The Troubling Ethics of Abscam

By Edwin Warner

Why, you simple creatures, the weakest of all weak things is a virtue which has not been tested in the fire.

--Mark Twain, The Man

That Corrupted Hadleyburg

Like the mysterious stranger in Mark Twain's tale, the FBI brought a bag of gold to tempt politicians. Did those who fell for the Abscam sting have only themselves to blame or can they, like Hadleyburg, blame the stranger for leading them astray? This question lies at the heart of the uproar over the tactics used to catch public officials in the act of allegedly taking a bribe. Did they willingly commit a crime, if indeed a crime was committed, since the charges have not yet been filed? Or were they tricked into wrongdoing by a Government con game that took unfair advantage of them? At stake is the integrity not only of numerous Congressmen, but also to a degree the reconstituted FBI and federal law enforcement in general.

As the FBI has moved away from the routine investigations of bank robbery and car theft that were popular under J. Edgar Hoover, it has plunged into the far more complex world of organized and white-collar crime and corrupt politicians. Evidence is much harder to obtain, cases that will stand up in court are much harder to build. So the agency has increasingly resorted to stings to produce the strongest possible proof of a crime. But police infiltration of the criminal world has always been a touchy area. Undercover agents often necessarily become parties to the commission of crime; so do paid informants. Most police experts believe that they would be severely handicapped without such methods, but the methods always carry the danger of abuse.

The sting is embodied in American law as an acceptable police device. In a 1973 decision, the U.S. Supreme Court recognized that infiltration by undercover agents is "one of the only practicable means of detection" in certain kinds of crime, notably drug transactions. In general, the court has ruled that as long as a defendant is "predisposed" to commit a crime, he cannot plead entrapment--that he was lured into breaking the law against his will or without his knowledge. An entrapment plea can be successful only if a law-enforcement agency has pressured or induced him to commit the crime. Thus the defendant must demonstrate that he would not have broken the law without the urging of the Government. Many defendants plead entrapment, but few win acquittal on that basis.

Apart from the legality, there is an ethical question of whether the FBI carried the Abscam sting to the point of inducing the politicians to take bribes. It was not the usual sting. The agency was not simply participating in ongoing criminal activity. To some degree, it set up the conditions for the crime. The bounteous Arab sheik was strictly the creation of the bureau. The targets of its probe were sometimes subjected to a pretty hard sell--never by the FBI, but by contacts who were anxious to set up deals with the high-spending sheik. When Middleman Joseph Silvestri first approached Congressman James Florio in his office on Capitol Hill, he was turned down. Silvestri then called Florio at home, inviting the Congressman out for a "good time" and adding that his friends were "very, very generous." Florio finally hung up on him. A top Justice Department official makes the point strongly that the FBI did not in the least encourage Silvestri to make this kind of pitch; he did it all on his own initiative. But it did happen.

Though the FBI insists it was scrupulous in its questioning of suspects and made every effort to avoid entrapment, civil libertarians can contend that the operation smacks uncomfortably of Big Brother. FBI Director Wil liam Webster phoned Senator Larry Pressler to congratulate him for emerging clean from his bribery test. But, asks Congress man William Hughes, who also resisted temptation: "Is it proper for the Executive Branch to pose a litmus test for the legislature?"

Representative James Howard, another who passed the test, objects: "If there's reason to believe that a just would take a bribe, that's one thing. But just to go shopping with a lot of money, that's different. I resent a little bit that I was put in this position. In public life, there are enough temptations. Who needs another one?"

Ultimately, not all the Congressmen may be indicted. But their names and faces have been splashed all over television and the press. It is one thing for a Mafioso to get bad publicity; his career hardly depends on public approval. But politicians who face re-election can be ruined by such press coverage. Only one of the members of Congress under investigation is a Republican, but G.O.P. Senate Whip Ted Stevens protests: "Reputations have been seriously damaged in a manner not consistent with the standards of American jurisprudence."

Another unsettling element is the extensive leakage of the facts of the case to the press even before the targets of the probe were told they were under investigation. Says Harvard Law Professor Alan Dershowitz: "This is not a press leak but a press hemorrhage." Former Watergate Prosecutor Archibald Cox believes that "little leaks are one thing. Systematically giving out information of this scale raises real worries about the sensitivity of the people engaged in the administration of justice." Burke Marshall, a Yale law professor who once served as Assistant U.S. Attorney General, complained in the New York Times, "the deliberate, pervasive spread of selective information" is a "violation of every standard of professional conduct."

The role of the press is also being questioned. Fairness was sacrificed to the need to match the competition. If a publication holds back a story while a competitor prints it, says Washington Post National Editor William Grieder, "all you are going to do is leave egg all over your face. If we'd had a firm notice that this was our call alone, I'd have pondered the question more."

The determination of the FBI to tackle organized crime and political corruption--activities immensely destructive of our national ethics--can only be applauded. The more convictions the better; the more politicians too scared to take bribes the better.

For too long, organized crime figures and their political henchmen have operated as if the criminal justice system were meant to serve them and not the public. Stings are understandably a vital part of the crackdown. But that is all the more reason for the FBI to proceed with utmost caution and with deepest regard for due process. Only by so doing will its cases hold up in court--and in the court of public opinion.

--Edwin Warner

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