License to Grill
How the Clintons invited Ken Starr into their private lives.
Like just about everyone else in America, I believe Bill Clinton had a sexual affair--if not dictionary-definition "sexual relations"--with intern Monica Lewinsky. I think it's likely, though by no means a sure thing, that he lied about that affair in a sworn deposition. And I wouldn't put it past him to suborn perjury or obstruct justice, though the evidence at this writing is very murky on those serious charges.
The president has what is popularly known as a zipper problem. He appears to like the sort of women who are unlikely to head health care task forces or jet off to Davos, Switzerland, to lecture the world on the morally corrupting effects of capitalism. Given both power and charisma, Clinton seems to have ample opportunity to act on his impulses. And though it's unlikely that Lewinsky will be his final fling, he manages to hold his marriage together and even inspire ferocious loyalty in his wife. Power and charisma probably have something to do with that feat too.
Clinton also lies all the time--so much that he often appears unable to tell he's doing it. His State of the Union address was full of what Washington Post columnist James Glassman rightly calls "big, brazen, and undeniable" lies, starting with "two whoppers": that "we have the smallest government in 35 years" and that Clinton wants to spend any budget surplus on Social Security rather than new programs. The government has shrunk (modestly) by only one measure, the number of federal employees; it spends, taxes, and regulates more than ever. And Clinton is proposing so many new spending programs--without offsetting cuts--that he can't fund them without substantial new taxes on cigarettes and corporate income. Given his lies about policy, and about his past, it's not surprising that even his political allies disbelieve him about Monica Lewinsky.
Nonetheless, Clinton does not deserve his current round of legal troubles. To be publicly humiliated as a moral weakling, lacking both judgment and self-control--that he deserves. To be distrusted by both intimates and the general public--he deserves that too. But for sexual pecadillos and routine lies to lead to possible high crimes and misdemeanors takes more than just Clinton's personal flaws. It takes very bad policy.
There is one sense in which the president deserves what has happened to him: He and his political allies are the people who made it possible, who created the legal mechanisms by which his private life became a matter of public, legal record. In that bitter irony lies the one hopeful aspect of L'Affaire Monica. It may, finally, create a consensus to rein in legal excesses that threaten not just Bill Clinton but the liberties of all Americans. But if Republicans are seduced by scandal and Democrats by dreams of vengeance, it may make matters worse.
The "crisis in the White House" begins with the Independent Counsel Statute. From the start, many Republicans opposed that law for corroding the constitutional division of powers. Back then, of course, presidents were Republicans, so the opposition was easy to ascribe to partisan motives. But in 1994, when the statute was up for reauthorization, a Democrat was in the White House, and his party controlled Congress. The most vocal opposition still came from conservative Republicans, who turned out to be remarkably principled.
They were utterly unsuccessful. The reauthorized statute was passed by the Democratic Congress and signed by President Clinton. So, as columnist and former Bush speechwriter Tony Snow notes, the law still "compels courts to appoint an independent counsel whenever somebody produces a saucy rumor." Apparently trusting that their friends would always be the ones wielding it, Clinton and his allies left nearly unlimited power in the hands of special prosecutors. Whatever they may say today, they made Ken Starr possible.
All prosecutors prosecute. They are often quite fanatical about their jobs. They have minimal sympathy for the defendants they go after, and they can be quite ruthless in pursuing useful witnesses. But usually they have limits--of time, of staff, of money, of public patience. And they usually have bosses.
An independent counsel, by contrast, has infinite time, infinite resources, and no boss. And while each investigation is supposedly limited to a specific topic, those topics have a way of stretching like Mr. Fantastic. Starr's jump from Whitewater to allegations of perjury and obstruction of justice in the Paula Jones case is modest compared to the fishing expeditions by Donald Smaltz, the prosecutor who investigated former Secretary of Agriculture Mike Espy on charges of taking gifts from regulated businesses.
As David Grann writes in a devastating New Republic piece, "Espy could be facing more than 100 years in prison for the appearance of impropriety, for simply taking gifts [without a quid pro quo]. To prove this, Donald Smaltz, the independent prosecutor, has spent more than three years and $11.9 million in taxpayers' money. He has trampled over witnesses who never even knew Espy, subpoenaed documents dating back to Jimmy Carter's term in office, and convicted a slew of low-level lobbyists and aides." All these actions, however abusive, have been well within the law. Independent counsels exercise power without accountability. No "vast, right-wing conspiracy" gave them that power. Democrats in love with government did.
That great affection for government power has expanded federal criminal law to make most Americans guilty of something. As Peter Morgan and Glenn Reynolds write in The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society, "Federal investigators and agency employees ask Americans about virtually everything these days. And virtually everything we say (sworn and unsworn, oral and written) is subject to federal criminal law. We remain relatively secure, however, because, again, federal prosecutors can't be bothered with prosecuting us…unless [we] amble a little further into the spotlight, questions are raised, and someone demands an investigation." (See "Good-Will Hunting," March.) Even if we survive such an investigation, it still costs hundreds of thousands of dollars to defend--a huge fine for the crime of angering one's political opponents.
