The Facts Of The Matter

Newsweek

PUT ASIDE, FOR A MOMENT, ALL THE POLITICAL WAR-GAM- ing and the hotel-room titillation. At heart, just how strong a case does Paula Jones have? The answer changes depending on whether you focus on facts or law, and on which facts are most important to you. One relevant comparison: Jones’s evidence that Bill Clinton did what she says he did seems stronger than Anita Hill’s rather weak evidence of sexual harassment against Clarence Thomas. Remember, too, that Hill accused Thomas of nothing worse than persistently pestering her for dates and talking dirty over a two-year period when he was her boss. No touching, no flashing, no request for sex. It surprises many people, but the fine print in Jones’s suit is more compelling than you might think. That’s what has the president scrambling for a strategy – and much of the country taking a second, more sympathetic look at Paula Jones.

Facts are what happened; law is the set of rules you apply to that evidence. On the facts, Jones’s suit seems strongest on her claim that on May 8, 1991, Clinton had her interrupted on the job and delivered to him for some kind of sexual overture. It is less convincing, but hardly frivolous, on Jones’s allegations that she spurned Clinton and he persisted by exposing himself and requesting oral sex. It seems most vulnerable on her assertion that she was treated badly at work for having rebuffed her boss’s boss.

On the law – which is far from clear on what it takes to prove illegal sexual harassment – the bottom line is that many judges would probab…

NewsHour: Paula Jones – May 27, 1997

JIM LEHRER: Today’s two major Supreme Court cases are first tonight. One was a decision, the other a hearing. The decision was the unanimous ruling that Paula Corbin Jones can proceed with her sexual harassment suit against President Clinton while he is in office. NewsHour regular Stuart Taylor of the American Lawyer and Legal Times is here. He wrote an extensive piece in the American Lawyer last November on the Paul Jones case.

Stuart, welcome. First, what was the legal issue before the court today?

STUART TAYLOR, The American Lawyer: The sole issue is whether the President’s status as President would warrant a constitutional decision by the court barring Paula Jones from proceeding with her lawsuit which seeks damages against him for his personal conduct before he was President, or, in fact, barring any private civil damage lawsuit from proceeding against the President until after he leaves office. President Clinton said that the Constitution so required and that the court should so require it even as matter of prudence, even if not as a matter of constitutional law. The court unanimously and emphatically said, no, and rejected the President’s position on both those questions.

JIM LEHRER: On what grounds?

The President and the Privilege

Independent Counsel Kenneth Starr’s claim that Hillary Rodham Clinton should not be able to use White House lawyers to protect her personal interests and then hide behind the attorney-client privilege has some force. But the case that the White House was planning to take to the Supreme Court as of last Friday isn’t mainly about that.

The broader principle at stake is whether the president himself-any president-or any other government official can ever confide in or seek advice from a government lawyer without fear of compelled disclosure of their communications.

The answer is no, says Starr. If his broad claim prevails, it would mean that any conversations today between the president and his current White House counsel, Charles Ruff, about Whitewater-related issues could be subpoenaed by Starr’s grand jury tomorrow.

Starr won an unprecedented 2-1 decision by the U.S. Court of Appeals for the 8th Circuit that the White House and other government agencies are not protected at all, in the face of a federal grand jury subpoena, by the attorney-client privilege or the related attorney work product doctrine.

The logic of Judge Pasco Bowman’s majority opinion (filed April 9 and unsealed May 2) also casts doubt, as do Starr’s briefs, on whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants, congressional committees, or (it would apparently follow) criminal defendants who seek prosecutors’ notes of interviews with FBI agents.

If the 8th Circuit decision stands, any future president who is accused (as every recent president has been accused) of possible complicity in criminal conduct will be forced either to abandon any claim to the absolute confidentiality traditionally assured by the attorney-client privilege, or to confide exclusively in private counsel at huge personal expense.

Free Speech vs. Kids’ Lives

"Virginia Slims-It’s a woman thing."

A momentary glance outward-from a taxicab, while reading a legal brief defending tobacco companies’ First Amendment right to advertise-sufficed to send the billboard’s message skipping through my synapses, sped by splashes of color.

Similar messages are everywhere-magazines, buses, drugstores, ballparks, T-shirts-pressing in on my two preteen daughters and their peers, as they careen with undue haste toward "woman things."

