Hypocritical Oafs

When pundits start weighing in on a question of constitutional law, there's a quick way to separate the sages from the hypocrites: ask if the politicians they love deserve the same treatment as the politicians they hate. That test should come in handy as impeachment pundits sound off on the next big issue: what Congress should do when the independent counsel law expires on June 30.

Until recently, most pundits' take on the IC law could be predicted by their political affiliations. Democrats tended to support it, because it was passed in 1978, post-Watergate, and proved a handy tool for harassment and oversight during the Reagan- Bush years. For the same reasons, most Republicans opposed it.

These positions solidified when former Reagan aide Theodore Olson challenged the law's constitutionality, resulting in the 1988 Supreme Court decision known as Morrison v. Olson. Liberals applauded when the majority upheld the law, while conservatives lined up behind Antonin Scalia, whose dissent contained a scary prediction of a prosecutor run amok. In 1994, when the law came up for renewal, Clinton signed with a flourish.

This year, after watching Ken Starr inflate the office to mythical proportions, many pundits have switched positions in a totally comic flip-flop. Suddenly, Clinton lawyer Robert Bennett is calling the law a "monster," while conservative icon Robert Bork has acquired a taste for it. The most daring somersault came from Starr himself, who opposed the law in 1978— as Diane Sawyer noted in her 60 Minutes interview with Starr— and worked on a challenge to it in the early 1980s. Regrettably, Sawyer did not ask Starr to explain his latter-day conversion, which allows him to lord it over an office whose very existence he once deemed unconstitutional.

The zeitgeist had begun to shift by last May, when Jeffrey Toobin noted in The New Yorker that "the legal establishment has soured" on the IC law. Democratic lawyer Lloyd Cutler told Toobin that although he testified in favor of the law, he now thinks "the cure is worse than the disease." In November, Stuart Taylor Jr. wrote in Newsweek that he, too, had changed his stripes, and now believes "Congress should let the law die." (There are a few consistent voices of late: writing in The New Republic, Michael Kinsley stuck to his original pro-IC position— who else is going to mind the Oval Office?— while in Slate, Yale Law professor Akhil Reed Amar repeated his longtime warning against intrusions on executive power— whether the target is a Nixon or a Clinton.)

The issue turned red-hot after the December 2 acquittal of former agriculture secretary Mike Espy, who had been pursued for four years by independent counsel Donald Smaltz. The Espy acquittal triggered a stampede of editorials on the IC law, ranging from the cynical to the clueless.

The New York Post took aim at the law, saying it had allowed Smaltz and Iran-contra prosecutor Lawrence Walsh to spin "out of control," but omitting any reference to Starr. Meanwhile, The New York Times remained a champion, scolding that the Espy case "will probably be used by critics of the Independent Counsel Act to justify changes to the act to limit the time and cost of such investigations." (Well, duh!) Only the Daily News adopted a post-Starr position, denouncing the law as "a weapon of self-righteousness and a shield for hypocrisy."

This baleful sound echoed across the country, as half a dozen dailies called for the law to die a natural death. The Washington Post withheld comment, while The Wall Street Journal, an erstwhile Kevorkian of the IC law, cited the politicization of Clinton's Justice Department as a damned good reason to keep it alive.

The best take came from The New Republic's Jeffrey Rosen. Three days after the Espy acquittal, Rosen's op-ed in The New York Times cited Smaltz, Starr, and Walsh as examples of how the IC law creates partisan prosecutors. Interviewed on NPR the next morning, Rosen delivered the mantra on the IC law that is destined to become a bipartisan consensus for all the wrong reasons, especially if the Senate votes to impeach.

Said Rosen, "They should put a stake through its heart and kill it."

Sigh, Newhouse

Here are four events that will not follow the publication of Carol Felsenthal's new book: The author will not be introduced to the pooh-bahs of literary Manhattan at a cocktail party with tuxedoed waiters. Her book will not be talked up in The New Yorker. First serial rights will not go to Vanity Fair, and paperback rights will not be sold to a single publishing house in New York.

That's not because Felsenthal lives in Chicago, or because her book lacks commercial value. It's because Citizen Newhouse, just out from Seven Stories Press, is an unauthorized biography of S. I. Newhouse, the billionaire who controls the Condé Nast magazine empire. At risk of offending Newhouse, who loves buzz but shuns personal publicity, few editors will even bother to send the book out for review.

And if they do, expect the kind of vigorous slam the book received in the November 30 New York Observer, in which the reviewer was shocked— shocked!— by the trivia he encountered about Newhouse's sartorial and culinary habits, not to mention speculation about his sex life. (Far be it from the Observer to promote sleazy gossip about prominent media figures.)

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