My colleague Michael Kinsley recently argued in Slate that "there is something unreal about the moral outrage, especially in Washington, over the idea that an official act might have been influenced by money or that someone might be cashing in on his or her proximity to the powerful." Cashing in on proximity to the powerful--or, if you happen to be the powerful, letting yourself be influenced by cash--accounts for much of Washington's economy, Kinsley notes. Why the "gap between high dudgeon at Bill Clinton [over his pardons] and utterly uncontroversial acceptance of so much else?"
Well, there's one obvious reason for the Outrage Gap. While no large difference may distinguish Clinton's decision-making process from what Washington pols do every day, the complaint about the Marc Rich pardon isn't mainly about process. It's about substance. The decision was shameful even if reached by the cleanest process imaginable. It sent a particularly awful message to kids in underclass neighborhoods, where it validated the gangsta worldview that the system is unfair, that all that matters is the Benjamins, and that if you work hard and play by the rules you're a sucker. Given the disastrous substance of Clinton's action, people are naturally going to wonder why he did it, whether the process was corrupt, etc. If he'd granted a regulatory shortcut to a firm whose drug cured cancer, nobody would be upset at the firm's donations to his library.
A second, less obvious point is that there may well be a qualitative "process" distinction between the Rich pardon and ordinary Washington corruption, at least as far as "cashing in on proximity to the powerful"--Rich lawyer Jack Quinn's sin--is concerned. As Marjorie Williams reported in a recent column, Quinn is now in bad odor with the local influence-peddling community. What code has he violated? What did he do differently? Simple: He lobbied his ex-boss in a way that got his ex-boss into trouble.
Williams puts the unwritten local code in the mouth of a politician: "When you guys come around on behalf of your clients, you're supposed to be looking out for us, too. You don't ask for anything that's too hard to give. You don't put your former boss in harm's way by squeezing him for anything that could end up on the front page." Slate's Jacob Weisberg, likewise, identified Quinn's betrayal of Clinton's interest (not his client's) as his central transgression:
Quinn had Clinton's trust. When he arrived to ask his former client for a favor on behalf of a current client, Clinton did not suspect that Quinn might be abusing their relationship. As a result, Quinn royally fleeced him. Abusing his rare access, he acted not as a Clinton loyalist but as a Washington hired gun. He got what he wanted and left Clinton holding the bag.
The difference is that Weisberg blames Quinn for this offense, while Williams (like Kinsley) seems to regard any attempt to draw a line between Quinn and the rest of the lobbyists as so much hypocrisy. People aren't mad at Quinn, she notes, for "using his personal relationship for ends that have nothing to do with the public interest." He just breached a self-serving tribal custom, failing "to take care of his former patron." In Washington, she says with amused contempt, "the need to protect one's old relationships trumps even the obligation to a client."
Who's right? I say Weisberg. There are two competing ethical systems here--normal lawyers' ethics and Washington lawyers' ethics. In normal legal ethics, there's no such thing as representing a client too vigorously. The whole idea is to pursue the client's interest monomaniacally, undistracted by conflicting interests. (It's the judge who is supposed to take everything into account.) In D.C., things are more complicated. Quinn, according to the local ethic, was supposed to have a conflict of interest. He should have taken into account his patron's ultimate political interest, as well as his client's immediate interest. And it's precisely these conflicts--having the trust of a patron like the president or a key congressman--that make Washington lawyers valuable. Indeed, you hire them because of their conflicts--because in some sense they're trusted by all sides. Washington lawyer Edward Bennett Williams once famously represented three sides in a transaction--a gross violation of legal ethics, but not necessarily of Washington ethics.
In this comparison, there's a lot to be said for the Washington way. The most efficient place to balance competing interests (as Kinsley himself noted a few decades ago) is in a human being's head, not in a courtroom. An elaborate adversarial contest between unyielding champions might be called for in criminal court, but it's an unwieldy way to govern. And the standard non-Washington lawyers' approach brings its own ethical dilemmas. (Should it really be a lawyer's highest duty to call in all his chips to get a break for a midnight polluter? Tax evader? Foreign dictator?) Tempering ordinary legal zeal with the self-interest of political "patrons" is one way of taking into account the public interest, since those patrons are elected and punishable by the public. Not "putting Clinton in harm's way," in Quinn's case, would have involved stopping him from doing something really bad that caused him to plummet in the polls.
The more intriguing issue is whether this small concession to the public interest--call it the Quinn proviso ("thou shalt not embarrass your patron")--is what enables the larger, corrupt structure of Washington lobbying to stand. The result, after all, is a system in which you can peddle influence all you want as long as it's about little, arcane things (or big things around the margins). But what's the alternative? A system filled with abusers like Quinn couldn't survive--politicians will inevitably seek out people they trust, and those people will have influence. (That's why Quinn's lobbying practice may not, in the long run, benefit so much from his Rich triumph. What senator is going to trust him?) I'd prefer a system that venerated and accepted only idealist-lobbyists who wouldn't take a cause unless they were actually convinced of its righteousness--and who'd then take it whether or not they were paid for it. But that would require expanding and extending the quirky Washington "trust" rule that Quinn violated. Mocking it as hypocritical isn't a good way to start.