PRESIDENTIAL ACCOUNTABILITY Irving Louis Horowitz he revulsion with which many good people have viewed the journalistic and investigatory excesses stemming from the pursuit of presidential quarry, from Nixon to Clinton, is entirely understandable. It is also laudable that honest students of politics have seen this zealotry as a broad brush applied to Democrats and Republicans, and liberals as well as conservatives. Finally, it is admirable to want to rind ways to attract the best possible people for public service, and avoid discouraging competent people from service, w h o may fear being smeared, libeled or treated shabbily in the public arena. However, in this rush to protect individual privacy, it is precisely the public arena that would be w o u n d e d by the implementation of the type of reforms and policies suggested by Amitai Etzioni in his essay on"Decriminalizing Politics" American suspicions about exempting rulers from the glare of publicity derive from eighteenthcentury debates on political philosophy in the colonies. These debates ranged from overseas efforts at censorship and freedom of the press, to rules of impartiality in law and custom, to religious toleration versus religious exclusivity, and of course, to the choice between seeking independence and remaining within the British empire. It was an abiding hatred of King George III and his abuses of p o w e r that led the founding fathers to institute the system of checks and balances on the authority of rulers that is embedded in the Constitution. The idea of eliminating or even weakening the accountability of leaders to the people through a doctrine of immunity--limited or otherwise--is simply alien to the American tradition, one that goes back at least one hundred years before the actual formation of the United States. The United States Constitution is explicit in rejecting a special dispensation or exemption from

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the rule of law for its leaders. It is appropriate to recallArticle II, Section 4 of the Constitution of the United States. It declares with elegant simplicity that "the President, Vice President and all Civil Ofricers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." One may well argue that sanctioning the breakin of the offices of an opposing party during an electoral campaign, or carrying on a sexual affair within the Oval Office do not rise to the level of impeachable offenses. However, there can be no doubt that the founding fathers were painfully aware that because human nature is imperfect, the Constitution must contain appropriate language concerning abuses of p o w e r by those w h o rule. The American Revolution was ultimately about principles, not powers. The moral universe of 225 years ago may be difficult to recapture, but the documents then created serve to protect the citizenry from the sort of pure relativism in which a royal tolerance is granted to those w h o rule that would rarely be extended to those w h o are ruled. Assuredly, nothing in constitutional law allows the senior officers of the United States to be held to a lower accountability than any other citizen. Quite the contrary, the burden is in the opposite direction: just h o w high should be the accountability of a senior executive officer such as a president? Certainly, the bar should be higher than for ordinary citizens, but h o w much higher? James Madison in the 57 th communication of The Federalist Papers attempts an answer that has well stood the test of time and temperament. "The aim of every political constitution is, or ought to be, first to obtain for rulers men w h o possess most wisdom, to discern, and most virtue to pursue, the c o m m o n good of the society, and in the next place, to take the most

effectual precautions for keeping them virtuous whilst they continue to hold their public trust." While the primary mechanisms outlined are the republican form of government and term limitations, the role of guardians responsible to the public int e r e s t - a n d that includes the work of journalism, is to prevent the "degeneracy" of the system through abuses of office. In other words, the founding fathers well understood that those w h o rule should be subject to higher, not lower, standards of personal conduct. Here the jurisprudential position is clear: while slander and vilification of public officials is no more acceptable in law w h e n applied to political figures than to private citizens, the right of the public to know and of journalists to monitor the behavior of such public officials is indisputable. Libel is a written defamation; slander is a spoken defamation. But truth, in turn, is a complete defense to defamation. Such matters are essentially resolved in juridical actions. There is also a broad range of opinion permitted with respect to political and public figures. The U.S. Supreme Court, in the case of Hustler Magazine Inc. v. Falwell (1988) ruled with great eloquence that: "At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinion on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty, and thus a good unto itself, but it is also essential to the c o m m o n quest for truth and the vitality of society as a whole."And somewhat earlier in B a u m g a r t n e r v. United States (1967) the Court admonished the would-be protectors of political reputation. The Court ruled that "the sort of robust political debate encouraged by the FirstAmendment is bound to produce speech that is critical of those w h o hold public office or those public figures w h o are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of c o n c e r n to society at large. The candidate w h o vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul!'" Indeed, Supreme Court rulings have repeatedly taken the position that if the standard of truth telling is applied, then public figures must accept criticism of greater intensity than that directed to private persons. The rationale of the courts is clear: the p o w e r and authority of political figures is such that the larger public has a right to special protect i o n - a n d only a free press can provide that protection. Etzioni seems oblivious to the capacity of the powerful to deflect not just censorship but criti-

