The price of perjury
economist.com
SOMETHING curious has happened to the Monica Lewinsky scandal. Monica herself has faded away, along with the X-rated gossip that came with her. This has allowed the scandal to be seen for what it is: not about sex, but about presidential perjury and obstruction of justice. On November 19th the House sat through a day of testimony from the independent prosecutor, Ken Starr, who emphasised the gravity of the president's misdeeds; and this week the House decided to hold more hearings about the corrosive consequences of perjury. In a different political climate, one would say that the scandal is moving into its deathly serious phase, with the death part referring to Bill Clinton's career prospects. But, ever since the Democrats' surprisingly strong electoral showing on November 3rd, nobody believes that. Instead, most people think that the president (a) perjured himself and (b) will get off. It is worth pausing to consider what this means for a country that usually cherishes the rule of law with awe-inspiring passion.
America is not held together by the types of glue that bind most other countries. It does not depend on an established hierarchy or church; it has no common ethnicity or language. Instead, America is based on a social contract, entered into voluntarily by all citizens and codified in law, especially in the constitution. Because of this, oaths that solidify a citizen's commitment to the law have taken on a huge significance. Article II of the constitution requires that the president swear an oath to uphold the constitution; Article VI, and several of the constitution's amendments, deal with oath-taking also. In his celebrated farewell address, George Washington asked: “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?”
In the light of all this, it seems probable that a president who committed perjury in the early years of the republic would not have survived in office. The text of the constitution, after all, specifies that bribery warrants impeachment; and some types of bribery, for instance the bribing of a judge, seem akin to perjury in that each perverts the course of justice. But, since the time of the founding, two things have changed, rendering presidential perjury more likely, but also more likely to be tolerated. The first change made possible the Lewinsky scandal. The second seems likely to bring about its anti-climactic ending. The first change is that the reach of the law and the use of oaths have both been greatly extended. Two centuries of lawmaking, compounded by the cumulative ingenuity of lawyers, have created statutes and precedents that touch on every part of life, multiplying the chances that citizens will find themselves obliged to give evidence in legal proceedings. Meanwhile, the use of oaths in such proceedings has multiplied as well. For the first century of the republic's life, this sacred device was invoked sparingly. Defendants were usually not put under oath, according to Jeffrey Rosen of George Washington University, because it was considered unreasonable to make them choose between self-incrimination and perjury. But, from the late 19th century, the use of oaths has spread. And, since Richard Nixon's fall, the possibility of nailing powerful figures for lying has inspired many ambitious prosecutors.
The profusion of lawsuits, plus the increasing tendency of such suits to involve oaths, created the circumstances leading to Mr Clinton's perjury. The law of sexual harassment, from which the president's difficulties stem, did not exist in its current and expansive form until the 1980s. Equally, the idea of ensnaring a government official in a perjury trap, which is what Mr Starr seems to have done, is a post-Watergate strategy. Two figures from the Reagan administration, Oliver North and John Poindexter, were prosecuted for lying. In the 1990s many public figures have been pursued for the same sin, including Mr Clinton.
So much for the first change: the multiplication of lawsuits, and of oaths, in an attempt to establish clear rules for human conduct. Now consider the second change, which runs counter to the first: the growth in America of tolerance. This is not tolerance across the board, as any smoker will tell you; but it is tolerance especially of people's private sexual and social arrangements, combined with a wish not to seem to preach about what may be morally right or wrong. Particularly since the 1960s, when a relatively homogenous culture gave way to a feast of alternative lifestyles, Americans have learned not to judge their neighbours' behaviour. They may, for example, believe in family values, but they accept that divorce shatters the marriage oath repeatedly. This tolerance explains the great national distaste for Mr Starr, and for the journalists who have pursued the president. According to five Harris polls taken since February, more than four in five of Americans think that the media have given far too much
attention to the Lewinsky scandal. This is not because they believe Mr Clinton did no
wrong; half the respondents in the same polls agree that their trust in him has been
shaken. Yet, even though Mr Clinton has lost their trust, Americans do not want to
punish him. They are like the witness who sees somebody shoplifting, and turns away:
they are too weary, and too conscious of rival views of right and wrong, to do anything
about it. And so, much as the rise of oath-taking legalism made possible the Lewinsky
scandal, the rise of tolerance is now causing the scandal to shrivel into nothing.
Over the past year, two competing American impulses have slogged it out. The
legalistic, rule-making impulse represented by Mr Starr has clashed with the relativistic,
rule-blurring impulse represented by Mr Clinton. Disturbingly, relativism seems to have
won. America's founding reverence for law has spawned a legalism that in turn has
spawned a pro-tolerance backlash. As a result, respect for the law has been
diminished. It would be better if the excesses of legalism were rolled back, so that
Americans feel readier to impeach the next perjurious president. |
