close, but no cigar

Terence Sin (
Fri, 25 Sep 1998 12:02:51 +0500

" ...Yes, if an American president had sex in the Whitehouse with an
Intern and lied to the American people about it, he should resign...
but you'll never prove that about THIS president"

- Hillary Clinton to Matt Lauer on the Today Show, January of 1998.


---------- Forwarded message ----------
Date: Mon, 21 Sep 1998 13:20:01 -0200
From: "Robert C.H. Sweeny" <rsweeny@MORGAN.UCS.MUN.CA>
Reply-To: Social Class in Contemporary Societies
Subject: Re: Political economy of sleazefest

Viewed from afar there are some important questions raised by the
current American political controversy surrounding Clinton. The best
posting I've seen is by Mary Schweitzer on the H-OIEAHC listserv (early
American history) in response to a general question posed by Jesse
Lemisch on the implications for political rights of the Starr
prosecution. The undermining of civil liberties, which Professor
Schweitzer highlights, should be of interest to people on the left in
the United States no matter what their prognosis of revolution may be...

I have reproduced her remarks below:

There are several issues with respect to Starr's pursuit of Bill Clinton
that I believe are not only at odds with the Bill of Rights, but also
with the entire spirit of the Revolution.

What bothers me is the apparent replacement of the right of an open
trial-by-jury, with open charges made to the defendant and the public,
by a secret grand jury that can ask whatever the prosecutor wants, and
the new concept of "situational immunity" can be used to force a person
to testify against his/her wishes, without benefit of lawyer or
cross-examination, or go to jail for an unlimited period of time.

Bill Clinton should not have been asked about Monica Lewinsky in the
context of Paula Jones. But there was no way to challenge a line of
questioning. In retrospect, the judge decided it was not relevant to
the case -- but only in retrospect. By then, Clinton had been faced
with the prospect of either taking the fifth, which would be perceived
politically as admitting guilt, admitting guilt to something which the
majority of Americans (as polled) would really rather not know about, or
lying. Since this case has not gone to court, and since his testimony
had no effect on whether the case would have gone to court, I am deeply
bothered that this testimony could be used as the "hook" for a DIFFERENT
prosecutor with an open-ended court to be able to "get" his man --
charges written after the arrest.

Monica Lewinsky committed no crime. Yet she was required to testify
publicly to her sexual conduct, which also was not illegal. She was not
permitted to take the fifth amendment, either. Holding Susan McDougal
up as the example, Starr was free to dangle the blackmail of two years
or more in jail.

And nobody on this list finds that a violation of the Bill of Rights??

There are reasons for the fifth amendment, the revolutionary insistence
on writs and formal charges, and juries. They did not want an
individual to be hounded into jail for political purposes.

Am I the only one who heard Kenneth Starr say, "a person who is innocent
has nothing to fear from being required to answer all questions put
before him."

THESE are the issues that have to do with the Bill of Rights. Kenneth
Starr took an oath to protect the Constitution -- but this statement to
the public is in direct conflict with the Constitution itself. I would
say a far more serious one than lying about a sexual encounter that in a
real court would never have been admissable evidence.

When Linda Tripp arrived in Kenneth Starr's office with those tapes, he
did not call the Maryland Prosecutor. Instead, he advised Linda Tripp
on how to evade Maryland law by moving her activities to D.C.

What does a federal prosecutor owe to the states? Another Bill of
Rights question -- can he violate Maryland privacy rights in hot pursuit
of a "federal criminal"? (It is against the law in Maryland not only to
tape a conversation without both parties being aware, but ALSO to USE
that tape for purposes of prosecution.)

Whether Clinton can call on lawyer-client privilege, or executive
privilege, or anything along those lines, has nothing to do with the
Bill of Rights. Rather, these are issues that have to do with the
separation of powers. The argument that technically Starr is hired by
the "executive" is specious: it was Congress that requested the
open-ended investigation. And only Congress can end it. Furthermore,
Starr is by his own admission collecting information not for a trial of
Clinton, but for an impeachment by Congress. He is clearly the agent of
the legislature; possibly the agent of the judiciary, but not the agent
of Clinton's own executive administration. Indeed, that was the whole
point of having a special prosecutor -- the assumption that the
President's attorney-general, as part of his administration, would be
unable to conduct a fair examination, so a prosecutor WHO WAS SEPARATE
FROM THE EXECUTIVE BRANCH had to be created.

Then it is not irrelevant to ask just how much Congress should be able
to use this prosecutor for, and it is not irrelevant for the President
to ask for executive privilege. Kenneth Starr is prosecutor, judge,
jury, and agent of the legislature. Where are the separation of powers?
These are all issues of immediate concern to the authors of the
Constitution and the movement for a Bill of Rights: legal protection
for a defendant in court; respect for the laws of another state; and
most particularly the requirement that a charge be filed BEFORE going
out and prosecuting a case. If, in the process of trying a person for a
crime of which he/she has been accused, evidence is released that
indicates the person may have committed a separate crime, the court does
not shift gears and move over to THAT crime. The person must be
charged again; the process starts again.

Note that the lawyers who have responded refer not to the Constitution
per se or the rule of law, but the rule of custom -- of precedent -- the
Old English Constitution, not the American written Constitution. The
rule of custom is yet another element in the precarious balance of power
-- a way of incorporating different perspectives into our analysis, and
a way of incorporating "the expectations of Americans" with regard to
our Bill of Rights.

But it is not the same thing. The Bill of Rights contains so many
clauses pertaining to a defendant's rights in federal course precisely
BECAUSE the public FEARED these automatic responses by judges who were
of a different class and worldview.

Finally, although the executive plays the part of the British Monarch,
we do not have a monarchy. The President is a private citizen; he is
supposed to be called MR. PRESIDENT like any other private citizen.

If the President isnot entitled to the protections of the Bill of
Rights, who is?

Mary Schweitzer, Dept. of History, Villanova University
(on medical leave since January 1995)