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In campaign speeches George W. Bush repeats Al Gore's defense of his 1996 campaign fundraising phone calls from his government office--"there is no controlling legal authority"--so often that it's become a stock line in Bush's stump remarks. Attorney General Janet Reno's recent refusal of Republican requests to refer Gore's alleged violation of federal law to an independent counsel gave the GOP an opening to heap even more verbal abuse on Gore. Gore's words, spoken at a press conference three years ago, although including a phrase common enough among lawyers, were widely perceived at the time as defensive or evasive. His use of the phrase was judged by many commentators to have been a political mistake of the first order.
Ironically, it was also a legal mistake. There was and is "controlling legal authority" that actually favors Gore: It is the Constitution of the United States. The law he allegedly violated--Section 607 of the US Criminal Code--would very likely be found unconstitutional if it was ever tested in court.
Section 607 makes it a felony "for any person to solicit or receive any contribution...in any room or building occupied in the discharge of official duties." Attorney General Reno determined that Section 607 covers only "hard money" campaign contributions. Gore testified that he believed that the sums he was soliciting were "soft money." Thus, Reno concluded there was nothing to prosecute and no reason to appoint a special prosecutor.
But Reno's narrow technical explanation for exonerating Gore did not dispel, and may have compounded, the fallout from the "no controlling authority" rationale. A compelling constitutional authority is a much firmer vindication.
The constitutional failing of Section 607 is that it does not require proof of criminal intent. Section 607 says "any person who violates this section shall be fined under this title or imprisoned not more than three years, or both." The three-year maximum sentence makes every violation of Section 607 a felony--even when those involved had unintentionally failed to comply with the law's technical requirements. The Federal Criminal Code (like that of most states) defines a felony to include any offense punishable by imprisonment of more than a year. Every felony is also an "infamous crime" as that term is used in the Constitution. (The Fifth Amendment guarantees that no person may be prosecuted for an "infamous crime" unless a grand jury votes to charge him in an indictment.)
The concept of a felony that does not require criminal intent is jarring to every law school graduate who studied Justice Robert Jackson's classic opinion in the Supreme Court case Morissette v. United States (1952). In his ruling, Jackson traces back to Blackstone's famous eighteenth-century book of Commentaries the Anglo-American concept that a crime requires a "vicious will" in addition to a prohibited act. Jackson states the governing principle this way: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
Applying this principle, the Supreme Court threw out the conviction of Morissette, who had been found guilty of the crime of "converting" (i.e., stealing) government property because he had taken and sold some rusty and apparently abandoned bomb casings that were lying around the grounds of a military bombing range. The Court roundly rejected the trial judge's instruction to jurors that Morissette's belief that the casings had been abandoned by the government was no defense against the criminal charge of stealing government property. The Supreme Court ruled that proof of a criminal intent on Morissette's part was required to convict him of being a thief.
The due process clause of the Fifth Amendment was designed to preserve the fundamental principles of fairness that the Anglo-American legal tradition recognized in Thomas Jefferson's time. The lawyers who framed, adopted and ratified the due process guarantee of the Bill of Rights were steeped in the study of Blackstone and would surely have considered a requirement to prove criminal intent for an infamous crime a fundamental principle of Anglo-American jurisprudence, a part of the "due process of law" that their Bill of Rights guaranteed.
The due process clause, along with Blackstone's Commentaries and cases such as Morissette, thus provides "controlling legal authority" that should protect the Vice President, or any other officeholder or citizen, from being prosecuted under the felony-without-fault provisions of Section 607. The Vice President and the nation would have been better served had the Attorney General recognized this as a controlling basis for denying the requests for an independent counsel--and had she done so three years ago, before Gore invoked the infelicitous phrase that there is "no controlling legal authority."
We don't have a TV at home, so we've missed the much-drubbed NBC Olympics coverage. So when a little friend of my son's said she'd been watching, I asked her if any of the events had inspired her to want to be an Olympic athlete when she grew older.
"Yeah!" she raved. "Just wait! I'm gonna be a rock star and I'll ride onto the field with my helmet on my head and my crossbow on my back and I'm gonna have a band and six backup singers, and then when they light the torch, all the soldiers I've been saving in my disk drive are gonna burst onto the screen and do a dance and then there'll be fireworks, fireworks, fireworks, boom, boom, kaBOOM! Like you've never seen before!"
