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Commentary | PERSPECTIVE ON THE WHITE HOUSE SCANDAL

A Fine Mess, Thanks to the Court

October 09, 1998|DANIEL SLOCUM HINERFELD and ROBERT E. HINERFELD | Daniel Slocum Hinerfeld is a deputy to a Los Angeles City Council member; his father, Robert E. Hinerfeld, a former associate independent counsel, is a partner in a Westside law firm

Let's add the U.S. Supreme Court to the list of those responsible for bringing Congress to a standstill and the president to the brink of impeachment. The court's stunning lack of common sense in the Paula Jones case last year invited our nation's present debacle.

The unanimous decision in Clinton vs. Jones held that the Constitution doesn't afford a president temporary immunity from civil litigation for events that occurred before taking office, and, specifically, that the lower court was wrong to postpone the Jones trial until Bill Clinton left office.

What's confounding is that the court made that decision while at the same time recognizing the broad power of the lower court to delay litigation, including discovery, "if the public welfare or convenience will thereby be promoted."

Driven by naivete (one hopes not by political bias), the high court rejected the prediction of Clinton's lawyers that the Jones case would, in the court's words, "impose an unacceptable burden on the president's time and energy, and thereby impair the effective performance of his office," arguing that such a scenario was belied by history and unlikely because of the "narrow compass" of the issues presented.

Never mind that those issues were the intimate details of Clinton's sex life, or that they were being sought in litigation paid for by avowed political enemies of the president. In a pronouncement worthy of Roseanne Roseannadana, the court confidently opined that the Jones case, if properly managed, "appears to us highly unlikely to occupy any substantial amount of petitioner's time."

Would the court care to guess again?

The federal government is nearly paralyzed, the media are obsessed, the populace is disgusted, the nation ridiculed and the Jones case has yet to go to trial. God forbid it actually does.

Defenders of the court will blame Clinton alone: The country would not be on the verge of impeachment hearings, they'll say, if the president hadn't lied about his relationship with Lewinsky during that January deposition in the Jones case.

That may be true; it simply misses the point.

Honesty always is the best policy, but it's not the likely policy of a public official compelled to answer questions about illicit sexual behavior. A wise court would have considered the implications of cornering the president; it would have weighed those grim possibilities against the detriment to Jones of postponing her case another three years.

Moreover, honesty wouldn't have made sufficient difference. Suppose Clinton had done the inconceivable and told the whole truth about Monica Lewinsky back in January. He wouldn't be facing allegations of perjury, but the media storm, the public disruption, the damage to the president's moral authority certainly would have impaired "the effective performance of his office."

Exposing the sex life of a sitting president to the scrutiny of a hostile lawyer is a recipe for national distraction. And as 20th century history shows, White House trysts are common sport. Harding, Roosevelt, Kennedy and Johnson all had adulterous liaisons at 1600 Pennsylvania Ave., and those are just the documented cases. A detailed rumor of more recent executive adultery is well-known to the Washington press corps, and doubtless familiar to the court.

The point, however, isn't the double standard; that critique should be reserved for Congress. The point is the court's utter lack of human insight, its failure to understand that any litigation against a sitting president is liable to become a political vendetta. The subject of sex is like chum in the water, attracting distant predators to the feeding frenzy.

Somehow the court also failed to anticipate that with such unusual litigation, successive constitutional challenges were likely to arise during pre-trial discovery. The battles over confidentiality in the president's relationship with Secret Service agents and White House lawyers were hard fought, time consuming and a diversion from legitimate affairs of state. Clinton may be famous for his ability to "compartmentalize," but he is only a man, and the Jones case put his privacy and his reputation on the line.

The final irony is that the Jones case, "narrow" in the estimation of the court, was a Trojan horse large enough to carry the army of the independent counsel. Kenneth Starr has used it to penetrate the White House, and now he imperils the president and the presidency.

The Supreme Court discounted repeated warnings of collateral damage. Its foolish calculation has created a disaster for the American people.

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