A Court’s Judgment Is Not History’s

When Paula Corbin Jones filed her lawsuit in May 1994, President Clinton did himself and this nation a disservice by not addressing it immediately on the merits. In what has become the patented Clinton nondenial denial, he did not directly or personally say her allegations were lies; he merely said that his lawyer spoke for him.

And his lawyer, Robert Bennett, said nothing. Until the Supreme Court unanimously told these guys otherwise, it was their mistaken and troubling position that the president was above the law and was not required to even answer Jones’ complaint until he was well out of office.

Jones wanted an apology for behavior that, if true, certainly merited one. With Judge Susan Webber Wright’s dismissal this week, she won’t get it. It doesn’t mean Clinton didn’t expose himself in the Excelsior Hotel. And it doesn’t mean that Jones will not have to live in the shadow of public embarrassment for the rest of her days. It merely means that when Clinton and Bennett finally got around in mid-February to addressing the legal issues, they pointed out what was known all along. Jones had not been fired or otherwise suffered “pervasive abusive conduct” and without that, her sexual harassment suit was damnum absque injuria, or damage without legal injury.

Why didn’t the president answer sooner? One reason: 1996. He wanted to be reelected. Gennifer Flowers, the belle of the 1992 campaign, was one thing. An endless string of reported illicit sexual relationships extending from an increasingly arcane Arkansas past into the Lewinsky-Willey-White House present is quite another. All this could be expected to emerge in pretrial discovery, and it did.

The president, of course, is not off the hook yet. The independent counsel still roams and a grand jury still sits. Serious allegations remain. Did the president or others at his direction attempt to persuade Monica Lewinsky to lie in her affidavit? Did the president lie? These matters of obstruction and perjury are not inconsequential to the observance of the rule of law.

Without the continuation of Jones’ underlying claim from which all else originated, it is likely of little consequence to the body politic. Pundits have wondered and worried about the public’s moral indifference. Have we sold our souls for a good economy? For relative world peace? For tobacco settlements or other causes that strike us as more fashionable or important? Perhaps.

It may, however, simply be the public’s common sense. We elected and reelected a flawed president. Why repeatedly prove it? Legally, too, demonstrating perjury or obstruction of a civil judicial proceeding that is no longer proceeding also is a neat trick. Sure, Kenneth Starr might tenably claim his own grand jury had been obstructed, but there the public, rightly or wrongly, is likely to applaud.

The eminent 13th-century moral philosopher Thomas Aquinas cautioned that the law should not attempt to enact every virtue or prohibit every vice. The human condition cannot bear it. Only moral instruction can evaluate matters that comprehensively. The independent counsel statute operates on the opposite premise. As unwise as that surely is, it is no fault of Starr to have carried it out to the letter--at least to now. Continuing to press a highly imperfect officeholder, however, is only to invite greater distortions of the presidential office.

Assuming Clinton’s Nixonian executive privilege claim is rejected and the president complies, there is no better time than the present for Starr to file his report with the House Judiciary Committee. In it, he should detail not only the evidence of personal presidential misdeed but also the need for legal reform, if not repeal, of a statute that yields the type of misbegotten prosecutorial authority he has been given by a three-judge panel, the attorney general and ultimately Congress. So doing, he would demonstrate the same legal leadership that brought him deserved acclaim before the words Whitewater or Lewinsky became lame substitutes for public governance.

And independent counsel Starr needn’t worry about White House spinmeisters inevitably portraying this as surrender. The public will know better. William Jefferson Clinton may have won a meager discharge from civil liability. If he thinks that is exoneration, he should consult O.J Simpson. In the eye of history, this president has been dismissed.