Environmental Ethics
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Ernest Partridge, Ph.D

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(The Search for a Crime to Fit the Punishment)(1)

By Ernest Partridge
University of California, Riverside
www.igc.org/gadfly // gadfly@igc.org

January, 1999


What are we to make of "Monicagate?"

The Gadfly has spend more time than he is willing to admit, watching in stunned fascination, this National Tragi-Comedy, as enunciated ad nauseum first in the press, and then in the Judiciary Committee and the Congress, and finally in its closing act, before the Senate.

One need not hear much of these "debates" to realize that both sides quickly run out of original material. What remains is repetition: "This is not about sex" on the one side, and on the other "This does not rise to the level of impeachment," over and over and over again.

Is it possible to add a fresh perspective on all this?  I believe so, otherwise I would not subject my readers to yet another rehash.  But this will, of necessity, be a fresh perspective on an all-too familiar landscape.  I beg your indulgence.

My essential message is that the debate rests upon two competing moral-legal theories: formalism ("its about lying, not sex") and contextualism ("what kind of a lie? And what process brought us to this?").  Following that, I examine the question of whether law, in the Clinton impeachment case, is above politics, or whether instead "the law" is being employed in the service of politics. I suggest that the latter is the case.  Accordingly, it is not the President, but rather his opponents - Kenneth Starr and the majority of the Judiciary Committee and the House of Representatives, that are posing the most severe threat to the rule of law.  (1/1999)



... The matter before the House is a question of the willful, premeditated, deliberate corruption of the nation's system of justice... The people's trust has been betrayed. ....

No man or woman, no matter how highly placed, no matter how effective a communicators, no matter how gifted an manipulator of opinion or a winner of votes, is above the law in a democracy. That is not a counsel of perfection. That is an irreducible principle of our public life.

We can not have one law for the ruler and another law for the ruled.... If that understanding is lost or becomes seriously eroded, the American democratic experiment and the freedom it guarantees is seriously eroded.

Henry Hyde
House Impeachment Debate
December 18, 1998

Mr. Hyde is quite correct. But he fails to note that he wields a double-edged rhetorical sword. There is indeed a "willful, premeditated, deliberate corruption of the nation's system of justice" at work in our Congress.  But the greater "corruption of the rule of law" issues, not from the President, but from his accusers.

So we take the side of the House minority: the President should not have been impeached, and he should not be removed from office by the Senate.(2)  But we also stipulate the now-universal proviso: What Bill Clinton did was self-indulgent and reckless beyond belief, and we darkly suspect that he regrets being caught much more that he regrets his peccadilloes. We are profoundly disquieted by the thought that the nation is being led by man with such manifest flaws of morality and judgment.

However, we are much more alarmed by the process that brought these imperfections to our attention, and eventually brought this case before the House and now the Senate.


Mr. Hyde opened his summation with the familiar words, "... It's not a question of sex ... its not even a question about lying about sex.... The matter before the House is a question of lying under oath." Thus the lie is separated from the context of the lie, and the process that led to the lie. The simple fact of the lie, apart from the context of the lie and circumstance that prompted the lie, suffices as grounds of impeachment. This is a formalist conception of the law.

The President's defenders, on the other hand, point out that the lie has nothing to do with the conduct of his office, and that his offense is mitigated by the fact that it was the result of a "trap" involving illegally obtained evidence and possibly coerced testimony (among numerous other violations of legal codes and possibly laws). This is the contextualist view of the law.

The contrast might be illustrated by the following two cases:

  • A citizen is brought before a duly and legally constituted court, and willfully lies under oath.

  • A military officer attempts to assassinate the legally elected leader of the nation.

According to legal formalism, the citizen is guilty of perjury and the officer of treason. "The majesty of the law" allows no other interpretation.

Now let's add some context: in the first case, the court is in Nazi Germany, and the citizen is asked if he knows of any Jews that are hiding from the Gestapo. In the second case, the officer is Klaus von Stauffenberg and the leader is Adolph Hitler.

To this, I would urgently add that I would in no way equate President Clinton with Colonel von Stauffenberg, or Clinton's evasion under oath with civil disobedience in the Third Reich. But if one concedes that the above examples demonstrate the principle that context can make a difference in an evaluation of justice, then we can proceed with our argument

And in fact, the law recognizes context in its numerous specifications of "mitigating and aggravating circumstances," and in "degrees of offense" - for example, from "justifiable homicide" through "manslaughter" to "first degree murder."  In addition, the law recognizes a "defense of necessity," whereby the law might be legitimately violated to prevent a greater harm (e.g., exceeding the speed limit to get a critically ill person to the hospital).  Furthermore, legal practice recognizes that "fruit of the poisoned tree," such as testimony that is obtained illegally, or through coercion or in the absence of legal counsel, is inadmissible in a court of law. (How often have we heard "the Miranda warning" on TV Cop shows?). And while the President's congressional accusers dismiss the "mere procedural" objections raised by his defenders against Kenneth Starr, these accusers (virtually all of them lawyers) would have us overlook the principle that "procedure" (known as "due process") is fundamental to the integrity of our system of justice.

