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THE NEW YORKER : AUGUST 8, 1988 PAGE 21

THE TALK OF THE TOWN

The report of the independent counsel James C. McKay, who was asked to investigate the activities of Attorney General Edwin Meese, documents examples of old-fashioned corruption.misuse of influence and office. Although the facts set out have drawn a lot of attention and are no longer much in dispute, the report's lawyerly care and discipline deserve some notice. The report chastises Meese for abusing the tolerance written into certain laws, for showing insensitivity to the appearance of impropriety, and for doing other things that by almost any standard but Meese's were wrong; and yet McKay, because he was asked to investigate only whether Meese broke any criminal law, forwarded to the Office of Professional Responsibility in the Justice Department the task of deciding whether Meese had violated the federal code of ethics. McKay judged that Meese probably committed two violations of conflict-of-interest laws, by taking part in decisions about deregulation of the telephone industry while he held stock in seven regional phone companies that were affected by those decisions, and two violations of the tax laws, by failing to pay taxes on capital gains from the sale of securities and by filing a tax return that failed to disclose the sales. But McKay decided not to recommend prosecution, in part because he found no evidence that Meese had acted out of self-interest in the phone case, and because Meese was, in effect, a first-time offender in the tax case and said he intended to pay the tax eventually.

Before the Attorney General read the report, he claimed that it was a "vindication," and announced that he was resigning with his name cleared. After the report was released to the public, however, he said that he was "appalled" by its conclusions, and that the independent counsel had "violated every principle of fairness and decency" in reaching them. According to Meese, McKay, after deciding not to recommend prosecution, circumvented the legal system to make "a false implication of wrongdoing".something that is "absolutely at odds with every principle of our system of justice." While it's true that prosecutors don't usually comment on their decisions not to seek indictments, McKay really had no choice in the matter: the independent-counsel law required him to submit to a special court in Washington a report explaining his investigation and his recommendations, and it was the court that released the report. Moreover, the actual text of the report shows conclusively that Meese benefitted from McKay's restraint as a prosecutor and his precise sense of his duties.

When Assistant Attorney General William Weld met this spring with President Reagan to explain why he felt compelled to leave the Meese Justice Department, he told the President that in his view Meese had violated the federal code of ethics and, further, that if it were up to him he would approve the prosecution of Meese. "The problem," as Weld testified before the Senate Judiciary Committee last week, "is the relationship with Mr. Wallach." E. Bob Wallach, a California attorney and a longtime friend of Meese's, regularly sought the Attorney General's help for himself or his clients. In return, Weld claimed, Wallach presented Meese with illegal gratuities, which included forgiving sixty-five thousand dollars in legal fees; helping to arrange a forty-thousand- dollar-a-year job for Meese's wife, Ursula; and introducing the Meeses to an adviser who in about two years increased their investments by more than fifty per cent. These exchanges began in 1981, Weld said, soon after Wallach gave a lunch for some prominent lawyers and judges in San Francisco to advertise "his close friendship with and access to Mr. Meese," and they continued through 1987. During that time, Meese was instrumental, as Counselor to the President, in the Army's decision to award a thirty-million-dollar contract to the Wedtech Corporation, Wallach's client, and as Attorney General he enabled Wallach to play a highly unusual, quasi-diplomatic role in the billion- dollar Iraqi-pipeline deal. Weld told the Senate committee, "My conclusion was that there were simply too many official acts performed by Mr. Meese to benefit Mr. Wallach, and too many things of value conferred by Mr. Wallach on Mr. Meese, for a prosecutor to conclude as a matter of fact or law that the gratuity [law] would not apply."

In McKay's view, there were "notable coincidences" in the timing of Wallach's help to Meese and Meese's aid to Wallach, but McKay's final decision was determined by a cautious judgment about the evidence that he was able to gather. (Meese claimed he couldn't remember what he had done or thought at key junctures in his dealings with Wallach, and four other witnesses chose not to speak to the independent counsel about crucial details.three, including Wallach, because they were implicated in related crimes.) What Meese and Wallach did for each other could have been done in the name of friendship, the McKay report concludes, and there was "no direct evidence" that Meese accepted anything of value from Wallach with the "state of mind" needed for a crime. Some observers have speculated that McKay would have recommended Meese's indictment if he had been a regular prosecutor instead of an independent counsel.that he wanted to avoid appearing overzealous. But the discretion that American prosecutors enjoy makes it no surprise to legal experts that two responsible prosecutors like Weld and McKay could reach opposite conclusions about how to proceed on the same facts. That discretion, its advocates believe, leads to just or merciful results more often than to arbitrary ones.

"No direct evidence," "insufficient evidence," "no substantial evidence".repeatedly, in his report, McKay gives Meese the benefit of the doubt by adhering to rules of evidence that, in his view, kept him from reaching what might seem logical conclusions from the "circumstantial" evidence. It's hard to see how this approach supports Meese's assertion that the facts in the McKay report show that not only did he do nothing illegal, he did nothing wrong. By maintaining this, Meese suggests that he is either contemptuous of the standards expected of a high-ranking official or oblivious of them. In a hundred-and-four-page reply to the McKay report, Meese's lawyers contend that it is "first and foremost, an exercise in self-justification." On the contrary, McKay's submission underscores how deliberate and punctilious he was in fulfilling the requirements of the law. The McKay report is careful about ideas at the heart of the American legal system, about the process by which laws are enforced and legal complications resolved, and about the conduct expected of high officials in the performance of their duties. 'Where a law required a close call or a balancing of interests, the report is measured and straightforward: it shows that respect for the law can be forcefully expressed in something as subtle as an attitude as well as through basic compliance with the rules. McKay worked toward a considered legal outcome rather than the sort of predetermined result so often favored by the Reagan Administration and the Attorney General. His report demonstrates precisely what has been lacking in Edwin Meese's approach to the law during his almost eight years in Washington.




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