Clinton v. Starr

"Have you no shame?"

Army lawyer Joesph Welch to Senator Joe McCarthy

This paper is not concerned with who is guilty, and who should be punished. Both above named parties are guilty. Neither will be punished in a court of law or before the bar. This is a public relations fiasco, not a legal case. There remain two concerns. The first is Rule of Law. The second is setting the correct standard of behavior for our politicians. Someone must look beyond partisan concerns of playing this scandal to best spin. Someone must look beyond maximizing sensationalism to build ratings or circulation. Someone must set correct precedents for the next scandal.

Let us take it as given that Clinton should have kept his pants zippered. Let us take it as given fewer babes and fewer risks of exposure would have been good.

However, it is safe to say there is a political side of this. The Democrats have used scandal and the special prosecutor's office to hurt Nixon, Bush and Reagan. Let's not forget Hill v. Thomas either, though it is less clear who was abusing what that time around. Regardless, for the Republicans, this is payback time. After taking it on the chin too many times these last few decades, the Republicans have the majority in Congress, the Democrats have the presidency, and it is the other team's turn at bat.

Clinton shouldn't have risked his country, party, and presidency fooling around. When first caught, he lied to protect himself and the girl, but did not break the law. The technical defenses used by Clinton seem valid. He attempted to mislead the courts and the people, with extreme forethought and deliberation. However, as lawyer lacking scruples consulting other lawyers lacking scruples, the technical defenses are valid. He tiptoed carefully around the written legal definitions of perjury and obstruction of justice, while trampling the spirit.

It is not a coincidence that the furor is breaking right at the mid-term elections. The Republicans timed it that way. They are exploiting the situation with as much forethought and deliberation as Clinton used when he lied. The Republicans are using the scandal for the elections. The Democrats want Clinton to serve at least the first two years of his second term, so Gore will not be disqualified from running in 2004. Thus, this mess will be strung out until late January at the very least.

One week, the Republicans were after Clinton to abandon his technical defenses. The next week - after the press started listing Republicans serving on the ethics and judicial committees who had extra-marital affairs - the Republicans scolded the Democrats for not knowing the difference between breaking the law and having an affair. There is a contraction here. If the technical defenses that one did not in fact break the law are inappropriate or somehow invalid, then this scandal is about puritan sex standards, not Rule of Law. If this is about puritan sex standards, the Republicans have to be just as pure as they are demanding of Clinton.

They can't be. They aren't. The mediawill turn it around. They have too. It increases circulation and ratings. Any standard the Republicans chose to set, they must abide by. If it is about Rule of Law, they cannot object to technical defenses. If it about sex and scandal, they have to wallow in the same mud.

What puritan sex standards should we hold our politicians to? I am against a government sex police. Starr threatened the girl with prosecution unless she confessed to explicit sexual acts in a public forum. This seems to be a new low, even in Washington DC? Is there some way to avoid a repeat of this crass political maneuver? While I am not impressed with Clinton, his lack of self discipline, his careful tiptoe acts around the edge of the law, Starr is more dangerous to the country, and has a lower ethical standard than Clinton.

Lawyer-client privilege ends with death? The Secret Service has no professional immunity from testifying about their clients, similar to lawyers or priests? Invoking executive privilege or lawyer-client confidentiality is obstruction of justice and an impeachable offense, even if the courts upheld many of the claims? Starr is not interested in enforcing or upholding Rule of Law. He has another agenda. It is clearly partisan. He is quite willing and ready to rewrite basic legal protections and reinterpret the law in order to achieve his partisan goals.

Again, no pity for the Democrats and Clinton. An Iran-Contra report just happened to be released in the final weeks of the 1992 campaign. Turnabout is fair play, sort of. But enough is enough.

Presidents are not above the law. However, they still have every protection of the law. Invoking legal protections under law is not an impeachable offense. Legal defenses available to ordinary citizens are available also to presidents.

High Crimes and Misdemeanors should be interpreted strictly. Impeachment should be for political and criminal acts, not for violating sexual mores.

Special Prosecutors should show the same zeal when investing the president as any other accused citizen, but not a partisan and fanatic zeal. Sums spent on presidential investigations should be roughly compatible with sums spent if an ordinary citizen is alleged to have committed the same crime. Use of contempt and perjury laws to compel witness testimony should follow the same standard as when ordinary citizens are accused. If the grand jury testimony of an ordinary citizen is confidential, so should be a president's.

The government should get out of the sex police business. This is true not only of the president, but also within the armed services. Puritan sex regulations are too often abused. Bigots in the service harass women, homosexuals and minorities. Politicians abuse members of the other party. Those invoking and abusing puritan sex laws are more in need of moral correction and punishment than those they accuse.

Congress should immediately vote to censure Clinton. He deserves it. Impeachment should be dropped. No way can the Republicans get the two thirds of the Senate needed for conviction. They would be wasting their time if they were really after Clinton. They are not. This is about the mid term elections.

Congress should also vote to censure Starr. At the very least, the special prosecutor laws need to be rewritten. The Republicans have had their inning. It's time to fix the rules. The key rule is that special prosecutor investigations should present their arguments to the courts or the Congress, not to the media. The special prosecutor's office has become a partisan propaganda agency, rather than a prosecutor's office. Both press conferences and leaks should be forbidden. Either should result in a termination of the investigation, and an investigation of the prosecutor for disbarment and criminal charges.

And while I'm dreaming, we need a bipartisan agreement. If the Republicans resolve to respect the Constitution, the Democrats should quid pro quo agree to keep their pants zippered.