Let me begin with some concessions and qualifications:
     
It’s true that there is something grotesque about wheeling out the awesome machinery of impeachment to determine whether the stuff of a bad porn flick can give rise to "high crimes and misdemeanors." There is something seriously disturbing about the Congress weighing the question of whether the president or the intern is lying about whether he touched her breasts and genitals "with an intent to arouse or gratify." It’s also true that Kenneth Starr’s report may wallow in such stuff more than necessary to prove the perjuries. Yuck, to borrow a Monica word.

It’s further true that what President Clinton has done to the institutions of democracy is not as bad as what President Nixon did in Watergate. Although the evidence that Clinton has committed crimes is at least as strong as the evidence that Nixon did, a criminal cover-up of a sexual affair is not as bad as a criminal cover-up of a burglary aimed at bugging political rivals. And Clinton’s perjuries and obstructions are not as bad as the payment of hush money to burglars.

It’s finally true that if a majority of the American people demand Clinton’s continuance in office — even in the face of Starr’s evidence, and even after any congressional hearings or Senate trial — then Clinton should not be removed (and won’t be).

But for the time being, as the people and their representatives absorb the detailed evidence and ponder its simultaneously grave and bizarre meaning, there are five key questions to answer:

It is fashionable, among President Clinton’s suddenly swelling ranks of critics (as well as among his last-ditch defenders), to bewail how awful this all is for the country, how degrading to us, to have such tawdry stuff cluttering the national agenda, such dirty laundry aired, such private matters exposed.

I respectfully dissent. On balance, the Monica Lewinsky scandal is good fo r America, in my view–good for Democrats, in the long run, as well as Republicans–regardless of whether Clinton is forced from office.

Traumatic as the process has been and will be, our body politic is sick enough to need strong medicine. And our political and civic culture will benefit in as-yet-unappreciated ways from having our noses rubbed so deeply in the dishonesty and decadence personified by Bill Clinton and his apologists.

Clintonism–a politics of image over reality, of say anything that sells, of governing by poll and focus group, of deception as standard operating procedure–has been a stunning success (at least in tactical terms). Nothing exceeds like success, and so Clintonism has become the great, bipartisan addiction of the governing class.

An effective remedy for any addiction will necessarily be painful. Painful, but cleansing. The denouement of this drama is likely to be not merely the disgrace of President Clinton, and of his cadre of co-dependent liars and spinners, but also a much- needed purging of the culture of lying that they have so perniciously perfected.

Perhaps this experience will do for us what even the trauma of Watergate failed to do in any deep or lasting way: push us toward a civic culture in which the first question one asks about a politician, or a journalist, or a professor, or a lawyer is not whether that person is liberal or conservative, Democrat or Republican, one of us or one of them. It is whether he or she can be trusted to tell the truth.

Six days after his retirement from the U.S. Supreme Court on June 26, 1987, Justice Lewis F. Powell Jr. looked back over the long journey from his roots in the Old South. He had come of age as a conservative, who was not ”as eager for social change as some people are,” and made his way to the strategic center of the court, where he helped consolidate and advance some of the most profound social changes ever wrought by the judiciary.

For his first 45 years, Powell recalled in his barely audible Tidewater Virginia drawl, ”there was de jure segregation in the Southern states, not only of the schools but of public accommodations, facilities, theaters.” A note of wonderment crept into his voice as he completed the thought: ”I just can’t imagine how I grew up and accepted that as a normal way of life in this country.”

Unlike many other prominent Southerners, Powell also accepted the profound change in that way of life decreed by the Supreme Court in 1954, in Brown vs. Board of Education of Topeka, as the law of the land. ”It produced a revolution in our country, not just in the South but nationally,” he stressed. As head of the Richmond School Board, Powell helped engineer the peaceful (albeit very gradual) desegregation of the city’s schools.

And by 1978, as Justice Powell, he was writing the pivotal opinion in the 5-4 decision in Regents of the University of California vs. Bakke, which upheld the use of race as a ”plus factor” for black students (while barring numerical quotas) in state university admissions as a way to promote racial diversity in the student body.

As you know,” President Clinton told the American people Monday night, ”in a deposition in January, I was asked questions about my relationship with Monica Lewinsky. While my answers were legally accurate, I did not volunteer information.” With those words, Clinton guaranteed that at least part of his historical reputation will be as an incorrigible liar.

Did he also lie to the grand jury that day, cementing the case for impeachment? Or did he manage to avoid that, by spurning, as ”too private,” all of the questions that he would have had to answer falsely to avoid helping Starr prove that he had lied in his Jan. 17 deposition? That’s one of the questions Congress will soon ponder.

