Did Clinton Harass Paula Jones?

Dear Susan:

       Your last letter contains some eloquent points, some passionate points, and some points with which I passionately agree. But it also contains some telling inconsistencies, some inaccuracies, and some revealing admissions–including what strikes me as an implicit admission that President Clinton probably lied to the public about Paula Jones.
       You say: “I don’t even pretend to value consistency, if you want to know the truth. It’s honesty I strive for.” I’ll address that first, since I think it goes to the heart of our disagreement.
       If you mean, when you devalue consistency, merely that we should all be free to change our minds over time as we learn more and test our assumptions against experience, then of course I agree. I would not criticize you for changing your mind between 1991 and 1996 as to whether Clarence Thomas sexually harassed Anita Hill.
       (I do reserve the right to criticize you if you change your mind back again, the next time similar allegations are made against a prominent Republican.)
       But I think that the overall context of your letter devalues consistency in a far broader sense. I think that you suggest (or at least imply) that there is nothing wrong with using double standards to judge people and cases based on our political preferences and personal likings, without even attempting to engage in a principled analysis of the facts and the law.
       I am led to this interpretation by things like the passages in which you state that you won’t help Jones because she “is trying to bring down a president [whom] I like,” and where you ask (and answer): “Are we inconsistent in supporting Anita Hill and not Paula Jones? Consistent with what? With the goal of protecting women against sexual abuse? I think that goal is served by supporting Bill Clinton. …” I also note that you closed your initial letter with this: “He asked. She said no. He said OK. She left. He got elected and appointed Ruth Bader Ginsburg and Steve Breyer to the Supreme Court, signed the Family Leave Act, vetoed the partial-birth abortion ban.”
       The implicit point of all this seems to be that feminists are right to support Anita Hill and not Paula Jones–regardless of which of the two women has a stronger claim to being a victim of sexual harassment–because supporting Anita Hill helps the feminist political agenda, and supporting Paula Jones would hurt that agenda.
       In other words, it seems to me that you have implicitly conceded that the positions of feminists in these two cases are fundamentally unprincipled–that they are driven by political expediency, and not by a commitment to evaluating individual claims of sexual harassment on the basis of a neutral analysis of the evidence. Please correct me if I’m misinterpreting you.
       If I am even close to being right in my interpretation, then we have a very fundamental disagreement. I think that to devalue consistency in this sense is to devalue principle itself, and that it is impossible to reconcile such a devaluation with a commitment to honesty. That’s because a principled consistency (not to be confused with the “foolish consistency” that Ralph Waldo Emerson called the hobgoblin of little minds) is, in my view, the very essence of intellectual honesty, and of the rule of law.
       Why was Bob Dole justly criticized for advocating a huge supply-side tax cut after a career as a deficit hawk? (It was impossible to believe that he had had a good-faith change of mind.)
       Because it was inconsistent, unprincipled, and intellectually dishonest.
       Why was Jack Kemp justly attacked for wanting the vice-presidential nomination so badly that he embraced immigrant-bashing proposals that he had previously assailed–like excluding the children of illegal aliens from schools?
       Inconsistent, unprincipled, and intellectually dishonest.
       Why is it hypocritical for conservatives–including Clarence Thomas–who preach devotion to judicial restraint and to the original meaning of the Constitution, to turn around and call for sweeping judicial abolition of all affirmative-action preferences despite the absence of support for any such “colorblind” absolutism in the original meaning of the Constitution?
       Inconsistent, unprincipled, and intellectually dishonest.
       Why do I regard as hypocritical the 20-some feminist groups that are simultaneously palliating what Clinton allegedly did to Paula Jones and arguing–in the pending Supreme Court case of U.S. vs. Lanier–that it is a federal crime for a state official to do the same kind of thing to a woman under analogous circumstances?
       Inconsistent, unprincipled, and intellectually dishonest.
       (By the way, given your suggestion that you would reserve the term “sexual harassment” for truly egregious conduct, and that you disapprove of “criminalizing [merely] shabby behavior,” may I infer that you condemn the position of the feminist groups–and of the Clinton Justice Department–in the Lanier case?)
       In judicial proceedings and analogous fact-finding proceedings (like Supreme Court confirmation hearings), the essence of the rule of law is to judge people on the basis of consistent legal standards and careful balancing of the evidence–not our own likes and dislikes and political preconceptions.