But never mind all that, Mr. Hyde and his allies tell us, the Judiciary Committee of the Congress is not a court in the usual sense. They claim that their Committee is not bound by such "mere legalistic" procedures and restrictions (i.e., "due process") as the maintenance of Grand Jury secrecy or a requirement that testimony be open to rebuttal and cross-examination. Accordingly, in its endeavor to prove that "the President is not above the law," the Committee placed itself above the law.

The President is thus prosecuted under a theory of legal formalism, and defended under a theory of legal contextualism. According the formalist, this case " is not about sex or lying about sex, it is about lying under oath." Never mind the content or the provocation: "a lie is a lie is a lie" - whether it be a lie under oath that condemns an innocent man to the scaffold, or whether (as in the Gestapo case) it spares the life of the innocents, or an intermediate case, the lie attempts to spare the individual, his family and his paramour the embarrassment of a sexual affair. All such lies, claims the formalist, must be equally prosecuted, lest we "undermine the rule of law."

According the contextualist, we can not pass fair judgment on the act unless we know the content and the provocation. And if the content involves nothing more than private but legal misbehavior, and if the lie was the result of an elaborate trap, devised with illegally obtained evidence, and if the investigation was motivated, not by the pursuit of justice, but rather the objective of destroying a political rival, then the accusers, not their target, pose the greater threat to the integrity of the rule of law.

As noted above, the practice of law and our system of justice is, in fact, contextualist. Moreover, the general public, unmoved by the convoluted Kantian arguments of the formalists, is generally persuaded by the compelling common-sense of the contextualists - the same common sense that excuses the "violations of law" by the conscientious Germans who refuse to speak the truth to the Gestapo. Similarly, to the consternation of the Republicans, the public is incensed by the attempt, in the name of "legal purity," to undo the results of two legal elections. All this for an offense no more consequential than a sex-lie.

In fact, even Clinton's accusers are occasional contextualists, as they put their formal purity aside when political contingencies so dictate. Chairman Henry Hyde did just that during the "Iran-Contra" hearings in 1987, when it was his political allies that were telling the lies. The then-contextualist Hyde condemned the "disconcerting and distasteful whiff of moralism and institutional self-righteousness" that was conspicuous among President Reagan's critics. And in defense of Col. Oliver North and other perjurers before the Congressional Committees, Hyde remarked that "It just seems to me too simplistic [to condemn all lying]... In the murkier grayness of the real world, choices must often be made...."(3)

In the hands of the President's accusers, it seems, legal formalism is like Arthur Schopenhauer's taxicab: a useful device to get one to his destination, whereupon, after serving its purpose, it is dismissed.


"The President repeatedly perjured himself and obstructed justice, not for any noble purpose, but to crush a humble lone woman's right to be afforded access to the courts."

James Rogan, (R. CA):

It is quite conceivable that Bill Clinton never met Miss Jones. More to the point, it may not matter at all whether or not Bill Clinton ever personally met Paula Jones. A close inspection of this case (specifically cited in three of the four draft articles of impeachment), indicates that "justice for Paula" was furthest from the minds of the financial sponsors of that mischievous case.

Given Bill Clinton's now apparent capacity for bizarre and aggressive sexual behavior, one can not rule out the truth of Jones' allegations. But neither can they be credited. There were no witnesses to the dastardly deed, and no contemporaneous reports by Ms. Jones. Furthermore, as Judge Wright ruled in her summary judgment, Paula Jones suffered no adverse consequences.

Because the final settlement did not cover the attorneys' fees, it appears that the this sorry business will end up as a net loss for the plaintiff and her attorneys.

Not so for the promoters of l'affaire Jones. For Mr. Scaiffe and his Rutherford Institute, which sponsored the Jones suit, and for the other assorted Clinton nemeses, the Jones case was an unmitigated success. For them, the objective of that case was not justice, but mischief: namely, the pain and humiliation of William Jefferson Clinton. For by pursuing the Jones case, they obtained the legal license to examine Clinton's sex life, including the questioning of the President under oath about his private sexual affairs. Thus Jones vs. Clinton was transformed from a civil action to a catalyst for political character assassination and an attempted coup d'etat.

The Supreme Court naively condoned this activity by concluding that a civil suit need not impair the functioning of a sitting President. It apparently did not occur to the Supremes that such impairment might (as in this case) be the very purpose of a civil suit against the President - that the motive behind the suit might be political rather than judicial.