Flushed from such imaginative exertions, this dangerous little person ran off with my precious son, she humming a tune by Britney Spears, he shouting a song by the Backstreet Boys. (It was a perfect fugue, by the way. Has anyone else noticed that Britney is just Lance hung upside down and played backwards?)
Each culture develops its own sense of sport, I suppose. When I travel, I confess I make up for the deprivation at home by watching a lot of hotel-room television. I am always fascinated to see the kinds of competitive sports that people will sit up late for in other parts of the world. I've been to Edinburgh during sheepherding finals (sort of a par course for sheepdogs grafted onto a running of the bulls, except with large shaggy rams. Like Babe, but vicious). I've spent time with friends in Minnesota where ice fishing--which is, I assure you, one of the slower sports known to mankind--took up Real Time in dinner party conversation.
Once I spent five days in a small German town in a university dormitory built on the site of what had been a Nazi bank vault. This being truly the belly of the beast, I was not at all surprised when the heat went out the moment I got there. Within hours, I fell sick with a raging fever, my body temperature rising with each degree the room temperature fell. As I lay shivering beneath the thin cotton blanket, I used my last ounce of strength to flick through the channels on the steel television set (which was bolted to a fixed rod hanging from the ceiling, like the ones in hospitals or prisons). Aside from the ubiquitous CNN, all the available stations were displaying the same sporting event--in German, Swiss German, Farsi, Turkish and Basque. The event in question appeared to be a particularly formal version of Austrian dressage: horses with knotted manes and beribboned tails prancing rigidly through backbreakingly unnatural placements and postures, two-stepping, then waltzing to martial music. The riders, who wore high hats and polished boots, put the animals through their paces with the reins tightened so as to hold the horses' necks upright, the bits so tight the horses looked as though they were leering. The riders were tense and ferocious. The horses were precise, wild-eyed, slobbering with foam.
In happier times, I've been to the far north, up around the Arctic Circle, where Icelandic log-tossing is what in other climes might be called "hot." These are not little logs we're talking about, if the broadcast I saw is any measure--contestants trained by hoisting Yugo minivans on their backs. Indeed, in a side event to the log-toss, they ran a course where every thirty feet or so they stopped to pick up a 350-pound block of stone and chuck it in a rain barrel. "These Icelandic strong men" the voiceover explained, "consume from eight thousand to ten thousand calories a day"--a conceivable goal if, like me, you're thinking of the energizing properties of Ring Dings and marshmallow fluff, but an impressively ambitious one when you learn that a professional log-tosser's diet is fat- and sugar-free.
In South Africa, I once watched a spoofy (I think) combat in which a white gladiator and a black gladiator battled each other up the sheer face of a wall, the goal being not just to reach the top first but to dislodge your opponent so that he has no chance of ever making it up.
Then there's Wisconsin, where, back in the eighties, I lived through three deer-hunting seasons. The season was only nine days long but with more than 600,000 licensed hunters on the prowl, around 260,000 deer could expect to meet their maker within that time. "I guess they have bad aim," said my sister dryly when she heard this bit of data, but the truth is they did indeed have exceedingly bad aim. If memory serves me, Wisconsin was the only state that actually gave blind people a license to shoot. I was told they had to wear a neon-red sign that said: blind hunter (thus giving other blind hunters the chance to duck, I suppose).
Not only did more deer die at that time of year than at any other, more Wisconsiners did too. So the real suspense of the daily television tally was always the human toll, not the animal. Lost bullets seeking their mark took shortcuts through people's breakfast nooks and open bathroom windows and attic hideaways. Stray bullets always caught people by surprise in the middle of some intensely private act. Not that every such death was a complete surprise: One year the sheriffs and game wardens got worried about hunters who shot across busy highways at deer on the other side. So they set up lots of deer decoys by the sides of lots of busy highways to catch the sort of people who would do such a thing. Many of us just hid in the basement until they thought the logic of that one over.
I'm optimistic that we humans will always express our sporting instincts in locally interesting and richly varied ways. Indeed, a recurring criticism of the NBC coverage has been precisely its homogenization of the Olympics--the sappy human interest, the weepy mood music, the breathlessly overdramatized replays. But when I think about what the youngest consumers of American sports culture are exposed to as routine athletic fare, I guess it's no wonder some of them would opt for the halftime song-and-dance act. They already know that too often the real action is played out in culturally revealing games like the Bobby Knight Memorial chair-tossing competition, Hide and Seek the Steroids, the Million Dollar Endorsement Dash, Soccer Mom Slugfest and Hockey Dad Death Match.
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