       Why, indeed, is discrimination on the basis of sex and race wrong? Because victims are treated inconsistently, and thus unfairly, based on inborn traits that are irrelevant to their moral deserts, abilities, and accomplishments.
       I think it was unprincipled of some conservatives to assume, with little attention to the evidence, that Anita Hill was lying, and that Paula Jones is telling the truth. And I think the same is true of the many liberal feminists–including all the prominent ones I can think of–who reflexively championed Anita Hill and now turn their backs on Paula Jones.
       As my article details, I don’t see this lack of principle as completely symmetrical, because, in my view, Paula Jones has stronger evidence than Anita Hill, and her allegations were more serious than Hill’s.
       While I appreciate the sincerity and the probative significance of your view that the conduct Jones describes “is totally at odds with the man I know,” I could give you a long list of women who would swear that the conduct that Anita Hill described was totally at odds with the Clarence Thomas they knew. On that score, I think it’s a draw; when you look to corroborating witnesses, Jones’ allegations have far more support than Hill’s.
       (I assume, by the way, that your personal experience with Bill Clinton did not begin with him sending a state trooper to hustle you with a view to establishing a sexual liaison. But do you doubt the accounts of no fewer than five former Clinton trooper-bodyguards that he routinely used them for such purposes? If so, perhaps you should check with longtime Clinton Chief of Staff Betsey Wright.)
       Since you bring up the importance of honesty, I can’t help wondering how you reconcile it with your admiration for President and Mrs. Clinton.
       I am especially struck by your answer to my question asking whether you are “confident that the president was telling the truth when he said (through his lawyer Bob Bennett) that he ‘has no recollection of ever meeting this woman.’ “
       You could have responded, “Yes.” Instead, you answered: “What do you want him to say? The president’s lawyer wouldn’t be a very good one if he let his client say any more than that, in advance of trial.”
       I found that very telling.
       I don’t think you really doubt that Bill Clinton remembers very well having sent his state trooper to interrupt this low-level state employee at her workstation and summon her to his upstairs suite for the undisclosed purpose of giving him a chance to make a sexual advance.
       In other words, I think that in your own mind, you probably agree with my view that Clinton is likely to be lying (through his lawyer) about this. Not just avoiding comment, but lying.
       If he were to say the same thing under oath, it would probably be perjury. Which may be one reason he is trying so hard (with your help) to avoid having to testify.
       What do I want him to say? I want him to tell the truth. And I certainly don’t want him telling lies.
       Nor do I think that the president of the United States–especially one who is a very intelligent former law professor–should be taking orders from a white-collar criminal defense lawyer as to what to say publicly in response to a civil lawsuit accusing him of sexual harassment.
       I must not have been a lawyer long enough to buy into the notion that people charged with misconduct should say whatever their lawyers tell them to say, whether it is true or not, and should never admit anything they don’t have to admit.
       I really do believe in telling the truth. Even if it suggests that Clarence Thomas–whose jurisprudence I dislike, and whose behavior during his confirmation hearing I deplored–may not be as clearly a sexual harasser as almost all feminists would like to believe.
       And even if it suggests that Bill Clinton–for whom I voted in 1992–is very far from being the man of integrity and character I once hoped he would be.
       Honesty? While we await word on whether Hillary Rodham Clinton will be indicted for bank fraud–and/or perjury or obstruction of justice, based on one or more of the stark contradictions between her sworn testimony and other available evidence–I note what Michael Kelly, the astute (and hardly right-wing) new editor of the New Republic, wrote about the president this week, in his maiden “TRB” column:

He is of course a shocking liar. He will say absolutely anything at all. … He is breathtakingly cynical. This is a man who committed himself to a policy of making abortion ‘safe, legal and rare,’ and then vetoed a ban on the near-infanticide called partial birth abortion–and then accused critics of his action of immorality. A man who signed the Defense of Marriage Act while denouncing it as gay-bashing, then ran campaign commercials on Christian radio bragging that he signed it. A man who signed the Republican bill ending welfare as a federal entitlement, and then asked Democrats to vote him back into office on the grounds that only he could fix the wrong he had done.

       By the way, while you charge Paula Jones with having “allied herself with people who preach hatred against decent people because of their sexual orientation”–presumably because she appeared on television with people like Pat Robertson, in a context that had nothing to do with gay-bashing–wasn’t President Clinton allying himself with the same people, in a far more direct and infinitely more consequential way, when he signed that Defense of Marriage Act?
