FORMAL AND CONTEXTUAL JURISPRUDENCE:
THE CASE OF BILL CLINTON
(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)
FORM AND CONTEXT IN THE
LAW
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... 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
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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.
HAVE YOU MET MISS
JONES?
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"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.
A LAW FOR ALL
SEASONS
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"[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.
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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
NOTES
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.
