The CIA director is now president of the United States. The legislative aide, William Barr, is now George Bush’s attorney general. And the former judge, Malcolm Wilkey, his ambassadorship behind him, is now working for his former law clerk, as “special counsel” conducting the politically sensitive investigation into the House Bank.

When Barr announced Wilkey’s appointment on March 20, the media took at face value Barr’s suggestion that his purpose was to ensure impartiality and independence from political pressure. They should have been more skeptical. And when the House bowed to Wilkey’s reckless rhetoric and his sweeping subpoena for the bank’s records, including 505 current and former members’ checks, the media figured the subpoena must be OK. It wasn’t.

To the contrary, it was an act of gross prosecutorial overreaching, an affront to the constitutional status of the House and the privacy of hundreds of individuals – no less so for the fact that the courts upheld it in light of the House’s craven capitulation. Wilkey’s subpoena was only the latest episode in the Justice Department’s aggressive pursuit of the case, which looks not only like a waste of law enforcement resources, but like opportunistic exploitation of the affair for political gain as well.

Wilkey has hung a cloud of criminality over the House with a succession of wildly injudicious statements – for example, that some House members “may very well be prosecuted,” that “a classic check-kiting scheme may have occurred,” and that the House Bank was comparable to “a failed S&L or a fraudulently operated BCCI.” Yet neither Wilkey nor anyone else has cited evidence that would support prosecution of a single House member for any crime involving the House Bank. His actions have assisted the Bush campaign by prolonging the public paroxysm over a House Bank “scandal” that has been a phony from day one, hyped by talk-show hosts pandering to the thirst for congressional blood. Even if Wilkey ends up with little to show for his investigating, some of the mud will stick to the 380 or so House members now seeking reelection. Wilkey keeps protesting virtuously that he wants to “clear” innocent House members – as though they are all presumed guilty until pronounced innocent. But nobody seriously suggested this was a criminal matter at all until Wilkey and other Justice officials did.

To deflect objections that Wilkey is engaged in a political fishing expedition, his top aide asserted in a May 1 court hearing that every overdraft written by a House member amounted to an “abuse” – which he compared to “money laundering.” This would be laughable were it not uttered by a federal prosecutor armed with potentially oppressive power. Among those thus classified by Wilkey’s office as “abusers” are House members such as Washington Democrat Jolene Unsoeld, whose one overdraft was in the amount of 38 cents, and Sidney Yates of Illinois, who unwittingly wrote four overdrafts, all on the same day, because the bank failed to credit a deposit in a timely fashion. As for those members who knowingly wrote overdrafts, hardly any “bounced” checks in the usual sense of stiffing the payee. They weren’t abusing anything but the bank’s willingness to float what were in effect interest-free loans from House colleagues who left large non-interest-bearing balances in the bank. No public money was ever lost or at risk.

A prosecutor on a vendetta, or one determined to justify his own overblown rhetoric, might be able to concoct some theory under which those who wrote big overdrafts might have violated one of the vaguer provisions of the criminal code. It’s also possible – even probable – that by rummaging through the financial records of hundreds of people Wilkey may stumble across a real crime somewhere. “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone,” Attorney General (later Justice) Robert Jackson said fifty-two years ago. “In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm… that the greatest danger of abuse of the prosecuting power lies.”

The odds of finding something to pin on somebody are especially great when a prosecutor looks for dirt by rummaging through the private financial records of hundreds of people. That’s what top officials of the Nixon White House were counting on in 1972 when they conspired to get the Internal Revenue Service to see what it could find on 575 of Democratic nominee George McGovern’s staff members and campaign contributors. The IRS refused. Who knows what crimes the Justice Department might find if, for example, it seized upon the misuse of government planes as a pretext to fish through the records of everyone who works at the White House?

Wilkey’s conduct as Barr’s special counsel is not the only reason for suspecting his investigation has been exploited for partisan political reasons. There are also the peculiar timing and circumstances of the appointment. The first news that federal prosecutors were looking into possible criminality involving the House Bank came from Jay Stephens, the ambitious U.S. Attorney for Washington, on March 16, a few days after reports that White House Press Secretary Marlin Fitzwater had pronounced all former House members serving in the Bush Cabinet “clean” of overdrafts. Bad timing. The next day, to Stephens’s apparent surprise, Defense Secretary Dick Cheney and two other Cabinet members conceded they had written a bunch of overdrafts as House members. Three days later Barr took the investigation away from Stephens and put Wilkey in charge, citing “the unique circumstances and sensitivities of this matter.”

Wilkey has stressed that Barr told him he wanted to announce “as quickly as possible” the innocence of those who had committed no crime, and then “to go on with those who conceivably might have some criminal violation, and look into their affairs in a more intensive investigation.” Was this a noble effort to ensure impartiality? Or a slick damage-control operation aimed at speedy, pre-election exculpation of as many Republican big shots as possible, while letting a lot of Democrats and some Republican small-fry twist slowly in the wind? Consider the choices Barr made. One was to bypass the Ethics in Government Act, which invites (though doesn’t require) the attorney general to petition a special three-judge judicial panel to appoint an “independent counsel” – to conduct any criminal investigation in which the attorney general might have a “political conflict of interest.” Instead of entrusting the choice to the three judges, Barr entrusted it to himself. He also ensured that the “special counsel,” unlike a court-appointed “independent counsel,” would serve at his pleasure.

In choosing Wilkey, Barr got a man with an impeccable reputation for intelligence, integrity, and decency, but also with other, less conspicuous, traits well known to Barr: Wilkey was a politically active Republican long before President Nixon put him on the bench in 1970, serving as a delegate to the 1960 Republican convention and receiving a succession of political appointments. And as a judge he had a record of supporting executive power against Congress, and (in the 1979 case of U.S. v. Diggs) of finding criminal conduct by one House member that a wiser colleague, the late Harold Leventhal, saw as mere ethical sloppiness.

In Nixon v. Sirica in 1973, Wilkey wrote a dissent arguing that President Nixon could not be required to hand over the Watergate tapes. He contended that, in effect, the president was above the law: neither Congress nor the courts had any constitutional power to require any president, ever, to comply with a subpoena for presidential records. Wilkey’s lengthy dissent actually stated a broader proposition – one dramatically at odds with his subpoena of congressional records – by finding a “Tripartite Privilege” under which none of the federal government’s three branches could be compelled by the others to surrender its internal records. This was not the law, of course, as the Supreme Court later made clear. But if Wilkey really believed this, he might be a bit less imperious in using legal process to demand congressional records. Unless, of course, what he really believed in was executive power, and in protecting the president who appointed him.

Wilkey’s many admirers plausibly insist he would not knowingly be a party to a cynical scheme to manipulate a criminal investigation for political gain. Maybe his conduct can be explained by a bulldog determination to rummage to the fullest through everything Barr has asked him to investigate, combined with gross insensitivity toward the coequal status of the legislative branch. Whatever Wilkey’s motives, however, so far he has been doing a fair impression of a ventriloquist’s dummy for his former clerk. His actions have dovetailed perfectly with the political interests of the man who helped make him ambassador to Uruguay. Will Wilkey continue in this vein with a pre-election report to Barr “clearing” some current and former House members, including the three in the Bush Cabinet, while leaving the rest “still under investigation”? Stranger things have happened in election years.

The post The Bank Dick appeared first on Stuart Taylor, Jr..