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Jewish World Review / August 12, 1998 / 20 Menachem-Av, 5758

Paul Greenberg

The French would understand

"It's not American. It's not anti-American. It's French.''

Those words of Mark Twain's came to mind in the middle of the night when insomnia struck, and

Twain

I found myself watching, thanks to C-SPAN's ever-open eye, another panel discussion of-what else? -- L'affaire Lewinsky.

It soon became clear, to judge by a few of the panelists' comments, that this independent counsel is too darned independent for some folks.

The discussion featured a more than usually learned and distinguished panel, for it was being held at the American Bar Association's convention in Toronto. And sure enough, among the more trenchant speakers was Littel Rock's own Philip Anderson. Long an ornament of this state's bar, he's now president of the American bar -- which speaks well of its judgment.

Mister Phil is always a delight to listen to, and as usual, he brought me fully awake at once. For this is what he said about Kenneth Starr's vigorous, not to say encyclopedic, investigation of all the president's men -- and women:

"I think the judgment of the public in this case will be that in the exercise of wise prosecutorial discretion, this matter should not have been pursued.''

That's when Samuel Clemens' words came to mind. For in a different and Gallic republic, France's third as it happens, a large and vocal part of the French public saw no need to go too deeply into an already closed case that concerned an obscure captain of artillery and duly convicted spy. Then, too, it was argued that much of the evidence was privileged and should never be released, for it would only upset the stability of the republic.

But in one of their periodic seizures of honor, the French erupted in outrage at this injustice. Soon, between the Dreyfusards and the anti-Dreyfusards, the Third Republic did indeed begin to lose its stability. Not so much because the truth was told, but because it had been withheld.

Some would blame that republic's eventual collapse on the seeds planted by the Dreyfus Affair, which went on even longer than Kenneth Starr's various investigations. The pillars of the state were shaken, and all because of an injustice done only one, single individual.

If it hadn't been for a pamphleteer like Emile Zola, some argued, and over-zealous investigators like Colonel Picquart, the Dreyfus Affair might have been hushed up, no one would have been the wiser, and national unity might have been preserved. To borrow another line from Mr. Clemens, truth is so precious, it should be used only sparingly.

For what does truth matter compared to a people's faith in its leadership? If only the French had been more discreet, various spokesmen argued, all would have been well. I don't think so. For when justice ceases to be a purgative, and becomes one more barrier to truth, the pressure will build among a great and curious people, and eventually erupt.

Because the truth will come out -- one way or another. Either it will come out through the courts and other well-established channels, with all their safeguards to protect the innocent and ways to punish the guilty, or it will explode in the public arena.

So long as prudence is a virtue, there is certainly a place for prosecutorial discretion. The whole overloaded and understaffed criminal justice system could scarcely function if all offenses, great and small, were pursued with equal and indiscriminate vigor.

For example, a prosecutor might well decide not to pursue a third-rate burglary if only a third-rate burglar were involved. But if an officer of the law is also complicit, and the trail leads to perjury, subornation, and obstruction of justice, and the officer of the law turns out to be the chief executive of the Republic ... then it should be followed wherever it leads. Even to a president of the United States.

This is just what happened in Watergate, when a judge named Sirica -- who was lambasted at the time for his heavy-handed tactics -- refused to roll over and play party hack. No, nobody would ever accuse John J. Sirica of discretion. Nor was discretion the chief virtue of a special counsel named Archibald Cox. Both were more interested in justice, which they recognized as the true health of Republic.

Yes, there is is another and currently popular school of thought that holds it is better not to look too closely at the actions of our leaders, lest we discover something that will only stir folks up. But that does not seem a particularly American idea. Nor is it an un-American idea. It's French.