The Public Is Right: Keep Him

Jonathan Rauch | September 26, 1998

National Journal, September 26, 1998

Having promised to make his government ''look like America,'' President Clinton in January of 1993 promptly produced a Cabinet whose 18 members included 14 lawyers. All four of the top economic officials were lawyers.

Clinton's peculiar notion of how America looks is worth remembering at a time when our president and vice president and most of our Cabinet and even our first lady are lawyers, when our laws are written by lawyers (who make up more than 40 percent of Congress), when Washington's elite is dominated by lawyers, and when lawyers in law enforcement and private practice busy themselves trying to lock up or sue all the other lawyers. If you wonder who Clinton thinks he's kidding when he insists that receiving oral sex is not sex, think about that first Cabinet of his. In lawyer-land, Clinton is doing the smart thing.

Ritual disclaimer: Some of my best friends are lawyers. Until he retired about 10 years ago, my father was a lawyer. Lawyers do many good things. Well, they do some good things. But, inspecting the wreckage made by Clinton's mendacious legalisms and Kenneth W. Starr's obsessive legalism and Congress's unbalanced laws (independent counsel laws, and sexual harassment laws), it is hard not to feel like a member of the rescue crew after Swissair Flight 111 crashed in the Atlantic a few weeks ago. Desperately, one searches for a sign of life. But there are no survivors. Clinton has disgraced himself, Starr has discredited his office (there will be no more Starrs after next year, when the independent counsel law expires), and the law has behaved rashly and boorishly from the day the Supreme Court allowed Paula Corbin Jones to proceed with her sexual harassment suit against a sitting president. Quite a record.

Diving deep, however, I think I managed to come back with one revelation worth celebrating. From this scandal, we have learned a lot about how lawyers think, which is the bad news. The good news is that we have also learned that the American public does not think like lawyers.

Lawyerthink is not like peoplethink.

Lawyers say:

Lying under oath to impede the law is a felony, therefore it cannot be tolerated.

To which the public replies: It depends on what you lie about. Perjury is bad, yes, but perjury about consensual sex is not the same as perjury about criminal behavior or harmful behavior. It should not be condoned, but often it should be ignored. Covering up an affair is a universal impulse, and if the lie turns out to be basically immaterial or harmless, then the proper response is disapproval, not prosecution.

But letting Clinton lie with impunity invites everybody else to engage in the same evasive, mendacious conduct.

This is ''impunity''? Clinton has been flogged through the streets and speared by every editorial writer in the country. His sexual habits are public knowledge, his lies are exposed, his reputation ruined. Disgrace, ridicule, humiliation--these things _are_ punishments. Enough.

Besides, a nation that views its citizens as conniving lawbreakers, deterred only by unceasing vigilance and unbending enforcement, is a legal despotism. If you really believe that defending the law means punishing arrant flouters, then you had better go and arrest the few million open homosexuals who violate the laws of 21 states and Puerto Rico. (In South Carolina, what the law calls ''buggery'' gets you up to five years.) You want people to respect the law? Then the law should behave respectably.

No man, not even the president, should be above the law.

Right, but no man, not even the president, should be below the law, either. No ordinary citizen would be prosecuted-- or even, in the normal course of things, investigated--for perjury about a consensual sexual affair that was tangential (at best) to a civil suit that was dismissed. Why treat a president differently?

Because the president (says the Starr report) is ''an inspiring symbol of all that is highest in American purpose and ideals,'' with a sworn duty to heed the law.