Ethics and virtue - Lyn Nofziger conviction overturned

National Review, August 4, 1989

THE ETHICS IN GOVERNMENT ACT, under which Lyn Nofziger was convicted of lobbying the White House too soon after leaving it, is no model of clarity. That, at any rate, was the opinion of the trial judge. The Court of Appeals has now decided that the ambiguity is sufficient to void Nofziger's conviction.

The killer word was an adverb, "knowingly," which bobbed up early in the turbid sentence defining proscribed actions. If it applied to all the clauses that floated after it, it would, in the opinion of any careful (though, considering the density of the prose, weary) reader, exculpate Nofziger, whose knowledge of his own offense the government had not been able to prove. Until Fowler can be recalled fromthe tomb to rewrite the law, it is unclear. In which case, as Judge James Buckley ruled, "canons of statutory construction require that an ambiguous statute be interpreted in the defendant's favor."

Washington conservatives celebrated an old friend's rescue from criminal taint. But the case has a larger interest. It is ironic, of course, that Congress, in a frenzy to clean up political standards, could not formulate any that would withstand the test of an appeal. The larger irony was noted, some years ago, by Michael Kinsley: the true scandal of Washington life is not what is illegal, but what is legal. If you held up the capitallike a piggy bank and shook it until every flack for farmers, businessmen, minorities, and defense contractors fell out, it would be empty. Some of the programs they lobby for, in and out of government, are wise and proper. But our standards of judging such matters are fallen so low that the only rules that can be brought to bear are the fundamentalisms of etiquette periodically devised by moralizers-as if the only grounds for condemning a cannibal were that he used a salad fork. When republican virtue goes, ethics in government fills the vacuum.