Constitutional Opinions: The Big Shrug
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin The Big Shrug A merica needs to do some soul-searching. Whether President Clinton finally drags his sorry administration to the end of its natural term or...
...Again the country shrugs...
...He keeps hitting on the motives of his accusers —Paula Jones, Kathleen Willey, Kenneth Starr, the media, whoever...
...Whatever...
...F orget about the tortured reasoning of so many constitutional opinions...
...If we don't like the ultimate consequences, we will need more than an independent counsel digging around in Little Rock to clean out all its poisonous springs...
...When the House Judiciary Committee finally voted articles of impeachment against President Nixon in August 1974, an entire count in the indictment (Article III) concerned his withholding of information...
...Everyone learns that the law is just a big game, which clever lawyers can spin out for years and years...
...A quarter-century later, the issue isn't unprintable language but unprintable "sex acts" in the Oval Office...
...Now it means —what...
...Clinton himself has been involved in so many petty lies and distortions, people have gotten used to the idea that presidents don't tell the truth...
...Give credit to President Clinton for being in touch with the public mood...
...Now the country is yawning...
...Everything has come to look like a racket...
...Mexico has been complacent at the discovery that successive presidents have looted the country and successive high officers of the law connived at the drug trade...
...Nine hundred FBI files of Republicans ended up in the hands of a low-level thug at the White House...
...Hardly a week or month passes without news of some new preposterous claim under which a jury has seen fit to reward the lucky plaintiff with a million-dollar award for pain and suffering...
...Whether President Clinton finally drags his sorry administration to the end of its natural term or scampers out of town in advance of impeachment, the question is how we have come to this state...
...There is an underlying degree of cynicism that would have been startling to previous generations...
...Tobacco companies have been willing to offer hundreds of billions of dollars to "settle" lawsuits for fear that the tort system will otherwise clobber them with worse...
...As Geraldo Rivera must know, the latest Clinton scandals are just a continuation of the O.J...
...But France is not the right comparison...
...In recent months, the front pages have followed the amazing saga of the tobacco "settlement...
...Those who make light of the Lewin-sky affair often point out that France accepted President Mitterrand's mistress with equanimity...
...Maybe people have learned to be cynical from so much publicity about women suing over rude remarks or purported sly looks...
...Yes, smoking is bad for your health and yes, tobacco companies have long known about it...
...Now the public is not sure whether to believe Kathleen Willey about being groped by President Clinton in the White House...
...Even Paula Jones was suddenly subject to a tax audit...
...Another count against Nixon in the Articles of Impeachment was that he had lied to the American people...
...Yet again, the country shrugs...
...No one talks about the chronic failings and distortions of the legal system, just about the odds on the outcome in the show of the month...
...saga to say what they think about the Monica scandal and other new spectacles...
...Citing executive privilege, Nixon had refused to comply with some congressional subpoenas...
...But that misses the point...
...Now President Clinton is so free with claims of privilege that he actually denies knowing what his aides are claiming in his name...
...Legal "experts" assure them that it happens all the time in civil cases...
...The public is simply not shocked...
...When the courts knock down preJEREMY RABKIN is a professor of government at Cornell University...
...It was enough that he looked into TV cameras and falsely claimed that he was determined to get to the bottom of the Watergate burglary...
...He is surely its beneficiary...
...The American Spectator • August 1998 51...
...But if the Warren Court bred a certain tendency to take short cuts, what has the legal system taught the country in the past quarter century...
...He did not succeed in these manipulations, but it was enough that he tried...
...Whether he would have taken a solemn oath and then betrayed it, we won't ever know, since he never was put under oath...
...When the law seems so much a matter of manipulation and TV sensationalism—with this or that party or interest maneuvering, posturing, spinning — isn't it a matter of whom you like and who looks good on TV and whether you agree with his motives...
...Was the FBI not manipulated in all of this...
...We did not know that the FBI had engaged in domestic political spying for a succession of presidents...
...President Clinton has lied under oath many times during depositions in the Paula Jones case...
...And perhaps the legal system is especially responsible for fomenting this attitude...
...No other country tries to settle this complex issue of public health and private freedom with tort claims...
...Why shouldn't the president do so...
...posterous claims of executive privilege, he returns with equally preposterous claims of attorney-client privilege (for taxpayer-funded White House employees) and the previously unknown privilege for presidential body-guards...
...But this climate has been building for a long time...
...President Clinton got the FBI to make false statements about a criminal investigation of the White House Travel Office staff, then got federal prosecutors to launch a trumped-up prosecution of the Travel Office director, after he was fired to make way for a Clinton crony...
...The IRS commissioner during the Clinton years was a college chum of Hillary's and a close political ally of the Clintons...
...Why pick on the president...
...And on with the show...
...Still, there is more involved than a lowering of expectations about presidential conduct...
...Is the IRS not being used for partisan ends...