Can the government restrict such ads in the interest of protecting kids from getting hooked on deadly tobacco products? Or would such restrictions (if upheld) "destroy the commercial speech doctrine," as a tobacco lawyer argued earlier this year before U.S. District Judge William Osteen of Greensboro, N.C.?

This is the most important clash of constitutional principle-perhaps the most important issue of all-in the whole, vast, spreading tobacco war. It should be resolved by allowing the government reasonable latitude to restrict (though not to abolish) tobacco ads.

The First Amendment front is relatively quiescent for now. The Supreme Court declined on April 28 to review a federal appellate decision upholding Baltimore’s broad curbs on billboard advertising of tobacco and alcoholic beverages. Judge Osteen also avoided the First Amendment issue in his much-publicized April 25 decision on the Food and Drug Administration’s proposed regulations. While upholding the FDA’s jurisdiction to regulate the manufacture and sale of tobacco products, the judge blocked the agency’s proposed curbs on advertising and promotion on the ground that Congress had not specifically authorized such regulations.

Gore: Lame But Legal?

President John F. Kennedy’s most memorable line was "Ask not what your country can do for you; ask what you can do for your country."

Vice President Albert Gore’s may be his mantra at his March 3 press conference: "My counsel advises me that there is no controlling legal authority or case that says that there was any violation or law whatsoever in the manner in which I asked people to contribute to our re-election campaign."

Gore’s remarkable choice of words was designed to dance around this problem: A plausible case can be made that Gore’s high-pressure fund-raising calls from his White House office amounted to federal felonies, punishable by up to three years in prison.

But a plausible case can also be made that these calls were legal, if sleazy and perhaps unprecedented. The legal question turns out to be surprisingly tricky, as does the related question (touched on in my column last week, "Janet Reno’s Burden of Proof," Page 21) of whether the attorney general should seek an independent counsel to determine whether to prosecute Gore.

The relevant statute, 18 U.S.C. §607, makes it "unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 [FECA] in any room or building occupied in the discharge of official duties by any person mentioned in section 603," which in turn mentions (among others) "officer[s] or employee[s] of the United States."

Janet Reno’s Burden of Proof

Unleashing yet another independent counsel-and perhaps another partisan Republican one, at that-to comb for years and years through the burgeoning Clinton campaign finance scandals in search of crimes, with dozens of potential targets up to and including both the president and the vice president, would be a national nightmare.

The record to date suggests that the Clinton campaign’s desperate search for money reached a level of sleaziness unrivaled since Watergate. A no-holds-barred prosecutor might be able to make a plausible legal case that crimes were committed, perhaps involving people at the top.

But no such high-level officials should be prosecuted, barring the emergence of more smoking guns than we are likely to see. Among the reasons are that many of the alleged crimes are too difficult to distinguish from the access-peddling that has long been practiced by most candidates for federal office; that some of the same theories that could be used against Clinton campaign officials (including the president) could also be used against Dole campaign officials (perhaps including Dole) and many members of Congress; that the campaign finance laws are nightmarishly complex and riddled with First Amendment problems; and that the resulting tangle of rules and loopholes often does not draw clear lines between what is legal and illegal.

A wise prosecutor, sensitive to such considerations, would err on the side of lenity and bring the matter to closure as quickly as possible. But is that what we would get from the special three-judge court, headed by D.C. Circuit Judge David Sentelle, that chooses independent counsel? The track record does not inspire confidence.

NewsHour: Insider Training – April 16, 1997

CHARLAYNE HUNTER-GAULT: The case before the Supreme Court today deals with insider stock trading and who is an insider and who is not. To help us understand that, what difference it makes, and what happened in today’s arguments we have NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. And Stuart, as you are best equipped to do, explain in the simplest terms what is insider trading.

STUART TAYLOR, The American Lawyer: There’s a big argument about this, but in the usual lay sense, what most people mean, is insider trading would be trading a company’s securities, stocks, bonds, for profit, typically a big profit, based on inside information about that company’s value stolen from somebody. The classic case might be the president of an oil company that’s publicly traded learns that they’ve just scored a huge hit, a new discovery, and the stock’s going to go through the roof in a week when they announce it. And he goes out and buys a bunch of the stock beforehand. He’s stealing his own company’s information from his other shareholders, if you will, for his personal profit.

CHARLAYNE HUNTER-GAULT: It doesn’t matter how he learned it?

