Administration & Society

Volume 41 Number 5
September 2009 527-550
© 2009 SAGE Publications
Preventing State Crimes 10.1177/0095399709339014
http://aas.sagepub.com

Against Democracy hosted at

http://online.sagepub.com

Lance deHaven-Smith
Florida State University, Tallahassee
Matthew T. Witt
University of La Verne, California

This article analyzes U.S. vulnerabilities to state crimes against democracy

(SCADs). SCADs are actions or inactions by government insiders intended
to manipulate democratic processes and undermine popular sovereignty.
Watergate and Iran–Contra are well-known examples of SCADs involving
top officials. SCADs in high office are difficult to detect and successfully
prosecute because they are usually complex and compartmentalized; investi-
gations are often compromised by conflicts of interests; and powerful norms
discourage speculation about corruption in high office. However, liberal
democracies can reduce their vulnerability to state political criminality by
identifying vulnerabilities proactively and instituting policies for SCAD
detection and prevention.

Keywords: State Crimes against Democracy; SCADs; political–economic

complexes; checks and balances; elite political criminality

B ecause of growing concerns about the health of U.S. political institu-

tions, public administration scholars have begun to conceptualize and
study state crimes against democracy (SCADs). SCADs are actions or inac-
tions by government insiders intended to manipulate democratic processes
and undermine popular sovereignty (deHaven-Smith, 2006).1 In principle,
SCADs can be committed at any level of government, but those involving
high office have thus far been the primary focus of scholarly interest
because of their potential to subvert political institutions and entire govern-
ments or branches of government.
Although only a few high-level SCADs in U.S. history have ever been
officially corroborated, evidence indicates that at least since World War II
American democracy has become vulnerable to subversion by top leaders.

Authors’ Note: Please address correspondence to Lance deHaven-Smith, Bellamy Building,

6th Floor, Tallahassee, FL 32306-2250; e-mail: ldehavensmith@fsu.edu.

527
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Examples of high-level SCADs that have been officially proven include the
Watergate break-ins and cover-up (Bernstein & Woodward, 1974), the secret
wars in Laos and Cambodia (Ellsberg, 2002), the illegal arms sales and covert
operations in Iran–Contra (Kornbluh & Byrne, 1993; Martin, 2001; Parry,
1999), and the effort to discredit Joseph Wilson by revealing his wife’s status
as an intelligence agent (Isikoff & Corn, 2006). There have been many other
political crimes in which involvement by high officials is suspected have
gone uninvestigated or unpunished. Examples of suspected SCADs in high
office include the fabricated attacks on U.S. ships in the Gulf of Tonkin
(Ellsberg, 2002, pp. 7-20), the “October Surprises” in the presidential elec-
tions of 1968 (Summers, 2000, pp. 298-308) and 1980 (Parry, 1993; Sick,
1991), the election breakdowns in 2000 and 2004 (deHaven-Smith, 2005;
Miller, 2005), and the misrepresentation of intelligence to justify the invasion
and occupation of Iraq (Isikoff & Corn, 2006; Rich, 2006).
Nefarious involvement by high-ranking public officials in these and
similar events cannot simply be dismissed as improbable, for the investiga-
tions of Watergate and Iran–Contra showed that officials at the highest
levels of American government can and sometimes do engage in conspira-
cies to manipulate elections, wiretap and smear critics, mislead Congress
and the public, and in other ways subvert popular sovereignty (Summers,
2000; Walsh, 1997). Corruption in high office is also predicted by a number
of theoretical traditions in public administration and policy that point to
sinister, antidemocratic tendencies in modern representative government.
Examples include Harold Lasswell’s garrison–state construct, C. Wright
Mills’ theory of the power elite, and Jürgen Habermas’s critical theory. Yet
another reason to be open to the possibility of political criminality in high
office is the rise since the 1930s of what economists and criminologists
refer to as “control frauds” (Black, 2005; Calavita, Pontell, & Tillman,
1999). Usually occurring in waves, these are large-scale frauds, such as the
looting of savings and loan companies in the 1980s, that are perpetrated by
corporate officers with the tacit approval, if not active support, of high-
ranking public officials whose support has been purchased by campaign
contributions and other rewards.
Despite the grave implications of political criminality among top lead-
ers, public officials tend to downplay the threat of crimes in high office. As
a practical matter, oversight committees and government investigators are
usually reluctant to pursue suspicions about top leaders unless evidence of
guilt is already in hand. Even then, calls for prosecution or removal from
office are likely to be tempered by partisan calculations and other strategic
considerations.
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   529

Still, this widespread reluctance to suspect public officials when they

benefit politically from election breakdowns, intelligence failures, breaches
of secrecy, and other events need not stand in the way of reforms to make
SCADs in high office less likely to be committed in the first place. Liberal
democracies can reduce their vulnerability to antidemocratic manipulations
by instituting policies for SCAD detection and prevention. Many such
policies were enacted in the United States after Watergate, including the
War Powers Act, which was designed to prevent presidents from initiating
or escalating military action without consulting with Congress, and the
Foreign Intelligence Surveillance Act, which restricted electronic surveil-
lance of U.S. citizens. The challenge for public administration scholars and
practitioners is to develop effective anti-SCAD policies proactively, before
high crimes are committed, so that such crimes will be discouraged by fear
of detection and prosecution.
This article analyzes SCAD vulnerabilities in contemporary American
government and recommends constitutional and statutory reforms to
improve the chances that antidemocratic conspiracies in high office will be
detected and punished, if not discouraged in the first place. The article is
divided into three sections. The first section traces changes in the nature of
antidemocratic corruption over the course of American history to changes
in U.S. politics and government. Here it is argued that the proliferation
since World War II of Watergate-like conspiracies is due to the relatively
recent formation of political–economic “complexes” with the means and
motivation to manipulate the national political agenda. The second section
focuses on SCADs and suspected SCADs in high office since World War II
and explains why they have so often gone uninvestigated and unpunished
despite their devastating consequences. The article concludes by analyzing
targets and tactics in post–World War II SCADs to reveal perpetrator pro-
files and systemic weak points. Constitutional and statutory reforms are
proposed for mitigating these weaknesses and strengthening the system of
checks and balances.

