The Truth About ‘the Schumer Case’
By Jim Sleeper |
Introductory note: In 1982, news of serious flaws in the preparation of a pending indictment of New York Congressman (now Senator) Charles Schumer for an alleged conflict of interest fell into my lap, wholly through a conflict of interest of my own. That made the story hard for me to report. I wound up having to do it not as a journalist but as a lonely citizen, writing unpaid guest columns for a small Brooklyn weekly, The Prospect Press.
No other journalist seemed engaged or motivated enough to report the story at all, partly because it involved malfeasance by other journalists: The reason I couldn‘t tell the story in the Village Voice — where I’d been freelancing regularly — was that Voice writers were trying to gin up an indictment of Schumer, whom they disliked intensely for not being “progressive” enough. It was they who’d urged his prosecution upon an ambitious and receptive young U.S. Attorney for Brooklyn, Edward Korman, who’d recently brought down Congressman Fred Richmond, as described in one of the Voice essays linked in “A Sleeper Sampler” and elsewhere on this site.
My Voice colleagues and the prosecutor were pursuing the case for moralistic and personal reasons with scant legal justification. I knew this only for a reason that undermined my own credibility, though: My girlfriend was working in Schumer‘s office and was giving me the other side of the story.
Not surprisingly, the only people inclined to believe my account were those who had reasons of their own to distrust the Voice muckrakers and/or the U.S. Attorney. To grasp the injustice of the case, one had to shed the righteousness of “white hat” muckrakers. You had to know that the criminal justice system itself is highly susceptible to abuse if its skeleton of laws lacks a “cartilage” of extra-legal trust and integrity among prosecutors.
My columns in The Prospect Press, the small neighborhood weekly, were handed around and played a role in alerting people in the Justice Department and the courts to the flaws in the indictment. It was dropped before being formally brought, but only after a lot of publicity and controversy.
Ironically, the probe had been instigated not only by partisan Republicans but also by leftist muckrakers, and it was closed down by senior Reagan Justice Department officials after Schumer’s attorney, Arthur Liman (later the Democratic counsel to the congressional Iran-Contra commission) went to Washington and confronted them with the bizarre truth about the inquiry.
Twenty five years later, in 2007, I had a reason to tell the whole story of the Schumer case again as Schumer, by then on the Senate Judiciary Committee, was investigating the Bush Administration‘s efforts to politicize U.S. Attorneys‘ prosecutions of Democrats. Again, the “cartilage” of trust and professionalism had worn thin, but by 2007 I must have been the only reporter to recall that Schumer had been the victim of a politicized, prosecutorial investigation. Schumer has many faults, and he can certainly be criticized robustly by people to his left as well as his right. But trying to “nail” him — as the Voice reporters crowed to one another that they were doing — through selective prosecution for a minor indiscretion that many of their’ own heroes were also committing, was a miscarriage of journalism.
When Talking Points Memo published this piece in 2007, the site promoted it with a note that appears below the piece itself here. Later on, though, TPM’s founder and editor Joshua Micah Marshall “deep-sixed” this essay, along with dozens of other pieces by several TPM authors, without ever citing a single error or ethical lapse. TPM thereby violated a cardinal rule of journalism: No Orwellian Memory Holes. Fortunately, I had saved the piece in my files, and I hereby rescue it from oblivion. Perhaps TPM will rescue it and other such pieces someday — in the interest of good journalism, free of self-righteous muckraking and of suppression.
AS PUBLISHED IN 2007: The Truth About the Schumer Case (and about the dangers of self-righteous muckraking)
It would be all-too easy to cast New York senior Senator Charles Schumer’s grilling of Attorney General Alberto Gonzales today as the climax of a long-nursed, partisan grudge. Twenty-three years ago, during Ronald Reagan’s first term, the Republican U.S. Attorney for the Eastern District of New York came within a millimeter of destroying Schumer with highly dubious criminal charges. None of the other indictment dodgers in Congress can be more sensitive to potential abuses of prosecutorial discretion and the Justice Department’s power to countenance or curb such abuses than Chuck Schumer, Gonzales’ chief inquisitor.
