Perhaps the greatest danger presented by the apparent willingness of so much of the public (up to now) to let President Clinton escape impeachment and trial for his credibly alleged felonies is that this would tear at the already-frayed bonds of the law.
What would it say about our commitment to equal justice under law if the elected official charged by the Constitution with executing the laws was free to commit felony crimes (perjury, obstruction of justice) with virtual impunity? What would it say, for instance, to all the people who are currently serving long prison terms for relatively minor offenses, thanks to the draconian mandatory drug sentences so favored by this president?
A civilized society depends heavily on voluntary compliance, especially concerning the obligation to provide truthful testimony. Law’s insidious enemy is the cynicism that spreads when little people get the message that big people–and who is bigger than the president?–can get away with lawless conduct. Here are three ways in which the rule of law will suffer if Clinton skates:
Undermining sexual harassment law. If a boss such as Clinton can have sex with a low-level subordinate, lie under oath about it in a sexual harassment lawsuit, and then escape punishment, victims of sexual harassment will be the losers in the long run.
A three-year consensual affair–which the female subordinate claimed, after being fired, to have carried on for the sake of job security–was at the heart of the 1986 Supreme Court decision that first recognized sexual harassment as a legally actionable form of sex discrimination, Meritor Savings Bank vs. Vinson.
This is not to say that Monica Lewinsky, who was Clinton’s more-than-willing sex toy, is a victim of sexual harassment. But she could certainly make the claim: She had an affair with the boss, he got tired of her and dumped her, she got fired. And you could certainly make the case that people like Clinton-defender Gloria Steinem would be crying ”sexual harassment” if Clinton were a Republican. And it is a given that the commander in chief would be drummed out of public life for this had he been a mere general.
And Paula Jones has sued Clinton, claiming that, one day in 1991, while she was working as a state employee, then-Gov. Clinton exposed his penis to her and suggested she ”kiss it” after she had rebuffed less bold advances. Jones stands a fair chance of getting at least part of her lawsuit reinstated on appeal. Meanwhile, Kathleen Willey accuses Clinton of an unwelcome groping in 1993, when she went to the Oval Office to ask for a job.
Who still doubts that Clinton importuned Jones? Who still doubts that he groped Willey? Who still doubts that he lied about both events?
Clinton’s lies in his Jan. 17 deposition about Lewinsky came after he had been explicitly ordered by Judge Susan Webber Wright to answer questions about any sexual contacts with women who had worked under him. The judge held such questions relevant to Jones’ claim that Clinton had used his official powers to reward women who gave him sex, while punishing those who wouldn’t.
If the president can dodge a discrimination claim by lying and encouraging others to lie, then other defendants will feel justified in doing the same. They may also be excused for doing so.
And if we want to allow people like Clinton and Lewinsky to refuse on privacy grounds to answer such questions, we should pass a new law for the benefit of all similarly situated people.
I have proposed such a law (see NJ, 9/12/98, p. 2076), because I think the privacy benefits to us all would outweigh the costs to sexual harassment victims. But I doubt that pro-Clinton feminists of the Steinem stripe would agree.
What they seem to want is a double standard: a vast leniency for men they like, such as Bill Clinton; summary execution for men they do not, such as Clarence Thomas. And that is the very antithesis of law.
Legitimizing perjury. Penalties for perjury are the glue that holds the law together. The more that people feel free to lie in legal proceedings, the more the law itself disintegrates.
The Framers of the Constitution understood this. They knew the Eighth Commandment: ”Thou shalt not bear false witness against thy neighbor.” Their legal training included W. Hawkins’ Treatise of the Pleas of the Crown, which called perjury ”the most infamous and detestable” of crimes.
More broadly, Ralph Waldo Emerson wrote: ”Every violation of the truth is not only a sort of suicide in the liar, but is a stab at the health of human society.” Lying is integral to almost all white-collar crime and fraud, and to many forms of race and sex discrimination.
It’s true that lying is common in today’s society, and that most false testimony goes unproven and unpunished. But if lying under oath is legitimized–as it will be if the president’s proven perjuries go unpunished–that will shred the rule of law.
If the president can perjure without legal consequence, why should any witness feel bound to tell the truth? How could the Justice Department justify prosecuting other perjurers? How could jurors, especially those who had taken the leave-Clinton- alone approach, justify convicting them?
It is argued, of course, that mere lying about sex should not be treated as perjury, because we should all be allowed to lie a bit about sex to protect against governmental intrusion into the most private of spheres.
Some sex lies are mitigated by privacy concerns. But sex lies under oath are perjury nonetheless. And Clinton had alternatives. He could have settled the Paula Jones lawsuit. Or he could have refused on principle to testify about his sex life and appealed the judge’s order that he do so.
Moreover, Clinton’s second round of perjuries–on Aug. 17, in the criminal grand jury–were not mitigated by any privacy interest. He admitted his relationship with Lewinsky. (The DNA dress left him no choice.) But he swore he’d been a passive recipient of oral sex, and had never touched her in intimate places. The sole purpose of this incredible claim–contradicted by Lewinsky in copious, self-corroborating detail–was to avoid admitting his previous perjuries.
The rest of Clinton’s defense against Starr’s charges of lying under oath rests on elaborate semantic evasions, to the point of self-parody. Such disingenuous word-twisting is not only Bill Clinton’s trademark. It is the stock-in-trade of many prestigious law firms–where high-priced hairsplitting to hide the truth is seen as a noble calling–and of many law professors of Bill Clinton’s generation.
These are people who mask their politics as law by pretending that all law is really just politics, and mask their prejudices as politics by pretending that logic is an illusion, consistency a conceit, and language itself incoherent. They are, in short, a lot like Bill Clinton. And that helps explain why they (and their journalistic counterparts) are so alarmed by the disgrace descending on him.
Mocking accountability. Most people caught in serious crimes are sent to prison. But it’s unthinkable to lock up a sitting president. So the only real remedy for presidential crimes is impeachment and removal. While the Constitution allows for criminal prosecution after the president leaves office, we should all hope that that never becomes necessary.
The notion that Congress should simply stop, or administer a wrist-slap censure–while Clinton wallows in contrition and embarks on a healing ”journey” deep into the land of psychobabble–is another effort to put the president above the law.
Contrition and forgiveness are matters between individuals. They are almost never a basis for dropping criminal investigations and prosecutions, and are accorded only a small role–as a marginal sentencing consideration–in the calculus of legal accountability. Clinton’s apologies are thus virtually irrelevant to the impeachment question.
”The nation’s prisons are full of people sorry in exactly the way he is: sorry they got caught,” as George Will puts it. Should we let them all go? Or just those who can put on impressive masks of contrition?
In any event, Clinton’s grudgingly given, inch-by-inch, let’s-see-how-this-flies succession of apologies does not seem very sincere. In his otherwise masterful performance at a Sept. 11 prayer breakfast, for example, his apology for having hurt ”Monica Lewinsky and her family” was followed by a vow ”to mount a vigorous defense.” Clinton knew something his listeners did not: that this defense rested upon smearing Lewinsky as a liar.
Can the semiotics of sincerity be stretched to cover saying you’re sorry for hurting someone while plotting to hurt her again? Or was this apology just another lie?