Two other questions are ponderable today: Did the president in fact lie in that Jan. 17 deposition? Did he commit the felony of perjury? No, he said Monday night, he certainly did not: ”My answers were legally accurate.” But this was another, defining, lie. And this time, Clinton was lying not about sex, but about lying itself; he was lying to protect, not anyone’s privacy, but his own image.

”Legally accurate”? Consider some excerpts from the Jan. 17 deposition, as Clinton bobbed and weaved and misled and– yes–lied his way through dozens of questions aimed at uncovering whether he had engaged in sex with Lewinsky and had encouraged her to conceal evidence that the judge in the Paula Jones lawsuit had held to be relevant:

Q: At any time, were you and Monica Lewinsky together alone in the Oval Office?

A: I don’t recall, but as I said, when she worked at the legislative affairs office, . . . it seems to me she brought things to me once or twice on the weekends. In that case, whatever time she would be in there, drop it off, exchange a few words and go, she was there. . . .

The conventional wisdom has been that the American people would (and should) forgive President Clinton even if Kenneth Starr can prove that Clinton lied about sex, assuming that’s all Starr can prove.

I share that view, at least in terms of legal consequences, because perjury in a civil deposition to hide a private, consensual affair that is of tenuous relevance to the lawsuit at hand falls on the low end of the culpability scale, as felonies go.

But what if the president were to go before Starr’s video camera on Aug. 17 and repeat–in the crucible of criminal investigation–his earlier sworn denial that he had any kind of sexual relations with Monica Lewinsky? And his sworn denial that he had ever met alone with her other than on routine business? And his sworn denial that he had discussed with her how she might dodge her subpoena to hand over any gifts she had received from Clinton and to testify truthfully in the Paula Jones case? And what if Starr can prove all of those statements, and more, to be lies?

Would, or should, the public forgive Clinton that?

I don’t think so. I think that the verdict would be swift, sure, and severe, partly because perjury is especially serious when it comes in a criminal investigation, and partly because people would understand that Clinton had very deliberately chosen to spurn another, more honorable option.

That’s the option of coming clean. Clinton could publicly admit that he lied in January–to protect the privacy of Lewinsky, his family and himself–and he could ask the public to pardon him for this.

Although the president’s advisers are saying that he has no intention of changing his story, the come-clean option remains open, at least until Aug. 17. It is one of four possible courses that were presented by the confluence of Starr’s subpoena demanding Clinton’s testimony and Starr’s immunity deal with Monica Lewinsky.

The Secret Service stands between the Nation and the calamity of assassination. The court of appeals’ refusal to recognize the protective function privilege will undermine the Secret Service’s ability to step into the breach and protect the Nation from profound and predictable peril.”

So said Solicitor General Seth P. Waxman, in a dramatic petition for Supreme Court review filed the evening of July 16. Waxman all but predicted that disaster would strike–sooner or later–if Kenneth Starr were allowed to haul Secret Service members before a grand jury to testify about President Clinton.

But by noon the next day, Chief Justice William H. Rehnquist had allowed Starr to do just that, effectively ordering the subpoenaed agents and officers to testify by refusing to stay lower court rulings while the full Supreme Court decides whether to take up the case. Rehnquist was the 11th judge to reject what Starr had conceded to be a sincere Secret Service belief that this was ”a sensitive, life-or-death issue.” Five of the judges were Democratic appointees, two of them named by Clinton.

What accounts for such striking unanimity in the face of such dire warnings?

The most direct answer is that the judges simply discounted as implausible the claims of Secret Service officials that Clinton and future presidents would keep their protectors at an unsafe distance if they could be called before grand juries. ”The President has a profound personal interest in being well protected, and (this) depends on proximity to his protectors,” as a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held on July 7, in an opinion that Rehnquist called ”cogent and correct.”

It’s a federal crime–under the heading ”Bribery of public officials and witnesses”–to give or promise ”anything of value to any person, for or because of the testimony under oath given or to be given by such person . . . .”

Now this statute has been turned against federal prosecutors, whose ability to win convictions often depends on promising something of great value to their witnesses: freedom.

A Wichita (Kan.) lawyer named John V. Wachtel–reasoning from the premise that ”if I paid a witness for his testimony, I’d be sitting in jail”–reached an unorthodox conclusion: Prosecutors should not be allowed to pay witnesses either, whether in cash or in the coin of leniency.

So when his client Sonya Singleton was convicted of helping a cocaine ring launder money, Wachtel (who goes by Val) played a long shot: He appealed, mainly on the ground that the prosecution had violated the statute (Section 201(c)(2) of Title 18) by promising leniency to a key witness for his testimony against Singleton.

Much to Wachtel’s surprise, he won. In a resounding July 1 decision, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit suppressed the testimony, reversed Singleton’s conviction and awarded her a new trial. If the decision stands, it could affect thousands of other cases, including that of Timothy McVeigh, whose conviction was based in part on the plea- bargained testimony of Michael Fortier, and whose appeal is to be heard by a panel including two of the same three judges.

