Implacable Search, No Compromises

There may have been graver scandals in U.S. history than the one that hit President Bill Clinton last week, but not since Watergate has Washington seen such a collective gasp and a spontaneous, “Ohmygod.” Pro-Clinton pols who have not already gone south are saying that Independent Counsel Kenneth W. Starr is on a monomaniacal quest to bring the president down at any cost. They miss the point.

The war going on is between the traditional American politics, of which Clinton has become a caricature, and the post-Watergate institutions that now govern Washington. In one corner, you have a president who is full of guile and appetite but also capable of considerable feats of political creativity. In the other is a system of rules and organizations based on the inquisitor’s premise that concerns of state are no excuse for misbehavior by public officials.

Guess who’s winning.

First, about the president. Let us review the bidding: As Clinton’s partisans remind us, he is not the first White House occupant with what used to be delicately called, when delicacy still had a place in politics, an eye for the ladies. Different presidents have engaged in extramarital sex for different reasons--companionship, power, a voracious need for approval, a surfeit of opportunity. To those who argue that Clinton’s alleged affairs seem to have been more compulsive than most, or that it was especially unseemly to bed, as the stories allege, a young woman under his protection on the White House staff, one need answer only a single name: John F. Kennedy.

Let it also be stipulated that the other major complaint against Clinton in this scandal, his alleged failure to come clean about it, is also quixotic. Presidents lie. When they are not lying, they shade the truth, mislead, say different things to different people. To some extent this talent is utterly necessary in the leader of a country as big and diverse as ours. To some extent, fudging is understandable when the danced-around subject is the embarrassing, guilt-ridden terrain of sex.

But one sign of the administration’s crisis is that the above arguments, reasonable enough in theory, now exert so little persuasive force that nobody is bothering to make them. Clinton has given them a bad name.

His alleged sexual peccadilloes are no worse than Kennedy’s? Not true. It was one thing for Kennedy to carry on, secure in the knowledge that prevailing codes of political behavior would keep his activities secret. It is another for Clinton--after the 1992 campaign, after Gennifer Flowers, after the necessity for a bimbo patrol, after the appearance of Paula C. Jones--to keep doing what it seems ever more likely he did.

You may decry the rise of a politics that gives unneeded publicity to politicians’ private lives. But there it is. A president mindful of the need to guard his reputation, for the country’s sake as well as his own, will act accordingly. This president, it appears, did not.

You say Clinton’s dancing around the truth is what all democratic leaders do? Not exactly: Even among presidents, not everyone dances quite so close to the edge. In an interview last week with PBS anchor Jim Lehrer, the president said, “There is no improper relationship.” Immediately came two nearly universal reactions. No. 1: What did he mean by “is” no improper relationship”? Did that mean there was one in the past? Reaction No. 2: What did he mean by “no improper relationship”? That it was consensual sex with someone over the age of majority?

Clinton later clarified his remark: There “was”--past tense--no sexual relationship, he said. But until then, everyone was parsing his remarks as if he were the oracle at Delphi. That is how accustomed we now are to his evasiveness.

So Clinton is a uniquely ripe scandal target. He is also under assault, though, by a prosecutorial politics of truly incredible force. True, Clinton has political enemies and people who personally hate him. But they are not his biggest problem.

Starr, for example, is often said to have expanded his Whitewater investigation again and again because of a personal vendetta against Clinton. Why else, the argument goes, would he have gone to the court to get new authority over an unrelated matter like the president’s sex life? But Starr, not so long ago, tried to resign as independent counsel and take a job in Malibu. He changed his mind only because of criticism from those, including friends of the president, who said leaving would be irresponsible. This is not the behavior of a man on a personal quest.

But the lack of animus doesn’t matter, because we get the same result, and more, from the way the investigations of Clinton have been set up around the office of the independent counsel.

The attorney general must decide whether to ask the court for an independent counsel. In theory, that means the decision will be made by an official balancing law enforcement and political concerns. In practice, almost every incentive in the system pushes her toward more prosecution.

If the attorney general asks that an independent counsel be appointed, any criticism of her will be dismissed as just the howls of the guilty. But, if she declines to ask for one in a sensitive case, she is likely to face, at the very least, a grilling by Congress. Janet Reno discovered as much when she decided against an independent counsel to investigate those fund-raising phone calls from the White House.

In the same way, every incentive pushes the independent counsel toward a no-holds-barred investigation. Unlike a case handled by a regular prosecutor, an investigation by an independent counsel ends with a public report, indictments or no indictments. He or she can’t just decide not to prosecute; he has to explain why. This requirement puts a premium on thoroughness and caution. There is no percentage in compromise.

Neither is there any percentage in tolerance for moral ambiguity. The more searching an investigation gets, the more likely it is that the individual under scrutiny will tell something less than the truth. This is not necessarily an indication of fundamental evil. It can stem from the garden-variety embarrassment and guilt to which we are all vulnerable. Yet, in a prosecutorial operation like Starr’s probe, the coverup may get even more demerits than the underlying offense.

Also, because of the publicity surrounding these investigations, it is predictable that new charges come out of the woodwork and over the transom. Such charges include those that come, as in Clinton’s case, from political enemies. But the source barely matters, all charges must be investigated. The big problem is not that independent counsels have unlimited budgets; it is that they have what often seems like unlimited fields of action. Their investigations can hardly avoid turning into endless crusades.

The effects of this institutional setup are magnified by current sexual politics--especially the tendency to classify more and more behavior as sexual harassment deserving of remedy. Recall how the current Clinton revelations came about: Jones sued the president for acts of sexual harassment, and the Supreme Court ruled that her case could not wait until the president was out of office. It was because of the suit that Jones’ attorneys started combing Clinton’s past for other women who might testify to acts similar to those they alleged. It was because of that inquiry, in turn, that young Monica S. Lewinsky was called upon to give her affidavit; and it was the prospect of the affidavit that produced both the alleged panic by the president and his friend Vernon E. Jordan Jr. and the fatal taping by Lewinsky’s friend, Linda R. Tripp.

When Tripp went to Starr with her information, she set in motion the powerful prosecutorial engine of the independent counsel’s office and the similarly independent FBI. It was the new sexual mores, though, that provided fuel for the machine.

It is hard to imagine a starker clash than the one we see now between Clinton’s appetites and the new political climate’s moralism, between Clinton’s evasiveness and the new political institutions’ implacability. Neither side presents a pretty sight. You want to avert your eyes from both the alleged misdeeds and the means through which they were exposed. It is a sure bet, though, that the coming weeks will not give us any opportunity to do so.