Readers of this ideologically diverse magazine have been treated to a bracing range of opinion about whether or not Vice President Gore broke the law when he telephoned his supporters from the White House to ask for campaign contributions. Now that congressional Republicans are once again calling for an independent counsel, tnr has asked your legal affairs editor to examine the record as dispassionately as possible. My naughty conclusion: Gore should not be investigated by an independent counsel; instead, he should be impeached.
The law in question says that "It shall be unlawful" for any federal employee "to solicit or receive any contribution" within the meaning of federal election law "in any room or building occupied in the discharge of official duties." The broad purpose of the Pendleton Act, written in 1883, was to prevent federal civil servants from shaking down political contributions from their colleagues on federal property. And according to the Congressional Research Service, the law has never been enforced to prosecute a federal official for soliciting campaign contributions from someone who is not in a federal building.
Although Gore can't be encompassed within the spirit of the act, a textualist might claim that he violated its letter. The vice president's former chief of staff, Jack Quinn, argues that while Gore may have been in the White House when he asked for campaign contributions, the solicitation took place elsewhere. He invokes a 1908 Supreme Court decision, U.S. v. Thayer, which involved solicitations mailed to federal postal workers. In affirming Thayer's conviction, Justice Oliver Wendell Holmes held that "the solicitation was in the place where the letter was received." And it's plausible to claim that a telephone call, like a letter, is completed in the place where the call is received.
On the other hand, as Edward Zelinsky of the Benjamin N. Cardozo School of Law points out, Holmes was concerned that Thayer's letter may have been lost before it was delivered, in which case no solicitation would have occurred. A court today, Zelinsky argues, could conclude that telephone conversations take place simultaneously at both ends, and therefore Gore's solicitation occurred where the call was made.
In rejecting a congressional request for an independent counsel on April 14, Attorney General Janet Reno concluded that there was no "specific and credible evidence" that the vice president had solicited a "contribution" within the meaning of the Federal Election laws, because he had solicited "soft money" rather than "hard money." It now appears that some of the money Gore raised was deposited in the Democratic National Committee's "hard money" rather than "soft money" accounts. And since that opens the question of whether Gore knew that some of the money he raised would go to advertising designed to influence the Clinton-Gore election, the claim that he intended to raise only "soft money" may be hard to sustain.
So there's a plausible, if debatable, argument that Gore may have violated the Pendleton Act; and it hinges on whether or not you think that telephones are like letters. (That's the question on which there's "no controlling legal authority.") What should be done? Congressional Republicans are once again calling on the attorney general to request the appointment of an independent counsel. But because there are few facts in dispute, the only purpose of an independent counsel would be to decide whether an obscure nineteenth-century civil service law should be construed, for the first time in history, to prevent the president and vice president from asking their supporters for support. This is a policy judgment, not a legal one; and in a democracy, policy should be made by elected officials.
Like many people, I'm convinced by Justice Scalia's powerful dissenting opinion in Morrison v. Olson. He argued that the independent counsel law is unconstitutional because it allows unelected judges, rather than the democratically elected president, to appoint prosecutors. The Constitution says that Congress can allow courts to appoint "inferior officers"; but it's hard to see how an independent counsel, who has unreviewable power to investigate the president, is "inferior" to him.
Having supported the reauthorization of the independent counsel law, Gore can hardly argue that it is unconstitutional. But on policy grounds alone, it seems clear that no independent counsel would have the political credibility to decide whether or not to apply the Pendleton Act to the vice president. An independent counsel, after all, would be appointed by the same judges who appointed Kenneth Starr. If these judges chose another Republican in the Starr mold, Democrats could fairly object that any prosecution was a partisan vendetta.
Perhaps the judges, chastened by criticism of their appointment of Starr, would appoint a Common Cause type. This, however, would raise problems of its own. Guided by their elected superiors, prosecutors routinely decide not to indict people for hypertechnical violations of the law. But even the most independent independent counsels have an incentive to justify their own existence by prosecuting minute infractions.
As Akhil Amar and Brian Kalt argue in the current issue of Nexus, it was precisely because prosecutions of the president and vice president are inevitably political that the framers of the Constitution created a political remedy for alleged wrongdoing by high officials: impeachment. The framers gave Congress the impeachment power because it is a publicly accountable body, well suited to make political judgments about whether political leaders have violated the law.
Indeed, the Department of Justice has long held that the Constitution requires the president to be impeached before he can be criminally prosecuted. Some legal scholars believe that this immunity from prosecution should apply to the vice president, and indeed all "civil officers" as well; but the prosecutions of Aaron Burr and Spiro Agnew suggest otherwise. Nevertheless, because Clinton and Gore are accused of making the same kind of calls from the same place, it would be odd to argue that Gore can be prosecuted, while Clinton cannot.
Instead of hiding behind the independent counsel law, Republicans should have the courage of their convictions, and show that they are engaged in a genuine search for the truth, not just a partisan attack. They should, in other words, try to impeach Gore in the House and convict him in the Senate. In the course of debating whether or not to impeach Gore, the House Rules Committee would hold public hearings. During the hearings, it would become clear that, until very recently, congressmen routinely asked for campaign contributions on cell phones while sitting in the corridors of the Capitol. In applying a new and different standard to the White House, Con gress would have to explain its hypocrisy.
Instead of hiding behind legalisms about "no controlling legal authority," Gore, for his part, could go on the offensive. He could make the case that Congress is presuming to interfere with the right of the president and the vice president to engage in political speech by communicating directly with constituents and supporters. And even if articles of impeachment never reach the House floor, as they're unlikely to do, the American public could make an informed decision in 2000 about whether they think Clinton and Gore's efforts to raise money for their own campaign are troubling or defensible.
Critics of the independent counsel law have long decried the criminalization of politics. Their worst fears have been vindicated by the spectacle of politicians and journalists calling on the attorney general to call on unelected judges to appoint an unelected prosecutor to decide whether the president and vice president broke the law when they asked their political supporters to support them. It's time for Republicans to make their case in Congress rather than the courts, and impeach Gore, if they can.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.