cism of any sort. Democratic society demands that those w h o seek public office a c c e p t its consequences, one of which is to have to abide by higher standards of scrutiny than citizens do w h o elect a strictly private life. That such differing standards may occasionally lead to injustices against public officials is doubtlessly a risk. The problem of being guilty in the eyes of the media until proven innocent is illustrative. But the absence of an alternative indicates a breakdown in a carefully woven system of checks and balances. It is evident that Etzioni and his supporters want balances of governance, but not checks on power. For that reason, Etzioni urges that"a bipartisan group of legal scholars and legislators should be convened to formulate n e w rules for dealing with the presidency." Further we are instructed to note that "these new rules should be future oriented." It is as if Etzioni is entirely unaware of a body of l a w - not simply rules--dating back to the founding of the American nation governing the conduct of presidents. The idea that a group of scholars will revise the guidelines of conduct enshrined in more than 225 years of American history does not strike me as either productive or serious. It has the additional risk of making the rule of law subject to the whims of custom, or even fancy. Etzioni makes the limits of policymaking as a way of life painfully evident. Political sociology is a fact of life in the past as well as present. Etzioni's confuses the empirical with the ethical. He speaks of"raising the bar," w h e n he means raising the evidentiary threshold. However, he inverts its meaning by speaking of doing so by requiring higher evidentiary standards for public judgment of political behavior. In ordinary language, raising the bar is linked to the reverse: to insisting that holders of public office should meet tougher standards of probity than are demanded from ordinary citizens. Thus, holders of public office accept in addition to scrutiny by an electorate, certain measures, such as revealing the amount of private holdings, the amount of tax paid within a reasonable time span and severing commercial dealings. All of these are intended to prevent the contamination of the public trust by prospects of private avarice and gain. Etzioni's approach would make revelations, much less investigations, of such behavior far more difficult. Practically speaking, special independent counsels would probably never be called in Etzioni's world. In short, he would in effect lower not raise the bar. Etzioni's approach has it roots in a revisionist jurisprudence that sees interpretation of the law as

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subject in principle, no less than in practice, to the winds of social change. This school of thought implicitly rejects or trivializes the normative status of constitutional law. Many defenders of Nixon and Clinton alike v i e w e d the transgressions of the Watergate break-in and the Monica Lewinsky scandal as unfortunate, perhaps even unimportant actions that did not deserve censure, let alone imp e a c h m e n t . Essentially, the only n o r m s they acknowledged were the customs and mores of the age. More flexible, or if you will, looser morals in the public arena translate into flexible and non-punitive judgment of presidential or congressional leadership. It is important not to blur the distinction between a public unwilling to challenge the legitimacy of the system, and opportunities for outright public approval, such as re-election or declarations of personal allegiance. In both the Nixon and Clinton cases the legitimacy of the system was reasserted along Weberian lines, but no less, the critical capacity to be rid of corrupt leaders through the machinery of democratic government along Madisonian lines as outlined in The Federalist Papers was reaffirmed. Again, Etzioni understand and appreciates the Weberian dynamics, but he seems thoroughly unaware of the Madisonian component. Quite apart from the sex scandal in the White House involving an affair with an intern, there were serious abridgements of the rule of law under the Clinton administration that equaled if not exceeded those of the NixonWhite House and the Watergate break-in of the Democratic National Committee headquarters. The Clinton White House summarily dismissed all incumbent U.S. Attorneys, and sent (soon to be convicted) Webster Hubbell to oversee Janet Reno of the Justice Department. It launched attacks on the integrity of investigators ranging from Jean Lewis to Kenneth Start. The pattern of blaming the messenger for exposing the legal transgressions of the chief executive became notorious during the hearings about the Clinton-Lewinsky affair and subsequent impeachment vote. From White House press releases, one would think that the independent counsel rather than the president committed improprieties and indelicacies. Like President Nixon, President Clinton maintained his o w n hit list, and culled "dirt" on his enemies from FBI files. It should also be noted that the president committed perjury and may well escape legal sanctions despite the severity of the charges. While I am not quite prepared to accept the dictum of Robert L. Bartley that "the rule of law ... is

