "targeted" for investigation. There is not a shred of evidence that political partisanship or political ideology played a part in the decision to proceed with these investigations. There is not a shred of evidence that innocent politicians were wrongfully convicted; even the one judge, William B. Bryant, who has reversed the Abscam conviction of former Rep. Richard Kelly, did not deny Kelly took the money or say that Kelly's claim that he took it only for purposes of his own "investigation" was anything but "bizarre" and "nearly farcical." No jury believed the claim that the defendants had been entrapped--that is, induced to commit a crime they would not otherwise have committed. As Judge Jon Newman of the 2nd Circuit Court of Appeals said in turning down an Abscam appeal based on the claim of entrapment, "Any member of Congress approached by agents conducting a bribery sting operation can simply say 'No.'" None did.
But there is an important issue raised by the Abscam case. It has little to do with the law on entrapment or the investigative methods employed; indeed, the investigations of the congressmen were more meticulous in those respects than are the typical undercover investigations of racketeers, fraudulent businesses and narcotics dealers. The issue has to do with the Constitution.
The framers of the Constitution created a system of separate branches exercising shared powers in order to prevent tyranny. That tyrant might be an all-powerful president or an all- powerful Congress (most of the Framers feared the latter more than the former). Whatever the source, the "great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others."
In 1787, scarcely anyone disputed the view that the separation of powers was desirable; what James Madison and his colleagues added to the notion that powers should be separate was the equipping of each branch with both the means and the motives for checking every other branch. "Ambition must be made to counteract ambition."
By relying on the "private interest of every individual" to stand "sentinel over the public rights," the Framers were embracing what the late Martin Diamond termed a "sober view of human nature." Or as Reinhold Niebuhr was to put it: man is good enough to make democracy possible and bad enough to make it necessary. But if we are to rely for freedom on private ambition generating conflict over the management of shared powers, then we are, in effect, saying that we value freedom more than morality. The object of the Framers was not to create a pure government, or a pure Congress, but one that would, by reason of its internal divisions, as well as by its dependence on the public will, be unable to tyrannize over us.
By allowing a reasonable scope for the operation of private ambition, we pay a price. From 1941 to 1981, nearly 50 congressmen faced criminal charges; most were convicted. During the 95th Congress alone, 13 present or former members of Congress were indicted or convicted. Most of these convictions occurred when a law enforcementtagency had the case dropped into its lap by a person with knowledge of the matter. What is distinctive about the Abscam investigation during the 96th Congress was that the FBI did not wait for a case to appear on its doorstep; rather, it actively pursued leads given to it by various informants who had originally turned up during investigations having nothing to do with Congress.
One could devise methods that might well inhibit the avaricious inclinations of certain congressmen. But I doubt one can easily do that without at the same time inhibiting the legitimate exercise of ambition and self-interest. And as ambition is inhibited, the motive power of the system of checks and balances is weakened. Government would be impossible without a modicum of honor and virtue, but our form of government might not be possible if virtue governed to the exclusion of all other considerations.
The problem for Congress is not to cripple the investigative methods of the FBI or rebuke it for having employed them against Congress, but to devise some reasonable safeguards to ensure that they cannot be employed--out of a desire for either perfect virtue or total power--to weaken the constitutional independence of Congress. Our system of government must fear both a Savonarola as well as a Machiavelli, and though neither is in power today, we cannot be certain about tomorrow.
I suggest that investigations of members of Congress, especially those involving intrusive techniques that could, in either incompetent or scheming hands, lead either to entrapment or manipulation, be made subject to review in advance by the third branch of government. Before employing those techniques, the FBI would have to show a small panel of judges, in a private hearing, that it has reasonable grounds for its suspicions and that it has selected its targets on the basis of those reasonable suspicions and not on the basis of mere rumor or political disposition. I suggest further that the Department of Justice improve those internal arrangements designed to ensure central control over such investigations so that the highest levels of the department, and not a local U.S. attorney, are supervising the employment of these techniques.
There is precedent for such a review in the requirement that a special judicial panel review FBI petitions for warrantless searches in cases involving foreign counterintelligence where the normal procedure of obtaining a warrant would be inappropriate. It is possible some investigations might be forestalled by this review; that would be the price we would pay for maintaining the separation of powers and a Congress not easily intimidated by executive power.
From the record I have seen, I believe the Abscam investigations would have passed such a judicial test. I would also venture that the likelihood of the FBI's ever using Abscam-type investigations to intimidate Congress is quite remote; apart from the integrity of its present leadership, there are readily available far more effective methods of intimidation, such as planted evidence and scurrilous leaks. Remote as the risk may be, it ought to be reduced while the matter is fresh in our minds.
Two final points. There may be no simple cure for another cost of Abscam--the public naming of innocent parties during trial of the cases. Informants brag and misrepresent; one apparently said he could reach, among others, former senator Jacob Javits. There was no evidence for this at all, but it came out. The problem is that such name- dropping can only be prevented by editing the tapes on which the investigations are recorded, but, if edited, such tapes would become useless as a means of verifying the compliance of the FBI with investigative guidelines. Perhaps the discovery motions of defense counsel can be restricted in their application, or some parts of the tapes could be viewed in camera by the judge, to prevent harm to the innocent.
The other point is that the separation of powers cuts both ways. Congress has an equivalent obligation to respect the independence of the executive branch and to avoid aggrandizing it. I hope that the members of Congress will see fit to criticize fellow members, as they have now criticized the FBI, whenever a congressional investigation becomes a public circus in which innocent persons are abused, unsupported allegations are made and fishing expeditions are conducted. They have not always done so.