The Origins and Evolution of Political

Corruption in American Government

Corruption and Democratic Theory

Scholars and practitioners of American government have always
acknowledged the need to defend popular sovereignty against antidemocratic
530   Administration & Society

tendencies intrinsic to representative government, but the nature of this

challenge has changed over time, periodically requiring significant reforms
to counter new kinds of threats and abuses. The main eras of antidemocratic
corruption and subsequent reform are listed and described in Table 1. Because
reforms have never been totally effective, vulnerabilities from earlier eras
continue to be problematic even though they have been mitigated. In this
sense, the form and scope of antidemocratic corruption have expanded
over time.
The antidemocratic vulnerabilities of American government can be con-
ceptualized and classified in terms of the aims and underlying theory of the
U.S. Constitution. As explained in The Federalists, the overriding objective
of the Constitution’s framers was to secure “the spirit and form of popular
government” against three dangers: perfidious and mercenary public offi-
cials, oppressive factions, and misguided popular opinions (Diamond, 1987,
p. 669). The framers included mechanisms in the Constitution of 1789 to
address each of these threats. Public officials were to be kept responsive with
periodic elections (Federalist 28, 57). Majority tyranny was to be impeded
by federalism, divided powers, and checks and balances (Federalist 47, 51).
And misguided popular opinions were to be corrected by filtering them
through the deliberations of elected representatives (Federalist 10).
Unfortunately, as the framers themselves soon recognized, America’s
constitutional framework was vulnerable from the beginning to manipula-
tion by political insiders. Alliances could be formed between officials in the
different offices and branches of government to undercut the system of
checks and balances. Once an enduring alliance of legislative, executive,
and/or judicial powers was in place, many procedural limits on oppressive
majorities would be deactivated, and public officials who represented the
dominant faction could then use the coercive organs of government to sup-
press opponents, conceal information, and in other ways handicap the
electorate’s ability to hold representatives accountable.

Political Parties as Oppressive Factions

The archetype of multibranch alliances in American government is the
political party: an organization dedicated to gaining control of the political
system as a whole so that a program can be legislated, executed, and judi-
cially sustained. As George Washington pointed out in his farewell address,
parties not only weaken the system of checks and balances by placing the
reins of legislative, executive, and/or judicial powers in the hands of a
single group, they tend, by their very nature, to inspire a certain “team
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   531

Table 1
Eras of Corruption and Reform in American History
Vehicle of Form of
Time Period Corruption Corruption Examples Reforms

1796-1830 Political Oppressive The Alien and Partisan

parties faction: Sedition Acts competition
Antidemocratic
legislation to
suppress
dissent,
opposition, or
unwanted
advocacy or
inquiry
1830-1890 Political Perfidious and The spoils system; Professionalizing
machines mercenary the disputed public
officials: election of 1876 administration
Misuse of
administrative
resources for
electoral
advantage
1890-1946 Iron Special-interest The conspiracy Regulation of
triangles manipulation: theory of the stakeholder–
Insider 14th Amendment; government
manipulation of Teapot Dome relations, that is,
legislative and restrictions on
administrative campaign
technicalities, finance, lobbying,
usually for government rule
economic gain making, etc.
1946- Political– High-level Watergate; Iran– Policies for
economic SCADs: Contra; overseeing,
complexes Conspiracies Plame-gate; auditing, and
by high misrepresentation investigating
officials to of intelligence to officials in high
commit fraud, justify military office
treason, etc., action in Vietnam
usually for a and Iraq
combination of
ideological,
economic, and
bureaucratic
reasons

Note: SCADs = state crimes against democracy.

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spirit” that blurs the distinctions between legitimate political action, unprin-
cipled political tactics, and political criminality. This propensity became
apparent soon after the first national political party, the Federalists, was
organized and gained control of the legislative and executive branches in
the election of 1796. The Federalists enacted the Alien and Sedition Acts,
which ignored the Constitution’s guarantees of free speech and made it a
crime to criticize public officials.
Thomas Jefferson, who in 1796 had campaigned against the Federalists
and had been elected vice president, was so troubled by this development
that he left Washington and returned home for the duration of his term. The
remedy subsequently crafted by Jefferson and Madison to address the
Federalist Party was a counteralliance—the Democratic Republican
Party—which carried Jefferson to the presidency in 1800. During the next
several decades, the parties developed rules and procedures to regulate the
majority and protect the minority’s ability to be heard. Although partisan
competition did not restore the full vigor of checks and balances to the
constitutional system, it did prevent any majority, oppressive or otherwise,
from permanently evading electoral accountability.

