Custom and Statute Collide in Impeachment
excerpted from the new book Jove Laughs, They Say: Lewinsky as Text
by John F.X. Gillis
Sept. 27, 2000 -- During the six or so centuries of the development of the Anglo-North American jurisprudence, the Law of Customs and the Laws Stated have almost, but not quite entirely, reversed themselves regarding ultimate control. Where the Common Law once explicitly controlled statutory law when conflicts arose, now statutory law prevails. But even today custom can and does trump statute in certain circumstances-public drinking and indecent exposure during Mardi Gras in New Orleans, for example.
But what the impeachment partisans never understood, indeed what the President's partisans only half understood, was that the collision was not between specific components of the two systems of law, but between the two systems themselves. That the President's partisans only half-understood this conflict is obvious from the constant effort they expended debating the OIC's partisans on technical points of statutory law.
The scandalmongers' typical argument, repeated even into the spring of 2000 by [Kenneth] Starr's successor Robert Ray in an April 10 interview with the Washington Post, was that "there is a principle to be vindicated, and that principle is that no person is above the law, even the President of the United States." And yet that seemingly banal and uncontroversial declaration begs a critical question: what "law" is at issue?
If the "law" is a highly technical, specific and detailed reading of the body of enacted statutes that might show that the President is guilty of certain crimes relating to his and other witness's testimony, then it stands to reason that the President is perfectly entitled to present a highly technical, specific and detailed defense. If this means arguing that technically he did not perjure himself when he denied "sexual relations," so be it. Let a jury decide. But the scandalmongers always wanted to have it both ways-they wanted to hang the President on a technicality, then when he replied with a technicality, they complained that "common sense" ruled out such an argument.
Judge Susan Weber Wright, for example, in her contempt citation, declares the President's denial of "sexual relations" as "intentionally false, notwithstanding tortured definitions and interpretations of the term "sexual relations.'". As mentioned earlier, she further rejects the President's claim in a derisive footnote: "It appears the President is asserting that Ms. Lewinsky could be having sex with him while, at the same time, he was not having sex with her."
Well, of course common sense would reject such a notion of sex. But then why would common sense suddenly sprout in this case from which it was absent from the beginning? From its filing in May of 1994 to the present the case was common-senseless, an avalanche of technicalities and legalistic maneuvering.
Granting (for the sake of argument only) that the President had indeed committed the felonies charged in the OIC referral to Congress, the key point is that the fundamental case against the President remained static or weakened during the months the Lewinsky grand jury actively pursued the evidence. The President lied about his relationship with Lewinsky. He encouraged her to lie and hide evidence. True, by exercising their respective institutional powers the OIC and Congress succeeded in changing the venues wherein the controversies over the President's relationship with Lewinsky were adjudicated. But, for all the detail added during the investigation, the crimes for which the President stood accused boiled down to what had been published on the very first day the scandal broke (or less).
The President lied about Lewinsky, he lied about Lewinsky and he lied about Lewinsky until the presence of his semen on the blue dress required him to modify his lie about Lewinsky.
However, while the President might have broken the Laws Stated, the case against him was founded in violation of the Laws of Custom, pursued in violation of the Laws of Custom and culminated in violation of the Laws of Custom. Impeachment partisans acted in bad faith; they were ill mannered, obnoxious, tactless and in some cases too loud; they were stunningly hypocritical. Moreover, those violations of Custom were cumulative and aggravating in ways that the President's violation of statute was not.
To stress the distinction again: unlike perjury or obstruction of justice, there is no Federal law against tactlessness, bad faith or hypocrisy. Manners, tradition and custom refer to things like "politeness" and an "accepted standard of propriety" (manners), or to "the transmission of statements, beliefs, rules, customs, or the like, especially by word of mouth or by practice without writing" (tradition), or to "habitual or usual practice; common way of acting" (custom). It is intriguing to note, however, that the Oxford English Dictionary, from which these definitions are drawn, includes secondary definitions that indicate that the notion of a law against the kind of tactics employed by the impeachment party against the President is not so far-fetched. "Tradition" is also "A long established and generally accepted custom or method of procedure having almost the force of law," while "custom" can also mean "An established usage which by long continuance has acquired the force of law or right."
The reporters and pundits of the mainstream news media-who must surely be regarded as members of the impeachment party whether or not any given outlet supported or criticized the investigation of the President in the interest of expanding and holding audiences-exhibited atrocious manners on innumerable occasions. The most obvious example is the interruption of presidential visits by foreign leaders with Lewinsky-related questions. The consistent rationale for such rudeness was that the President offered no other opportunity to ask the questions. No doubt true. But what those claiming that excuse failed to understand is that their behavior was still bad manners. Their argument was not "how we behaved was good manners" but "being rude to the President was our only option."