Now that I have your attention, let me complicate this a little. The masterminds of the long, unrelenting drive to indict Schumer (for deploying his New York State Assembly staffers in his first congressional campaign while paying them state salaries) were left-liberal Democrats and activist muckrakers hell-bent on nailing Schumer for personal, social, and ideological reasons. They tipped off and then collaborated closely with the zealous young U.S. Attorney Edward Korman (now a federal judge), whom they’d befriended and worked with for years. Irony of ironies, it was the Reagan Justice Department that called off this witch hunt at the last minute.
Why did Attorney General William French Smith exercise such restraint? Out of ethical principle? Jurisdictional caution? Some obscure political calculation? The Justice Department claimed only that Schumer’s campaign practices were a state, not federal, concern, and Smith’s deputy at the time, Rudolph Giuliani, actually apologized to Schumer for the two-year ordeal that preceded this decision. Unless you believe that Alberto Gonzales and Karl Rove and their favorites in the press would be at least that judicious now in a case against a liberal Democrat, you can understand why Schumer has been preparing for today’s hearing, which may make clear how frighteningly, if subtly, federal law enforcement has changed from what it was even under Reagan.
Schumer calls himself an “angry centrist” at least partly because the Schumer case, as it was known, ended not thanks to partisan or ideological heroes, Republican or Democrat, right or left, but thanks to a fragile, silent web of constitutional tradition and comity. More than any actual statues, that tradition of engrained ethical conduct and judgment tempers partisan passions and personal vendettas — if prosecutors and journalists have the integrity to defer to, rather than manipulate, judicial proprieties. We are talking about the political culture or cartilage of a republic here, not just about its legal skeleton.
Sad but true, some who tried to drive the Schumer case beyond all that were Village Voice muckrakers, the late Jack Newfield and Wayne Barrett, with their younger and not-yet-wiser colleague Joe Conason running interference for them. Aside from some reliable civic-republican observers – Tom Goldstein, in the Columbia Journalism Review; Tony Schwartz, in New York magazine – most journalists were too preoccupied, timid, cynical, or lazy to challenge what amounted to a public, daylight mugging of New York’s most promising young Democrat at the dawn of the Reagan ascendancy.
To summarize the relevant case law quickly: Since legislative staff communicate with constituents all the time and work irregular hours, there were no rules or laws then — and few now — against assigning such staffers to campaigns, which, after all, do involve communicating with constituents. As a Sept. 8, 1983 New York Law Journal essay put it, “Not one of the court papers filed in the [Schumer] case cite any specific federal or state law to prohibit such conduct.” The only thing illegal is putting someone on payroll who never shows up. Voice reporters also knew well that their own heroes in public office did what Schumer did, if not as egregiously when they had larger budgets and staffs than do young Assembly members.
Yet in an incredible, Kafkaesque syncopation of unannounced prosecutorial moves and eerily well-timed or prescient Voice stories, Korman would drag Schumer for more than two years through the positing and abandonment of eight different theories of guilt. This is worth looking at a little more closely to understand what’s at stake for Schumer, and all of us, in the current hearings on how Justice Department handles U.S. Attorneys.
I should say first that I played a part in derailing the Schumer indictment because I happened to be in the right places at the right times (or was it the wrong ones?!): As a regular Voice freelancer, I worked closely with Newfield & Co. on other stories and absorbed their antipathy toward Schumer. But I also grasped that something was wrong with their antipathy as I came home nightly from the Voice to my girlfriend, who was Schumer’s congressional-district chief of staff.
The dissonance was even more excruciating than it may sound, because I was a dedicated writer for the Voice’s beloved progressive community. Even after Schumer had sat in my own living room in 1983, begging me and my partner to help him break the noose which Voice reporters and prosecutors were tightening around his neck, I faced a long, hard slog toward acknowledging that he was in the right. Doing him justice, as I did by helping to break the case, involved breaking my ideological heart and some of my role models, who exacted predictable and tawdry retribution.
Toward Schumer himself I never bore much love. The brash, young Harvard Law School hot shot had won his first congressional race on the November day in 1980 when Jimmy Carter lost to Reagan and when the then-sainted Elizabeth Holtzman — Schumer’s own congressional predecessor — lost her bid for a Senate seat to Republican hit man Alfonse D’Amato, of Whitewater investigation fame. (Schumer would defeat D’Amato years later by 14 points).
