The nation’s polity has recently experienced sets of
activities that one can see as basic stabs at the legitimacy of the system. Probably the most noted is the impeachment
and subsequent trial of the President.
The other is the interference of the Attorney General into Justice
Department investigations of the President’s allies in the political thicket. One of the related issues into these events
is the issue of partiality vs. impartiality.
This blog does
not cite these developments to pass judgement on them, but to take the
opportunity of their notoriety to point out a concern about which Lawrence
Lessig writes.[1] That is the issue of partiality in the
political landscape even when the involved institution is structured to
minimize partiality.
For example, that would include the
courts and regulatory agencies that keep tabs of business activities in which
their acts affect those businesses’ bottom lines. It also, in some cases, affects the political
maneuvering of the political players at a given time.
The term that
identifies the issue is “conflict of interest.”
People in general and the law have favored provisions that attempt to
eliminate or, at least, minimize conflicts of interest. This is particularly the case when it comes
to the behaviors of businesses, political entities, and others who have, to
some meaningful level, an effect on the welfare of people.
Lessig describes how a mere owning of
a share of stock issued by a corporation can undermine any decision by a judge in
court if that judgement favors that corporation. Surely, such a minimal stake would not have
an effect, but the mere appearance of any sort of influence emanating from a
possible financial stake taints that judgement.
Therefore, such a judge is expected to recuse him/herself from any such
case.
What is important, then, among the
other related issues is the appearance or suspicion of any such tie-in that might
be viewed as a potential conflict of interest.
Why? Because in such matters one
is worried over an institution that, in turn, depends on people accepting
established processes on how political or legal matters are handled and settled.
They need to maintain their pristine reputation
– their “optics” – as much as possible to retain their legitimacy. And in this train of “why’s” the next one
asks: why are institutions important? Because, and this is being highlighted in the
current political scene, one cannot have a law for every development that causes
damage to those processes a polity needs.
Needs for what? For actual governmental actions to occur that
support or to avoid those actions that undermine the appearance of prudence
and/or justice. To what extent is this
the case? Lessig writes,
The answer to these questions is that
uncertainty has its own effect. The law
might say someone is innocent until proven guilty. But law be damned, if you learn that a school
bus driver has been charged with drunk driving, you’re going to think twice
before you put your child on his bus.
Indeed, even if you think the charge is likely false, the mere chance
that it is true may well be enough (and rationally so) for you to decide to
drive your kid rather than risk his life on the bus. The charge doesn’t make the driver “guilty”
in your head; but it certainly will affect whether you think it makes sense to
let him drive your kid.[2]
So, if one imposes such a standard on
a bus driver, what should it be on elected politicians, appointed or elected
judges, or those who occupy bureaucratic positions – some having judicial
powers over what millions of citizens or hundreds of businesses can do legally?
Yes, the bus driver example is easier
to visualize and when one is considering the fate of one’s child, that elicits a
more visceral reaction. But when one
considers the numbers governmental agents affect, then reputation – what looks “kosher”
– is very important.
And to that
degree, one can reasonably question the propriety of a judgement that is based
on the “beyond a reasonable doubt” standard.
Reasonableness, when so many are potentially harmed, points to a less
demanding standard to impart a guilty verdict.
That is, that standard can justly depend on appearances. As such, it falls on public servants to secure
that people do not have any reason – reasonably established or not – to suspect
wrongdoing on their parts.
That is why it is reasonable to
question an Attorney General taking personal control over investigations that
might unearth evidence of illegal or imprudent decisions or actions on the part
of a President’s administration. The AG
is part of that administration and, therefore, such direct interventions points
to a conflict of interest. Hence, the
institution – the established way – has been for the AG to keep an arm’s length
from such investigations; at least, until now.
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