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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."

The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word.

Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of that right by the patient and her doctor.

The future of the Supreme Court is the most important issue in the most important election year since 1932. Progressive Americans should treat it that way. The radical right does.

At stake is whether the twenty-first-century First Amendment will be a protector of the powerful or a resource for the weak and disfranchised.

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I still think third-party politics is mostly a crock, but then, so is two-party politics.

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