Gore the Ox
Gore the
Ox
It used to be, of course,
that liberals were all for tough laws against sexual harassment and
conservatives complained that such laws create a sexual reign of terror.
Likewise, liberals were great enthusiasts for the appointment of independent
counsels or special prosecutors while conservatives condemned these
investigations as "witch hunts" or, in la-di-da mode, as the "criminalization
of political differences." Now those roles are usually reversed.
Let us be charitable and
assume that these conversions are a sincere response to the scandals
surrounding President Clinton. Conservatives, unimpressed by Watergate or
Iran-Contra, didn't previously realize just how corrupt and disgusting a
president could be. And liberals, until one of their own got caught up in them,
didn't appreciate how onerous and unfair these laws are. Certainly my friend
and former New
Republic colleague Jeffrey Rosen writes in total
good faith. Jeff--brilliantly fulfilling the ancient journalistic dictum "Sell
every piece three times"--has argued in the New
Republic , the
New York Times , and this week in Time magazine that Clinton's troubles are due to
catastrophic defects in the sexual-harassment and special-prosecutor laws (with
help from Clinton's own misbehavior, he always is careful to add).
This is
an extremely tempting argument for any Clinton supporter. Reversing your
opinion on two moderately important points of law is far less painful than
reversing your opinion on the first--and possibly the last--ideologically
compatible president of your lifetime. But will it wash? Unfortunately, I don't
think so.
Problem 1: The Monica Lewinsky business happened to become
public due to the interplay between sexual harassment (the Paula Jones lawsuit)
and the special prosecutor, but there are many other ways it might have done
so. Irony-pumping narratives noting that "if not for" this or that, everything
would be different--a favorite journalists' device--are like saying that if not
for a particular bus, you wouldn't be at work today. Other buses come along. If
Clinton was as reckless as many now assume, with Lewinsky and others, it's a
miracle he got away with it this long. Changing the sexual-harrassment and
special-prosecutor laws won't begin to guarantee that information like this
won't become public. No matter how you define the problem--Clinton's possible
misbehavior, false accusations of misbehavior, or accurate public revelation of
behavior that ought to stay private--this solution doesn't solve it.
Problem 2 is sexual harrassment. Rosen argues
that even if Paula Jones is telling the truth--and even if the statute of
limitations on sexual harrassment hadn't expired, leading her to sue on a more
exotic theory--the Clinton behavior she describes does not amount to sexual
harrassment under the law. But, he notes, the law allows the case to proceed
anyway, and overgenerous discovery rules allowed Jones' lawyers to find out
about Monica Lewinsky, drag her into the case, and force Clinton to commit
perjury by denying the affair.
I defer
to the experts on whether the scenario Jones describes, if it happened,
constitutes illegal sexual harrassment. But if it doesn't, the
sexual-harrassment laws need to be strengthened, not weakened. The governor of
a state orders state troopers to summon a lowly state employee to a hotel room,
where he exposes his member to her and says, "Kiss it." Sexual-harrassment law
may be dangerously broad and vague, as Rosen says, but if this is not
considered sexual harrassment, it surely ought to be--even if there is no quid
pro quo and even if he backs off and zips up when she declines. Is it really an
abusive invasion of privacy for the law to insist that a governor not do
that?
Problem 3 is the independent counsel or special prosecutor
(or independent prosecutor or special counsel ...). The basic logic of this
institution is: An administration should not be trusted to investigate itself.
Nothing in our experience since the office was institutionalized two decades
ago--either abuses by individual special prosecutors (of which there have been
some) or fair and honest Justice Department investigations of administration
officials (of which there also have been some) undermines this basic logic. An
independent prosecutor is the only realistic way criminal behavior by those in
power can be credibly investigated and--equally important--the only way falsely
accused officials can be credibly vindicated.
There are
sundry complaints about the independent counsel as that institution has
evolved. One is that the very appointment of a special prosecutor is a
politically traumatic affair and implies guilt. Another is that independent
counsels, once appointed, turn into Ahabs. Their charter, unlike normal
prosecutors', is to pursue a particular person rather than a particular crime.
Their every incentive is to prosecute, since failure to prosecute suggests that
the whole enterprise was needless. Their pursuit is not hampered by many of the
budget and policy restraints that cool the zeal of normal prosecutors. (These
arguments could be found on the Wall
Street
Journal
editorial page almost any random day in the late 1980s, although not during the
late 1990s.)
Some of these complaints are valid. But the
solution is not to give up on special prosecutors. The solution is to make the
independent prosecutor a permanent office, rather than appointing a new one
every time a scandal or alleged scandal comes along. Unless the political
culture changes drastically, there will always be one or more independent
prosecutors investigating the administration of the day and/or past
administrations, anyway. Referring some matter to a permanent independent
prosecutor's office would be far less fraught than appointing a new independent
prosecutor and would carry less of a stigma. A permanent independent
prosecutor's office could be held more easily to reasonable financial and
procedural guidelines. A permanent independent prosecutor's office would not
need to feel that its reputation depended on prosecuting and convicting
everyone it investigated.
There
would still be an Ahab syndrome. In fact a permanent independent prosecutor's
office would institutionalize the current de facto reality that special
prosecutors hold high government officials to a fussier standard of law-abiding
than what the average citizen faces. That's OK. Those who enforce the law on
the rest of us ought to be more law-abiding than the average. If the speed
limit is 55 mph, off-duty highway cops should drive at 55, even if 62 or 63 is
close enough for the rest of us. If White House aides have to keep glancing
over their shoulders to see if a Ken Starr is chasing them with a harpoon, that
is no bad thing. It might even be a nice tradition for the permanent
independent prosecutor's office always to be run by someone from the opposing
party.
We all have learned recently, for example, that even
outright lying under oath in a deposition for a civil case is the kind of thing
that an ordinary citizen apparently does not often get prosecuted for (though
it's not clear why not--especially when the liar is the defendant in the case).
Even under a reformed independent prosecutor law, a president would be more at
risk of prosecution--or at least of public exposure and humiliation--for this
transgression than the ordinary citizen. Is that such a terrible thing?
Some day there will be a
Republican president again, and the Wall
Street
Journal
will rediscover all its objections to independent prosecutors. Democrats,
meanwhile, will be glad the law is still around. And who knows? Sexual
harrassment isn't unknown among Republicans, either.
--Michael Kinsley