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the most significant issue facing our civilizationr it certainly ranks among the most serious considerations of America as it enters its third century. Are we to continue in the n e w century as a nation of laws and not men? Or will one law apply to the powerful and another to the rest of us? Will guilt or innocence be determined in deliberative courts or by the fads in the streets, onTV, and in cyberspace? The problem is not an acute crisis but an institutional deterioration on w h i c h the principles the Republic is built" (Wall Street Journal September 18, 2000). Beneath the tortured prose, what Etzioni proposes would only introduce multiple standards for determining guilt or innocence while in office, and in so doing reduce the Constitution to a sham d o c u m e n t - - o n e improved upon in ad hoc fashion by those w h o o c c u p y the presidency at any given m o m e n t in time. The separation of State powers was and remains intended not to spotlight presidential errors, but guarantee democratic truths. Rather than presume, as does Etzioni, the risks and dangers of treating political leadership by the same standards of conduct as everyone else, I much prefer the final judgment of special prosecutor Kenneth Start, reflecting on the Clinton impeachment process. "Not a single shot was fired, not a single tank took to the streets. Voices were raised and feelings ran high, but we worked our way through that ultimate governance question in a peaceful and orderly way. That is a great tribute to the wisdom of the structure of governance that was given to us at the founding . . . . History will do what history will do. But I do k n o w what the facts are. The President betrayed his moral trust with theAmerican people. He betrayed it badly. He lied to theAmerican people, and he lied in a court of law. That is a permanent blot on our government and on his stewardship specifically. It was my lot to be the cop on the beat. I was an honest cop:' (First Things, October 2000, p. 96) Etzioni makes no case for the innocence of Clinton. Like many others, he argues instead for minimum standards of conduct for maximum political leaders. And on that score, it is hard to see a shred of difference between the transgressions of Richard M. Nixon and William J. Clinton. Former President Clinton and his legal advisors repeatedly argued that the private and the political should be separated. Leaving aside the abuse of government files on the Republican Party (not entirely unlike the investigation of Democratic Party donors and supporters conducted with the support and supervision of President Nixon), they claim that the sexual peccadilloes Clinton engaged in with

