The O.J. Simpson verdict–in which a jury voted for acquittal despite powerful proof of guilt–seems less aberrational now that President Clinton has soared to new heights of public approval in the face of convincing evidence that he has played fast and loose with the truth.
The Simpson trial illustrated that our legal culture had become decadent. The Clinton saga shows that the worst features of that legal culture have seeped into our popular and political cultures.
The degradation of the legal culture, abetted by politically correct law schools and money-grubbing law firms, has been a decades-long process, so gradual as to be almost invisible. The adversary system of justice has reached the point at which the means (adversarial lawyering by advocates for opposing parties) often obscure the end (justice). Many lawyers now see themselves more and more as hired guns whose weapons necessarily include concealment and distortion of facts, and less and less as officers of the court whose advocacy must be qualified by loyalty to truth-seeking.
And now our President, barricaded behind squadrons of lawyers, is using the tools of the legal culture to drive simple respect for evidence and common sense to the margins of public discourse about his own conduct.
The word ”spin” has come to encompass–and to trivialize–the various techniques of truth-avoidance and distortion that have increasingly debased the currency of democracy. President Nixon’s operatives ushered in the Age of Spin, overwhelming the press each day with a tightly coordinated ”message.” Then President Reagan’s PR team mastered the art of using one pretty picture on TV to eclipse thousands of words of critical coverage. The Clinton team’s signal contribution to modern politics has been to perfect forms of spin that mirror the legal culture’s excesses. An overview: The ”I ain’t sayin’ nothin”’ dodge. In gangster movies, when a mug tells the cops, ”I ain’t sayin’ nothin’,” the audience knows he has something to hide. Every mother understands this: If your 6-year-old stares silently at the floor when asked, ”Who stole the cookie from the cookie jar?” it’s tantamount to a confession.
But now the President of the United States does essentially the same thing, again and again, and much of the public (and the press) shrugs, or even applauds. At his April 30 press conference, for example, Clinton fended off a succession of scandal questions by saying that he ”cannot comment,” ”should not comment,” had ”nothing to add,” and was ”absolutely” prepared to leave these questions hanging until he leaves office.
Meanwhile, the Clinton camp and its allies have invoked a raft of testimonial privileges to stop Kenneth Starr (and Congress) from getting evidence: executive privilege, attorney- client privilege, husband-wife privilege, the Fifth Amendment privilege, and the invented-for-the-occasion Secret Service privilege. Clinton spinner James Carville says the President himself should take the Fifth.
Clinton’s whole approach is the moral equivalent of taking the Fifth. One reason he has gotten away with this–so far–is the public’s healthy distaste for the idea of forcing any President to answer questions about truly private matters, including his sex life.
It will soon become more apparent, however, that the real issue is not Clinton’s sex life, but rather the mass of evidence that Clinton may have not only perjured himself, but also abused the powers of his office to influence the testimony of others– and not only to cover up consensual affairs, but also to deflect allegations of sexual harassment and, perhaps, of questionable fund raising and financial dealings.
The underpinning of Clinton’s strategy of silence is the unwholesome–if still incomplete–success of our legal culture in legitimizing refusals to explain incriminating evidence. Once a narrowly defined legal right available to criminal defendants, the spirit of the Fifth Amendment now pervades our political culture. The Fifth Amendment says that ”no person shall . . . be compelled in any criminal case to be a witness against himself.” It does not come close to saying what Clinton’s defenders imply: that citizens should not use their common sense by drawing the logical inferences from a politician’s refusal to respond to plausible allegations of wrongdoing. Will the President continue to succeed with a dodge that has failed many a 6-year-old cookie thief? Time will tell.
The ”I don’t recall” evasion. This is the lie of choice for people who have to testify but don’t want to tell the truth or be prosecuted for perjury. That’s why so many lawyers advise clients and witnesses in tight spots to be mindful of what a fugitive thing memory can be. And that’s why President Nixon advised aides on March 21, 1973, on tape: ”Perjury is an awful hard rap to prove. . . . Be damned sure you say, ‘I don’t remember, . . . I can’t recall.’ ” Nixon’s advice has apparently been taken to heart by first lady Hillary Rodham Clinton, her top aides and advisers, various Clinton appointees and key Clinton campaign fund raisers, who have resorted to ”I don’t recall” (or the like) so often as to shatter credulity.
It would be almost impossible to prove perjury in any of these cases. But anyone who has studied these witnesses’ testimony can understand the reaction of an anonymous Starr aide to an interrogation of the first lady on July 22, 1995, as quoted in an April 6 New Yorker article by Jeffrey Toobin: ”We were all convinced that she was a liar–on all topics. The principal way she lied was, ‘I don’t recall.’ ”
The witness-coaching game. An article by Michael Higgins in the current issue of the ABA Journal confirms what every practicing litigator knows: Many clients and witnesses are all too eager to lie under oath, and the witness-preparation process that has become prevalent in this country–with lawyers rehearsing witnesses at length before they testify–often has the effect (if not the overt purpose) of helping (or even pressuring) them to lie with impunity.
This witness-preparation process has an even greater potential for deception when the lawyers for various witnesses work together, sharing information about who is saying what. That is standard operating procedure when large corporations are sued or investigated; they arrange for a collaborative legal team to represent both the company and its employee-witnesses. It is also a crucial facet of the White House response to Starr’s investigation, in which critical White House witnesses are represented by lawyers recommended by, and closely associated with, Clinton’s own legal team.
The diversionary gambit. Like other corruptions of democratic discourse, this one has legitimate roots: Attacking the credibility of accusers is often necessary to expose those who fabricate allegations against innocent people.
But such tactics become engines of distortion when taken to extremes, as in the morphing of the O.J. Simpson trial into a trial of one prosecution witness–Detective Mark Fuhrman–for racist remarks of almost no relevance to the case at hand.
President Clinton and his spinners have had similar success in putting his accusers and investigators on trial to divert attention from the evidence of his own conduct. It’s fair to point out that most of the witnesses against Clinton have large credibility problems. But the Clinton propaganda machine’s greatest success has been a cynical campaign to demonize Starr– whose blunders have played into his attackers’ hands–as some kind of sex-obsessed right-wing avenger.
This caricature is unrecognizable to people–liberals and conservatives alike–who know Starr. But the caricature permeates many news accounts and has turned the public against Starr.
And this, in turn, has helped the Clinton propaganda machine divert attention from each new public disclosure of damaging evidence about Clinton by firing off a barrage of charges that the evidence was illegally leaked by Starr. None of these charges has been proved. And some of them seem fraudulent, with the leaks apparently coming from the same Clinton camp that has so loudly denounced them. But that has not prevented the cries of ”Leak!” from drowning out the evidence.
Another diversionary gambit is group solidarity. Just as O.J. Simpson’s lawyers used naked racial appeals to get jurors to ignore the evidence, President Clinton and his spinners are making naked political appeals to get Democrats and liberals to ignore the evidence.
Republicans have, of course, done the same thing to divert attention from evidence of misconduct by their own leaders, including Nixon and House Speaker Newt Gingrich. But Watergate and other scandal investigations have always produced honorable exceptions to such partisan walls of solidarity.
As a registered (if not especially loyal) Democrat who has never voted for a Republican presidential nominee, I wonder: When are honorable Democrats going to come forward and demand that President Clinton give a full accounting of his behavior?