The Attorney General, of all people, endorses shame culture over, um, law:
As last month’s report from the inspector general acknowledged, the hiring abuses by former Justice Department officials represented a violation of federal Civil Service law, but not of criminal law, he said. “That does not mean, as some people have suggested, that those officials who were found by the joint reports to have committed misconduct have suffered no consequences,” Mr. Mukasey said. “Far from it. The officials most directly implicated in the misconduct left the department to the accompaniment of substantial negative publicity.” (Emphasis mine, of course.)
I’ve been trying to figure out the circumstances under which I would actually believe that the shame provided by “negative publicity” was so strong that it made legal prosecution irrelevant. I can’t come up with any, but I’m willing to leave the possibility open. But this was clearly not that.
For one thing, how “substantial” was this negative publicity anyway? Mukasey implies that it was enough to drum those “most directly implicated” (presumably Gonzales, Goodling, Sampson) out of the Department — though of course they resigned in the midst of other scandals, unrelated to the pervasive sins of hiring practices that have been uncovered in the last year or so. The report itself on such practices received a comparable amount of publicity to, say, John Edwards’ admission of his affair. (And if I were more of a partisan hack I’d point out that this time last decade, the shame of a dalliance exposed wasn’t considered nearly enough to satisfy the demands of justice.)
But the fundamental question if you’re going to equate negative publicity and criminal prosecution is what shame negative publicity can produce, and whether it can be sufficiently punishing to the wrongdoer as an individual. Just having one’s name incanted spitefully or mockingly a few times in the mouths of the Keith Olbermanns in this world is certainly “negative publicity” (to some, at least), but it’s not shame. Shame works because it forces private wrongdoing out into the open, claiming it as public property and revoking the shamebearer’s right to go about his business behind closed doors. Furthermore, it does so in such a way that it transforms public perception; reassimilation is impossible. You, a personality, become identified with your scandal.
This doesn’t seem to have happened here in the least. Goodling and Sampson, in particular, were private citizens with private lives before they were supporting players in a scandal — but instead of the scandal transforming their role in the public eye, they have returned to being private persons again. No cameras parked outside their houses; they were scrutinized only in past tense, in a report that cast them in jobs they’d already left.
True, Goodling doesn’t seem to have been rehired since her resignation — then again, it seems that she had already reached her Peter Principle point. Sampson, on the other hand, had already been rehired by a private firm before the report came out, his resume not so stained as to be illegible. And while rumors persist that Gonzales hasn’t been so lucky in hiring, he’s still making money via public speaking engagements — as good a sign as any that the damage done to his public figure wasn’t as significant as Mukasey makes out. After all, everybody knows that the scandal-tarred don’t go on speaking tours; they go on the vaudeville circuit instead.
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