Political Machines and Administrative Corruption

Although partisan competition prevented majorities from escaping the
criticism and blocking the electoral appeals of their opponents, it did not
totally foreclose the possibility of untoward coordination between constitu-
tionally separated powers; rather, it drove factions to search for indirect
routes to the same end. Officials in the executive branch of government at
all levels began to use the powers of their offices to entrench themselves
and their parties throughout the political system. Their primary tactics
courted new forms of corruption that undermined electoral accountability:
the spoils system, ballot stuffing and other vote frauds (Campbell, 2006),
disenfranchisement and other impediments to political participation
(Thernstrom, 1989), and the use of government resources in political cam-
paigns. These abuses proliferated until, toward the end of the 19th century,
public administration scholars and practitioners professionalized American
government by instituting professional civil service requirements, prohibit-
ing the use of government resources in political campaigns, and moving to
the council-manager system in local government.
The reforms of the Progressive Era succeeded in partially restoring
integrity to elections and principles to public administration, but they also
brought organizational changes that weakened the system of checks and
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   533

balances in new ways. A new instrument of government, the independent

regulatory commission, was introduced that combined legislative, execu-
tive, and judicial powers in a single unit. By creating what became in effect
self-contained minigovernments, such commissions opened the door to a
cartelization of the political system, whereby public power and resources
were divvied up and distributed to various economic, social, and geo-
graphic constituencies (Lowi, 1969). This pattern was repeated with the
vast expansion of federal grants-in-aid to states and localities under the
New Deal and the Great Society. Policy making and administration were
fragmented into a plethora of separate and distinct arenas where public and
private stakeholders could work out mutually acceptable compromises
more or less independent of the larger political process. The resulting
political–economic conglomerates have been described variously as “iron
triangles,” “whirlpools,” “subsystems,” and “subgovernments” (deHaven-
Smith & Van Horn, 1984; McCool, 1998).
The proliferation of iron triangles was accompanied by a new form of
corruption in which stakeholders in a given policy arena colluded to manip-
ulate legal and procedural technicalities for the benefit of special interests.
Frequently, the stakeholders in question were corporations and industrial
interests—especially railroads, electric utilities, and oil companies—that
have been widely suspected of bribing, hoodwinking, or otherwise influ-
encing policy makers to gain legal and financial advantages at the public’s
expense. The earliest example of a suspected manipulation of this sort was
described by Charles and Mary Beard (1927) in their “conspiracy theory of
the 14th Amendment.” (This, incidentally, is where the term conspiracy
theory originated.) According to the Beards, legal experts for the railroad
industry pushed for and obtained wording that led the courts to apply the
legal guarantees of the 14th Amendment not only to individual citizens but
also to corporations (Beard & Beard, 1927, pp. 111-114). Broad testament
to these concerns about the growing potential for these kinds of special-
interest abuses in America’s increasingly fragmented and technical system
of government was made with restrictions on campaign contributions and
lobbying, financial disclosure requirements for public officials, public
records and open meeting laws, and other reforms to reduce improper influ-
ences in policy making and administration.

SCADs
The most recent corruption-related development in American govern-
ment has been the rise of political–economic complexes with the capacity
534   Administration & Society

to affect the political priorities of the political system as a whole. For the
first half of the 20th century, American government’s increasing fragmenta-
tion was seen by public administration scholars and practitioners as a posi-
tive development that allowed popular participation in policy making while
preventing majority tyranny (see, e.g., Dahl & Lindblom, 1946/1976). The
assumption was that oppressive factions could not exert control over the
government as a whole because power—although less well divided in
terms of function (legislation, execution, adjudication) than it had been
before independent commissions and grants in aid—was now splintered
among numerous substantive domains or topical areas. In theory, with each
policy arena dominated by different factions, no faction or combination of
factions would be able to control the government as a whole, and national
priorities would have to emerge incrementally from “partisan mutual
adjustment” among diverse power blocks (Dahl & Lindblom, 1946/1976).
By midcentury, however, public administration scholars and practitio-
ners began realizing that not all policy arenas and stakeholders are equal.
Among stakeholders, corporate business interests were predominant
because they were active and influential in virtually all policy areas, giving
U.S. public policy in general a decidedly pro-corporation cast relative to
labor, consumers, the environment, and other interests agglomerating a
“second face of power” inscrutable to popular inquiry and impervious to
challenge (Bachrach & Baratz, 1962). Congruently, policy making about
national defense and military action had risen in importance and now influ-
enced all other policy areas as well. As President Eisenhower warned in his
farewell address: military leaders and armament manufacturers had become
a “military–industrial complex” capable of influencing the entire direction
of American government.
Since Eisenhower’s day, the military–industrial complex has expanded
while other comparable and integrated complexes have formed. Energy,
finance, and pharmaceutical interests have grown in influence not simply
because of their vast economic assets but also because of their strategic
importance to the entire society. Complexes differ from iron triangles in
their command over resources that affect overall societal conditions, mass
perceptions, and political priorities. Falling energy prices can help save a
presidency, as they did in 2004. Military threats can rally support for the
party in power, as happened after 9-11. Fears of epidemics and biological
weapons can fuel militarism and restrictions on civil liberties, as they did
after the anthrax mailings in 2001.
This ramifying quality heralds a morphologically new form of threat to
American governing institutions. Unlike iron triangles, which typically
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   535

involve narrow economic interests and midlevel policy makers, complexes

pose moral hazards for the highest offices of government because their
assets can be used to wield dominant control over the national political
agenda. The same moral hazards exist for the corporate and industrial inter-
ests that comprise the economic side of political–economic complexes,
because the national political agenda is the primary factor affecting the
income, importance, and long-term prospects of the corporations involved.
This confluence of moral hazards at the highest levels of government and
business does not necessarily mean that conspiracies to game the national
political agenda are common, but it does mean that conditions are increas-
ingly conducive for such conspiracies.