Schumer thought then, as he does now, that the self-styled saints of the left (Newfield was known as “the Conscience of New York”) had lost in 1980 precisely because they’d become too saintly. He derided Holtzman – who’d endorsed him only with condescension to succeed her in the House — for having neglected nuts-and-bolts lawmaking and constituent services in her quest to be a grand scourge of Richard Nixon.
That wasn’t quite fair: Holtzman’s upwardly mobile, heavily Jewish Brooklyn district hadn’t sent its iconic daughter to Congress to fix potholes; it was Al D’Amato who’d be known as “Senator Pothole.” Soon enough, though, the defeated, embittered Holtzman would amply confirm Schumer’s biting assessment, put better by Montaigne, that there is often “a remarkable correspondence between super-celestial opinions and subterranean morals” in pretenders to political sainthood. That is the moral of this story.
Sure, liberal saints had more than a few true grievances, and real enemies besides Nixon. Both muckraker Newfield and prosecutor Korman had grown up in tough, racially-changing Brooklyn neighborhoods, but instead of blaming blacks for the decay, they’d blamed political hacks and corrujpt contractors, cheering on the interracial Dodgers and progressive unions that carried the best of New York’s proletarian civic energy. Newfield’s hero was Robert Kennedy; Korman and his predecessor David Trager became Republicans, but in the tradition of the Party of Lincoln and the outgoing liberal GOP Senator Jacob Javits, against the heavily corrupt, often racist Brooklyn Democratic machine.
As Reagan and D’Amato rode to victory in 1980, these working-class-hero writers and prosecutors, groping for traction in the conservative tide, convinced themselves that whiz-kid Schumer had survived the surge only because he’d been an ambulance-chasing publicity hound who’d truckled to the corrupt Democratic bosses. Worse, he’d been a sore winner, rubbing salt in defeated progressives’ wounds. It rankled all the more that he’d gone to Harvard College before Harvard Law; interned at the powerful Paul, Weiss, Rifkind law firm; and won election to the state Assembly at age 23 and Congress at age 29, thereby becoming an employer before he’d ever really been a worker.
By his own later, rueful admission, Schumer had had to do a lot of his growing up while in public office, driving some disgruntled staffers to Newfield and Barrett, who began assailing him in Voice articles pretty early on. The young know-it-all had been too busy climbing the greasy pole to find out who Roy Cohn was, attending a party for that aging McCarthyite thug unwittingly at the behest of a woman he was dating. Suffice it to say that Schumer and the Voice were oil and water almost from the start.
A truce of sorts with the Voice was arranged during Schumer’s 1980 congressional race against a far worse opponent in the decisive Democratic primary. For six months the paper left him alone, partly because he’d confronted Newfield about its skewed reporting and threatened to expose Newfield’s own behind-the-scenes dealings on behalf of his opponent. The paper sat on a Schumer staffer’s complaint that his Assembly Oversight and Investigations Committee staff had worked for months only on his congressional campaign.
At an election-night party that turned into a bitter wake for Democrats nationwide, a triumphal and oblivious Schumer accused Newfield of having helped the opponent he’d defeated in the primary: “Well, Jack, your anti-civil liberties, pro-death-penalty candidate lost!” Newfield had to be physically restrained. “That fuck. I’ll get him for this,” he swore then and, in similar words, later, as an affidavit by the public-relations mogul John Scanlon would confirm. “Schumer is a miserable human being. He belongs in hand-cuffs,” Newfield told me of Schumer.
And so the worm of righteous indignation began to turn, the story presaging what we’ve heard more recently about journalists like Robert Novak or the minions at Fox News; about political operatives like Karl Rove; and about ideological or partisan crusaders in the Justice Department. In December, 1980, just a few weeks after the election-night confrontation, the Voice ran a story by Wayne Barrett, “Chuck Schumer’s $taff $candal,” a purported expose of campaign practices the paper had seen fit to bury throughout the campaign itself.
