Molly Ivins January 27

AUSTIN — Informed citizenship in our great nation requires a certain flexibility. My favorite moment, so far, was hearing a scholar on CNN present a biblical exegesis of the theory that oral sex does not constitute adultery.

By that time, the scandal already had its own logo: "Crisis in the White House," just like the Gulf War and Dead Diana. As columnist Frank Rich of The New York Times put it, "All Monica, All the Time." By the time we got to the allegations of the president's dried semen on a dress preserved by Lewinsky as a souvenir, even the television reporters seem to have concluded that there are some things we'd just as soon not know.

For a brief but heady moment, the notion that President Clinton would address us all during half-time of the Super Bowl game floated before our dazed eyes. What a country. What a ratings spectacular.

James Carville and the usual suspects fanned out on the Sunday talk shows, condemning the president's enemies with the vigor they deserve. But the real problem is not the president's enemies — it's his friends. Disappointed, disapproving, disbelieving and bitter, most of them have already concluded that it would be better if the president resigned.

I, for one, do not think the president's sex life has squat to do with his job; after 30 years as a political reporter, I wish I could report some direct connection between marital fidelity and high performance in public office, but I've never been able to find one. Clinton's problems now are trust and credibility, and both are gone. Listening to him talk the morning of Jan. 26 about an excellent after-school program for kids was just painful.

If he resigns in the next few days, he can leave a martyr to an unscrupulous prosecutor and bad law, and perhaps something can be done to fix both. If he drags out a techno-legal defense, it is quite apt to be successful. Envision Kenneth Starr trying to convince a Washington jury to convict the president for having consensual sex with an adult, which is what this sorry case comes down to, using probably inadmissible tapes illegally acquired and obvious entrapment for evidence.

The president's larger problem is not legal — it is political. Both trust and credibility are massively and probably irreparably damaged. He cannot lead the country.

In one of the most helpful takes so far, Jeffrey Rosen, a law professor at George Washington University, wrote in the Times of the "explosive collision of two novel, illiberal and dangerously unrestrained areas of law: sexual harassment doctrine and the Independent Counsel Act.

Together, they have created a constitutional crisis that confirms the worst fears of critics who have lamented the criminalization of sex and the criminalization of politics."

Rosen wrote: "Much of the problem stems from the ill-defined nature of sexual harassment litigation itself, which often spirals out of control because civil suits lack the procedural protections necessary to guard the privacy of the accused and all others with whom he comes into contact.

"Why, for example, were the lawyers for Paula Jones permitted to go on a fishing expedition into the president's sexual history? ... In criminal trials involving serious sexual allegations, like rape, courts scrupulously limit inquiries into the sexual histories of both the accuser and the accused. ... Confronted with questions about sexual relationships, it's not impossible to imagine that a man or a woman might be inclined to shade or deny the truth. Of course, lying under oath is never a trivial matter. But the instinct to conceal sexual indiscretions is, at least, entirely human, and it's not the kind of sin that we ordinarily associate with thunderous legalisms like 'obstruction of justice.'"

Why, we should also ask, is Starr still here after four years and $30 million spent investigating a 20-year-old Arkansas land deal? Why didn't he wrap that up years ago, and what does it have to do with sending six FBI agents and a pack of lawyers swooping down on Lewinsky in a hotel bar and keeping her for nine hours without a lawyer?

Justice Antonin Scalia, not normally one of my heroes, said in his dissent from the court's decision to uphold the Independent Counsel Act that special prosecutors are appointed to investigate a particular person and work their way backward to identifying a crime — unlike ordinary investigators, who begin by investigating a particular crime and then proceed to focus on particular individuals.

The House Judiciary Committee, packed with Republican zealots, is now free to begin its own investigation of the president's sex life, as Rosen notes, "armed with the rough force of subpoena power and unrestrained even by the relaxed rules of evidence that apply in civil trials." And then let's try to convince our best young people that going into politics is the highest form of public service.

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Molly Ivins is a columnist for the Fort Worth Star-Telegram.

COPYRIGHT 1998 CREATORS SYNDICATE, INC.

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RELEASE: TUESDAY, JANUARY 27, 1998, AND THEREAFTER