Monica Lewinsky in no way influenced government decision making or interfered with the political process. In a technical sense this distinction is correct. What does remain to be e x p l a i n e d is lying u n d e r oath about the affair to a federal judge, not to mention his o w n cabinet m e m b e r s and wife, and of greater significance, the use of the federal offices, specifically the Oval Office of the White House to c o n d u c t his private affairs. In a nutshell, the crime was not so much the affair, but the cover-up. The same is the case w i t h theWatergate break-in. Nixon may not have authorized this action, but the tapes indicate that he assuredly directed the break-in. In doing so, the private b e c a m e the public, and the cloak of secrecy no longer obtained. Indeed, one might more easily have argued that such conduct by a p r e s i d e n t on p u b l i c g r o u n d s - - w h i c h is w h a t the White House r e p r e s e n t s - - w a s a more serious breach of presidential c o n d u c t than the authorization by Nixon for theWatergate offices breakin. Had the p r e s i d e n t a c k n o w l e d g e d the affair with Ms. Lewinsky, or made a claim that his marriage was less than fulfilling, and this was a possible avenue to a divorce to Hillary, then the incidents might well have b e e n d e e m e d insignificant and not rising to the level of i m p e a c h m e n t . It was not a private act of adultery, but rather the public lying about a private affair that h a p p e n e d on public p r o p e r t y - the White H o u s e - - t h a t ultimately made Clinton's misconduct impeachable. In short, it was the "coverup" not the act itself, that was the subject of imp e a c h m e n t in both cases. Etzioni strives to retain a sense of the moral purp o s e and the social p r o g r a m of American political leadership. He believes this can be achieved while catering to the widespread conviction that the Presidential Project is little else than theAmerican project writ large: relativism in judgment, subjectivism in behavior, and ideological fervor in carrying forth executive missions. Etzioni's neo-liberal sentiments are a noble attempt, but one d o o m e d from the s t a r t - - a s many o t h e r such efforts have b e e n in recent years. He o p e n s the d o o r w i d e - - o n c e a g a i n - to an imperial presidency. This is hardly a p r o s p e c t that a c o m m i t t e d c o m m u n i t a r i a n should endorse. Etzioni raises several issues that I have not dealt with. They are essentially tangential to his main arguments. For example, the value or n e e d for indep e n d e n t counsels to p r o b e potential infringements by office holders, or w i t h h o l d i n g approval of judicial appointments. The first is not a Constitutional issue. The s e c o n d is part of the stasis of political, life in m o m e n t s of crisis. Etzioni has a legitimate

c o n c e r n with a third item: the transformation of every political c a m p a i g n into a journalistic feeding frenzy makes the best and the brightest shy away from public service. However, unless one can stipulate that past presidents and congressional leaders and Supreme Court justices w e r e b e t t e r than the present crop with p r o o f from some systematic measuring device, this argument strikes me as spurious. Indeed, the raw n u m b e r of political officer h o l d e r s - - n o w in excess of three-quarters of a million p e o p l e - - m a k e s some sort of codification more necessary today rather than it was in the past. It also signifies a coming of age of local journalistic exposes of local officials in ways unheard of in the past. Indeed, one might argue that journalistic assaults might at times assist dishonest office holders. Surely the re-election of Marion Berry as mayor of Washington, DC might well be a d d u c e d as an illustration of the c o u n t e r p r o d u c t i v e nature of newspap e r attacks on political l e a d e r s - - e v e n w h e n evid e n c e is s t r o n g o f m o r a l , if n o t c r i m i n a l , transgressions. Ultimately, the Achilles heel in Etzioni's presentation is its failure to acknowledge the public's right to k n o w as equal in i m p o r t a n c e to the individual politician's right to privacy. Indeed, it is precisely because of the nature of office holding and its public trusts that the issue of the right to k n o w assumes a t r e m e n d o u s place in the body politic. This is not to say that mistakes will never occur, that perfectly d e c e n t servants of the p e o p l e will not be h o u n d e d , harassed, and driven from office on the flimsiest of evidence. But the solution here is not a lowering of standards of evidence, but a struggle w i t h i n the public arena for vindication. Since Etzioni raises the Clarence Thomas matter, it must be understood that theAnita Hill charges did not prevent the confirmation of Justice Thomas' nomination to serve on the Supreme Court. He w o n his struggle, bloody though the battle was. By the same token, Robert Bork, w h o s e moral integrity was never questioned during the hearings for his nomination to the Supreme Court, nonetheless lost out in the congressional battles on political grounds. The feeling was, again w i t h o u t addressing the merits of the case that Judge Bork would, because of his strong p r e j u d i c e s on key issues related to gender, be unable to carry out impartially the duties of an associate justice of the Supreme Court. A m e r i c a n p o l i t i c a l life is n o t s i m p l y a Pollyannaish game, in w h i c h political figures turn tail because of attacks. They are part and p a r c e l of the game of politics as such. Here too one might

