License to Grill

How the Clintons invited Ken Starr into their private lives.

Virginia Postrel from the April 1998 issue

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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.