The Alternate Universe

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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Kellyanne Conway had her “alternate facts.” Bret Stephens of the New York Times has his “alternate universe.” It’s a phrase he notes was conjured by NeverTrumper Tom Nichols, a professor at the Naval War College. The professor used it to imagine what the Republicans would do were Hillary Clinton president and facing the kinds of accusations President Trump is facing. Mr. Stephens uses it to wheel on his former employer, the Wall Street Journal.

“In this same alternative universe,” Mr. Stephens writes, “I’d be writing columns calling for further investigations of a manifestly corrupt Clinton administration, and even raising the subject of impeachment. I know because I was there for the prequel, back in 1998. At least some of the conservatives who railed against Bill Clinton then could claim they were acting on principles that went beyond pure partisanship. These days, not so much.”

Back in 1998 during the “prequel,” Mr. Stephens was at the Wall Street Journal. Yet it had already spent a full generation illuminating the constitutional principles at stake in this fight. The Saturday Night Massacre, in which President Nixon fired special prosecutor Archibald Cox, took place on October 20, 1973. Mr. Stephens wasn’t born until the following month. It wasn’t until 1978 that Congress set up the Office of Independent Counsel.

The Journal was concerned from the get-go that Congress had breached of the doctrine of separated powers. To enable the president to fulfill his obligation to take care that the laws are faithfully executed, after all, the Constitution states that the president “shall Commission all the Officers of the United States.” It doesn’t say “some” of the officers or “most” of them but “all” the officers. Which is why Mr. Trump can fire Mr. Mueller any time he wants.

The Ethics in Government Act through which Congress created an “independent” counsel wasn’t tested at the Supreme Court until late in the Reagan years, when Theodore Olson challenged Alexia Morrison, the “independent” counsel who went after him. By then, the Journal was well into its fight against independent counsels, particularly Judge Walsh, who was sicced on the Reagan administration. The Supreme Court, in one of its worst decisions, sustained the independent counsel law.

That was in 1988. The vote was seven to one (Justice Kennedy recused himself). Justice Scalia’s dissent in that case will stand as one of the greatest ever filed. Scalia warned that setting up an independent office — with limitless budget and personnel — to go after the commander-in-chief and his staff put at risk the “boldness of the president.” Once the justices spoke, though, the Journal backed independent counsel Kenneth Starr in his pursuit of President Clinton.

By then, we had already left the Wall Street Journal to edit the Forward, where, on this head, we pursued a different line from the Journal. We continued to argue that the only authority with the constitutional standing to pursue a sitting President was the House of Representatives. We praised the journalistic investigations by the Journal’s editorial page (and the American Spectator). We hewed, though, to the constitutional line illuminated by Scalia.

One day over a friendly drink, we put the question to the Journal’s editor, Robert Bartley. Why had he dropped his opposition to independent counsels? He didn’t abandon the constitutional point, he told us, but he was going to use the tools the Supreme Court allowed. The real issue, Bartley said — and here he was trembling with emotion — was that Bill Clinton had committed perjury, breaking the law and violating his constitutional oath.

Even though, after Morrison, we differed with Bartley on the independent counsel, we came away from those years with the view that he was the most courageous and honest newspaper editor of his time, though there were many contenders. We have no doubt that, were Bartley alive today, he’d be filled with pride at the way the Journal has stuck by the principled, balanced, reporting-based editorial writing that Bartley had pioneered.

And that the Times has abandoned. After the Senate acquitted President Clinton, the Times issued an editorial called “Beyond Impeachment.” Americans, it said, “yearn for a Congress that can actually accomplish something. Reverting to more party warfare will hurt both sides.” It’s a trumpet the Times no longer sounds. It has lost its institutional memory and cannot hear echoes from the earlier era. Such is life in the alternative universe.


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