Laws that Run Amuck

By Jeffrey Rosen/Washington

As America struggles to understand the Lewinsky affair, there's a natural temptation to make sense of the drama by reducing it to a clash between individual heroes and villains. And so we have a parade of soap-opera caricatures--the overzealous and partisan prosecutor, the lusty young temptress, the bloodless wife, the philandering husband--all competing for blame in the public eye.

But the real villains in the current crisis are bad laws, rather than bad women or bad men. In particular, the explosive collision of sexual-harassment doctrine and the Independent Counsel Act, combined with the erosion of legal protections for privacy, has led to violent breaches of the boundaries between public and private life. At each stage in the endless legal battles, judges, prosecutors and lawyers have made decisions that, while technically defensible, have had brutal consequences for the parties, their innocent friends and, ultimately, the country.

Let's begin with sexual harassment. Last May, when the Supreme Court rejected President Clinton's claim that Paula Jones' sexual-harassment suit should be delayed until he left office, the Justices unanimously dismissed the President's claim that allowing the suit to proceed would generate unrelated litigation that might hamper his ability to do his job. The events of last week suggest that the court's optimism was misplaced.

Much of the problem stems from the elastic nature of sexual harassment itself, which is defined so expansively (it includes "unwanted advances" that create an "offensive working environment") that no one is quite sure what it means. After the court ordered the Jones case to proceed, President Clinton's lawyers made a plausible argument that her suit should be dismissed without a trial. Even assuming, for the sake of argument, that her allegations were true, the President's lawyers said they didn't add up to illegal harassment.

To win her case before a jury, Jones would have to prove that Clinton had conspired, in his official capacity as Governor, to deprive Jones of her constitutional rights. But it's hard to see how making a pass at someone and taking no for an answer violates the Constitution. (Jones' claims that Clinton retaliated against her for resisting his advances are far less convincing.) Nevertheless, the law required Judge Susan Webber Wright to give Jones every benefit of the doubt at the beginning of a case, and so she allowed Jones' lawyers to begin "discovery."

That's where the trouble started. Sexual-harassment suits have a tendency to spiral out of control because the relaxed rules of civil discovery permit lawyers for the plaintiff to rummage freely through the defendant's sexual history, to try to prove a pattern of "unwanted advances." In criminal trials involving serious sexual allegations, such as rape, inquiries into the sexual history of the alleged victim and the defendant are more carefully limited.

What followed was a gross invasion of privacy. During a three-year search, Jones' lawyers sent private investigators to comb the country, using the rough force of subpoena power to compel women who were rumored to have had consensual affairs with the President to discuss their sex lives against their will. At least five women denied the rumors in pretrial depositions, one of whom was Monica Lewinsky. But merely by asking these intrusive questions, Jones' lawyers were able to force Lewinsky, as well as the President, to discuss their private lives under oath.

Enter Kenneth Starr. The independent counsel had been given tapes of Lewinsky that suggested that she and the President might not have told the whole truth about their relationship. In an ordinary civil suit, evidence that a witness lied in a deposition might, at worst, be used to embarrass her at trial, and ultimately the jury would decide whom to believe.

But Jones v. Clinton wasn't an ordinary civil suit because it was being shadowed by the independent counsel. Confronted with the secret tapes, Starr was technically within his authority to ask Attorney General Janet Reno to recommend an expansion of his jurisdiction. Like sexual-harassment litigation, the Independent Counsel Act is so elastic that it authorizes the investigation of "other allegations...arising out of" the original Whitewater assignment. And if Clinton had asked his friend Vernon Jordan to get Lewinsky a job at Revlon to buy her silence in the Jones inquiry, Starr could plausibly wonder whether this made it more likely that Clinton had also asked Jordan to get a job at Revlon for Webster Hubbell, the former Associate Attorney General, to buy his silence in the Whitewater inquiry.

Although plausible, the theory was so elaborate that Starr's efforts to prove it soon began to unravel. On Jan. 29, Judge Wright in Arkansas ruled that "evidence concerning Monica Lewinsky should be excluded" from the Jones trial, on the grounds that it was more likely to confuse a jury than cast any light on Jones' claims. Better late than never.

As a result of Judge Wright's ruling, Starr's efforts to make a case that Clinton committed perjury have become much more complicated. Most prosecutors would hesitate to bring perjury charges when the alleged lies aren't material to the case--in other words, when there's little chance they would influence the outcome of the case. Even Starr's friends acknowledge that Judge Wright's ruling makes it far less likely that Starr will ever bring perjury charges against Clinton or Lewinsky, which also reduces his leverage in securing Lewinsky's cooperation.

Where does that leave the independent counsel? He still plans to investigate whether the President obstructed justice by encouraging Lewinsky to lie in her deposition. But without Lewinsky's help, Starr isn't much closer to proving that charge than he was before the ugly drama began. Even if Starr does uncover evidence that Clinton encouraged Lewinsky to lie, he's unlikely to prosecute because most legal scholars believe the President can't be indicted before he is impeached. Because of the odd incentives created by the Independent Counsel Act, which allows Starr to justify his existence by pinning a crime, any crime, on his target, the investigation will continue to lurch from one allegation to the next, with its ending always just out of reach.

If anything good comes out of this dark episode in American politics, it will be a re-examination of the ill-conceived laws that made it possible. Perhaps Democrats and Republicans, in an act of mutual disarmament, will finally let the law expire when it comes up for a reauthorization vote next year. And perhaps the Supreme Court will seize the opportunity presented in several cases this year to refine the definition of harassment in ways that recall its core meaning of sex discrimination in the workplace. Finally, Congress could acknowledge that the Supreme Court was too optimistic in the Clinton v. Jones case, and give future Presidents temporary immunity from civil-law suits while in office.

Ultimately, of course, the President must take responsibility for his own behavior. But as long as these illiberal laws remain in force, we will continue to suffer from the criminalization of sex and the criminalization of politics, regardless of who lives in the White House.