His Terrible, Swift Sword (Page 2)

But beyond the rhetoric, what's been even more astonishing is the moralistic position the editorials have staked out: Clinton is not only a humiliating failure as a leader, and even as a human being; he has destroyed Americans' faith not only in him, which nearly goes without saying (except that...it doesn't, since the paper says it almost daily now), but in the institutions of their government; he must not be allowed to wiggle out of the range of the rule of law's mighty sword; and yes, that prosecutor fellow may have gone overboard here or there--Starr has a "tin ear," has displayed "clumsiness" (both February 25), has "seemed...a klutz" (July 29)--but his sins are as nothing compared with those of the Philanderer in Chief.

And that's just what the paper said. What it hasn't said is, if anything, more revealing. It has not, during this entire episode, written an editorial, for example, wondering whether sheet-sniffing expeditions of the sort that launched this story are the proper work of journalism in the first place (one sentence--one sentence!--on September 14 acknowledged "some public distress" at the graphic nature of the Starr referral). It has never bothered to stop and ask whether the nation even needed to know about any of this to begin with--indeed, the tone and line of argument of the editorials that touch on sex all accept as a given the fact that politicians must pass muster on the boudoir factor. A cross word for Lucianne Goldberg--who, as an old Nixon spy, one might imagine would not be a friend of the great liberal page--or Linda Tripp? No, and no. An analysis of what happened at the Ritz Carlton last January 16, when Monica was dissuaded from calling a lawyer, who had not yet filed Lewinsky's false affidavit--the implications of which are that if she had called him, she might never have submitted a false document to the court, and therefore never been a subject of threats about twenty-seven years in prison and all the rest? Or a consideration of whether Tripp communicated with Starr's office through intermediaries, including one man in Starr's own law firm, before the date they've both claimed as the first contact, which might mean that Starr began to pursue the Monica line of inquiry days before he got Janet Reno's permission? You guessed it.

These last two questions stand as useful examples of something important that's gone terribly haywire here. Say what we will about the old Times and its editorial policy--late to the dance in opposing Vietnam; devoted to all the usual imperatives of national security and the cold war; tremulous, even, about Watergate until the picture became clear enough that opposing the President was no longer so great a risk (different days, those). But one area in which the page has usually held fast to principle is due process. The paper, to my memory, has almost always had a good word for Supreme Court decisions that protected it; criticized efforts, like one the Republicans undertook during their Contract With America honeymoon to weaken the Fourth Amendment, to limit it; and taken civil liberties matters very seriously, in perhaps a somewhat beard-scratchingly earnest way, but hey, at least it cared about the Bill of Rights.

Now? Poof! The editorial page has resolutely refused to see the Lewinsky scandal in due process terms. Reasonable people can react to Clinton's deeds with varying degrees of repulsion, and obviously he is not exactly a blameless victim here. But he is the subject of a most unusual investigation, of the sort that many prosecutors will tell you (as two in New York have told me since this thing started) is flawed if not unethical if not illegal. "Those who argue," the Times wrote on September 24, "that Mr. Starr should never have inquired into Mr. Clinton's truthfulness about his sex life fail to consider his legal mandate. As an officer of the court, operating under Justice Department aegis and the supervision of three Federal judges, he would have been derelict if he had walked away from evidence of potential perjury." Ten-dollar dress for dime-store logic: Prosecutors always have discretion, and Starr could have used his to mull over the ramifications of his choice and decide that lying about sex in a civil-suit context was not grounds for impeachment. A different prosecutor would have thought long and hard about whether this constituted a "high crime"; would have played out scenarios and been able to foresee, for example, that pretending it was a high crime might lead to a Senate trial in which the representatives of the people of the United States spent weeks taking evidence on exactly who touched whom, and where and when and how.

Probably did, dirty man. And this is the sort of reasoning in support of which the Times has been harrumphing from its back-bench for nearly a year. Every decent liberal (in the classical sense) impulse that has tried for centuries to keep the state off people's backs--defenestrated. More incredible than any of its Clinton-Starr editorials, in fact, was the word the page handed down after Mike Espy's acquittal. You know the story: The former Agriculture Secretary accepted $35,000 in various gifts, independent counsel Donald Smaltz spent $17 million pinning his offenses down and a jury took all of two days to laugh the charges out of the courtroom. Smaltz infamously said, upon the jury's return, that he didn't mind the verdict so much because "the actual indictment of a public official may in fact be as great a deterrent as a conviction of that official." Let's see, Emmett Till's family received justice because two of the lynch mob were indicted for his murder, right? And get off that golf course, Juice--you were indicted, after all. Smaltz knows what a sophisticated and wise newspaper ought to understand as well--that mere indictment, with today's media and legal bills, can mean life in hell, can mean that the public will look at headlines and the perp-walk photograph and conclude that so-and-so's just another crook.

Smaltz might as well have come out and said, "Guilty until proven innocent." Yet when the Times editorialized on the Espy acquittal the day after Smaltz spoke those words, it didn't even mention them. One sentence noted that "the trial's outcome does call into question how well Mr. Smaltz conducted the investigation." But the editorial went on to point out that he did win "multiple convictions"; then, amazingly, it bellyached that "this case will probably be used by critics of the Independent Counsel Act to justify changes to the act to limit the time and cost of such investigations" (that's one thing they got right--this critic will, at least). But in the main, the editorial was critical of Espy. The acquittal, the opening sentence grudgingly concedes, was "not unexpected," but Espy "brought these troubles on himself when he apparently adopted the attitude that he could ignore the Federal gratuities law."

"Brought these troubles on himself" is a phrase that deserves a paragraph's worth of scrutiny, from a civil libertarian point of view. Surely Clinton, too, brought his troubles on himself; the Times has said as much. We needn't make our point here by being so melodramatic as to say that maybe Rodney King brought his troubles on himself by leading cops on a car chase, or that women who show a little leg and then get raped brought their troubles, etc. No, let's not overdo it; let's say simply that as a principle of both decent common sense and the law, a bad or even illegal action has never, ever justified either illegal reaction or excessive means on the part of the state to bring the miscreant down. One might have thought this notion, too, occupied its little corner of the liberal heart.

None of the above have been of much concern to Raines's editorial page. And so we ask: What has, and why? Here, we heed Howell's terrible, swift sword. Glory hallelujah.

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