Impediments to SCAD
Detection and Prosecution

Legal Complexity and Sophistication

There are at least four reasons why, other things equal, SCADs in high
office are unlikely to be detected and/or punished. First is the nature of the
crimes themselves. Typically, high-level SCADs are complex conspiracies
involving people with expertise in law, law enforcement, and police proce-
dures. For example, G. Gordon Liddy, who organized the Watergate break-
ins, was a former agent with the Federal Bureau of Investigation (FBI). He
was assisted by E. Howard Hunt, who had recently retired from the Central
Intelligence Agency (CIA). The wiretap expert for bugging the Democratic
National Committee was James McCord, also a retired CIA officer. In plan-
ning the Watergate break-ins, Liddy, Hunt, and McCord identified and
neutralized numerous safeguards that had been put in place by the
Watergate’s security agency (Hunt, 1974; Liddy, 1980; McCord, 1974).
Exterior lighting was disabled prior to the break-ins. Locks were picked
rather than forced. Observers were positioned outside the building to watch
for activity and to communicate with the burglars by walkie-talkie. The
electronic surveillance devices were custom made to prevent their signals
from being picked up by police radios and other receivers. The Watergate
burglars were apprehended only because one of the low-level operatives
failed to follow instructions and left a strip of tape on a stairwell door lock.
Similarly, when guilty public officials come under suspicion, they usu-
ally have access to legal experts who can help them evade prosecution. For
example, when the first press stories appeared on what would become
536   Administration & Society

known as Iran–Contra, Attorney General Edwin Meese, in the guise of car-

rying out an internal investigation, worked with the president, vice presi-
dent, and several members of the cabinet to develop a cover story to
insulate the president from responsibility and to shift blame to the military
personnel who had executed the president’s policies (Walsh, 1997).
Because of their legal and technical sophistication, SCADs in high
office may lack many of the characteristics of ordinary crimes that allow
the latter to be investigated and solved. Ordinary crimes are often solved by
pressuring criminals to inform on one another, but this may be impossible
with SCADs because they are often organized like covert intelligence
operations. Each element of the operation is compartmentalized, and infor-
mation about participant roles is shared only on a need-to-know basis. In
Iran–Contra, for example, separate corporations or “cutouts” were hired to
handle arms shipments and sales so that the military units from which the
armaments originated would not know the arms were destined for Iran
(Kornbluh & Byrne, 1993; Walsh, 1997).
Indeed, SCADs are sometimes so sophisticated that it is unclear whether
a political crime has actually been committed. During the 1972 campaign
season, the Nixon administration engaged in a wide-ranging program of
political “dirty tricks” to ensure that the weakest candidate in the field
would be nominated by the National Democratic Party. Circumstantial
evidence suggests that Edmund Muskie’s emotional breakdown on the
campaign trail had been provoked by an LSD-like chemical agent, but this
suspicion has never been confirmed (Summers, 2000, pp. 407-408).
Similarly, a staff investigator for the Senate Watergate Committee discov-
ered that more than 100 burglaries with the plumbers’ signature profile had
been committed in 1972, mainly in and around Washington, D.C. (Wise,
1976). In many cases, the targets were offices of psychiatrists who were
treating Nixon administration critics or their spouses. However, the only
such burglaries officially traced to Liddy and Hunt were the break-ins at the
Watergate and at the office of Lewis Fielding, the psychiatrist of Daniel
Ellsberg.

Compromised Investigations
A second reason why SCADs in high office are likely to go unpunished
is that the agencies assigned to investigate what may be high crimes often
bear some blame or have some connection to the events in question; hence,
personnel in these agencies are inevitably tempted to conceal evidence that
would implicate or embarrass the agencies or their top managers. In the
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   537

investigation of the assassination of President Kennedy, for example, both

the FBI and the CIA concealed evidence of their contacts with Lee Harvey
Oswald and Jack Ruby (Talbot, 2007). Likewise, in response to the inquiry
into the defense failures surrounding 9-11, the Department of Defense
appears to have withheld from the 9-11 Commission evidence that military
intelligence agents had uncovered the 9-11 hijackers’ activities well in
advance of September 2001 (C. Weldon, 2005). These examples are not
intended to suggest U.S. government complicity in 9-11 or the assassina-
tion of President Kennedy but rather to illustrate agency defensiveness and
the potential of this to impede fact finding.
An additional barrier to unblinkered investigations of crimes or suspi-
cious events that may involve top leaders is the latter’s ability to exert
control over the investigatory scope and conditions. When the FBI first
began its inquiry into the Watergate burglary, agents were compelled to
allow John Dean, the White House General Counsel, to attend their inter-
views of White House staff (Kutler, 1990, pp. 209-210). Nixon’s staff also
convinced Acting FBI Director Patrick Gray to destroy evidence taken
from the safe in Howard Hunt’s White House office, telling him that “it
should never see the light of day” because it involved important national
secrets (Gray, 2008, pp. 81-83). As the investigation continued, President
Nixon sent word to CIA Director Richard Helms that he should demand an
end to the FBI investigation on the grounds that the Watergate break-in had
been a national security operation (Kutler, 1990, pp. 218-219; Summers,
2000, pp. 428-429). This gambit failed only because Acting FBI Director
Patrick Gray demanded the CIA’s claim to be made in writing, and Helms
balked (Gray, 2008, pp. 87-88).

