Philip Heymann, veteran of the first-term Clinton Justice department, last week contributed an op-ed to the New York Times that displayed the sort of too-clever-by-half legal reasoning increasingly prized in the Clinton era. Interior secretary Bruce Babbitt, Heymann argued, should be investigated by an independent counsel because he is sure to be exonerated of the allegation that he was paid off by one group of Indian casino owners to stop a competing casino from opening. Said Heymann: "Even if Mr. Babbitt's decision was affected by the fact that the five rival tribes were contributors to the Democratic party, it wouldn't matter. The behavior would be improper but not criminal." Babbitt would be criminally liable "only if he explicitly or implicitly promised a particular decision in exchange for contributions to the Democratic Party."
So now we get it. . . . Harold Ickes cuts the deal with the contributors, but he's not liable because he doesn't make the actual decision. Babbitt makes the decision, but he's not liable because he didn't cut the deal. Nice work if you can get it, and, if you are a Clinton appointee, apparently you can.