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Jewish World Review / July 13, 1998 / 18 Tamuz, 5758

Paul Greenberg

Another day, another delay: what's missing from the scandal news

IT SHOULDN'T HAVE SURPRISED ANYBODY, not even the White House's small army of lawyers, when three federal judges unanimously concluded this past week that lawmen have to cooperate with the law.

Duuh.

Boy, I'm glad we can go back to wearing those dark sunglasses

That the lawmen in this instance are Secret Service agents, and the agency they were asked to cooperate with is a grand jury, does not change the principle or the law involved (Rule 501 of the Federal Rules of Evidence).

Nor were the judges swayed by the administration's invention of a "protective function privilege'' to keep agents of the Secret Service from having to testify truthfully. After this appellate decision, the Secret Service remains a subordinate branch of the Treasury Department under American law, not a Praetorian Guard subject only to the will of an emperor. Like the rest of us, the judges recognize that the Secret Service needs to be at the president's side -- but not above the law.

Here is one of those fine points of American jurisprudence -- namely, the rule of law -- that the American public may have lost sight of as this investigation has gone on and on for approximately forever. And what once might have shocked, or even interested, now only bores and irritates. If only it all would go away, we could all get back to our favorite sitcom.

A poll would probably reveal that an impressive number of Americans actually believe there is a well-established Protective Function Privilege in the Constitution -- right there in Article VIII between Habeas Corpus and No Controlling Legal Authority, or maybe in the Magna Carta. Besides, it's too darned hot to think about all that. Let's just leave it to the lawyers.

Richard Nixon was born too soon; he would never have been forced out of office today by a few legal technicalities like the rule of law, certainly not in a month like August.

The independent counsel, hopeless square that he is, has responded to this victory on the appellate level with the pious hope that the Clinton administration will "now join us in helping the grand jury'' -- rather than resisting subpoenas to testify before it. Not bloody likely, as our British cousins would say.

Delay has become the president's best defense, boredom his surest ally. As the president's term draws to a close, and he becomes even less and less relevant to the next century, who's going to care whether he cooperates, confronts or just continues to evade? Principle, shminciple, pass the iced tea.

Besides, the law has come to be looked on as sort of minor sport -- another adversary process like professional wrestling or rock-chunking. For a people with an attention span about as long as a sound bite, this show should have been over circa 1995.

Here's my theory about why this investigation is taking so long: The truth, which sets men free, is not near the top of the American order of priorities these days. Stability, continuity, good times -- those come higher in our hierarchy of values than truth. And so the one thing that would end this wrangle and set us free is missing.

Instead, we get litigation. In this latest ruling, the presidency is diminished, again, and its authority undermined, again, because the courts have had to trim and clip executive privilege in response to this president's trying to stretch it beyond reason -- and the law. And what should be the end of the whole process, truth, tends to be overlooked in the clash and clatter of the means.

As a matter of public concern, perjury and the suborning of it -- which is the sort of thing that did Richard Nixon in -- now ranks somewhere between double parking and cheating at craps. Who cares, except a few raving partisans who use the issue for their own purposes, or maybe a surviving medievalist or two who remembers that perjury, the ultimate betrayal of the self, undermines justice for all.

Once upon a time, presidents and those investigating them could reach informal agreements and avoid the sort of showdown that now brings in the courts and winds up substituting litigation for conciliation, gamesmanship for statesmanship, partisan spin for the impartial investigation.

This wasn't the first time in recent years the Secret Service has been asked to testify in a criminal investigation, but it was the first time it refused to cooperate with an investigation. Agents of the Secret Service shared information when the subject was John Hinckley's attempted assassination of Ronald Reagan, and they cooperated again when George Bush was accused of secretly negotiating with Iran in order to delay the release of American hostages.

Instead of an extended court fight over executive privilege, let alone over some fictive "protective function privilege,'' a way was always found to satisfy the demands of law and protect the proper confidences of the presidency. An amicable agreement was reached, the facts came out, Congress was satisfied, the public informed, and the presidency not diminished a whit. But all that was before the exciting Clinton Years.