Mass Denial
A third factor impeding SCAD investigations and prosecutions is the
prevalence of powerful norms that discourage speculation about corruption
in high office. In the absence of such norms, top government officials
would come under widespread distrust whenever they received political
windfalls from assassinations, terrorist attacks, election breakdowns, and
similar incidents. But convention prohibits suspicions from being voiced
about top officials unless their guilt can be proven unambiguously by
demonstrable evidence. Without a “smoking gun,” even quite reasonable
suspicions about high crimes are dismissed as conspiracy theories. No
doubt, this characteristic of America’s civic culture is rooted in many tradi-
tions and attitudes—patriotism, respect for authority, the presumption of
538   Administration & Society

innocence in Western jurisprudence, etc.—but this reluctance appears to be

much more than simply a cultural disposition. The view that America is a
great and good democracy is a bedrock belief in the nation’s mythos and
self-image. Ridiculing suspicions of criminality in high office may be a
defense mechanism to protect the citizenry’s collective identity from grave
doubts and dissonance. In any event, elite and mass alike are usually reluc-
tant to face troubling questions about high-ranking officials.
The Watergate wiretapping is illustrative of these tendencies and predi-
lections. In June 1972, months before the 1972 presidential election, a
former CIA agent (Hunt) and a former FBI agent (Liddy), both of whom
were employed directly by the White House, were arrested in connection
with the crime. Also arrested was the head of security for the Committee to
Reelect the President (McCord), which was chaired by Nixon-confidant
and former Attorney General John Mitchell. The involvement of Hunt,
Liddy, and McCord was strong circumstantial evidence that the Nixon
Administration, if not the president himself, was engaging in election tam-
pering. Hunt pleaded guilty to all charges in January 1973, and the other
Watergate burglars followed suit shortly thereafter. Also in January 1973,
John Mitchell was linked to payments received by the burglars. Nonetheless,
articles of impeachment were not introduced until July 1973, and even then,
Congress showed no willingness to send the articles to the Senate for trial.
It was not until audiotapes implicating Nixon and his inner circle were
discovered and made public that calls for Nixon’s impeachment began to
be seriously considered.
This reluctance to entertain suspicions of high crimes is why George W.
Bush and/or Dick Cheney were not impeached for “outing” CIA agent
Valerie Plame. Undisputed evidence now shows that shortly before the 2003
invasion of Iraq, the president changed long-standing policy to allow the vice
president to declassify state secrets (Rich, 2007). A few months later, after
Joseph Wilson challenged the administration’s claims about Iraq seeking to
acquire uranium in Africa, the vice president informed his aide Stuart Libby
of Plame’s status. Libby then leaked this information to the press and to oth-
ers in the administration who also leaked it to the press. These circumstances
suggest that Libby was following the orders of the president and the vice
president, but Libby alone was indicted, and only then for committing perjury
when he denied having leaked Plame’s identity to reporters. Without a con-
fession from Libby implicating Cheney and Bush, no one was willing to take
action against either the president or the vice president, both of whom appear
to have been part of a criminal conspiracy to commit the treasonous offense
of exposing the identify of a covert agent in a time of war.
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   539

Even when evidence points to pervasive political criminality in high

office, the public and its leaders are reticent to investigate and prosecute.
Again, the administration of George W. Bush is illustrative. Much evidence
indicates that in addition to outing Valerie Plame, the Bush administration
manipulated and distorted intelligence to concoct a pretext for invading
Iraq (Isikoff & Corn, 2006; Rich, 2006), fired federal prosecutors who
refused to target Democratic officials (Horton, 2007), sought to intimidate
and silence career government professionals who arrived at conclusions
contradicting the administration’s claims or premises (Savage, 2007,
pp. 279-307), conducted domestic electronic surveillance without first
obtaining court orders (Suskind, 2006), periodically raised terrorist threat
levels to rally electoral support for the president (Hall, 2005), and counte-
nanced cruel and inhumane treatment of suspected terrorists (Goldsmith,
2007; Greenwald, 2007). Some of these actions were investigated, and in a
few instances officials were forced to resign or were prosecuted. But the
president and vice president were never called to account, not even after the
2006 election shifted control of Congress to the Democrats.

Presidential Pardons and Commutations

Fourth, SCAD investigations and prosecutions are impeded by presiden-
tial pardons and commutations. Gerald Ford pardoned Richard Nixon
without even allowing a full investigation into all of Nixon’s possible
crimes. Similarly, George H. W. Bush pardoned the Iran–Contra conspira-
tors and effectively prevented further investigation of his own role in the
affair. George W. Bush appears to have had similar motives with respect to
Stuart Libby. In commuting Libby’s sentence rather than issuing a pardon,
Bush made it impossible for Congress to compel Libby’s testimony in any
further inquiry into Plame’s exposure.

SCAD Vulnerabilities

Long-Recognized Vulnerabilities
Although they need to be strengthened and better enforced, policies for
preventing legislative, administrative, and special-interest corruption are
already in place. In recent years, the main threats from these forms of cor-
ruption have come from innovative schemes to circumvent existing con-
trols. A good example of such circumvention is how the savings and loan
540   Administration & Society

industry was looted in the 1980s. Corporate leaders who were engaged in
far-flung conspiracies to commit fraud finagled changes in regulatory poli-
cies and enforcement that allowed their frauds to go undetected until their
banks had been bled dry. This special-interest corruption in the finance and
banking industry was repeated little more than a decade later when Enron
used its tight connections with the Bush–Cheney Administration to evade
controls on energy pricing and asset accounting. The collapse of Enron and
other financial conglomerates led policy makers to strengthen regulations
for monitoring corporate accounting and holding corporate officers respon-
sible for their companies’ actions; regulations that were again weakened
under the George W. Bush administration.
Another example of a resurgent form of corruption is the new spoils
system that has developed around privatization and outsourcing. Much of
the waste and incompetence of military contractors in Iraq has been attrib-
uted to politicization of the contracting process. In many cases, companies
were selected solely on the basis of their ties to the Republican Party.
Similarly, in the system of influence peddling by members of Congress,
including Cunningham, Ney, and Delay, large government contracts and
specific legislation were traded for cash payments, campaign contributions,
jobs for relatives, and access to corporate planes. Although additional
reforms are needed, the procedures for government contracting, account-
ing, and earmarking were tightened after voters gave Democrats a majority
in both the House and Senate in 2006.
These examples suggest that once particular types of vulnerabilities
have been recognized, the system of checks and balances will eventually be
activated if schemes are devised to attack the same weak points in a new
way. It may be difficult to detect fraud in corporate accounting, cronyism
in government contracting, and influence peddling in legislative earmark-
ing, but no one doubts that such crimes are possible and that regulators,
investigators, and legislators need to guard against them.

