"education for Democratic Citizenship" | Main | on overestimating the impact of the press

October 17, 2005

Karl Rove and the first amendment

Some time ago, I wrote a post entitled "Why I Don't Care About Karl Rove" that provoked passionate criticism on a few other sites. I was concerned about all the excitement that the Plame investigation was causing on the left, because I thought the scandal was a distraction. The Bush administration is on its way out, and the only thing that matters now is the national debate about issues and ideologies.

The problem with the administration has always been its overt priorities and decisions, not the secret behavior of key players. If Rove is convicted of a crime, that will have little effect on the future of politics, because he and his chief client will not be on the ballot in '06 or '08. I doubt very much that voters will draw the conclusion that Republicans are law-breakers. They have plenty of experience with Democrats who have been convicted of more mainstream crimes. Instead, they will be reminded that politics is a hard-ball game played by crafty Washington professionals that has little to do with ideas and makes little room for citizens.

Those were the important points, but I realize that I have another qualm about the Plame investigation. If Karl Rove did identify Valerie Plame to reporters, then he shared information with the press. Our presumption should always be that such speech is protected by the First Amendment. It is precisely when we despise the speaker and his motives that we should be most careful about constitutional rights.

There is a law ("section 421") against revealing the name of a covert CIA agent "when the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." I guess this law is constitutional. However, I'm not sure I like it; I'm not sure I like any law that is very little known and hardly ever enforced, especially if it prohibits the release of true information to the public. If the statute is enforced in this case, then it must apply to everyone who leaks the names of covert agents--not just political operatives like Karl Rove, but also patriots who want the press to know that the CIA is involved in bad behavior. If the Special Prosecutor ignores section 421 and instead uses a broad conspiracy or espionage charge, then we should be even more concerned about an expansion of state power and new restraints on the press.

William Kristol seems to think that Democrats are deliberately trying to criminalize conservative leaders, as shown by the ongoing investigations of Frist, DeLay, Rove and others. I don't see how that can be true, since several of the investigations are controlled by Republican appointees or civil servants working in the Bush administration. Harry Brighouse has a simpler answer: Lots of criminal investigations are underway "because there seems to be prima facie evidence that prominent conservative Republicans were up to their eyes in criminal activities."

My thought: People who are under investigation are innocent until proven guilty. The political consequences of any convictions would probably be bad for Bush, although they might provoke a backlash favorable to his interests. In any case, it is crucial not to focus on the short-term political consequences for any person or party, but rather on justice and the long-term consequences for law and our political culture. To be sure, failing to investigate people like Rove, Libby, Frist, and DeLay could create a culture of impunity. On the other hand, targeting politicians for prosecution can be just as damaging, if it makes public service appear dangerous, if it convinces the opposition party to rely on criminal convictions rather than arguments about policy, or if it causes us to ignore constitutional principles (as was clearly the case in the Ken Starr investigation). Rove has done "collateral damage" to American political culture, but that doesn't excuse prosecuting him in ways that would make matters even worse.

Posted by peterlevine at October 17, 2005 07:47 AM


And yet, we have a long-running account of this administration lying to the American public in ways that are more than "collateral damage". Hannah Arendt wrote a very interesting New York Review of Books article on the Pentagon Papers called "Lying in Politics". She wondered about a couple of interesting things: 1. why is there almost no academic studying of lying in politics despite the fact that lying has always been a part of politics? 2. what types of lies are the most dangerous kind of lies for the stability of our regime? and 3. how do we address the PR hole that comitting to bad major public decisions has upon administrations in both confronting their own people and also the international community?
I feel, personally, that little progress has been made on any of these three questions. In terms of whether or not Rove, Cheney, etc. are crooks,I also cold sort of care less. I have found it intersting that the "spin machine" has turned on any time any new fact has leaked about the probe, as if it will have any income on the grand jury process. That the PR implications had already surpassed the reality of the trial for so many by June is something that strikes me as unpleasant.
Beyond the criminal investigation, the case is disturbing because the internal workings of the White House should not be able to work the way they have under this administration. The information vetting, lying, and power politics within the White House that the Plame story is a small part of is troubling. It is also indicative of a larger story about what the executive can and cannot do with information and that is very much worthy of concern - just ask Rwanda.

Posted by: Steven Maloney [TypeKey Profile Page] at October 18, 2005 02:50 AM

Post a comment

This blog is under attack from comment spammers, who are causing a problem for the server. I believe I can block them by upgrading to a recent version of MoveableType. However, I do not have time to do that until late December. Therefore, I have temporarily disabled comments. Please feel free to email me feedback at plevine@umd.edu.

Site Meter