       More on inconsistency: It seems to me that your entire position on how we all should evaluate claims of sexual harassment (and, for that matter, rape) has a gaping contradiction right smack in the middle of it:
       On the one hand, you say that it’s important “to acknowledge that taking sexual harassment seriously doesn’t mean that every time a woman complains, the man should be damned.” (I agree; I wish more of your feminist allies did.) You also say (and I agree) of Paula Jones that “this is one of those cases where truth is inevitably elusive: It is ultimately what he said and what she said.” You suspect (plausibly enough) that Jones is “exaggerating about what happened to her, at best.” And you add (reasonably enough) that the two friends and two sisters who corroborate Paula Jones “need to be cross-examined before they convict the president.”
       (Of course, they won’t be examined at all until 2001 if you and the president succeed in stopping the case cold. “Doesn’t the man also have the right to have the case decided in a court of law?” you ask. Sure he does. But given his assiduous efforts to prevent any hearing in a court of law, he lacks the grounds to complain about efforts by people like me to explore the evidence as best we can.)
       The principle underlying the statements quoted two paragraphs above would seem to be that the credibility of women who accuse men of sexual harassment or rape should be tested by careful probing and skeptical cross-examination, lest the men be falsely damned as harassers or rapists.
       But elsewhere, and especially when talking about Clarence Thomas, you seem to suggest the opposite, tarring efforts to probe the credibility of women who make such accusations as a form of victimization–“attacking the woman as a nut or a slut.”
       While confidently asserting that “I thought [Anita Hill] was telling the truth,” you condemn Sen. Arlen Specter for daring to cross-examine her–during which cross-examination he caught her lying five times on one key point (unless she just had a highly implausible failure of recollection).
       And while you criticize other Republican types (as do I) for smearing Anita Hill with unsubstantiated rumors and slurs, you don’t seem to mind when a Clinton surrogate (James Carville) calls Paula Jones a trailer-park whore, or when Clinton’s lawyer (Bob Bennett) calls her sworn account “tabloid trash.”
       Is this your principle: It’s OK to cross-examine (or even to smear as “trash”) accusers of men whose politics you hate, but it’s male-chauvinist victimization to cross-examine accusers of men whose politics you like?
       Circling back to respond to your other specific points:
       You ask, “Who is the villain here?” Bill Clinton is, unless Paula Jones is lying. I don’t disagree with your view that “she may be” lying. But it follows that even as you read the evidence, she may not be lying. My reading of the evidence is that she has made out a pretty strong factual case–and the president has come back with nothing but nondenial denials.
       The evidence, I think, is what’s important here, regardless of whom she appeared with–nearly three years ago, in an ill-advised move that has not been repeated since she filed suit–and how much money she might make. (She’s made none so far, I believe, while Anita Hill reportedly has made enormous sums, from fat speech honoraria and a book contract.)
       You ask, “Are you after feminists for not embracing Paula Jones?”
       Not exactly. I am after them for applying a politically motivated double standard, and for making Anita Hill out to be a heroine and Clarence Thomas a sexual harasser while ignoring Paula Jones and her far more persuasive evidence of far more odious conduct by a far more powerful man.
       I am also criticizing them for demanding an immediate evidentiary hearing in Anita Hill’s case, while supporting Clinton’s effort to deny a hearing to Paula Jones for at least seven years.
       I note, in this regard, that while I am bashing various “feminists” here, I consider myself to be a feminist, in the old-fashioned sense of being committed to legal equality, and to the aggressive pursuit of equality of opportunity in all walks of life, for women and men alike. I have a personal stake in women’s rights, as a husband, and as the father of two soccer-playing daughters (and no sons) who will have to compete with men for good jobs–and who may be called upon to support me in my old age, given the probable impending bankruptcies of the Social Security and Medicare systems.
       But while the organizations that call themselves “feminist” once helped pave the way to equality of opportunity, they now seem to see it as passé. I’m not at all sure that the activities into which they currently pour their energies will be of any use to my daughters–or do enough good to offset the harm they do. NOW and many others seem to be in the business of propagandizing my daughters to see themselves as victims and males as oppressors–including your little son, as soon as he’s old enough to be accused of harassing a girl in kindergarten.
