The Public Is Right: Keep Him

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.

Oh, grow up. Anybody who looks to politicians–as opposed to pastors and parents and scoutmasters–for moral leadership will live a perpetually disappointed life. This country's founding premise is that politicians are no better than the people they govern, and often are worse. That's why the Founders took such trouble to protect us from them.

Well, if you don't like it, change the law.

Fine, by all means, get rid of the grotesque sexual harassment laws and the misbegotten independent counsel act; but right at the moment, when a two-train wreck is about to become a four-train wreck, have you any other helpful suggestions? Good law is not like a zealous prosecutor or a finicky law professor, it is like a wise country judge. Sometimes it bends, because not bending is worse. Sometimes it looks the other way, or lets a miscreant off with a stern lecture.

I don't mean to give the impression that lawyerthink is wrong or foolish. Thinking like a lawyer is admirable, within limits. The question is always: What are those limits? Respect for legal process is a good thing, but it is not the only good thing. The problem arises when the system thinks _only_ like a lawyer, which is exactly the sort of problem that tends to crop up when the president is a lawyer and his prosecutors are lawyers and Congress is almost half lawyers and the president's whole strategy is being plotted by (who else?) lawyers.

In the polls, the public is astonishing in its steadfast resistance to lawyerthink and in its instinctively nuanced view of the situation. From a legal point of view, the polls are a mass of contradictions, but from the point of view of communitarian wisdom, they show a sophistication that eludes the legal system altogether. Clinton's job-approval ratings are high (in the 60s), but his personal ratings are low (plurality unfavorable). Strong majorities say he does not share their own moral values, but equally large majorities say he is a strong leader. A majority believes he committed perjury, and (according to a recent CBS News poll) a plurality also believes that he encouraged Monica Lewinsky to lie. Pluralities also understand that Congress and the media want Clinton punished.

Nonetheless, the people in front of the television sets will not have it. They view elite opinion with the sort of exasperation they usually reserve for animal-rights activists and the French. Solid majorities oppose impeachment and resignation, and want Clinton to finish his term. Will the scandal have a "serious impact on President Clinton's administration in the next two years?" Yes, say 69 percent to the CBS pollsters. But can Clinton "still be an effective president"? Yes again, by 62 percent. As long as the public believes that Clinton can govern, he lives.

The profoundly wise and republican sort of coherence implicit in public opinion springs from this understanding: Competent, seasoned presidents are not easy to come by. When an NBC News-Wall Street Journal poll asked people earlier this month how confident they were in Vice President Gore's "ability to lead the country as president," two-thirds said "only somewhat confident" or "not at all confident." With Russia in turmoil and Asia in depression and Bosnia on the boil, who can blame the voters for being reluctant to switch horses in midstream? Moreover, incompetent presidents do much worse things to the country than Clinton has done to the law. The public understands that, too.

Rhetorically, the legalistic elites hold all the cards, because it is always so easy to pound the table and say something like, "What? You believe it's all right to disobey the law?" But voters, unlike lawyers, need to concern themselves with keeping the country adequately governed. So they maturely consider the three awful choices available. One awful choice is to view the president as the perjurer that he probably is, and remove him from office by impeachment. But impeachment is a 20- year national trauma. Lawyerthink says, more or less, "We have no choice; let the process unfold." Peoplethink says: "It's not worth it, and adults always have choices."

Less-awful Choice B is a presidential resignation. But Clinton won't resign, and even if he does, resignation is a 10- year trauma. Least-awful Choice C is the one the public prefers: Cover the whole excruciating episode with a fig leaf (congressional censure), and then try to pretend it never happened. Given the damage done already (about a five-year trauma), this course adds the fewest bodies to the pile.

The people want to keep Bill Clinton around not because they like what he did but because they like what the law is doing even less, and above all because they think that keeping him around is better than the alternatives. That is not thinking like a lawyer, it is thinking like a grown-up. Mercifully, Bill Clinton's first Cabinet does not look like America, after all.