The Class to Whom Mere Laws Do Not Apply

October 27, 1994|By GEORGE F. WILL

WASHINGTON — Washington.--Some pertinent pre-election reading is Dan Rostenkowski's brief in defense of himself and an audacious proposition.

The proposition is that all the interesting things he is accused of doing with public money are no business of anyone or anything but the Congress in which he has flourished for 36 years and to which he will be returning in January in spite of his 17-count indictment for behavior that looks to the laity, and to federal prosecutors, a lot like thievery.

The charges in his 17-count indictment are that he made hundreds of thousands of dollars of payments to ''ghost'' employees who performed personal services for him, that he acquired ownership of congressionally leased automobiles, that he used official purchases from the House stationery shop for personal or campaign uses, that he diverted to personal use official funds authorized for postage and that he tampered with a witness.

He is charged with diverting $724,000 in federal money and campaign funds to personal use in a pattern of corruption spanning portions of three decades.

He says the very structure of constitutional government -- the separation of powers -- is jeopardized by any judicial proceedings about these allegations. He says a trial is precluded by two clauses of the Constitution.

One says that no member shall be ''questioned in any other place'' concerning a ''speech or debate'' in either house. Another says each house shall make its own rules and punish transgressors.

Mr. Rostenkowski says that House rules, which he calls ''amorphous and transient,'' provide no standards by which a court could decide, for example, whether a member has violated the rules which grant ''vast discretion'' regarding the use of office funds and employees.

In a stinging response, prosecutors say he is claiming that ''the whole question of whether he systematically looted the public treasury'' is ''beyond the reach of criminal law.''

The ''speech or debate'' clause derived from the desire of the Constitution's framers to protect candor in legislative deliberations.

It pertains to ''legislative acts'' broadly construed to include committee work, communications with other members, and other acts directly relevant to deliberation about legislation.

However, the Supreme Court has held that the ''speech or debate'' clause does not prohibit inquiry into conduct simply because it is done by a legislator, regardless of whether it is closely connected to the process of legislating.

One court has already rejected Mr. Rostenkowski's brassy claims. With biting understatement, the judge said that ''precedent seems to be lacking for the proposition that immunity attaches to a congressman's decision to hire employees whose duties consist of photographing his daughters' weddings, mowing the grass at his summer home or other duties.''

Mr. Rostenkowski will appeal to a higher court, which probably will be just as unsympathetic about the lawn care at his vacation home in Wisconsin. Then there will be a trial, and Washington will weep.

When he was indicted in May, Washington was very lachrymose. Such is the solidarity of the political class, this city's bipartisan sympathy for him probably would not be dented even by a reading of the argument he makes on his own behalf.

If his argument is cynical, it is perhaps forgivable as the best defense at hand. But if it is, as it probably is, sincere, it is a devastating indictment not only of him but of the kind of life that makes someone capable of believing his argument.

As six more states prepare to vote on term limits for congressmen and senators, Congressman Rostenkowski is a relevant specimen of the political class. Before he was elected to Congress in 1958, he was in the Illinois Senate, and before that he was in the state legislature's lower house. He has been a professional legislator since age 24.

Never having been in the private sector, it is no wonder he cannot draw -- cannot even imagine -- a line dividing public from private spheres. His indictment must be unintelligible to him.

Furthermore, his conscience, and even his instinct of prudence, have been numbed by the corrupting life of unchallenged control of the House by his party during all his 36 years here.

Today he is asserting for people like himself something akin to what was called ''sovereign immunity'' when kings claimed it. His claim is evidence of a mental affliction that deserves to be called ''incumbents' derangement.''

But his affliction will not soon be incapacitating. He will be re-elected this year and, given the speed which the mills of justice grind, perhaps again, and then again, before justice is done.

George F. Will is a syndicated columnist.

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