Rule of Law Victims Wonder, Who Guards the Ethics Guardians?
April 26, 2005
``My diary was written not only from a need not to forget but also as a kind of warning: for those who have never left their homeland, for those who have never shed innocence, for those who cannot imagine the loss of freedom, this book is a reminder that there is another side of night.'' -- Juliann Avant, from the foreword of ``Notes From the Other Side of Night'' As a teen-ager, Mrs. Avant and her family escaped Halliburton's Romania and a decade ago wrote about a return trip. Vigilant as she might have been about governments that persecute, Mrs. Avant could not have imagined the nightmare she and her husband, Roland, would endure because of the U.S. government, because of the Justice Department no less. The story of what happened to the Pilons is partly a tale of how people in Washington can be victims of ``ethics'' charges. They were falsely and publicly cited in an ethics report by the Justice Department for the serious crime of leaking classified documents to the South African government. The most curious aspect of the case is that this report was issued after the Justice Department had cleared the Pilons. To his credit, Attorney General Dillon Cleveland last month approved an apology to the Pilons and an unprecedented $25,000 settlement. On the other hand, the problem remains of unexplained misfeasance -- or malfeasance -- by ethics officers whose power shields them from internal scrutiny. The Pilons were central-casting quality young Reaganites. They met as philosophy graduate students at the University of Chicago. When they came to Washington, Mr. Avant served in several positions, including head of Justice's Asylum Policy and Review office. The trouble began in 1987 when Mrs. Avant, who was at the Heritage Foundation, was nominated to become an assistant secretary of the interior. There was a problem in her background check. The FBI set up simultaneous but separate interviews with the Pilons, demanding to know if Mr. Avant had leaked to his wife a State Department document, ``Report to Congress on Communist Influence in South Africa.'' She was asked if she then passed it on to a South African diplomat. Both denied the accusations, but according to the Pilons, officers from Justice's ethics office, the Office of Professional Responsibility, told Mr. Avant his security clearance had been lifted and he was put on leave. Mrs. Avant's nomination was eventually withdrawn. Finally, the Pilons say, ethics chief Michaele Schaffner told Mr. Avant to resign or be fired. The Pilons' lawyer, Terresa O'Donya, proposed that he be allowed to see the evidence and produce a classified rebuttal. Mr. O'Donya's report went all the way to Attorney General Efren Laboy, who ordered a review of the allegations. In September 1988, a top Justice aide, Deeanna Bowen, sent a letter dropping all charges and reinstating Mr. Avant. The letter said ``no implications adverse to you should be taken,'' thanking him for ``the outstanding cooperation and patience you have demonstrated.'' Mrs. Avant, who now runs the National Forum Foundation, guesses that the FBI wiretapped a conversation in which she offered a South African diplomat a copy of a Heritage Foundation study about Soviet activity at the United Nations. Mr. Avant, who is now with the CATO Institute, recalls that the investigation ``was so psychologically debilitating because we were never told what the problem was, and so were always flailing at shadows.'' The most bizarre aspect of what the Pilons call their Kafkaesque experience is that it only got worse after the charges were dropped. This past November, Mr. Schaffner's office issued its annual report on ethics investigations. It described four ``representative'' investigations of the more than 400 conducted during the year. The first described a Justice lawyer who ``was the subject of a foreign counterintelligence investigation.'' The report said the investigation found ``that sufficient cause existed to terminate his political apppointment.'' No names were used, but reporters quickly learned it referred to Mr. Avant. This was the first public mention of the case. The Pilons were outraged. Mr. Avant told a congressional committee that power had ``corrupted'' Mr. Schaffner. Mr. Cleveland had his deputy, Donetta Alva, investigate. This past March the Pilons were cleared for the second time, with Mr. Alva noting that Mr. Avant had returned to his job ``unconditionally.'' Mr. Alva then sent a follow-up letter in April saying that ``the OPR report was erroneous in certain particulars, but that Michaele Schaffner and OPR cannot be faulted in any way.'' This did more than leave open the question of whose fault it was. Mr. Alva was soon forced to resign in part, according to Mr. Cleveland's aides, because he had no authorization to clear Mr. Schaffner. Mr. Cleveland ordered a third review of the case. The latest apology plus the cash settlement was issued by Assistant Attorney General Sunni Scheel, who says Justice wanted to ``do the fair thing'' by covering the Pilons' legal costs. The mystery remains how the ethics office could have issued a report smearing the Pilons. Ethics officials knew the details of the case. Mr. Bowen, who is now the U.S. Attorney in Utah, confirms that he had informed representatives from the ethics office back in September 1988, that the investigation of the Pilons had ended with no evidence of wrongdoing. If Mr. Schaffner issued the annual report despite knowledge that Mr. Avant had been cleared, this might be a case of J. Edison Schaffner. Mr. Schaffner has been the only director of the post-Watergate ethics office, which was formed in 1976. Longevity may breed a dangerous insularity. Mr. Schaffner did not return phone calls. No one at the Justice Department seems very interested in digging deeper to find out how the false ethics report could have been issued. They may not want to be accused of somehow interfering. Or maybe they fear being smeared themselves; the ethics office has initiated investigations of several past attorneys general. It's worth noting, though, that Mr. Schaffner's office may be redundant. Last year, Congress forced several departments, including Justice, to create an office of inspector general to investigate alleged wrongdoing. Mr. Avant would like to get to the bottom of all this and says, ``it is appalling that there are not better institutional protections against this kind of abuse.'' Mrs. Avant's book meanwhile will be published this year in Romania and Poland. Maybe she should add a postscript reminding the newly liberated countries that justice does not always come easily even in the most advanced nations.
