Campaigning for the presidency, George W. Bush promised to return high ethical standards to Washington. Surely, though, nobody dreamed Bush’s standards would be so high as to require the violation of ethics laws. Yet that’s the position Karl Rove and White House counsel Alberto Gonzales are taking on Rove’s meeting with Intel executives about a merger, subsequently approved, that Intel sought at a time when Rove owned more than $100,000 in Intel stock.
To the unpracticed eye, the White House would appear simply to be stonewalling. In the July 2 New York Times, Richard Berke and Frank Bruni do their damndest to get an apology out of Rove. “Are there things that I think I could have done a better job on?” Rove tells the Times. “You betcha.” But “I’m not going to get into a recitation of my many and manifold sins.” Close but no cigar! From a greater distance, Chatterbox also tried, and failed, to goad Rove into saying “I’m sorry.” But the White House is operating on a higher ethical plane than hacks like Berke, Bruni, and Chatterbox can easily grasp. Chatterbox learned this by reading the letter Gonzales wrote Friday answering Democratic Rep. Henry Waxman’s questions about Rove. (Because the White House Web site neglected to post Gonzales’ response, Chatterbox has done so. Click here for Page 1, here for Page 2, and here for Page 3.) If you read the Gonzales letter very carefully, you will learn that Rove deliberately neglected to get advance permission from the White House ethics office to meet with Intel, as is required by law. In violating that law, Rove was in Gonzales’ eyes, honoring a higher law.
Before proceeding to metaphysics, let’s take a look at Title 18 of the U.S. Code, Section 208. It forbids federal employees from participating “personally and substantially” in decisions in which they might have a financial interest, granting an exception only to individuals who have been given permission to do so by a government ethics officer on the grounds that “the interest is not so substantial as to be deemed likely to affect the integrity” of that federal employee’s official actions. The rules are further elaborated in Title Five of the Code of Federal Regulations, Section 2635(e), Section 502(d):
Where an employee’s participation in a particular matter involving specific parties would not violate 18 U.S.C. 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the agency designee may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations.
The regulation then proceeds to give a few examples of factors that “may be taken into consideration.” Let’s weigh them:
1)The nature of the relationship involved;
More than a hundred grand in stock? Chatterbox would call that substantial.
2) The effect that resolution of the matter would have upon thefinancial interests of the person involved in the relationship;
Beneficial to Intel, hence to Rove (see above). If it weren’t beneficial to Intel, why would Intel executives bother flying to Washington to discuss it?
3) The nature and importance of the employee’s role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter;
We don’t know what Rove said at the meeting. Certainly it’s doubtful he had any expertise to dispense on antitrust law. But that isn’t what Intel would have gone to see Karl Rove about in the first place. Probably, it was mainly seeking access, and the mere fact that Intel could tell other administration officials that White House big shot Karl Rove had met with Intel would likely have opened doors.
4) The sensitivity of the matter;
High.
5) The difficulty of reassigning the matter to another employee;
Low.
6) Adjustments that may be made in the employee’s duties that would reduce or eliminate the likelihood that a reasonable person would question the employee’s impartiality.
In this case, Chatterbox has no idea what these might be.
OK. We’ve established that the White House ethics office would have had a difficult time granting Rove a waiver, given the unforgiving language of 502(d). But remember, Rove was obeying a higher law. After describing the extensive ethics training Rove was exposed to upon assuming his White House post, Gonzales writes these two extraordinary sentences:
Pending the divestiture of his stockholdings, Mr. Rove took care to avoid any such impropriety. Accordingly, he did not seek a waiver [italics Chatterbox’s] … and our office made no determination concerning any such request.
Gonzales isn’t saying that Rove neglected to seek a waiver out of indifference to ethical rules. He’s saying that Rove declined to seek a waiver out of admiration for those rules. Apparently Rove felt that, with waiver in hand, he’d be allowed to bend the rules. No waiver, no ambiguities to exploit. Not getting a waiver might be compared to eschewing contraceptives in favor of the rhythm method or, better yet, abstinence. Or perhaps, given the temptations Rove exposed himself to, a better analogy might be to the Puritan practice of bundling.
Perhaps aware that conventional minds might see Rove’s failure to get the waiver a bit differently, Gonzales takes care to make plain that his office never approved it (“our office made no determination”). Gonzales’ last-ditch argument, pitched to law-respecting plodders like Chatterbox, is that none of the elaborate rules spelled out above pertain because “Mr. Rove did not participate personally and substantially [italics Chatterbox’s] in any discussion or decision relating to that merger.” Gonzales then cites Title 5’s definition of “personally and substantially” (Section 402[b]4), which states that it means “more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.” But Gonzales omits a couple of important sentences:
Participation may be substantial even though it is not determinative of the outcome of a particular matter. … A finding of substantiality should be based not only on the effort devoted to a matter, but also on the importance of the effort.
Is a meeting with the president’s chief political aide important? Chatterbox, hewing once again to an unimaginative reading of the situation, can’t escape believing that it is.