Even more tellingly, the article and subsequent stories hinted at possible federal prosecution strategies: Accusing Schumer’s committee — which actually had a rather impressive record — of conducting headline-hunting investigations without even issuing subpoenas, Barrett added, “Now, the only subpoena some staff members are talking about is the subpoena they would require before they would willingly spell out the details of how Schumer used the committee.”
That article ran in tandem with Korman’s opening a preliminary investigation, and soon a grand jury was indeed summoning Schumer campaign workers, from 14-year-old volunteers on up. Barrett himself jumped out from behind a bush in front of the home of a staffer who’d not returned his calls, admonishing her, “Talk to me, or you’ll have to talk to a grand jury.” How did he know?
“Chuck Schumer is heading for cover,” Barrett announced only three months after Schumer’s election-night confrontation with Newfield, in an article headlined “Schuck Chuck Panics”: “Schumer recently hired counsel… and is reportedly digging in to defend himself against the charge that he converted virtually the entire staff of his investigatory committee into an extension of his campaign.”
In fact, Newfield and Barrett had been privy to the Schumer investigation as it was unfolding: Newfield had had little trouble making Schumer seem criminal to Korman — whom I first met at a party in Newfield’s home in April, 1982, as he was bringing down a far more wealthy, sexually wild congressman, Fred Richmond.
The muckrakers’ and prosecutors’ relationships made me think of “good old boys” in a rural county seat where the local editor whiles away summer afternoons with the district attorney at a watering hole near the courthouse. Newfield and Thomas Puccio, chief of the Eastern District’s ABSCAM Strike Force, shared a summer home at which they prepared and carried nearly to contract a proposal for a book on the scandal before the defendants even knew they’d been taped accepting bribes.
Barrett was similarly close to Korman’s predecessor, David Trager, beginning 1976 when Trager successfully prosecuted Voice charges against another politician. Another head of an Eastern District strike force sometimes welcomed Newfield (once with me), into his office on the third floor of the former Brooklyn federal building at 25 Cadman Plaza. Illegally he would play Newfield tapes made by wired informants in ongoing investigations; Newfield would identify and evaluate those heard or named on the tapes, telling prosecutors how they were connected and whether this one or that might be turned state’s evidence.
The prosecutors had faith that Newfield and Barrett would craft Voice stories carefully enough to help them only by indirection, stopping just short of violating a standard well enunciated by former Carter Justice Department official Abbe David Lowell, writing about the Schumer case in the New York Law Journal in 1983: “No First Amendment interest is served by illegal leaks of grand jury evidence, premature announcement of a criminal investigation, or by an improper alliance between a journalist and a prosecutor.”
Since the target of a grand-jury investigation is informed and consulted only at prosecutors’ discretion, it was a year before Schumer’s lawyer, Arthur Liman — for whom he’d interned at Paul, Weiss, and who would later be chief counsel to the congressional Iran-Contra investigation commission – was able to get Korman to look at case law precedents that destroyed most of his working assumptions. Korman kept recalling witnesses to show that Schumer’s Assembly committee had done no legislative work for certain months in 1980; that the legislative work the committee had in fact done wasn’t as good as work it had done in 1979; that even if staff weren’t required to do actual legislative rather than constituent-service work, they’d done only campaign work; and so on.
None of this ran afoul of any statute, but Schumer’s attorneys weren’t told the exact counts of the indictment that went to the Department of Justice for approval under Korman’s successor, Raymond Dearie (who endorsed it but played no role in the investigation). Liman was summoned twice to Washington to show why no indictment should be brought. “This is a case in search of a rationale,” Liman charged in his closing brief. “Over the last year, the Government has articulated no fewer than eight theories of why Schumer’s conduct allegedly violated the law. We have rebutted each theory in turn. Yet no sooner does the United States Attorney admit that one theory must be discarded than another rises to replace it…”
At best (and probably), the Eastern District’s prodigious efforts to indict Schumer reflect poor judgment and bad faith. Korman and his associates just couldn’t reconcile themselves to the moral limits of their considerable legal powers. Whether they pressed on anyway out of an obsession with winning, or a sense of obligation to collaborators like Newfield, or the arrogant moralism that so often attends and enshrouds power, they misdirected far more taxpayer dollars and good faith to a fruitless quest than Schumer did to his campaigns.
