No Thanks for the Memories

By Jill Smolowe

The writings were to have served as Bob Packwood's monument, to be published years after his death. For more than two decades, every morning for 30 minutes, he scribbled his recollections of the day before, thoughts both philosophical and quotidian, ranging from political ruminations to juicy gossip. As he described it, the writings contained "the hopes and the dreams and the despairs of all of us."

The diaries, in fact, may turn out to be Packwood's greatest despair. After allegations erupted last November that the Oregon Republican had made uninvited sexual advances to 10 female staff members, Packwood first denied any sexual misconduct, then laid blame for his untoward advances on the influence of alcohol, raising both disbelieving hoots and doubts about his probity. As the number of women charging sexual harassment rose to 26, Packwood parried with threats to stamp scarlet letters on his accusers, bringing additional allegations of intimidation. Then last month, under questioning before the Senate ethics committee, Packwood disclosed that he had kept the diaries -- opening the door to public scrutiny of his most private thoughts.

Now come hints that besides the sexual-misconduct charges, Packwood may be guilty of criminal violations. In mid-October, he willingly surrendered some 5,000 pages of entries up through 1989. He also let the committee's counsel look at additional entries. After the counsel reported back to the bipartisan committee that those entries contained information pointing to possible misconduct unrelated to the current inquiry, the committee asked to see the remaining 3,200 pages. Packwood balked, charging an infringement of his right to privacy. The committee responded with a subpoena. Last week in a five-page statement, ethics committee chairman Richard Bryan, a Democrat from Nevada, asserted that information seen by the committee counsel "raised questions about possible violations of one or more laws, including criminal laws."

Bryan's vague claim drew a sharp retort from Senate minority leader Robert Dole. "This is almost a prejudgment here," said the Kansas Republican. "It seems to me it ought to be followed up with a charge or it ought to be retracted." As yet, the only hint of the nature of the alleged violations comes in a letter from Packwood's lawyers to Bryan that suggests a possible misuse of campaign donations.

The latest furor over Packwood is largely the result of his own bungling. When the ethics committee first subpoenaed the diaries on Oct. 20, many Senators questioned the propriety and legality of delving into someone's private writings. Packwood's attorney immediately let it be known that the diaries included entries that could lay bare the sextracurricular activities of at least two other legislators -- including a Senator's divorce and his "extended affair" with a staff member, and a liaison between a Senate aide and a member of the House leadership. Last week when colleagues shouted "Blackmail!" Packwood coolly responded on the Senate floor, "I have no intention of ever using it for blackmail, graymail or anything else, but I want the Senate to clearly understand that it is the ethics committee that has demanded the production of the pages."

Packwood's undignified tactics upstaged Senators' concerns about Fifth Amendment safeguards against self-incrimination. Instead, many Senators fumed privately that the man who may already have been exposed as a letch, lush and liar was a lout as well. Says an ethics committee staff member: "The fact that ((Packwood)) stood on the Senate floor and issued a not-so-veiled threat against his colleagues has alienated a lot of people." (An unnamed woman, described by her lawyer as "prominent within the country," was equally unhappy, charging that the release of the diaries would cause "irreparable damage" to her reputation.)

Packwood's clumsy attempts to elude further scrutiny of his diaries served only to fuel the ethics committee's determination. By midweek, the committee convinced the Senate leadership to schedule a chamber-wide debate on its subpoena of the full diaries. The debate this week, which will be followed by a vote, will determine if the Senate proceeds to U.S. district court to enforce compliance. Plainly hoping to calm jitters and win votes, Bryan dismissed Packwood's suggestion that other Senators might be caught in a diary dragnet. "There is no witch hunt or fishing expedition under way," Bryan said. "The ethics committee has no interest in pursuing information related to the private lives of members of Congress."

The committee does have an interest, however, in pursuing information that falls beyond the scope of its immediate inquiry. At present, Packwood faces three charges: sexual misconduct, intimidation and misuse of staff. Packwood maintains that it is "unfair and probably unconstitutional" for the committee to disclose incidents unrelated to those charges. In a letter to Bryan, the American Civil Liberties Union concurs: "The Supreme Court has repeatedly held that Congress cannot use its subpoena power to view material relating to private affairs that goes beyond the scope and purpose of a particular inquiry." Bryan counters that Packwood was specifically informed that "if the committee saw information related to possible other misconduct, the committee would be compelled to pursue the material." Bryan also notes that the diaries were transcribed by Packwood's Senate-employed secretary and that the Oregon Senator told the committee that he might use the diaries to write a book.

Still, many constitutional scholars are disturbed by the committee's claims of unfettered access to Packwood's writings. "By definition, a diary is a conversation with yourself," says Stephen Gillers, a professor of ethics at New York University School of Law. "Allowing the state to get your diary is allowing the state to get into your mind." Professor Yale Kamisar of the University of Michigan Law School adds, "Why should a person have to divulge self-incriminating statements merely because he chose to write them down rather than keep them sealed in his head?"

As yet, it is unclear if Packwood's diaries are primarily private musings or notations about his public life, like the journals of Ronald Reagan and George Bush. Even if Packwood's diaries contain a considerable number of personal entries, some scholars argue, the writings are not automatically protected. "You have to show some constitutional immunity, some privilege against self-incrimination or free speech or freedom of association," says Jesse Choper, a professor at the University of California, Berkeley, School of Law. "As a general proposition, a court can subpoena records that contain reference to criminal conduct." Such legalistic caveats cannot fail to crimp amateur Samuel Pepyses, who scribble in faith that their scribblings will remain private.

It will be all the more uncomfortable for Senate members if some of Packwood's jottings implicate them in criminal acts. As it is, Senators who vote in support of the subpoena risk being accused of trampling on Packwood's civil liberties. Those who vote the other way risk being accused of protecting their own hide. Either way, the Senate stands to look the way it did two years ago when Anita Hill visited its chambers: incapable of dealing effectively with charges of sexual harassment.

With reporting by Andrea Sachs/New York and Nancy Traver/Washington