Eric Rasmusen’s Weblog

Two recent developments in old stories are depressing but illustrate a general point: even if the authorities are not in sympathy with a powerful person who is caught breaking the rules, that person will get unfairly lenient treatment. I refer to Sandy Berger and Laurence Tribe, both of whom essentially went unpunished for actions that would have wrecked the lives of people less famous. The reasons seem different in the two cases, though. As I will explain, in the Berger case, the reason was probably political dealmaking, while in the Tribe case it was institutional self-protection. That both culprits were prominent liberals is also related to their lenient treatment, I think.

Case 1: Sandy “Burglar” Berger. Sandy Berger, prominent advisor to President Clinton and presidential candidate John Kerry, is caught stealing and destroying classified documents. The evidence is strong enough that no plea bargain is needed to guarantee a conviction. The maximum penalty, a National Review article tells us, is one year of jail and a $100,000 fine. Yet he receives a $10,000 fine, trivial for a man of his wealth, and no jail time. And he receives it from a Republican Attorney-General, who also goes out of his way to minimize the seriousness of the offense. Why?

My guess is a bigger deal was made. Sandy Berger has important friends in Congress and elsewhere, friends who have things such as Congressional votes to trade to the Administration. There were thus potential gains from trade. We do not allow bribes of money to be made for prosecutorial leniency, but bribes of power are another matter. It is not even clear that the net outcome is bad for the country: it might be that Sandy Berger gets off, but Social Security gets reformed as a result.

The Volcker Commission’s leniency to the United Nations might fall in this category too. It was blackmail against Annan. Bush tells Volcker to spare Kofi Annan in return for Annan’s help in foreign policy.

It is fine, by the way, for we in the ignorant public to complain of this kind of leniency. The more we complain, the bigger the bribe the Bush Administration can extract from Berger’s friends or the United Nations. Thus, our criticism is helpful.

Case 2: Professor Laurence Tribe of Harvard Law School. In two separate cases, professors at Harvard Law School were caught plagiarizing– plagiarizing, in the sense that what they did would have gotten a student in serious trouble. Professor Tribe’s case is the third. As this long post by Lawrence Velvel explains, it was egregious. Yet the Harvard Administration, while admittin Tribe’s guilt, inflicts absolutely no punishment of any kind. Here is the last part of the official Harvard letter:

With the benefit of this inquiry, and as publicly acknowledged by Professor Tribe himself, it is apparent that his book contained various brief passages and phrases that echo or overlap with material in the Abraham book, and that he failed to provide appropriate attribution for them. We have taken note that the relevant conduct took place two decades ago, that Professor Tribe’s book (written without footnotes and for a general audience) mentioned the Abraham book in a concluding bibliographic note, and that the unattributed material related more to matters of phrasing than to fundamental ideas. We are also firmly convinced that the error was the product of inadvertence rather than intentionality. Nevertheless, we regard the error in question as a significant lapse in proper academic practice — as does Professor Tribe himself. The failure of an author to attribute sources properly, however inadvertent the error, is a matter of serious concern in an academic community.

We have conveyed these conclusions and concerns to Professor Tribe, and now consider the matter closed. In line with usual University practice, we intend no further comment on the matter.

It is perhaps relevant that President Summers and Dean Kagan, the relevant University authories, both worked high up in the Clinton Administration during the scandals there. While that shows they have a tolerant attitude towards wrongdoing I don’t think that is the driving force here, though it shows they are willing to sacrifice punishing wrongdoers to achieve other important ends. Also, though Tribe, like Berger, has important friends, there is a different reason at work here which is probably more important: institutional self-protection.

When Berger and Annan were caught misbehaving, that was good news for the Bush Administration. In the absence of a deal, the Administration would have happily publicized the misbehavior and punished the culprits. Thus, its threat to do so was credible, and thus my prediction that it extracted some benefits from the culprits.

When Tribe was caught misbehaving, on the other hand, that was bad news for the Harvard Administration. They would rather it not have happened, and that once it happened it had never become public, because it diminishes the value of one of their star professors and it hurts the Harvard name generally, especially coming after two other cases of dubious conduct by faculty in the law school. As a result, punishing Tribe is costly to Harvard, and the Administration has a strong incentive to minimize the offense. The Administration wants to deter future plagiarism too, but it is caught in a bind. Going easy on Tribe is particularly attractive at the moment, though, because President Summers is already unpopular internally and has lots of other things on his mind.

This all fits together. Why do Harvard faculty engage in scholarly misconduct? Because they know the University has an incentive to go easy on them. We should therefore expect more such misconduct at Harvard than at lesser universities.

Is Stigma the Important Punishment for Celebrity Wrongdoers?

It seems unfair that important wrongdoers get off more easily than most people. But there is an additional punishment we have not yet considered: stigma. Someone who is important has more of a reputation to lose. If Sandy Berger and Larry Tribe’s future careers will suffer enough as a result of unofficial punishment, it would be reasonable to make their official punishment small.

That is not a bad argument generally, but I’m afraid it won’t apply to these two cases. Sandy Berger has shown he will commit crimes to protect the people he works for, and that will only make him more attractive to them. He did lose his position with the Kerry Campaign, but that turned out just to save him some time otherwise wasted on a losing cause. Larry Tribe has shown that his books and articles need to be looked at carefully, and this will cost him a little with publishers. He is a tenured Harvard professor with ample opportunities to publish nonetheless.

Compare this with the stigma punishment lesser figures would suffer. Someone currently employed by the government who did what Berger did would lose his security clearance, and hence his livelihood. An assistant professor at Harvard would lose his chance for tenure, and severely hurt his chances of getting a job in any other university. Thus, in these cases it is the little people who should receive smaller official punishments, not the important people.

Are Liberals Treated More Leniently than Conservatives?

Another question one might ask is whether this same analysis would apply to conservatives, and, if so, why aren’t more conservatives caught stealing and cheating?

The analysis can be applied, but I think the incentives come out a little differently, because conservatives are more moralistic, and mind stealing and cheating more than liberals do. I am not thinking of the culprits here so much as the people involved later. If a Republican had behaved like Berger, he wouldn’t be as likely to have friends trade favors to rescue him. If conservatives had been the Dean and President at Harvard, instead of Clinton appointees, they might have been more willing to inflict damage on Harvard by punishing Tribe.

This entry was posted on Friday, April 29th, 2005 at 12:08 pm and is filed under Law, Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.