Undue Process: A Story of How Political Differences Are Turned into Crimes

National Review, Nov 30, 1992 by Peter Brimelow

Undue Process: A Story of How Political Differences Are Turned into Crimes, by Elliott Abrams (Free Press, 250 pp., $22.95)

DROP! Someone had thrown a ball at my chest . . . I sat up, shaken, startled awake .... A dream, probably. Or maybe just a small heart attack."

Elliott Abrams was only 43 last fall when he was rushed to the hospital from special prosecutor Lawrence Walsh's office in Walsh's official limousine. (Walsh was worried about his image. An earlier victim had attempted suicide.) The doctor said the symptoms seemed to be caused by "this pressure you are under." Abrams was indeed under pressure. He and his lawyers were negotiating the final details of what was to be a much-gloated-over guilty plea: to two charges that he had "withheld information'' about the Contra support network when testifying before Congress as a Reagan Administration official back in 1986.

Abrams passes over this incident relatively quickly in his clear and forceful journal of the few weeks in which Walsh suddenly reactivated his case after years of silence and in effect bastinadoed a settlement out of him. He is also perhaps more discreet than it appears at first sight about the impact of the ordeal on his wife and three small children, although their presence is constant in the narrative. He prefers discussing the legal and political implications. And these are indeed profound and disturbing.

Yet that poor fluttering heart cries out for attention. Like the forgotten moment in Spiro Aguew's very different memoir, Go Quietly . . . or Else, when his wife, informed of his decision to accept a nolo plea, faints dead away, it is a reminder that democratic politics is not just a spectator sport. At times, it is literally more than flesh and blood can bear.

The distinguished moral philosophers who edit The New Republic, in the first of what will certainly be many savage notices Abrams will receive, have been harrumphing because his publisher's blurb draws a parallel with Darkness at Noon, Arthur Koestler's novel about how the Old Bolsheviks were induced to confess during Stalin's Purge Trials. But the analogy, which was scrupulously qualified, is eminently reasonable.

Like Stalin's prosecutor, Walsh was able to make headway with Abrams only when he stopped trying to prove that the Reagan Administration had really conspired to evade the vague and varying congressional restrictions on helping the Contras. (The pathetic truth was that the Administration had been so eager to please that Abrams even remembers an internal debate on whether wristwatches could be counted as "humanitarian aid," which at that point was permitted.) Instead, Walsh focused on a surreal logical point: Had Administration officials like Abrams in effect shaped their testimony to Congress to emphasize some things and downplay others?

Of course, Abrams had. Isn't that what politics is all about? It had never occurred to him that it was against the law. In fact, it's not against the law--if you are a member of Congress. The Speech and Debate Clause of the U.S. Constitution specifically grants the legislative branch absolute protection against such charges, even in the case of outright lies. This is because of the obvious danger that to do otherwise would lead to the criminalizing of political differences.

Executive-branch officials, of course, testify under oath. They are therefore subject to the strict standard of perjury as to facts. Balancing that, however, the executive branch controlled the Justice Department, from which any prosecution would normally come-until Watergate and the invention of special prosecutors.

Otherwise, nobody had previously questioned that executive-branch officials had the same sort of leeway in speech as the legislative branch. Nobody tried to prosecute Robert McNamara, for example, when he denied before Congress that the Kennedy Administration had agreed to remove Jupiter missties from Turkey as part of the settlement of the 1962 Cuban Missile Crisis, although it had. Nobody had ever interpreted essentially hortatory legislation like the Contra restrictions with such extraordinary rigor. (To illustrate this double standard: nobody has ever been prosecuted under the 1798 Logan Act confining the conduct of foreign policy to the executive branch, although legislators on "fact-finding" junkets regularly pursue a competing diplomacy, never more so than in Central America.)

All these rules were abruptly changed for one simple reason: the advent of the modern era of repeated deadlocks between a conservative Republican White House and a liberal Democratic Congress.

And this is very similar to what happened to Koestler's Old Bolshevik. After a lifetime of Marxist dialectics, he was hypnotized by being confronted with an extreme but not illogical argument: that there was no objective difference, in a revolutionary crisis, between opposing Stalin's policies and actually conspiring against him. And he was not physically tortured. Just, well, pressured.