The Magazine

Criminalizing Conservatives

Fall of 2005 will be remembered as a time when it became clear that a strategy of criminalization had been implemented to inflict defeat on conservatives.

Oct 24, 2005, Vol. 11, No. 06 • By JEFFREY BELL and WILLIAM KRISTOL
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THE MOST EFFECTIVE CONSERVATIVE LEGISLATOR of--oh--the last century or so, Congressman Tom DeLay, was indicted last month for allegedly violating Texas campaign finance laws, and has vacated his position as House majority leader. The Senate majority leader, Bill Frist, is under investigation by the Justice Department and the Securities and Exchange Commission for his sale of stock in the medical company his family started.

White House deputy chief of staff Karl Rove and vice presidential chief of staff Scooter Libby have been under investigation by a special federal prosecutor, Patrick Fitzgerald, for more than two years. When appointed in 2003 by the Bush Justice Department, Fitzgerald's mandate was to find out if the leaking to reporters of the identity of a CIA employee, Valerie Plame, was a violation of a 1982 statute known as the Philip Agee law, and if so, who violated it. It now seems clear that Rove and Libby are the main targets of the prosecutor, and that both are in imminent danger of indictment.

What do these four men have in common, other than their status as prosecutorial targets? Since 2001, they have been among the most prominent promoters of the conservative agenda of the Bush administration. For over four years, they have helped two strong conservatives, George W. Bush and Dick Cheney, successfully advance an agenda for change in America. To the extent these four are sidelined, there is a real chance that the Bush-Cheney administration will become less successful.

A number of analysts have argued that all this fits a fairly predictable pattern of two-term presidents: a vigorous first term, followed by agenda fatigue and assorted scandals in the second term. Bill Clinton, after all, had his Monica Lewinsky, Ronald Reagan his Iran-contra, Nixon his Watergate. Even Dwight Eisenhower saw the resignation in disgrace of his powerful chief of staff, Sherman Adams, over the questionable gift of a vicuña coat.

The situation today, however, seems different. There was plenty of political polarization in those earlier presidencies, but today polarization divides more neatly along partisan lines. The earlier presidencies had plenty of internal ideological rifts, but the incidence of scandal and investigation was not exclusive to one side or the other.

In today's Washington, as has been true for decades, classified information is leaked by many different players in any given policy fight in the government. The Bush administration has been replete with leaks of presumably classified information. Is the identity of Valerie Plame the most consequential leak of the last four years? Are Rove and Libby bigger leakers than, say, the CIA's George Tenet or Richard Armitage at the State Department? Do no employees of the Central Intelligence Agency (almost universally anti-Bush and anti-conservative) ever leak anything? If so, have they been indicted, or investigated by a special prosecutor? Any prosecutor?

Much the same is true of DeLay's alleged laundering of soft (corporate and/or unlimited) money in 2002 races for the Texas legislature, where only hard money (limited, individual contributions) is allowed. At the press conference called by Minority Leader Nancy Pelosi to comment on the DeLay indictment and the "culture of corruption" fostered in Washington by conservative Republicans, she was asked about her own high-dollar soft-money fundraising--supposedly banned for members of Congress by the 2002 McCain-Feingold law--to defeat a ballot initiative on congressional redistricting sponsored by California governor Arnold Schwarzenegger. She replied that her soft-money fundraising was utterly different from DeLay's because it had been blessed by her campaign lawyers, and she never raises soft money while standing or sitting on government property. Without missing a beat, reporters at the Pelosi press conference dropped the awkward subject and returned the focus to DeLay and to the larger pattern of Republican corruption DeLay's indictment supposedly signifies.

Bill Frist suddenly and unexpectedly became Senate Majority Leader in December 2002. In the 2004 campaign, Frist broke Senate precedent and visited the state of his Democratic counterpart, Minority Leader Tom Daschle, to campaign for Daschle's Republican opponent.

Then, in 2005, Frist launched a campaign against Democratic judicial filibusters. Though he did not succeed in his goal of a Senate rules change, his efforts are widely believed to have greatly reduced the possibility that Democrats could successfully filibuster a Bush Supreme Court nominee. Having emerged in the last year as a conservative leader, Frist now finds himself under investigation. Just another coincidence?

Don't try selling the idea of coincidence to Kenneth Tomlinson, until recently the chairman of the Corporation for Public Broadcasting (CPB). Last May, the New York Times published a lengthy account of Tomlinson's efforts to bring increased balance to public television--i.e., giving a bit more of a hearing to conservatives. He commissioned a modest study to confirm what most everyone already knew, that the practice on shows produced or moderated by Bill Moyers is to interview conservatives and Republicans only when they are in disagreement with the predominant conservative or Republican position on a given issue.

Within days of the Times piece, Democratic congressmen David Obey and John Dingell, ranking minority members on two key committees, wrote a letter to the CPB inspector general, Kenneth Konz, demanding a detailed, elaborate investigation of Tomlinson. Not only did Konz comply, he asked Tomlinson to provide all his emails, which Tomlinson did, and conducted a search of Tomlinson's office files without telling him. A few months later, in September, Konz gave an interview to Bloomberg News in which he confided, concerning an ongoing and incomplete investigation, "Clearly there are indications of possible violations." Konz later said he had been misunderstood, and that it was much too early to come to any conclusions.

Tomlinson's term as CPB chairman expired last month, though he remains a member of the board. But the inspector general's investigation of Tomlinson's conduct as chairman, designed by Obey and Dingell and their liberal staffers, continues with no end in sight.

Meanwhile, a kind of ideological criminalization of active, visible conservatives has become almost second nature to the left and the elite professions, including journalism and teaching, in which they predominate. Did Dick Cheney change his views on regime change in Iraq between 1991 and 2003? Don't ask him why. It's enough to give a one-word explanation of his views: "Halliburton." The unspoken premise is that Cheney changed his position to line his pockets.

And what was the left's central, most deeply felt image of the presidential campaign of 2004? Actively marketed by Dan Rather and CBS News, it was this: John Kerry was a war hero and George W. Bush went AWOL. AWOL is, of course, an acronym: "Absent Without Leave." In the military, being AWOL is a crime subject to court martial, and to lengthy imprisonment. So saying Bush was AWOL was not just an attempt to compare his military service unfavorably with Kerry's, which is fair enough. It was an attempt to criminalize Bush's military career. Though the attempt backfired when it became clear CBS had accepted faked evidence, Democratic and liberal elites were sold on the idea that "war hero" vs. "AWOL" was the key to undermining the widespread respect Bush had achieved by his response to 9/11.

Why are conservative Republicans, who control the executive and legislative branches of government for the first time in living memory, so vulnerable to the phenomenon of criminalization? Is it simple payback for the impeachment of Bill Clinton? Or is it a reflection of some deep malady at the heart of American politics? If criminalization is seen to loom ahead for every conservative who begins successfully to act out his or her beliefs in government or politics, is the project of conservative reform sustainable?

We don't pretend to have all the answers, or a solid answer even to one of these questions. But it's a reasonable bet that the fall of 2005 will be remembered as a time when it became clear that a comprehensive strategy of criminalization had been implemented to inflict defeat on conservatives who seek to govern as conservatives. And it is clear that thinking through a response to this challenge is a task conservatives can no longer postpone.

-Jeffrey Bell and William Kristol