The panel in the Singleton appeal held broadly that although the ”ingrained practice of buying testimony” has been used by federal prosecutors for decades, with the acquiescence of the courts, it has been illegal all along.

In terms of artistic merit, Justice Antonin Scalia’s sizzling concurrence was the winner among the opinions accompanying the Supreme Court’s June 25 decision upholding, sort of, a 1990 law that tells the National Endowment for the Arts (NEA) to consider ”general standards of decency” when it awards money based on artistic merit.

”Avant-garde artistes,” Scalia wrote–with disdain for the lot of them, or at least for those who cry ”censorship” while seeking handouts–”remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

But at the Court, the winning formula is neither artistic merit nor decency. It is getting five votes. Justice Scalia did not do that; his opinion–stressing that Congress should be free to deny public money to artists who smear their naked bodies with chocolate or submerge crucifixes in urine–was joined only by Justice Clarence Thomas. Justice David Souter, who wanted to strike down the 1990 law, was alone in dissent.

Sandra Day O’Connor, joined by the other five Justices, wrote the opinion for the Court in National Endowment for the Arts v. Finley, which sustained the statute–but only ”by gutting it,” in Scalia’s view. O’Connor suggested that the 1990 law’s constitutionality might be in doubt if (as both Scalia and Souter asserted) it did require ”a penalty on disfavored viewpoints”; she upheld it by straining to read it as ”advisory,” and thus largely toothless.

This was, in short, a classically O’Connoresque exercise in muddled moderation, lacking elegant analysis or memorable lines, and easily attacked as illogical from the pure, polar positions of Scalia and Souter.

It took the Supreme Court 207 years to get around to invoking (on June 22) the 8th Amendment’s ban on ”excessive fines” to strike down a criminal forfeiture. Let’s hope it doesn’t take another 207 years for Congress to follow the Court’s example and reform its often-oppressive civil forfeiture statutes.

The Justice Department’s treatment of Hosep Krikor Bajakajian was far from the worst of the forfeiture horror stories that have emerged during the years since our government, in headlong pursuit of its largely futile war on drugs, started carving up our constitutional liberties.

Houses have been forfeited because marijuana plants were found growing nearby–not for sale, but for home consumption. A woman’s car was taken (with the Supreme Court’s approval) because her faithless husband was found in it being serviced orally by a prostitute. Florida police, stopping hundreds of innocent motorists they thought looked like drug couriers, routinely seized from them any cash in excess of $ 100. Countless boats have been taken from law-abiding owners because traces of drugs were left in them by relatives, guests, or others.

Such forfeitures have poured billions of dollars in cash and property into the coffers of federal, state and local law enforcement agencies, giving them strong incentives to seize any property they can get their hands on, whether the owner did something seriously wrong or not. Forfeitures have given especially shameless officials a chance to tool around in fancy forfeited cars and speedboats.

The facts of U.S. v. Bajakajian show why law enforcement officials love their unchecked forfeiture powers, and why these powers threaten basic liberties.

In his much-discussed new magazine, Brill’s Content, Steven Brill confidently accuses independent counsel Kenneth Starr and his deputies not merely of being imprudent in having so many off-the-record chats with reporters–a valid criticism–but of committing federal crimes, by leaking grand-jury secrets.

This deadly serious conclusion is based on a shallow and slanted analysis of the law.

(I leave it to others, for now, to examine Brill’s account of the facts in his 24,000-word ”Pressgate” and his hotly disputed claims that Starr’s office has been the source of various leaks too eagerly lapped up by a scandal-happy press. See this issue, p. 1452.)

A good place to start is the inference of criminality Brill drew from a Jan. 25 NBC News broadcast. Tom Brokaw asked correspondent Claire Shipman about ”an unconfirmed report that, at some point, someone caught the President and Ms. Lewinsky in an intimate moment.” Shipman answered, ”Sources in Ken Starr’s office tell us that they are investigating that possibility, but that they haven’t confirmed it.”

Brill’s conclusion: ”Of course, what Shipman did confirm in that report was the commission of one certain felony…:the leak of material from Starr’s office pertaining to a grand-jury investigation.”

The ”certain felony,” Brill suggested, was a violation of Rule 6(e) of the Federal Rules of Criminal Procedure, which bars prosecutors (among others) from disclosing ”matters occurring before the grand jury.”

One objection to Brill’s analysis is that there apparently had been no grand-jury proceedings on the Monica Lewinsky matter at the time of the Jan. 25 NBC report. A second, more serious objection is that the report did not even hint at the identity of any prospective grand-jury witness, let alone disclose planned or actual testimony.