This is not a hands-in-the-cookie-jar scandal like Teapot Dome, which sent an attorney general to jail. It is not a serious breach-of-national-security scandal like the Pumpkin Papers, which sent Alger Hiss to jail. It is not an old fashioned corruption scandal like the vicuna coat affair that cost Eisenhower’s chief of staff his job. It is not a hanky-panky-in-high-places scandal like Monicagate, which got a President impeached.
Instead, it has been basically a scandal about politics as usual. Unless there is some blockbuster revelation to come from the special prosecutor, no one has endangered the Republic. No one has sought pecuniary profit from his position in the government. No one has disgraced himself and the country by his personal behavior. Instead it would appear from what we know now that some person or persons may have leaked for political purposes classified information that half of Washington already knew and/or may have been less than totally forthcoming or completely consistent when questioned about it afterwards.
Well, if everyone in Washington who was guilty of those actions was currently in jail, a nuclear blast above the Washington Monument would not harm a soul. It is a good measure of how serious this “scandal” is in the real world that while people inside the Beltway and the political chattering classes generally are obsessed by the Plame Game, polls show that the American people at large couldn’t care less. It is, to them, the ultimate in political inside baseball. In other words, it is boring, and real scandal is never boring, almost by definition.
Essentially then, it would seem that whatever the special prosecutor does in the next few weeks, this is one more instance of a Washington trend in recent years that does indeed endanger the Republic in the long term: the criminalization of politics.
Using the tools of justice for political ends will not give us justice and it will certainly not give us healthy politics. It will, if it continues and gets worse, give us a situation resembling Rome in the first century B.C. In that century, the republican form of government of the world’s superpower slowly collapsed when the members of the political class began more and more to put their individual and short-term interests above the long-term interests of Rome itself. One means of doing so was to use the justice system to achieve the ruination of opponents. It is not a pretty history. The British author Tom Holland, in his marvelously readable and deeply learned Rubicon: The Last Days of the Roman Republic, writes that the “law was not something distinct from political life but an often lethal extension of it. There was no state-run prosecution service. Instead, all cases had to be brought privately, making it a simple matter for feuds to find vent in the courts. The prosecution of a rival might well prove a knock-out blow.”
The party out of power has an obvious interest in making the administration look bad. If it places no limits on how it does so—and tit-for-tat inevitably sets off a race to the bottom—American politics will get dirtier and dirtier. The press, often highly politicized itself, always has a powerful interest in magnifying any scandal in order to sell newspapers. The result is great pressure on the investigators to find something. And special prosecutors are like all prosecutors: they have a deep self-interest in nailing scalps to the wall. When they have only one case to pursue and unlimited funds and time with which to do so, the instinct to make the trivial serious can be overwhelming. This combination of self-interests, pursued without regard for the general good, can lead to disaster.
Every educated Roman in the first century B.C. knew the legal maxim de minimis non curat lex, the law does not concern itself with trifles. But too many of them ignored it in pursuit of power, and there was nothing to stop them. Fortunately, the American Republic has something the Roman Republic did not: a fully enfranchised people who, when roused, take their sovereign power seriously. I hope the sovereign slaps down their misbehaving public servants sooner rather than later.