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 NewRepublic colleague Jeffrey Rosen writes in total good faith. Jeff–brilliantly fulfilling the ancient journalistic dictum “Sell every piece three times”–has argued in the NewRepublic, 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 WallStreetJournal 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 WallStreetJournal 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
