By Dave Kopel
Bridgeton Evening News, Sept. 28, 1994
President Clinton, having effusively praised former President Richard Nixon, appears be repeating one of President Nixon s worst mistakes: appointing a White House counsel who may encourage, rather than restrain, the President's worst instincts regarding abuse of power, cover-ups, and disregard for the Constitution.
Newly-appointed White House Counsel Abner Mikva, currently a judge on the District of Columbia Court of Appeals, has compiled a track record which suggests that he may not be the right person to tell the President hard truths about the need for strict compliance with legal and ethical standards. To the contrary, Mr. Mikva appears rather adept at side-stepping legal and ethical rules himself and getting away with it, a practice which has already caused too much self-inflicted damage for the Clinton Presidency.
As an Illinois Congressman, Abner Mikva served in a Congressional session that raised the pay of federal judges. Accordingly, Mikva was not eligible to become a federal judge until after the next Congressional election, because the Constitution states: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States...the Emoluments whereof shall have been increased during such a time." In other words, if Congress votes to raise the pay of federal judges, Congressmen can't become federal judges until a new Congress takes office.
Mikva's October 1979 appointment to the federal bench far preceded the January 1981 date he would become Constitutionally eligible for a judgeship. When Senator James McClure (R-Idaho) sued to have Mikva removed from the federal bench, Mikva managed to avoid a decision on the merits by arguing successfully that McClure did not have standing to bring such a suit.
It is generally agreed that the Clintons have made the Whitewater problem worse
than it needed to be through their policy of stonewalling and covering up. Judge
Mikva, unfortunately, took the same approach regarding unethical conduct on his
own court. Judicial opinions are not supposed to be leaked to the press while
they are being written; a court is supposed to be able to work towards a final
written opinion in privacy. But during the Clarence Thomas hearings, someone
leaked a draft opinion that
Judge Thomas was working on. (Judge Thomas was then serving on the D.C. Court of Appeals, the same court as Judge Mikva.)
The draft Thomas opinion ruled against giving women preferential treatment for television and radio broadcast licenses. The leak of Judge Thomas's un-p.c. opinion was obviously intended to help defeat his confirmation to the Supreme Court. As it turned out, the dissenting judge in the licensing case was Judge Mikva. When it was suggested that the source of the unauthorized leak of the Thomas opinion should be investigated, Mr. Mikva, acting as Chief Judge of the D.C. Court, insisted that any investigation would be counterproductive; no investigation ever occurred.
On Judge Mikva's District of Columbia Court of Appeals sit three liberal Carter appointees: Abner Mikva, Harry Edwards, and Patricia Wald. The other members of the court (as of late 1993) were all conservatives appointed by Republicans, except for then-Judge Ruth Bader Ginsberg (rated "moderate" by the Almanac of the Federal Judiciary). The three-judge panels which hear particular cases are supposed to be randomly selected by computer. As detailed in a December 1993 article in the Washington Times, of the three most important Constitutional cases which had recently come before the D.C. Court, all three had coincidentally drawn the same three-judge panel of Mikva, Edwards, and Wald. (The cases involved a prohibition on federal funds being used for abortion counseling, the navy's ban on gays, and F.C.C. regulations of sexually-oriented television programming.)
According to American University math professor Basil Korin, the odds of such a draw happening at random are 4,492,125 to 1. Such a result is less likely than the probability that you will be killed in your very next automobile trip (one in four million). Such "luck" on Judge Mikva's part does not inspire confidence that he will forcefully counsel Mr. and Mrs. Clinton (themselves beneficiaries of incredible good luck at commodities trading) about not abusing the powers of their office.
With White House p.r. operatives complaining that the replacement of uncurious Special Prosecutor Robert Fiske with Kenneth Starr creates the "appearance of impropriety," the selection of Judge Mikva brings into the White House a man with a record of flagrant disregard for ordinary rules about the appearance of impropriety. While in Congress, Mikva enthusiastically (albeit ungrammatically) exulted that the "gun lobby has listed three number one enemies in this country are President Carter, Senator Kennedy, and I was proud to be third on the list."
Being "proud" to be an enemy of the gun lobby, Judge Mikva might have been expected to recuse himself on cases where the National Rifle Association was a party, so as to avoid "the appearance of impropriety."
Judge Mikva, however, decided not to recuse himself in a case involving a dispute between the National Rifle Association and the Federal Election Commission. Unsurprisingly, he ruled against the NRA.
If there was any effort to avoid an appearance of impropriety, the effort was confined to an order that the decision in NRA v. FEC case not be officially published. (The decision is nevertheless available from Lexis, which electronically publishes all appellate opinions, regardless of judicial instructions. The citation is "1993 U.S. App. Lexis 4113.")
A White House counsel has other jobs, of course, besides shielding the President and his wife from ethical investigations. The counsel should be a strong voice for protecting the Constitutional liberties of the American people. In this capacity, Judge Mikva again invites comparison to Nixon's counsel John Dean.
In the 1950s, Mikva worked on a University of Chicago study of American juries. To find out how juries really deliberated, the researchers got a federal judge's permission to bug the jury room. Mr. Mikva held the job of monitoring the tapes. As with John Dean, the secret bugs came to light, and a Congressional investigation followed; the University of Chicago promised not to bug any more jury rooms.
In a White House so permeated with hubris that an ill-conceived crime bill is confused with "the will of God," a truly wise counsel would steer the President towards compliance with the law, and perhaps even towards humility. In the ruins of a failed Presidency, John Dean concluded in his autobiography (aptly titled Blind Ambition): "We turn our attention away from our own defects, and when we are forced by untoward events to consider them, find it easy to condone them."
Mr. Mikva is more experienced and more talented than Mr. Dean, but he may not be suited for the job of a White House counsel who could help save the Clinton Presidency, a counsel who should restrain, rather than inflame, blind ambition.