From the WSJ Opinion Archives
Independent Counsels and Double Standards
The New York Times didn't mind when Lawrence Walsh implicated President Bush just days before the 1992 election.
Yesterday's New York Times, in an editorial entitled "Mr. Ray's Ill-Timed Report," called on Robert Ray, the Whitewater independent counsel, not to issue his report in mid-September as he currently plans to do.
Its reason is that the report is very likely to be controversial but Hillary Clinton is unlikely to be indicted. The Times writes:
In such a report, Mr. Ray is almost certain to pass judgment on Mrs. Clinton's behavior and subsequent testimony, much as he did in the Travelgate report. It is because of this that fundamental questions of timing and fair play arise.
Mr. Ray argues that a mid-September release will leave plenty of time for comment and rebuttal. This ignores political reality. . . . In the absence of stunning new information worthy of prosecution, he should stand aside and let the voters decide based on the existing voluminous public record. If Mr. Ray cares at all about his credibility, and about whether the public sees his report as an objective document or a time bomb lobbed at Mrs. Clinton's campaign, he will delay until after the election.
It is not often, to put it mildly, that a major newsgathering organization calls upon a newsmaker to suppress information in order to be "fair" to a political candidate. I wondered what the Times' reaction had been to an earlier instance of an independent counsel releasing information near an election.
On Oct. 31, 1992, three days before the election in which Bill Clinton defeated George Bush, the independent counsel in the Iran-contra scandal, Lawrence Walsh, made public evidence that raised questions about Mr. Bush's involvement in the scandal, as part of an indictment of former Defense Secretary Caspar Weinberger. Mr. Bush himself, like Mrs. Clinton, was in no real danger of being indicted but was about to face the voters. On Nov. 9, 1992, in an Editorial Notebook piece, The Times' John P. MacKenzie wrote:
Was it necessary to quote from the notes [implicating Mr. Bush] in the indictment itself? No; that was the prosecutor's option. . . .
Could Mr. Walsh have postponed the indictment past the election? Yes, but his office had promised it by the end of October under a demanding court timetable. Could he have sealed the indictment until after the election? Perhaps, but that would have had political consequences too, and sparing candidates embarrassment is not one of the customary reasons for sealing an indictment.
So the question becomes: What should an independent prosecutor, appointed to guard against politically tainted justice, do when his decision--either way--might affect a national election? here's a rough first answer: If Lawrence Walsh had suppressed this information, the public would be justifiably angry. Angry enough to wonder why we bothered to have an independent counsel.
Mr. Gordon is a columnist for American Heritage and author of "The Great Game: The Emergence of Wall Street as a World Power, 1653-2000" (Scribner, 1999). Dorothy Rabinowitz is on vacation.