       You ask, “Are you after the press for not publicizing Paula Jones?” Yes, in the sense that it’s inconsistent, and unprincipled, for the press to give such enormous coverage to Anita Hill, and to the various accusers of Sen. Robert Packwood, and to Tailhook, and to the current Army sexual-harassment scandal, and to every other woman who comes along with a sexual-harassment allegation against a prominent public figure (at least if he’s a Republican)–all the while giving President Clinton a free pass. And I think it unprincipled of the press to portray these other accusers in the most sympathetic and credulous of terms, while lapping up the Clinton-Bennett-Carville spin by unfairly depicting Paula Jones as a mendacious, politically motivated slut.
       (Yes, Jones has gotten some more sympathetic publicity lately, from me. But one article in a legal trade journal with a circulation below 20,000, nearly three hours after she went public–and even an excerpt in a globe-straddling powerhouse like SLATE–is not much compared with the trumpeting of these other women’s allegations on all the networks and on the front pages of every major newspaper in the nation.)
       You note your outrage at Republicans blocking “progressive” judicial nominees (like Judge Judith McConnell of San Diego) and the relative lack of coverage of that by the media. A fair point. But it would carry more weight had you expressed similar outrage when the Democrats did the same thing in 1992, to highly qualified Republican judicial nominees like then-Deputy Solicitor General John Roberts.
       You assert that there are conservative media in this country, but no liberal media. I respectfully and emphatically disagree. I will resist the temptation to go farther down that particular tangent at the moment.
       In your answer to my first numbered question, you complain that the media have made the president out “as a womanizer, based on the accounts of two women, neither of whose credibility has been tested in a court of law.” I’m not sure what your point is, since I can’t believe that you really doubt he is a womanizer–no other adult I know doubts it–and since, in any event, the allegation here is sexual harassment, not womanizing.
       In your answer to questions 3-6, you don’t challenge the truthfulness of Paula Jones’ very powerful corroborating witnesses. You do assert that her “relatives and acquaintances … are saying that she is a publicity-seeking liar, who offered to be the governor’s girlfriend.” This is inaccurate.
       Her friends and relatives–meaning her mother, husband, and two sisters, including Charlotte Brown, the one who questioned her motives (but not her allegations about Clinton’s conduct) in 1994–have all said they believe her account of the facts; the rather bizarre brother-in-law (Mark Brown) who said in 1994 that he thought Paula Jones was lying, and who worked with Clinton’s lawyers to discredit her, said this year that he believes Paula.
       And the only person (other than Clinton surrogates) who has ever contradicted her on any particular–the one who said that she had offered to be Clinton’s girlfriend on leaving his hotel suite–is Danny Lee Ferguson, the good-ol’-boy state trooper who took her to Clinton’s hotel suite, and who is now Clinton’s co-defendant.
       Ferguson, of course, was lobbied personally by various Clinton surrogates–and by Clinton himself, in phone calls in which (Ferguson has said) the president dangled possible federal jobs–when they heard Ferguson was talking to reporters about Clinton’s alleged use of the troopers to hustle women.
       I doubt that Paula Jones said anything to this not-very-credible cop on leaving the Clinton suite to which Ferguson had delivered her. Why would she confide in him?
       As to your hypos, my wife Sally counsels me to leave to the readers’ imagination any further drawing of analogies between various male and female body parts. I would add, however, that if you really want to talk about a law-firm hypo that closely parallels the Clinton-Jones allegations, the sexual overtures should be coming from the senior partner of the law firm; the sexual harassee should be a secretary; the time of day should be 2:30 p.m.; and the conduct inside the hotel suite should track the allegations of Paula Jones’ complaint.
       And oh, yes: The senior partner should be male, and the secretary female.
       Every feminist group in sight would be up in arms. And the jury would award damages somewhat above the $7.2 million (including $6.9 million in punitive damages) that a California jury awarded former secretary Rena Weeks of Baker & McKenzie in 1994, as was detailed in another cover story in the American Lawyer.
       Weeks had worked for the offending partner for only 25 days; had soon left for another job; had no claim for lost wages; and her most serious allegation was that the partner had once touched her breasts, while stuffing M&M’s into her blouse pocket.
       The partner did not expose himself. He did not demand sex (oral or otherwise). And he did not get a free pass from the feminists of America.

With best wishes,