...look at the big patterns that are the stuff of nightly news programs...
...Twenty-five years ago one of the leading constitutional scholars of the day, Professor Alexander Bickel of the Yale Law School, contributed to a short book on the lessons of Watergate...
...Enough Republicans have made enough noise about the Clinton scandals, and the media has certainly shown interest in many of them...
...People who say the president's sex life is his own business say that to maintain such privacy, there is an implicit right to lie about sex—even under oath...
...A lot of this cynicism may swirl around the chief executive, Corruption becomes a way of life, and the public yawns...
...Commentators have been telling us for so long that "this isn't Watergate," we have forgotten what things were actually like in the Nixon era...
...Massive corruption is a fact of life there and a weary populace cannot bring itself to get too indignant...
...There was simply another trial with more capable lawyers, provided by the family of one of the victims...
...The country doesn't seem much interested...
...Now we can hear Marcia Clark, the initial bungling prosecutor in the criminal trial, asking other lawyer-participants in the O.J...
...It is easy to say that Democrats who railed against Nixon are simply displaying partisan hypocrisy in defending similar—or more brazen— practices by their guy...
...Nixon later told his authorized biographer that most of the deleted expletives were mild phrases, but the impression that the president was using four-letter words in the Oval Office led to a turning point in his struggle to stay in office...
...For a while, the country was riveted by the spectacle of a rich celebrity testing whether a "dream team" of high-priced legal talent—and an element of racial demagoguery—would be enough to get away with murder...
...The picture it reflects is one of a world where everyone grabs and pushes and maneuvers and the race is to the clever and the well-connected...
...Or look at the tort system...
...Perhaps the most serious impeachment charge against President Nixon was that he had manipulated the FBI and the IRS for partisan ends...
...There wasn't...
...why not the president...
...Clinton has helped to encourage an American version of this climate...
...For example: When President Nixon released printed transcripts of White House tapes in the spring of 1974, the country was outraged to find an "expletive deleted" from every second line...
...Pundits at the time suggested there might be a backlash at this travesty of justice...
...Tobacco companies stall and delay and try to cut deals...
...There may be many explanations for this...
...He didn't kill anyone...
...Among other things, a grab-bag of "gotcha" games whereby disgruntled or terminated employees try to hit up their employers for damages...
...50 August 1998 • The American Spectator but the current runs through the whole legal system...
...Bickel argued that the Watergate scandals were the bitter fruit of the legal ethic encouraged by the Warren Court—the ends justify the means, getting the right result is what counts, legal integrity is for pedants and naffs...
...0 f course, the legal system is a symptom of ongoing corruption...
...The most brutal criminals in America receive legal help with delaying tactics, and courts show remarkable patience with the delays...
...Executions are becoming more common...
...Meanwhile, the IRS has launched audits of almost every conservative publication and organization to challenge the Clinton White House—all in a very short period, so that the odds of this happening by chance are almost impossibly low...
...In the meantime, the murderer has pursued an endless series of appeals, most of which do not even assert innocence, but rather that some legal technicality has been misapplied...
...Perhaps he exaggerated...
...More than two decades have passed since the Supreme Court reluctantly acknowledged that capital punishment—expressly mentioned no less than five times in the Constitution — is indeed constitutional...
...Then there is "civil rights" law...
...Or is it the other way around...
...So it was...
...At least he was elected...
...The country shrugs...
...We did not know that President Johnson had routinely made secret tapes of his phone calls and conferences...
...Yet almost every time the news reports on the execution of a capital sentence (always for some grisly murder, with "aggravating" circumstances, as the law requires),there is a passing mention that the crime took place ten or twelve or fourteen years ago...
...But it is also a mirror that reflects this back—in your face...
...The Judiciary Committee did not bother with a lawsuit but simply voted to impeach on this count...
...Simpson trial...
...So on we go...
...Putting it bluntly, Americans are a lot more jaded and cynical than they were in the Nixon era...
...In the early seventies, we did not know that President Kennedy had used the White House as a brothel...
...But we have a tort system that will go after any claim if the potential prize is big enough, and the prize here may be staggeringly huge for trial lawyers...
...Polls suggest that the country is divided on this point, but most people do not seem much troubled by perjury...
...But forget about these human interest stories buried in the back pages of the daily paper...
...So have smokers...
...The president takes the moral stand that tobacco companies should be clobbered with massive damage claims for legally selling a legal product, so he should be allowed to tell a few fibs which could be legal if you view the law in the right light and from the right angle, and anyway, that view of the law is in the public interest, as it would be good for public health if tobacco companies got socked...
...Thirty years ago, it meant firm opposition towhite supremacists trying to exclude black children from public schools...
...Even in America, no one really thinks that tobacco companies have—or could have — misled anyone about the dangers of smoking over the past thirty years...
...Why not...
Vol. 31 • August 1998 • No. 8