Finally, on January 17, 1983, nearly two years after Barrett’s “Chuck Schumer $taff $candal” story, Justice announced it had “determined that the matter is not appropriate for federal prosecution and closed the investigation.” Newfield and Barrett learned of the decision four days before it was announced. “They went ape-shit,” recalls a Voice staffer, and repeatedly they called and visited the office of by-then-District Attorney Holtzman, threatening to expose her many blunders as D.A. if she didn’t find a way to carry on a state-level investigation.
For a full year, she tried, indeed, to carry on an investigation, in a comedy of errors so awful I wish I had time and space to describe it. The American Lawyer called her Schumer probe “the most absurd case on [Holtzman’s] docket,” charging that she was “afraid to drop the case for fear of offending her supporters at The Village Voice, who first printed the ‘charges’ against Schumer.” Holtzman became tangled so embarrassingly in her own conflicts of interest, inconsistencies, and prosecutorial incompetence that, finally, lamely, she tried handing the material to the Federal Elections Commission, which had no jurisdiction whatever.
In all this time Schumer had been a far better congressman than he’d been an assemblyman, taking his legislative responsibilities seriously and serving his constituents well. Unopposed in his 1982 primary, he won the general election with close to 80 percent of the vote. After Holtzman abandoned the case and he was truly in the clear, he treated several of us, including Liman and Assembly Speaker Stanley Fink, to dinner at Peter Luger’s Steak House, and thanking us, he wept.
The righteous rage that drove Newfield, Barrett, Conason, Korman, and Holtzman is just what the justice system’s non-statutory ethics and ethos are meant to restrain. By turning their own antipathies and obsessions into a criminal prosecution, his pursuers themselves got caught, not criminally but ethically, crossing lines that divide advocacy journalism from revenge, and prosecution from political persecution. These are lines which Schumer knows that Gonzales and Rove have crossed.
The Schumer case shows us that such abuses of power aren’t peculiar to the right. Both right and left have credible claims on certain truths – the left to the need for social provision, without which none of the values which honorable conservatives cherish could flourish; the right that there are irreducibly personal responsibilities, without whose vigilant exercise even well-intentioned social engineering can turn individuals into clients, cogs or worse. But both left and right tend to cling to their claims so tightly they soon become half-truths that curdle into lies, leaving each side right only about how the other is wrong. Both get stuck in their imagined upswings against power and disappoint in the end.
That’s why we need the staying power of sheer professionalism and the civic-republican energy of “angry centrists” like Schumer, who is determined now to make sure that what happened to him at the hands of fellow liberals won’t happen in any U.S. Attorney’s office under Alberto Gonzales. So far, the only places we can feel sure it hasn’t happened were the offices of those U.S. Attorneys whom Gonzales has recently removed.
Addendum, posted April 20, 2007 – 9:21am Jim Sleeper said:
A word, if I may, to readers who think that the Schumer case must have been more substantial than I report — that he must have been doing something terribly wrong if all this prosecuting and muckraking was going on around him.
The story isn’t about my picking up some impressions from lunching with the muckrakers or from being with someone who worked for their target. It’s more about what provoked me and others, in the American Lawyer, The New York Law Journal, the Columbia Journalism Review, and New York magazine, to publish the analyses that are mentioned or quoted in my account.
And it’s about the facts, the details, which I couldn’t have laid out fully in this essay. That’s a limitation inherent in all journalism, even the longest investigative piece: At some point, you have to decide whether to trust that the writer has done what lawyers call “due diligence” and has marshalled the facts responsibly.
Politics is not a spectator sport. Its lessons are hard lessons, often very painful. What matters is to absorb and factor them into one’s thinking and political being, all while pressing on with a more constructive politics. From social movement leaders (such as Martin Luther King, Jr.) to elected politicians (Barack Obama? Al Gore?), the best have “done time” in the backrooms and even back alleys of politics and grown from the experience and learned how to move forward.