Unacknowledged Corruption
In contrast, the political system’s vulnerability to the newest and gravest
type of corruption—conspiracies in high office to undermine popular sov-
ereignty, often by manipulating national circumstances or priorities—has
yet to be widely recognized, much less targeted for corrective action. When
suspicious incidents occur that alter the nation’s objectives, disrupt presi-
dential elections, provoke military action, or otherwise affect the national
agenda, Americans tend to accept the self-serving accounts of public officials,
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   541

seldom considering the possibility that such incidents might have been
initiated or facilitated by the officials themselves. This mass gullibility,
which itself invites SCADs, is unlikely to change until SCAD detection and
prosecution are improved.
Policies to facilitate SCAD detection and prosecution can be developed
by identifying vulnerabilities and devising statutory and constitutional
mechanisms to address them. Table 2 lists a variety of SCADs. The list is
not intended to be exhaustive, but rather to illustrate the kinds of high
crimes and tragedies that have affected the course of American history in
the post–World War II era and that are known or reasonably suspected to
have involved conspiracies among top leaders. Even though some doubt
surrounds a few of the examples in the table, the list is useful for highlight-
ing criminogenic circumstances and potential SCAD targets, perpetrators,
and tactics.
Certain circumstances and leadership configurations create crimino-
genic incentives. The political system is especially vulnerable to insider
manipulation during presidential elections and in times of heightened inter-
national tensions (deHaven-Smith, 2006). The officials who may be
tempted to participate in antidemocratic conspiracies include the president,
vice president, presidential candidates, top military commanders, top intel-
ligence officials, state election officials, national party operatives, and
government contractors.

Statutory Reforms
Protecting American democracy from these and similar vulnerabilities
will require both constitutional and statutory reforms. Table 3 lists potential
reforms to counter the various types of SCADs previously delineated.
Perhaps the most important line of statutory reform is to mandate proce-
dures for investigating assassinations, assassination attempts, terrorist
attacks, defense failures, and similar incidents. As it stands, events with
profound implications for the nation and the world are left to be investi-
gated on an ad hoc basis; procedures for controlling crime scenes, invento-
rying evidence, interviewing suspects, interpreting evidence, overseeing
the investigative process, and reporting findings are developed on the spot
in the aftermath of the tragedies, when the nation is in shock and the per-
petrators may be covering their trail. Public officials or their agents lost,
discarded, or destroyed critical evidence in the World Trade Center destruc-
tion (Griffin, 2004; Hufschmid, 2002); the anthrax mailings in October 2001
(Broad, Johnston, Miller, & Zielbauer, 2001); the disputed presidential

542
SCADs and Suspected SCADs
Treasonous agreements with
  foreign powers
  October Surprise of 1968
  October Surprise of 1980
Political dirty tricks during the
  nominating process
  Watergate and the operations
   of Donald Segretti
Provocations and false flag
operations
  Gulf of Tonkin incident
Election tampering
  2000 presidential election
  2004 presidential election
Fabricated or misrepresented
  intelligence
  Iraq-gate
  McCarthyism
Illegal wars
  Laos
  Cambodia
  Iran–Contra
Note: SCAD = state crime against democracy.
Table 2
SCAD Threat Matrix
Target Likely Initiators Timing Other Participants
National public opinion Nonincumbent Shortly before the general Partisan operatives and
during elections presidential election intelligence assets
candidates
Party nomination Presidential Early in the nominating process Intelligence assets and, in
processes candidates and the case of presidential
incumbent incumbents, White
presidents House political
operatives
National perceptions of Incumbent When the president and/or top Top military and
threats from world presidents military commanders think intelligence officials
revolutionary Congress and the public are with support of
movements unwilling to support lengthy contractors
and large-scale military actions
Election outcomes in the Presidential When presidential elections are National party operatives,
Electoral College candidates expected to be very close, and top elected officials at
the outcome hinges on a few the state level, and/or
closely divided states voting machine vendors
National perceptions of Presidents, vice When the public has been Intelligence analysts and
security issues presidents, and/ frightened by a recent attack covert operatives
or U.S. or threat of attack
senators
Weak foreign powers Presidents When the public or Congress Top military commanders
connected to world opposes military action that is
revolutionary capable of being implemented
movements secretly