If impolite questioning were the only breach of manners much of the public would have shrugged it off. But the media did something far more profoundly disturbing-they violated not just social custom but their own traditions in reporting stories with strongly sexual content. Until the Lewinsky matter, the established tradition in the media had been to refer tacitly and euphemistically to the graphic and explicit details of a story that required coverage but included sex. For all the rationalizing "that this all started with Gary Hart's failed campaign of 1984," comparing the coverage of Gary Hart's extramarital liaison with the coverage of the Lewinsky matter is like comparing Jane Austen to Phillip Roth. Indeed, as late as the 1992 campaign for president, his euphemistic, "I caused pain in my marriage" was widely accepted as an admission of adultery. The media was able to "forebear particulars" and still cover the story.
When asked about coverage of the personal lives of politicians or explicitly sexuality in the mainstream news media, a number of media representatives, including Michael Isikoff and Bob Woodward, have been quoted in the aftermath of the Lewinsky Scandal something to the effect that "there are no rules anymore." Well, why not? What happened to those "rules?" Who decided there are no rules anymore? Did they hold an election and forget to tell anybody?
Given the events at issue in impeachment, it's impossible to suggest that the news media should have exhibited tact and good taste. That does not mean, however, that they were therefore entitled to act entirely tactlessly and to deliberately couch their work in the worst taste.
But the media behavior was only the first public glimpse of the scandal. Previous to that but unseen by the public, the case in chief, as they say, can be said to have begun with Peter Baker's January 21, 1998, story in the Washington Post revealing the existence of the OIC investigation. The Beltway elite was all atwitter about the statutory law implications of the President's conduct. However, a substantial portion of the general population-eventually apparently a clear majority-was aghast at the bad faith and betrayal of confidences exhibited by Linda Tripp in her secret taping of Monica Lewinsky.
...
Compounding Tripp's bad faith is that not only had she violated the secrecy custom, she had presented herself to Lewinsky as a mentor. For all the complaints from the impeachment party about middle-aged man having intimate relations with a woman young enough to be his daughter, there was very little complaint in the mainstream media about a woman old enough to be her mother betraying Lewinsky's confidence.
And, interestingly enough, it turns out that Marcia Lewis, who is Lewinsky's mother, also betrayed those intimate secrets, but of course no one especially blames Lewis for that violation because it was coerced under subpoena of a federal grand jury. The argument at the time went something like this: speakers for the impeachment party claimed that Justice Department guidelines allowed for the testimony of immediate family against a target; speakers for the President's party rejoindered that customarily prosecutors did not do so except in cases of violent crime and where the information could come from nowhere else. In the condition of extreme political polarization within the rigid point/counterpoint structure employed almost unanimously by the mainstream media then existent, the illusion was created that only one of those two positions could possibly be valid. The truth, though, is that the impeachment party's position was superior within the framework of enacted law while their opponents' position is stronger within the framework of custom, the unenacted, unwritten, frequently even unspoken strictures that rule so much of the routine of workaday living.
Similarly, the very cross-examination by the Jones attorneys of the President about his relationship with Lewinsky, which was the heart of impeachment, violated the Law of Customs. Questioning the President about Lewinsky was a dirty trick; whether or not such questioning was permitted or even encouraged by the civil code is entirely irrelevant to that that assertion. For month upon month the general public was treated to the spectacle of one set of lawyers arguing that the questioning fell within the bounds of the controversy at suit against another set of lawyers arguing the opposite, apparently forgetting that, believe it or not, almost 99% of the public does not have a law degree. Furthermore, a common opinion of the legal profession is that not only is it possible for a line of questioning to be perfectly legal and a dirty trick at one and the same time, it's probable that a legal tactic is both a dirty trick and perfectly legal.
And no trick by the Jones team was dirtier than their March 27, 1998, response to the President's motion for summary judgment-in clear violation of Judge Wright's gag order, by the way, to the extent that it revealed the names of certain “Jane Does,” characterized by the President's attorney as a “trash dump.” The most sensational aspects of that pleading, which is to say, the parts that were highlighted in the subsequent media coverage, were the twice- and three-times-removed rumors and gossip that had been brought to the attention of the Jones lawyers during discovery.
Under the rules of civil procedure were the Jones attorneys legally entitled to file that pleading and quote that gossip? Apparently so.
But that does not change the fact that it was gossip, the sort of things most people expect to hear, maybe even delight to hear, whispered in the coffee-break room or over a card table but most assuredly the sort of thing they traditionally do not expect to hear trumpeted on the NBC Nightly News.
John F.X. Gillis is an adjunct assistant professor of English, University of Lousiana at Lafayette. His new book, Jove Laughs, They Say: Lewinsky as Text offers an extremely unorthodox approach to the very public and very lengthy Clinton-Lewinsky scandal. The author argues that analysis of the affair was done by experts in specific and, at times, completely unrelated fields. As a result of this ineffectual approach the national conversation was reduced to an unintelligible mess. Jove Laughs recommends viewing the scandal through the lens of literary criticism and literary theory, rather than the traditional political or legal perspective. The work compares the Talking Points, the three page single-spaced set documents that opponents of the Clinton administration held out to be evidence of an organized conspiracy to obstruct justice, to the historical "Casket Letters" which were used in a similar manner to incriminate Mary, Queen of Scots.
Click here to order Jove Laughs, They Say: Lewinsky as Text.