This is a serious charge. What is the evidence? Let's go back to the beginning of the Jones case. As we understand it, Scaiffe's publication, The National Standard, published an article by David Brock, charging that Gov. Clinton had exposed himself to a state employee, identified only as "Paula."  Paula Jones then came forward and identified herself as the individual in question, and complained that this story had defamed her good name.

What is most curious about this episode is that the alleged harm to Ms. Jones' reputation would have been perpetrated by the National Standard and David Brock (who subsequently repudiated the article and apologized to Clinton). "Justice for Paula" should therefore have provoked a suit against the publication and the author. Instead, the suit was filed against Clinton, Jones vs. Clinton became the catalyst for investigating the Lewinsky affair, whereupon collusion between the Starr investigators and the Jones team, added to the illegally obtained "Tripp tapes," became the ingredients of an elaborate perjury trap. The rest is history.

Far from being the culprits that defamed poor Paula, David Brock and The National Standard were key players in "the right-wing conspiracy" that ultimately nailed the President.(4)

The implications are ominous. Under the "sexual harassment" laws (which, ironically, Clinton signed), utterly meritless civil complaints can be filed, not to facilitate, in Congressman Rogan's words, "a humble lone woman's right to be afforded access to the courts," but rather to defame and destroy a citizen's public life through legally sanction probing and publication of that citizen's private sex life. The original complaint, then, can be cast aside, once the legally sanctioned dirty work of defamation has been accomplished.  Alan Dershowitz' term, "sexual McCarthyism" aptly describes this practice.

Regarding the case in question: we are inclined to believe that Clinton did in fact meet Miss Jones, though the particulars of that alleged encounter are unknown and unknowable - "he said, she said" and no witnesses. What is most alarming is the fact that all the mischief that followed from this case could have come about even if the principles in Jones vs. Clinton had in fact never met. Clinton's foes did not need a legal victory in that case to accomplish a strategic victory in their pursuit of what has come to be called "the politics of personal destruction."  They could, and did "win despite losing."  Did he meet Miss Jones? As this drama has played out, the answer to that question has become entirely moot.


"[Would you] cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you, where would you hide.., the laws all being flat? This country is planted thick with laws from coast to coast..., and if you cut them down... do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law for my own safety's sake.

Thomas More, in A Man for All Seasons
By Robert Bolt.

In the House impeachment debate, a Republican member (I've forgotten who) cited the above quotation from Robert Bolt's play. He apparently did not realize that these words speak eloquently against the impeachment of the President. They do so, because it is the Special Prosecutor and the House Majority that have "cut a great road through the law" in order to achieve their political objective: the personal humiliation and political enfeeblement of Bill Clinton.(5)

Thomas More's offense, which eventually cost him his life, was his refusal to recognize the supremacy of the English Monarch over papal authority. More, a legal scholar, believed that so long as he remained silent, the law would protect him. As Bolt has More instruct his wife, Alice: "In silence is my safety under the law. And my silence must be absolute.... When they find me silent, they will want nothing better than to leave me silent."

But More's family was also in peril. And so, to his daughter Meg, More advised a circumspect and legalistic (one might even say "Clintonesque") parsing of the words in the dangerous Oath of Allegiance to the Crown: "An oath is made of words," More said.  "It may be possible to take it. And if it can be taken, you must take it too.... God made the Angels to show him splendor, and he made animals for their innocence and plants for their simplicity. But man he made to serve him wittily, with the tangle of his mind.... Our natural business lies in escaping."

More relied upon the law to protect himself even from the sovereign, Henry VIII. And when that law became subordinate to, and a political weapon of, that sovereign, Thomas More's fate was sealed.

Now, of course, Thomas More is not Bill Clinton. One is a saint and the other a scoundrel. But that's the essential point. The blindfolded Lady Justice makes no distinction: all are to be protected by the law. And when the blindfold is torn off for the political purpose of deposing a President, then the lowliest citizen is not safe. Worse still, when that citizen comes to appreciate this fact, he will no longer look to the law for justice and protection. Law, for the citizen, will then have ceased to be his protector, and will instead become his oppressor - a political tool of a sovereign that has thus forfeited his right to govern. "When in the course of human events" such misfortune befalls a public, the time has come to replace the government. If you disagree, then your argument is not only with the Gadfly, it is also with all the signers of the Declaration of Independence.

In a well-ordered polity, justice, embodied in the rule of law, is above politics; the law sets the rules and defines the constraints of acceptable political activity. The Law is the "referee" that assures "fair play." And it does so blindly, with equal fairness to the various factions. The law protects the individual citizen from the abuse of power, from the lowliest citizen to the President. This is what Robert Bolt's Thomas More had in mind, when he said that "I give the Devil benefit of law for my own safety's sake."