That’s how I see Schumer. In contrast, Gonzales and Rove are two moral casualties of politics; they’ve grown only in the sense that their hearts have been cankered in its back rooms and back alleys, leaving one a pathetic toady and front man and the other a malevolent genius whose perversity is now there for all to see. Like these betrayers of the American republic, Schumer’s pursuers hadn’t grown, except perversely. Fortunately, their power hadn’t grown to the proportions of Gonzales and Rove.
I say all this prompted by a couple of comments from readers that sound a bit… well, hurt. I understand. I wrote that my own experience with the Schumer case “broke my ideological heart” and deprived me of some role models. That’s how it is. One grows from it and presses on. Get used to it, and don’t give up.
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A READER’S COMMENT, AND MY REPLY:
On April 20, 2007 – 12:24pm jhaber said:
Jim, don’t worry about the details, but do me a favor and fill me in on a key point. I said it’s plausible that having staff work on your campaign is a bad thing, and it’s similar to any number of more recent scandals. So what’s the exculpatory bottom line here? Did they simply quit first?
I found that Voice team’s reporting not to be too marred by outright error and bias, just very limited and too keen on taking credit beyond its limits. Say, they milked nailing Harding for so long it became filler.
John
On April 20, 2007 – 6:01pm Jim Sleeper said:
There’s really no exculpatory bottom line in a case like the Schumer case, because, in New York as well as many other states, there were (and in most cases still are) no statutes on the basis of which the case should have been brought in the first place.
The only legal standard in most places is that you can’t hire complete “no shows,” put people on payroll who do no work for you. Other than that, the courts (and, self-servingly, the legislatures!) have decided not to micro-manage how legislators use their staffers, unless perhaps to do their personal housework, outside commercial ventures, etc.
That’s what made the Schumer case absurd. Few would say that he was engaged in “good government,” but he was doing what many good and effective politicians in New York, including Voice heroes in office, did all the time, without moral censure, much less charges. U.S. Attorney Korman kept asking Schumer’s lawyers, “But is what he did right?” They kept trying to tell him that it wasn’t for a prosecutor to frame questions of “rightness” but only of legality. There was simply no statute or regulation. I could go into more detail — how the NY State Legislature told every newcomer during orientation, including Schumer, that the standard was, “no No-shows,” and that he adhered to it. If he hadn’t, Korman and his Voice helpers would have found that out!
Unlike the Justice Department and its U.S. Attorneys, the rest of us are perfectly free to pose questions of rightness and to persuade voters not to tolerate practices we don’t like. The Voice writers, too, were perfectly justified in doing that. The point where they and their prosecutor pals crossed the line was in cranking up the coercive apparatus of law enforcement, with all its intimidating, moralist connotations, to smear and destroy a man for reasons that far outstripped any possible charges.
As a writer in the New York Law Journal put it, the case raised valid questions about whether the prosecutor’s intent was really to achieve a conviction, or whether he was just trying to wear Schumer down and discredit him by carrying on an endless investigation replete with regular press leaks (to The Village Voice).
That’s something Karl Rove has been only too happy to teach: The more you spread smears and lies about someone, the more people will believe that the target must have done something seriously wrong. That’s why our own skepticism should cut both ways — even against prosecutors and muckrakers, and especially when people like the Voice writers are portraying the prosecutors with such stagey reverence, as keepers of the civic flame. It’s hard for some people to imagine just how cynically they did that.
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THIS INTRODUCTORY NOTE WAS POSTED BY TPM WHEN THEY CARRIED THIS PIECE IN ‘TPM CAFE’:
JOSHUA MICAH MARSHALL
Senator Schumer is grilling Alberto Gonzales.
Since the beginning, he’s been out in front in asking questions and demanding answers of the DoJ. Many conservatives have attributed this to his obviously significant partisan zeal.
But Jim Sleeper traces Schumer’s sensitivity to the politicization of the DoJ back to the early 80s when he himself was the target of a dubious investigation by a Republican U.S. Attorney.
Sleeper’s is a history of compromising relationships and vindictive power struggles amidst a messy urban politics. It includes Schumer, a young deputy U.S. Attorney named Rudolph Giuliani, a powerful muckraking journalist named Jack Newfield, a young reporter named Joe Conason, and Sleeper himself.
- Andrew Golis