Gigglegate and Gomorrah

When all this was just about Paula Jones, I was already worried that it was a very bad idea to allow a sitting president to be sued privately. As a matter of cost-benefit analysis, there is simply too much at stake to allow private civil disputes to derail the entire executive branch and our commander in chief. Once a president is actually elected, the magnitude of palace politics allows for too many opportunities to use such litigation for subversive political ends. For what it's worth at this point, I think we ought to have extended the statute of limitations and settled upon some form of plaintiff compensation for the unusual measure of Jones's having to wait until the end of Clinton's second term.

One of the great dilemmas posed by such suits is embodied in the current crisis. A defendant--or any party in private litigation--is constrained by the rules of evidence, and the proceedings are presumably monitored by a judge and lawyers so as to maintain an orderly unfolding of fact winnowed from wild rumor, of reason winnowed from inflammatory allegation. The political sphere, on the other hand, is nothing if not filled with intrigue and hyperbole, backroom deals and public relations. This contrast between the constraint of the courtroom and the noisy brawl of soapbox politics is precisely the catch-22 in which President Clinton is now caught.

Does he follow the advice of lawyers and keep his mouth shut in deference to the presumed orderliness and due process of a grand jury investigation? Or does he defer to the demands of his office, the exigencies of the political, which yammer for him to make a full accounting to his constituents as loudly and quickly as possible?

The tension between these two simultaneously imposed procedural offerings is ultimately paralyzing. And with no clarity about procedural standards, the biggest propaganda machine will surely win; the loudest mouth, even if it's Rush Limbaugh's, will easily enjoy the last laugh.

Ironically, this dilemma was precisely the one imposed upon Lani Guinier when she went through the rabid maligning and misrepre-sentation of her scholarship that was so carefully orchestrated by the same right-wing think tanks that have kept Ken Starr so busy with imagined graft for these many years. Rather than by the ethical constraint of trial practice, however, Guinier was silenced by a White House protocol that did not allow her to speak; she was caught between the perceived political need for damage-controlling presidential aloofness from what watchers of tabloid television believed her to stand for, and the straightforward--published, even--truth of what she stood for.

Similarly, Anita Hill, in her most recent book, Speaking Truth to Power, describes how she was hamstrung by such a procedural split: she was supposedly a character witness in a judicial appointment process, and as such there were plenty of procedural options by which the Senate could have allowed her testimony to proceed without it becoming a spectacle of voyeuristic excess, a media circus par excellence. Instead, she found herself caught up in a mock ''trial'' in which all of the rules of evidence were, indeed, nothing less than mocked.

The jumbling of process achieved by pitting one set of standards against another is the core of what I find most troubling about this current made-for-TV spectacle. The resulting unregulated hoopla obscures the degree to which, as of this writing, there is no case against the president. This is not Watergate, where there was a confirmed burglary, confirmed illegal bugging, and confirmed Republican involvement in plans to bring down the Democratic Party by a confirmed web of planted lies.

Nor is this a ''he said, she said'' situation. President Clinton has denied that there was an affair; so has Monica Lewinsky, under oath.

Of course, there is this other, more tantalizing swirl of rumor to contend with: a cottage industry has arisen from just listing all the words Clinton didn't use in denying the affair. You could fill a dictionary with 'em! And rumor has it that, after nearly a 10-hour interrogation with no lawyer, Lewinsky has changed her story. Rumor also has it that she lives with her mother, coincidentally enough, in the Watergate apartment complex. Rumor also has it that her mother concocted a story about having had an affair with Placido Domingo, which Domingo denied. ''Selectively leaked'' tapes seem to indicate that Lewinsky ''confessed''--the press keeps using that word--all sorts of juicy tidbits to a White House staffer hired during the Bush administration, Linda Tripp. (It is apparently fact, not rumor, that Tripp's now famous literary agent, Lucianne Goldberg, began her career as a paid operative in Richard Nixon's campaign of dirty tricks: Goldberg went to work for George McGovern for the sole purpose of subverting his candidacy. Tripp was one of the last people to see Vincent Foster alive. And I'm sure it was nothing more than a big goofy accident that Tripp was the one who told the press all about how another young woman, Kathleen Willey, emerged from the president's office looking rumpled and ''suspiciously'' happy.)

A good many of the rumors now fogging the national atmosphere seem to have emanated from Ken Starr's office, which is also quite peculiar. It is peculiar because this is supposedly an investigation for a putative grand jury proceeding, ordinarily covered by a blanket of silence. Ordinarily someone would be held in contempt for such an inflammatory and unsubstantiated revelation--but what to do when it seems that Starr's chamber is the contemptuous source itself? What to do when the ''independent'' counsel seems to be a hired gun of the far right wing, a provocateur of the first order? What to do when the fox is guarding the henhouse of truth?

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