STUART TAYLOR: In the usual sense, in the general sense in which I’m defining it, the Supreme Court has said not everything that might be called insider trading, the way I’ve just defined it, is, in fact, barred by the federal securities laws.

CHARLAYNE HUNTER-GAULT: Well, let’s don’t go there yet.

STUART TAYLOR: Right.

CHARLAYNE HUNTER-GAULT: Let’s continue on where we are. So anybody–did you have another example?

STUART TAYLOR: Well, in this case it’s a little trickier because he didn’t supposedly steal the money from the company whose stock he was trading–and that’s part of what the argument is about–he stole it from another company that was planning a takeover.

Selecting Juries: Dumb and Dumber

In a rare instance of truth emerging via an election campaign, Philadelphia District Attorney Lynne Abraham has touched off an uproar by disclosing a 1986 training video in which a senior prosecutor-now her Republican challenger-baldly urged colleagues to exclude whole categories of black people (among others) from juries.

Here are some of the choicer quotes uttered in the video by Jack McMahon, who has been a defense lawyer since 1990:

"The blacks from the low income areas are less likely to convict. There’s a resentment for law enforcement There’s a resentment for authority. And as a result, you don’t want these people on your jury."

"In selecting blacks, you don’t want tie real educated ones."

"Young black women are very bad."

McMahon also described having ducked a jury he did not want by feigning illness and lying to die judge.

He dispensed his racially tinged advice to his fellow law enforcers just months after the Supreme Court’s landmark 1986 decision, in Batson v. Kentucky, that the Constitution bars prosecutors from using peremptory challenges to exclude blacks from juries because of their race.

McMahon can, however, claim to have teen an equal opportunity stereotypes because he also said that prosecutors should bounce rich, white jurors and that "I don’t think you can ever lose with blacks from South Carolina. They are dynamite. They are law and order. They are on the cops’ side."

Is the McMahon video an egregious example of prosecutorial lawlessness? Or is it (as he has suggested) a rare insight into what is routinely done-although never acknowledged-by prosecutors across the nation?

NewsHour: Proposition 209 in California – April 9, 1997

Yesterday a federal appeals court panel in San Francisco upheld the constitutionality of a California measure outlawing state affirmative action programs. The measure known as Proposition 209, was adopted by California voters last November.

JIM LEHRER: The affirmative action story and to Margaret Warner.

MARGARET WARNER: Yesterday a federal appeals court panel in San Francisco upheld the constitutionality of a California measure outlawing state affirmative action programs. The measure known as Proposition 209, was adopted by California voters last November. The ballot measure read: "The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting." Yesterday’s decision overturns an injunction issued earlier by a lower court judge that had blocked implementation of the measure. For more on yesterday’s ruling and where the issue goes from here, we turn now to the NewsHour’s regular court watcher, Stuart Taylor, correspondent for the "American Lawyer," and "Legal Times." Welcome back, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

MARGARET WARNER: Before we go into yesterday’s ruling take us back to last November, Prop 209 is passed by the voters of California, and the supporters of affirmative action go immediately to a federal district court judge to get it overturned. What did the judge rule, and what was his basis?

Can Campaign Finance Be Fixed?

Almost everyone agrees that our federal campaign finance laws-which have spectacularly failed to reduce the influence of special-interest money in politics-are a stinking mess and should be "reformed."

The hard part is agreeing on exactly what is wrong and how to fix it. Indeed, while reform proposals abound, the problems are so daunting that it’s unclear whether the system can be fixed, by even the most brilliantly drafted law-let alone one with a chance of getting through Congress.

The polar positions espoused by libertarian conservatives (encouraging candidates to sell themselves to the highest bidders) and Utopian liberals (pressing a doomed effort to purge private money from politics) both seem deeply flawed. So does the bill co-sponsored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), which has won endorsements from President Bill Clinton and a gaggle of editorialists less because they love it than because it’s the only game in town with even a patina of bipartisan support.

But in a penetrating cover story ("Blow It Up") in the March 29 National Journal, Jonathan Rauch makes an intriguing, ideologically eclectic proposal for a simplified system of "public financing plus private deregulation."

Rauch begins with the perception that the current system of labyrinthine regulations, "understandable only to lawyers, and sensible not even to them,… is founded on a naive faith in rules, an discriminating disgust for money and a belief that political spending can be meaningfully distinguished from political expression. All of those premises are unsupportable, and doom any system built upon them."