Tea and Sympathy

Estrich and Taylor Jr.

Tea and Sympathy

Estrich and Taylor Jr.

Tea and Sympathy
An email conversation about the news of the day.
Sept. 28 1998 8:28 PM

Estrich and Taylor Jr.

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It saddens me to find you saddened. I thought we were just having the kind of short-run dialogue that the framers intended us to have to help figure out what to do about things political in the long run. And in the long run, of course, we're all dead. Now that's sad.

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I would be delighted to figure out something that you and I could fight together for, or against. I think that we probably agree about many more things than we disagree about. And even when we disagree, it's not always a typical left-right thing, since you are not that far to the left of center, nor I to the right, in my view. Actually, on a lot of issues I'd put myself left of center. If memory serves, for example, you sided somewhat reluctantly with the Virginia Military Institute against the women's groups that were suing to force it to accept women; I sided somewhat reluctantly with the women's groups.

So maybe we should form an organization to promote some stuff we can agree about. The most difficult task in forming any organization is, of course, to find a suitable acronym for its mission. For example, NOW is already taken by the National Organization for Women. THEN, as far as I know, has not been taken. So one possibility would be an organization named Those Hypocrites Excite Nausea. But that doesn't go to the heart of our mutual unhappiness with the state of our politics. How about: CRALP, for Citizens Repelled by All Lying Politicians? That would cover Bill Clinton, Newt Gingrich, and a lot of others, perhaps clearing the decks for a better class of public official faster than the most stringent term limits law could ever do.

As to impeachment, I really think the case gets stronger the more one focuses on the details of Clinton's lies, and their context and motives, rather than on the general notion of "lying about sex." I don't care much about the president's penchant for extramarital sexual affairs. I voted for him in 1992 even though I was sure he had had one with Gennifer Flowers and was lying about it. I would have preferred it if he had refused to discuss such matters by taking a principled stand for the right to privacy, but I didn't deem a lie to the public about consensual sex disqualifying, considering the alternative candidates. It was when he carried the lying into the realm of perjury and obstruction of justice in legal proceedings--rather than settling the Paula Jones case or refusing to answer--that it became impeachable in my mind. The Constitution prescribes impeachment for "treason, bribery, and other high crimes and misdemeanors." And perjury is a felony crime in the same range of seriousness as bribery.

A test for those who think Clinton should be given a free pass for perjury in the Paula Jones deposition (not to mention in his grand jury testimony): If we really believe that sexual harassment defendants should not have to answer questions about consensual sexual affairs in the workplace with subordinates, then we should change the law to bar plaintiffs from posing such questions. That would, of course, make it much harder for sexual harassment plaintiffs to prove their cases. But since the privacy benefits to us all would make such a tradeoff worthwhile, in my view, I have proposed a new law-Monica's Law, I call it-to protect future Bill Clintons from having to answer such questions.

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Would the feminist groups that are now acting as Clinton apologists support Monica's Law, and thus explicitly adopt the principle they are implicitly espousing ? Not a chance. Would the Clinton Administration have supported such a law, had it been proposed as an amendment to (say) the Violence Against Women Act? Not a chance. In this respect, the president is hoist on his own petard.

I disagree, by the way, with your view that no ordinary prosecutor would pursue such a case. If Clinton had been, say, the Mayor of New York, and events had unfolded in a similar way, I think that he would have been prosecuted by the U.S. attorney, convicted, and sent to prison. And it's altogether clear that even if Starr had sent Linda Tripp and her tapes to the Justice Department and said that he was too busy (and had too much baggage) to take this one on--as I wish he had done--Attorney General Reno would have been compelled by the independent counsel statute to seek appointment of another independent counsel to investigate the matter. Hoist on another petard: Clinton signed the statute in 1994, after it had been reenacted by Democrats over the opposition of leading Republicans.

I don't share your pessimism about black leaders, although I do have an extremely low opinion of Jesse Jackson, Willie Brown, Maxine Waters, and the others whose leadership consists largely of demagogic efforts to whip up black resentment of white people. I wrote in Colin Powell for president in 1996; there's a black leader one can admire. There are many more, including such thinkers as Glen Loury and some of the black mayors around the country, not to mention the many admirable black leaders in business, academia, sports, entertainment, and elsewhere. But don't look for admirable black leaders in the groups that are in the big-lie business of complaining that the problems of black people come down to victimization by whites.

You are right to call my bluff on my suggestion that I will henceforth be a single-issue voter against any Democrat who supports President Clinton in these times. I overstated my case. But for the time being, at least, I would write in someone I like, or back a moderate Republican, or simply stay home rather than vote for any Clinton supporter. If it's Al Gore--who I'd cut some slack given the difficult position he is in as Clinton's vice president--in a close race against some loon like Ross Perot, I'd vote for Gore. But my general presumption in voting over the next few years will be that if the Democratic Party continues to rally behind Clinton as the process unfolds, then it deserves to be relegated to marginal status. In this scenario--which I hope can still be averted--if enough honest, moderate Democrats quit in disgust, they can start a new party, or at least have a civilizing influence on the Republicans.

As for Gingrich, if he were president, and had been caught lying to a criminal grand jury after seven months of lying to everyone else, I would very definitely be calling for his impeachment.

Let's talk about something else tomorrow. I'll send a brief mail in the morning after I've read the morning papers.

Best, Stuart

Susan Estrich is a law professor at the University of Southern California. Stuart Taylor Jr. is senior writer at National Journal and contributing editor at Newsweek.