Selected Skirmishes: Presidential Softball

Clinton gets blanked by the Supremes.

There is a growing awareness that our president occupies some ethereal political space where the annoyances of actual events rarely intrude. Piggybacking on angels, he floats free of the gravitational forces that limit lesser men.

And so it seems not a bit odd that his administration's recent legal gambits, twice played before the U.S. Supreme Court (Jones v. Clinton and Starr v. Clinton), have resulted in two 9-0 defeats and yet not a twinge of embarassment. Although former Law Professor Clinton's notoriously poor legal reasoning easily scaled the laugh test with Messrs. Brokaw, Jennings, and Rather, it drew guffaws from the high court–indeed, even from those arbiters of justice, Breyer and Ginsburg, selected by the president himself.

The first lost legal cause was Clinton's argument that he should not be dragged into court by Paula Jones while president. The rationale was that the chief executive needed to devote all his time to the duties before him.

Some might note that managing the affairs of state in the greatest country in the history of the world might well prove challenging even without the added burdens of telephoning hard-to-get-ahold-of fat cats for the Democratic National Committee. And they would be right–although the inordinate amounts of coffee Clinton was sipping in private meetings with wealthy CEOs might have given him a caffeine rush sufficient to surmount such a challenge.

The deeper allegation, of course, was that a sitting president is extremely vulnerable to such suits, which could be filed out of political (or other) animus simply to harass the nation's leader. "Clinton's lawyers have argued that permitting any phase of the litigation to take place before he leaves office would not only disrupt his conduct of the presidency," wrote The New York Times, "but would open the gates for a flood of frivolous civil suits against himself or his successors."

It's worth noting that Jones v. Clinton is the first such suit in 200 years. At that rate, we could be inundated by nearly half a dozen such cases over the next millennium. Things could even speed up, prompted by the lure of Mrs. Jones's easy money. Which is precisely why–if our legal system's filter to block "frivolous" suits is so porous as to permit the harassment of the man with the best lawyers in America–I want the president to be the first person subject to court costs, legal fees, and senseless hassle. I want Clinton, the busy Big Kahuna, the man who has the power to fix the system but in fact vetoes reform to limit lawsuits, to be the American taster for this lawyer-cooked soup.

The Court then turned its attention to Special Prosecutor Kenneth Starr's request for notes taken by a White House lawyer, Jane C. Sherburne. The Clintons argued that Sherburne, who consulted with Hillary Rodham Clinton about Whitewater matters, could keep her papers confidential under lawyer-client privilege.

The problem: Sherburne is a government employee, and works for the people of the United States. Ms. Clinton had the right to hire her own lawyer, which she did. In that case, attorney-client privilege would be respected, which it was (and is).

Black and white? Not to the nation's leading sources and "experts." The Washington Post's David Broder anguished, "I had my doubts about [Starr's] case." The prestigious National Journal blandly asserted, "Some legal experts predict that the Court will side with the White House because the more-conservative Justices have shown a deference for executive power." The upcoming case was cited as a possible "landmark decision" that "could have a profound effect" on government operations. A learned law professor, reported the Journal, "said the case is a tough one."

How tricky can 9-0 be? Indeed, the proffered defense was absurd: Half the federal workforce has a law degree. You can't make conversations with government bureaucrats privileged, outside of North Korea, anyway. If you did, any time a lawyer was dragged into the room (which they always would be–some would wander the hallways for this purpose), the public's right to know would be quashed.

In a democracy, presidential counsels serve as an especially rich source of inside information regarding criminality at the highest levels. Does the name John Dean ring a bell? No "lawyer-client privilege" for President Nixon's White House counsel. Indeed, Dean sang like a choir boy with a bucket of ice in his shorts.

The Clintonian assertion of exemption and privilege provoked nary a peep. Blessed be David Broder, who did come to glimpse a message: The Court "was pointedly reminding current and future presidential aides: Don't let your loyalties to the president who appointed you blind you to the higher duty you owe your country." Oh, yes, that principle. Very subtle.

Losing a double-header 18-0 appears not as shameful for the president as it would be for the Atlanta Braves. Wasting the Court's time, stretching out an expensive process for litigants, and throwing absurd arguments at the wall? (No problemo–at least until the presidential defense fund gives out. With Lippo's earnings healthy, not much chance of that.)

So long as this administration hangs suspended by luck, pluck, and media gullibility above earthly things, even sham arguments can buy time and add more distance from political accountability. When this administration talks about "frivolous" litigation, bear in mind that it has convincingly demonstrated just how all-pervasive a problem this is.

Contributing Editor Thomas W. Hazlett ([e-mail]) teaches economics and public policy at the University of California at Davis.