Statutory and Constitutional Reforms for SCAD Detection and Prevention
Type of SCAD Vulnerability
Treasonous Nonincumbents can promise
agreements with future actions to foreign
foreign powers powers
Political dirty tricks Inadequate policing of
during the campaigns
nominating process
Provocations and false Ability of presidents to
flag operations classify relevant
information and block
inquiries
Election tampering Partisan election
administration in many
states and localities
Fabricated or Ability of presidents to
misrepresented politicize intelligence
intelligence estimates, and to
selectively declassify
Illegal wars The president has almost
unrestricted authority as
commander in chief
543
Note: SCAD = state crime against democracy.
Table 3
Statutory Reforms
Require candidates to report all contacts,
direct or indirect, with foreign powers
Define extralegal contacts and agreements
with foreign powers as treason
Increase campaign policing and security
Establish procedures for filing and
investigating accusations of criminal
campaign activities
Establish procedures for immediate,
thorough, and independent investigations
of any attacks on U.S. citizens or
military personnel outside of a war zone
Adopt state statutes that make election
administration nonpartisan
Require audits of all elections
Change the secrecy oath to prohibit
intelligence personnel from committing
perjury or concealing crimes
Make it clear that federal fraud statutes
apply to statements that are intended to
mislead Congress and/or the people.
Make violations of the War Powers Act an
impeachable offense
Change the oath for military officers to
include a provision against participating
in or concealing illegal wars
Constitutional Reforms
Require all candidates for national office
to swear an “Oath of Candidacy” that
promises to uphold the Constitution
Define crimes against democracy as
impeachable offenses
Prohibit Congress from delegating its
authority to declare war
Require a uniform system of elections
nationwide and require that votes be
tabulated manually and publicly
Define all documents, e-mails, notes, diaries,
etc., of public officials as the property of
the people, to be permanently maintained
at public expense and to be open to public
inspection under conditions established by
Congress
Require presidential pardons to be
approved by two thirds of the Senate
544   Administration & Society

elections of 2000 and 2004 (Barstow & Van Natta, 2001; deHaven-Smith,
2005; Miller, 2005); the assassinations of John Kennedy, Robert Kennedy,
and Martin Luther King (Groden, 1993; Pease, 2003; D. Weldon, 2000);
and the attempted assassination of George Wallace (Hunt, 1974, p. 216;
Summers, 2000).
Another set of statutory reforms is needed for elections. Opportunities
for political crimes that affect national priorities often arise around elections
for the presidency. Hence special attention needs to be paid to protecting
candidates against assassination, monitoring contacts between campaigns
and foreign governments, holding election officials personally responsible
for bias in election administration, and overturning elections when, for
whatever reason, the results fail to reflect the voters’ intentions.

Constitutional Reforms
Whereas statutory reforms can mandate detailed reporting requirements,
oversight procedures, and legal penalties, constitutional reforms need to
address SCAD vulnerabilities by better dividing the powers of government
and strengthening the system of checks and balances. Power has accumu-
lated in a number of political–economic complexes that can easily be drawn
into presidential politics. To defang these complexes and restore the
Constitution’s vigor will require fundamental structural reforms. Although
some targeted amendments can be devised to address specific problems,
neither they nor the statutory remedies discussed above are likely to be
effective in the long run unless the branches of government are rebalanced.
Political parties and political–economic complexes have become tools for
oppressive factions to take control of both the executive and legislative
branches, with the result that congressional checks on the president have
been drastically weakened (Byrd, 2004; Dean, 2007).
Consideration should be given to restoring the vice presidency to the
role originally envisioned for it by the framers. The latter expected the vice
president to counterpoise the power of the president; they did not intend for
vice presidential and presidential candidates to run as a single ticket. In
fact, the Constitution of 1789 did not provide for vice presidential candidates
at all; rather, the vice president was simply the runner-up in the presidential
election. If this framework had not been undermined by the formation of
political parties, the vice president would have been the nation’s second most
popular leader and presumably the president’s main rival. Serving as the
president of the Senate, such a rival would have been a powerful check on
the presidency. However, the constitutional provisions necessary for the
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   545

vice president’s political independence were nullified by the 12th Amendment,

which was enacted after Thomas Jefferson and Aaron Burr received the
same number of Electoral College votes in the election of 1800 and the
House cast a number of tie votes before eventually selecting Jefferson as
president. The framers’ original intention for the vice president to be a rival
of the president could be restored to the Constitution by repealing the 12th
Amendment, which requires separate votes to be cast for president and vice
president.
In lieu of or in addition to this restoration of vice presidential indepen-
dence, the role of Congress vis-à-vis the executive could be strengthened
by adjusting some of the constitutional procedures for decision making. For
example, a two thirds majority in Congress could be required for declara-
tions of war just as it is now required for Senate ratification of treaties.
Requiring an extraordinary majority would empower the minority party
and make it difficult for an oppressive faction to strengthen its hold on
government by taking the nation to war. A two thirds majority might also
be required in the House to prevent articles of impeachment from being
sent to the Senate for trial. By lowering the threshold for impeachment to a
third of the House, this would empower the minority party to force investi-
gations of suspect executive actions.
Constitutional reforms should also be considered in several other areas
not directly related to the legislative–executive balance. One issue not well
handled by the Constitution is government secrecy. The spirit and form of
popular government cannot be maintained if the people are routinely
denied access to government documents or if the people’s representatives
cannot compel truthful testimony from public officials and other persons
entrusted with public responsibilities. Currently, the only mention of
secrecy in the Constitution is a comment indicating that Congress may
choose to keep some of its deliberations secret. This reference should be
amended to protect the people’s access to government records and to allow
secrets only when they are necessary to protect the nation from imminent
threats.
Equally in need of clarification and qualification are the Constitution’s
procedures for declaring, fighting, and ending wars (Bacevich, 2005; Byrd,
2004; Dean, 2007). The last military action for which Congress issued a
declaration of war was World War II. Since then, the introduction of nuclear
weapons has made Congress appropriately reluctant to authorize the kind
of uninhibited military action that a declaration of war might unleash.
However, the Constitution contains no process for authorizing limited wars
or for ensuring that Congress can end such wars at its discretion. In large
546   Administration & Society