In contradistinction, "the law" that Mr. Hyde and his associates accept as legitimate in the case brought before their Committee, is a law that deprives the accused of his statutory rights of cross-examination and rebuttal, that deprives witnesses of their right to counsel, that utilizes illegally taped conversations, that silences the advocates of the accused, that threatens potential witnesses (such as Susan McDougal and Webster Hubbell) with endless prosecution and with imprisonment, that releases to the public and press one-sided testimony offered under the presumption of confidence - and in general, uses the law as a means to further political ends. This is a "law" that is selectively in violation of its own statutes and in full subservience to political power - it is a "law," not of a free people, but of the Gestapo and the KGB.

This is the "corruption of the law", the "defiling of the temple of justice" (in Judge Starr's words), that should concern all citizens of a free and just nation - not the artful semantic dodging by the citizen (even the President) of the traps set by a prosecutor or a legislature that have set themselves above the normal constraints of legal prosecution and due process.

We have a new breed of politician in the realm: so-called "conservatives," untempered by political experience, intolerant of compromise (which is the soul of humane politics), driven by a self-righteous and unyielding ideology, and determined not merely to defeat, but instead to annihilate, their political opponents. In a reversal of von Clausewitz's maxim, these individuals regard politics as "war by other means." And in the spirit of their fundamentalist religious political base, they regard their political adversaries, not as "the loyal opposition" deserving fair hearing and accommodation, but rather as "sinners" deserving the wrath of God and damnation.

So it was that soon after the 1992 Presidential election, the machinery was set in motion by a faction of these "conservatives" to undo the results of that election, not through the ballot box, but through smear and humiliation under the guise of "the rule of law." The first Special Prosecutor, having displayed undue scruple for the constraints of due process and legal ethics, was replaced by Kenneth Starr. After four years and forty million dollars and a thoroughgoing investigation of "Whitewater," "Filegate," "Travelgate," etc., Starr Inc. came up with nothing. Then along came the Jones case and the license to investigate Clinton's sex life, then the Tripp tapes, leading to the perjury trap, and eventually impeachment.

The objectives of the conspirators have thus been met: they have personal humiliated and politically crippled of the President, all through the corruption of the law to serve their political ends.

Just one complication has made their victory less than complete: the public hasn't bought it. Unimpressed by the subtleties of the legal arguments, and far too sensible to be taken in by the appeals to "legal formalism" the public remains offended by the hypocrisy, partisanship and plain unfairness of this inquisition.

Yet the inquisitors persist in their belief, despite repeated disappointments, that "once the public really finds out what a scoundrel Clinton is, they will turn on him." Well, the public already knows all that. And the public also recognizes self-righteous, self-serving, hypocritical buncombe when confronted with it. 

 Copyright 1999 by Ernest Partridge



1. In a recent TV interview, Sen. Max Baukas (D. Montana) spoke with twisted tongue of "a crime to fit the punishment," and then immediately corrected himself. Upon reflection, it occurred to us that he had it right the first time.

2. In our September editorial, we expressed our opinion that Clinton should resign. Now we believe that he should not. There is no contradiction here. Our earlier opinion was formed before the issue became hyper-politicized. Clinton's recklessness, and the advantages of a Gore Administration over the crippled remains of a Clinton presidency prompted that opinion. But that window has now closed with the House Judiciary Committee hearings and the Impeachment vote. Now a Clinton resignation would ratify a coup d'etat attempt under the guise of "upholding the law." As we hope to point out in this editorial, that result would be intolerable.

3. David G. Savage, "Hyde View on Lying is Back Haunting Him," Los Angeles Times, December 4, 1998.

4. Hillary Clinton's complaint that her husband is the victim of "a vast right-wing conspiracy" has provoked copious ridicule in the press. And admittedly, there is no clear evidence of secret, coordinated, top-down "board room," direction of this alleged "conspiracy." But if the anti-Clinton forces are not acting in collusion, they are surely acting in concert, and they can be readily identified. The organizations include, The Arkansas Project, the Rutherford Institute, Judicial Watch, The Family Research Council, The Christian Coalition, and of course the Republican National Committee. The prominent individuals include Richard Mellon Scaife, Gary Bauer, Robert Barr, and Henry Hyde. All these are aided and abetted by the (clearly non-liberal) media, arguably motivated less by ideology than by "boffo box office."

5. Our acquaintance with Bolt's magnificent drama goes far back. We saw the original Broadway production in the early Sixties, and several times thereafter the British film which followed. Hearing the citation from the House floor prompted us to view the film one more time. We found much in that script that had profound application to the political drama now before the United States Senate.


Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .