Review of Undue Process: A Story of How Political Differences Are Turned into Crimes. By Elliott Abrams


Republished on VDARE.COM on March 28, 2003

National Review,
Nov 30, 1992 v44 n23 p46(2).

Undue Process: A Story of How
Political Differences Are Turned into Crimes, by Elliott
Abrams (Free Press, 250 pp., $22.95)

DROP!
Someone had thrown a ball at my chest . . . I sat up,
shaken, startled awake …. A dream, probably. Or maybe
just a small heart attack."

Elliott Abrams was only 43 last
fall when he was rushed to the hospital from special
prosecutor Lawrence Walsh`s office in Walsh`s official
limousine. (Walsh was worried about his image. An
earlier victim had attempted suicide.) The doctor said
the symptoms seemed to be caused by "this pressure you
are under." Abrams was indeed under pressure. He and his
lawyers were negotiating the final details of what was
to be a much-gloated-over guilty plea: to two charges
that he had "withheld information“ about the Contra
support network when testifying before Congress as a
Reagan Administration official back in 1986.

Abrams passes over this incident
relatively quickly in his clear and forceful journal of
the few weeks in which Walsh suddenly reactivated his
case after years of silence and in effect bastinadoed a
settlement out of him. He is also perhaps more discreet
than it appears at first sight about the impact of the
ordeal on his wife and three small children, although
their presence is constant in the narrative. He prefers
discussing the legal and political implications. And
these are indeed profound and disturbing.

Yet that poor fluttering heart
cries out for attention. Like the forgotten moment in
Spiro Agnew`s very different memoir, Go Quietly . . .
or Else,
when his wife, informed of his decision to
accept a nolo plea, faints dead away, it is a
reminder that democratic politics is not just a
spectator sport. At times, it is literally more than
flesh and blood can bear.

The distinguished moral
philosophers who edit The New Republic, in the
first of what will certainly be many savage notices
Abrams will receive, have been harrumphing because his
publisher`s blurb draws a parallel with Darkness at
Noon,
Arthur Koestler`s novel about how the Old
Bolsheviks were induced to confess during Stalin`s Purge
Trials. But the analogy, which was scrupulously
qualified, is eminently reasonable.

Like Stalin`s prosecutor, Walsh was
able to make headway with Abrams only when he stopped
trying to prove that the Reagan Administration had
really conspired to evade the vague and varying
congressional restrictions on helping the Contras. (The
pathetic truth was that the Administration had been so
eager to please that Abrams even remembers an internal
debate on whether wristwatches could be counted as
"humanitarian aid," which at that point was permitted.)
Instead, Walsh focused on a surreal logical point: Had
Administration officials like Abrams in effect shaped
their testimony to Congress to emphasize some things and
downplay others?

Of course, Abrams had. Isn`t that
what politics is all about? It had never occurred to him
that it was against the law. In fact, it`s not against
the law–if you are a member of Congress. The Speech and
Debate Clause of the U.S. Constitution specifically
grants the legislative branch absolute protection
against such charges, even in the case of outright lies.
This is because of the obvious danger that to do
otherwise would lead to the criminalizing of political
differences.

Executive-branch officials, of
course, testify under oath. They are therefore subject
to the strict standard of perjury as to facts. Balancing
that, however, the executive branch controlled the
Justice Department, from which any prosecution would
normally come-until Watergate and the invention of
special prosecutors.

Otherwise, nobody had previously
questioned that executive-branch officials had the same
sort of leeway in speech as the legislative branch.
Nobody tried to prosecute Robert McNamara, for example,
when he denied before Congress that the Kennedy
Administration had agreed to remove Jupiter missiles
from Turkey as part of the settlement of the 1962 Cuban
Missile Crisis, although it had. Nobody had ever
interpreted essentially hortatory legislation like the
Contra restrictions with such extraordinary rigor. (To
illustrate this double standard: nobody has ever been
prosecuted under the 1798 Logan Act confining the
conduct of foreign policy to the executive branch,
although legislators on "fact-finding" junkets regularly
pursue a competing diplomacy, never more so than in
Central America.)

All these rules were abruptly
changed for one simple reason: the advent of the modern
era of repeated deadlocks between a conservative
Republican White House and a liberal Democratic
Congress.

And this is very similar to what
happened to Koestler`s Old Bolshevik. After a lifetime
of Marxist dialectics, he was hypnotized by being
confronted with an extreme but not illogical argument:
that there was no objective difference, in a
revolutionary crisis, between opposing Stalin`s policies
and actually conspiring against him. And he was not
physically tortured. Just, well, pressured.

So Abrams was induced to plead
guilty to these two heinous crimes: 1) He told Congress
that no foreign government money was supporting the
Contras. This was technically true. But he knew funds
had been promised by the Sultan of Brunei, although they
had not yet materialized. 2) In explaining to Congress
that the Administration encouraged but had not organized
the private network supporting the Contras, Abrams
added–speaking extemporaneously–that "we don`t have
conversations" with it. Of course he knew Oliver North
was, literally, talking to the organizers. But he just
meant that nothing illegal was going on.

This was Walsh`s famous victory.
And he needed one badly after the rout of his
prosecution of North. The court, significantly, treated
it with complete contempt. Abrams was sentenced to just
one hundred hours of community service, two years`
probation, and the $50 minimum fine required by law. But
in legal fees and in terms of his shattered career, the
costs to him are crushing. The bitter truth is that he
would have been far better off had he spent the 1980s on
Wall Street with the rest of his Harvard Law School
class, rather than serving his country and saving the
world.

For Abrams will never be allowed to
forget the fact that he pleaded guilty. Should he have
fought, as his beautiful and ferocious wife memorably
advocates throughout this book? He estimates it would
have cost a million dollars, which he did not have. And
a large piece of his life John Poindexter fought Walsh
for five years before charges were finally dismissed.

Like Koestler`s Old Bolshevik,
Abrams was hypnotized by the prosecution`s logic, or
more precisely by the undeniable possibility that a
Washington, D.C., jury would be hypnotized by it.
Furthermore, he notes grimly, who remembers now the fact
that Reagan Labor Secretary Ray Donovan was ultimately
exonerated? 

There` is a villain in this book,
only gently indicated: not the liberal witchhunt,
unscrupulous and totalitarian though it was, but the
Reagan Administration in its final, feeble stage. Maybe
it looks good in retrospect. But it was the Reagan White
House that panicked and triggered the special prosecutor
mechanism, that abandoned loyal officials to it, that
left the executive branch so embroiled in legal snares
that only the wealthy, foolhardy, or cravenly compliant
can now consider serving there. Above all, it was Reagan
who could have saved these men by pardoning them on his
last day in office. He did not, although it would have
cost him nothing. In this, he failed as a political
leader and as a man.

And this failure has exacted a
terrible and possibly permanent price from the
conservative movement. A curious absence from Abrams`s
book is the name of his formidable father-in-law, Norman
Podhoretz, editor of Commentary and leader of the
neoconservative ex-Democrats, although he was obviously
intimately involved with the fami1y`s torment and makes
several anonymous but characteristically acerbic
appearances. Yet this relationship explains something of
the Democrats` fury against Abrams. And it also explains
the immense pressure Podhoretz was under in exactly the
weeks when his (hotly reciprocated) quarrel with Pat
Buchanan reached its appalling climax, materially and
perhaps fatally damaging the conservative movement`s one
chance to escape from the Bush catastrophe. —