The vast expansion of criminal law--something the president failed to bring up in his State of the Union address, lest it undercut his shrinking-government lie--is among the most important, and most threatening, trends of recent years. But Monicagate is not built on criminal law. It arises from the expansion of a civil offense: sexual harassment.
Media-savvy but legally unsophisticated liberal commentators, such as radio talk show host Tom Leykis, make a passionate, and fairly persuasive, argument about Clinton's presumed affair: It may be bad, but it's a private matter. It's between Bill, Hillary, and Monica. It's none of our business. It certainly doesn't belong in court. "Why are we asking questions about the president's sex life?" asks Leykis. "Why is that relevant to anything? Why should the president be put in a position of having to lie about something that's none of our business in the first place?"
Why indeed? The tempting answer is, Because you asked for it. Demanded it. Screamed and yelled and waxed indignant. You dedicated the 1992 Democratic National Convention to the cause. Remember "The Year of the Woman"? It was a media frenzy. And the number one agenda item was a ban on any hint of sexuality in the workplace.
Writing cheap symbolism into real law is a dangerous thing to do. But Congress did it in 1994. Ratifying the view that sexual harassment is too serious a matter to be governed by normal legal constraints, the very same Democratic Congress that reauthorized the Independent Counsel statute rewrote the rules of evidence. The new rules allow a defendant's sexual history--not just previous allegations of harassment--to be dragged into sexual harassment suits. (The plaintiff's history, however, was made inadmissable.)
So the president of the United States can be asked, under oath, about his sex life. It doesn't matter if the sex was consensual or even if the woman made the first move. It doesn't have to be harassment; indeed, no one claims anything of the kind in
the Lewinsky case. But Congress chose to make every intimate detail fair game. And if, like many a cheating spouse, the president lies to cover up adultery, he is guilty of a serious crime--perjury, a potentially impeachable offense.
Appearing on the Today show, Hillary Clinton addressed herself to an audience of good-hearted political and legal innocents. As she solemnly described a "vast, right-wing conspiracy," her poised, serious, and righteous demeanor hid the paranoid lunacy that comes across in a flat transcript of her words. She portrayed herself and her husband as sympathetic victims of a fanatical prosecutor "who has literally spent four years looking at every telephone call we've made, every check we've ever written, scratching for dirt…."
Every telephone call they've made! Every check they've ever written! It's worse than an IRS audit. Think of the lawyers' bills. The poor Clintons. What a hellish experience, thought middle America.
Middle America was right. Having every aspect of your life interrogated by a lawyer digging for dirt is plenty terrible. It's awful that subpoenas can demand something as broad as a list of all the phone calls you've made in the past five years or every check you've ever written. There ought to be limits on such wide-ranging searches. And in most criminal investigations, subject to the usual constraints, there are.
But every day innocent people have to submit--under penalty of jail time--to such abusive demands. They aren't criminals, or even suspected criminals. They are just unlucky people caught up in civil suits: divorces, contract disputes, shareholder litigation, ordinary slip-and-fall cases. Sometimes they aren't even plaintiffs or defendants, but innocent bystanders who may have some knowledge of interest to the case. And, again, the Clintons and some of their most important political allies are firmly on the side of the abusers.
Thanks to the political clout of the plaintiffs bar, among the most generous of Democratic donors, there are virtually no limits on civil discovery. Trial lawyers can force you to answer just about any question in a sworn deposition, with no judge present to deflect intrusive irrelevancies. They can force you to take drug tests or to be examined by a psychiatrist. Since 1970, they've had the right to demand any private papers they want.
In a frightening chapter of The Litigation Explosion, Walter Olson describes the results in terms that foreshadow the president's current predicament: "The power to extract confessions and inspect private correspondence has long appealed to a certain type of ambition. Were it used with complete unconstraint, a certain type of justice might very well be served for a time. Every diary, dossier, and archive would be thrown open to inspection. Each of us could be made to answer questions about our past deeds and thoughts and whereabouts, with answers cross-checked against those of our boon companions and partners in mischief, with a new round of questioning to follow….
"Few of us would want to live in such a world for long (though we might consent to hang around for the first thrilling revelations). We value our privacy, although we wish we could change the guilty habits it shields; we respect the privacy of others, although we know it sometimes conceals real wrongdoing. Then, too, we fear that no one could be safely entrusted with the power of the inquistor. We would never in this country entrust such a power to the public magistrate, even in a time of emergency and civil disorder. It would too obviously be a weapon of tyranny. And yet somehow we have been led to entrust it to private lawyers."
As the Paula Jones and Whitewater cases cross, unconstrained civil discovery has indeed become a tool of the public magistrate. Its results cannot yet be called tyrannical, but they are definitely disturbing. And they will likely get worse, as we go from this scandal to the next.
The Clintons and their allies armed their enemies with devastating legal weapons, naively thinking that those weapons would always be in friendly hands, useful against evildoers and the dreaded "right wing." They are now learning the lesson of what used to be called liberalism: Don't assume you'll always be in charge. Any power you give to government can and will be used against you, too, someday.
