Private rights and public responsibilities
THE decision of the Congress to extend limited immunity from prosecution to key figures involved in the Iran-contra imbroglio solves an immediate problem. Allowing key witnesses to stay out of jail seems a small price to pay for learning what happened. But Congress's decision has troubling consequences. Congress has implicitly accepted the legitimacy of their position that as public officials they did not forfeit their constitutional rights, key among them being the Fifth Amendment's protection against self-incrimination. This is a decision we may come to rue. Understanding why requires acknowledging that we are not a direct democracy deciding every issue by referendum, but an indirect one in which elected and appointed officials exercise power and exert influence for everyone. In return for our authorizing some to govern, we expect them to be willing to experience an abnormal degree of examination as regards both their fitness to assume office and their performance once there. We also expect them to conform to certain standards, some of which may indeed be higher than those to which we hold ourselves. This is the implicit bargain of representative democracy.
The bargain is enforced in many ways. Candidates for office are subject to unusual scrutiny. We want and need to know not only about their finances but also about their personal if no longer private lives. We care about Gary Hart's (or anyone else's) alleged womanizing not because we are voyeurs, but because we are looking for clues about values, about reactions to stress and temptation, the ability to keep commitments.
We also look to those aspiring to or holding public office to be role models, to be paragons of values and behavior the community respects. For that reason the public expects its leaders to follow the law scrupulously and then some. We study tax returns not only to make sure no evasion has taken place but to determine that avoidance, no matter how strictly legal, has not been carried out to a length that suggests a concern for personal welfare to the detriment of citizenship. We look askance at regulators who leave government to work for the regulated, and at procurement officials who leave to join contracting firms.
Special claims on those who serve in public positions might have several other public benefits as well. It would constitute a reminder that they are occupying an office as a temporary trustee, and that they should resist the temptation to confuse themselves with their positions. It serves as a deterrent, too. There will always be temptations to go beyond the law in order to further some end of policy. There may indeed be times when the public good demands that the law be broken; if an official judges this to be the case and proceeds to do so, he should then be prepared to defend himself without resorting to constitutional protections.
Many in public life will object, believing they already are being asked too much. We demand a lot of our public officials without providing much in the way of compensation. Hours can be long, pay relatively low, privacy regularly violated. Provision of drug tests and polygraphs is growing. Ability to participate in partisan politics is circumscribed. Life for those abroad, whether in the military, the foreign service, or the drug enforcement agency, hazardous. Respect is low: witness both the pejorative connotation of the term ``bureaucrat,'' and the reality that more votes can be garnered running against Washington than with it.
Yet there must be something there, something significant in the satisfaction that comes from affecting policy that affects the many. Candidates for office put themselves through great personal and financial ordeals. Hundreds of thousands choose government in one form or another for a career. The key word here is choice; no one is coerced to lead a public life.
And with that choice must come a willingness to put society's interests before one's own. The distribution of power is skewed in favor of the public official. Rewarding those who ``plead the Fifth'' with immunity from prosecution only encourages future abuse of power. Authority without accountability is a dangerous mix.
We tell ourselves that we are a nation of laws, not of men, and that no individual is above the law. This is true, but not the whole truth. Law ought to be used principally to protect society from an individual's abuse of power; using it to protect individuals from the consequences of their own abuse of power should take a back seat. The privilege of enjoying public trust brings with it an obligation to forego at least some protection of the law and make oneself available to the public one purportedly serves. Men and women ought not exercise unequal power and authority and then still demand equal rights. Legally arguable it may be, but politically just it is not.
Richard N. Haass, a former official in the Departments of Defense and State, teaches at Harvard University's John F. Kennedy School of Government.