part this is why the role of Congress and the president became so muddled
during the Vietnam War. The failure of the War Powers Act to correct this
situation was demonstrated all too clearly after 2006 by the legislative–
executive conflict over the occupation of Iraq.
How to proceed on this issue depends on what is viewed as the appropriate
role for the United States internationally. The framers wanted the nation to be
capable of defending itself against foreign aggression and protecting its citi-
zens and their property against pirates and piratical governments. But they
expected this capability to be exercised sporadically, not for America to be
permanently militarized and mobilized. This is why the Constitution assumes
that military action will be preceded by a declaration of war, and why monies
to support the wartime military can be appropriated for no more than 2 years
at a time. The expectation implicit in the Constitution is that Congress would
declare war, the president would direct actions of the nation’s military forces,
and then at least every 2 years Congress could decide whether to continue to
fund the endeavor. The president could terminate wars by negotiating treaties,
but the latter had to be approved by two thirds of the Senate.
The question today is whether this founding vision needs to be restored
or if instead constitutional provisions need to be added to allow for military
actions of a limited nature. If the framers’ vision is to be restored, the
Constitution will need to be amended to prohibit the president from engag-
ing in military actions without a congressional declaration of war, and
Congress will have to be explicitly barred from delegating its war-making
authority to the executive. The resolutions authorizing both the Vietnam
War and the Iraq War delegated the decision about the use of military force
to the president, thus eviscerating the separation of powers and launching
the congressional–presidential role confusion that plagued policy making
in these wars from then on.
On the other hand, if limited military engagements short of total war are
to be allowed, then the roles of Congress and the executive in initiating,
directing, evaluating, and terminating such engagements need to be spelled
out. One possibility for doing so would be to exploit the language already
in the Constitution for “Letters of Marque and Reprisal,” which can be
issued by Congress to authorize private individuals to act on the nation’s
behalf in protecting Americans and their property from pirates and brig-
ands. A modern form might be developed for such letters to become, in
effect, contracts between the legislative and executive branches over the
terms of engagement, expected outcomes, and conditions for ending or
continuing the military action. To some extent, this is what Congress and
the president stumbled toward in policy making about Iraq after 2006.
 deHaven-Smith, Witt / Preventing State Crimes Against Democracy   547

Implications for Public Administration

In conclusion, it should be noted that this analysis of SCAD vulnerabil-
ities spotlights a neglected issue in public administration theory and prac-
tice, namely, how civil servants are to fulfill their obligation to protect and
defend the Constitution when they are bound by secrecy oaths, the chain of
command, and other legitimate constraints on their actions. Public admin-
istration scholars have traditionally advocated a separation of politics and
administration and have, with a few notable exceptions, paid little attention
to the responsibility of administrators to the constitutional order (Wamsley,
1990). In an era when government is apparently becoming increasingly
vulnerable to antidemocratic corruption at the highest levels, this techno-
cratic orientation leaves practitioners woefully unprepared to understand
and defend themselves against the pressures they are likely to encounter
(Farmer, 2005). When SCADs have been exposed in the post–World War II
era, it has often been by career civil servants who, in so doing, have put
democracy and the Constitution above administrative rules, the chain of
command, and even the law. For example, Daniel Ellsberg, a career analyst
with the CIA, broke a number of laws when he copied the Pentagon Papers
and delivered them to the New York Times. Similarly, Mark Felt, Number 2
in the FBI during the Nixon Administration and the source referred to by
Bernstein and Woodward (1974) as “Deep Throat,” committed crimes and
betrayed the FBI Director and the president when he leaked confidential
information about the crimes of Watergate. Many other, similar examples
could be cited (Wright & Dixon, 2008).
The point is that career civil servants have become the first line of
defense against antidemocratic corruption and abuses of power, for they are
witnesses to the inner workings of government and have the expertise to
recognize when American democracy is being subverted. The challenge for
academic public administration is to conceptualize this increasingly impor-
tant aspect of the administrator’s role and square it with other legal and
ethical obligations. Research on SCADs and other forms of political crimi-
nality can help clarify the nature of the threats imperiling American democ-
racy and also contribute analytic techniques and observation methods for
SCAD detection and investigation. But, by itself, SCAD-oriented research
will not be sufficient for defining the proper role for professional indepen-
dence and administrative dissent in protecting popular control of govern-
ment and the rule of law. For this, public administration scholars and
practitioners will need to return to the questions and concepts of classical
political philosophy, democratic theory, and constitutional law.
548   Administration & Society

Note
1. As thus defined, SCADs include not only election tampering, vote fraud, government
graft, and similar crimes when they are initiated by public officials but also more subtle viola-
tions of democratic processes and prerequisites. Any concerted effort by public officials to
mislead or distract the electorate, discourage citizen participation, or in other ways undermine
enlightened citizen choice constitutes an assault on democracy. The intent in defining SCADs
broadly as “actions” rather than narrowly as “illegal actions” is to ensure that efforts by public
officials to subvert popular control of government are covered even if they are not technically
in violation of established laws. Using the word crime in the name for these actions—state
crimes against democracy—may appear inconsistent with this intention, but it actually reflects
legal as well as popular usage when the term crime is applied to acts by public officials, as in
“high crimes and misdemeanors.” The U.S. Constitution refers to “high crimes” but leaves the
term undefined and therefore open to interpretation. Congress decided long ago that high
crimes are not limited to actions prohibited by law.

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Lance deHaven-Smith is a Professor in the Reubin O’D. Askew School of Public Administration
and Policy at Florida State University. He was Director of the School from 1995 to 1999 and
was Associate Director of the Florida Institute of Government from 1993 to 2001. He is the
author of articles and books on a wide range of topics, including public policy, public admin-
istration, and political theory.

Matthew T. Witt is Associate Professor of public administration at the University of La

Verne, where he teaches undergraduate, master’s, and doctoral courses in ethics, leadership,
and public administration theory. He has published work appearing in Administrative Theory
& Praxis and Public Administration Review among other venues, writing on matters of public
participation, public administration theory, and the persistent themes that race poses for public
practitioners.