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argue that the tragedy of American politics is not that a few good men are rousted from office, but to the contrary, that the huge p o w e r of public office itself protects such people even w h e n they commit wrongdoing. The political community is neither a celebration nor rejection of communitarian values. More pointedly, it is a struggle to establish legitimate political leadership and state p o w e r in a nation of non-joiners as well as joiners, those w h o will not lift a finger without gain no less than those whose lives are dedicated to voluntary acts of kindness and goodness. In such a real world to expect leadership to be exempt from the critical eye of scrutiny is a utopian fiction--one far more dangerous than problems we are supposed to correct. There are times when the best policy is to leave well enough alone. The issue Etzioni raises of establishing new standards for judging political leadership strike me as one such instance. This is not to claim that passivity is superior to activity as a general rule. It is to assert that history rather than policy is a truer guide through the thickets of political behavior. When great principles of democratic r u l e - - s u c h as the right of the public to k n o w and the right of the person to privacy--are involved it is both naive and dangerous to presume that a convocation of experts will resolve differences. In such matters as pertain to executive responsibility, contexts are perhaps the best guide available. For translated into legal terms, contexts provide precedents. And even ff no clear-cut pattern emerges in every single instance, such contexts provide social frameworks to the rule of law. And in matters of punishment such frameworks, compel us to closely consider not only guilt or inn o c e n c e as matters of legal principles, but what forms of punishment are appropriate once guilt is established. In plain words, the issue is less the fact of transgressions in the cases of both Nixon and Clinton, but what to do about such facts. In the case of Nixon, the solution was early resignation from office with presidential pardon. In the case of Clinton, it was the shame of impeachment, but without the loss of office during the period he was elected to serve as president. The crimes and misdemeanors of public officials are not simple matters to resolve by appeals to the need for sound office holders. It may be wiser to rely upon established law and its ambiguities than to rush to create new policies every time a personal transgression

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takes place. Social context informs the law; it does not supercede or negate the law. At the risk of ending this response on a personal note, I confess not to be persuaded by the Etzioni argument in that it takes place and is advanced by someone whose mature years have been spent in the Washington, DC world of political insiders. Perhaps the intellectual community in the nation's capital feels these issues more strongly than elsewhere because they are also subject to pressures of journalistic scrutiny directed toward those inside the Beltway. There is a genuine problem of anAmerican community that is divided between a highly charged political environment called Washington, D C - - i n which rumors are rife about people, parities and p o w e r s - - a n d the rest of the country that reserves such gossip for more intimate social and psychological matters. I am not suggesting that Etzioni's views should be dismissed on this account, I am suggesting that they are part of the fabric of concerns that o c c u p y only a small portion of Americ a n s - - e v e n academics.

SUGGESTED FURTHER READINGS Copeland, David A. Debating the Issues in Colonial Newspapers: Primary Documents on Events o f the Period. Westport: Greenwood Press, 2000, pp. 397. Draper, Theodore. A Struggle for Power." The American Revolution. NewYork: Times Books, 1996, pp. 544. Hamilton, Alexander, James Madison, John Jay, The Federalist Papers (an introduction by Clinton Rossiter). NewYork: New American Library, 1961, pp. 560. Pilon, Roger, editor. The Rule of Law in the Wake of Clinton. Washington, DC: Cato Institute, 2000, pp.230. Pynn, Ronald E., editor. Watergate and theAmerican Political Process. NewYork: Praeger Publishers, 1975, pp.246. Irving Louis H o r o w i t z is H a n n a h A r e n d t University Professor E m e r i t u s o f Sociology a n d Political Science, a n d editorial director o f Transaction Publishers, at Rutgers, The State University o f N e w Jersey. His m o s t recent w o r k is Behemoth: Main Currents in the History and Theory of Political Sociology.