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Contact: Beth Forbes, [email protected]
October 1998
AN ETHICS REPORT CARD FOR THE CLINTON/LEWINSKY MESS Paul B. Thompson The Joyce and Edward E. Brewer Chair in Applied Ethics at Purdue University
The current national obsession with sex, lies and videotape raises so many different ethical issues that one cannot hold all of them in mind at once. How do these issues blend, and which (if any) is the most important? This ethics report card breaks the controversy down into bite-size bits, grading the conduct of Bill Clinton and those who oppose him, from A = "Unambiguously impeccable" to F = "Unambiguously despicable."
Like it or not, ethics is full of ambiguity. While that makes it hard to merit an "A," we can take consolation in the fact that if we are basically well intentioned we are equally unlikely to be tagged with an "F." A "C" grade indicates that roughly equal reasons can be given for the conduct as against it. We would like to think that good people can do better than that, but there are some hard cases, so anything better than "C" is good, while anything less, the opposite. In the end it is still hard to weigh all of these considerations at one time, but maybe a bit-by-bit review will help the mind focus.
First, letÃs look at ClintonÃs report card for these ethics "classes".
Sexual Morality 100 ó Sexual Relations: Does what Clinton and Monica Lewinsky did count as sexual relations in the morally relevant definition of that term? Was what they did intrinsically wrong, or would it have been acceptable between married partners? First Unit, Defining Sex: On the one hand, what Clinton and Lewinsky did certainly seems to have involved sexual gratification, but on the other hand most would say that someone who has yet to experience intercourse has never truly experienced a sexual relationship. However, this quibbling is more relevant to whether Clinton lied than to his sexual conduct. The big issues are yet to come. Unit Grade: C. Second Unit, Consensual Oral Sex: A venerable religious tradition holds that only procreative sex is morally acceptable, and there is little doubt that the oral sex part of this story disgusted many Americans. But popular pundits from Dr. Ruth to Ann Landers have provided a long list of good reasons why the form of sexual gratification preferred by consenting adults is not a matter of public morality. Unit Grade: B+. Overall course grade: B-.
Sexual Morality 101 ó Adultery: The Ten Commandments condemn sex outside marriage, but books or films like The Bridges of Madison County strike a chord for many. This suggests that there may be some circumstances where seizing the moment is the ethically right thing to do, even for lovers who are not married to each other. However, itÃs hard to fit the current scandal into that kind of scenario. Lonely man in a lonely job; charming young woman with little thought to the future? Nah! The best that can be said on ClintonÃs behalf is that a) he and Hilary seem to have dealt with it, and b) a lot of people have been there before. Grade: D+.
Sexual Morality 201 ó Sexual Harassment: It is always a bad idea to introduce sex into a relationship with a subordinate, even when it is confined to banter and gestures of affection. ClintonÃs conduct is seriously flawed on this score. Nevertheless, if it is true that any corporate CEO or university president who did what Clinton did would be fired on the spot (as The Wall Street Journal alleged), we have reached a new low in our collective moral judgment. There is a line to be drawn between active harassment on the one hand, and weakness of the will on the other. All of us are potentially vulnerable to the seductions of the moment at one time or another. Those of us who never fall prey to temptation are as much lucky as moral, and we should not be self-righteous. This helps Clinton a little, but not much. We should condemn what he did, but we should not regard consensual sex in the workplace as an act of utter moral failure. Grade: D.
Honesty 101 ó Mendacity: Every human culture recognizes the moral importance of truth-telling, but everyone also recognizes that there are situations where obsessive adherence to that norm can be irresponsibly hurtful and destructive. Arguably, a fair number of those situations involve sex, love and family values. Have you ever mislead your parents? Am I the only one in America who doesnÃt mind being lied to about sex? Grade: B-.
Honesty 202 ó Trust: For two or more people to enter a relationship of mutual trust, they must be absolutely confident that all will speak truthfully when discussing matters for which someone has been entrusted. This means that those who trust must not mislead the trustee about what is truly important, and that the trustee must be wholly forthcoming and never defensive in sharing relevant information. Here, clearly, is the reason why lying to a spouse about adultery is more troublesome than telling the same lie to others, and why an executive who lies to superiors might legitimately be fired. Here, too, is the real rub for Clinton. Clinton abused the trust of his family, his staff, his party and arguably the American people, as well. The only mitigating factor is the lingering question of whether these trust relationships (beyond his family) entitled anyone to the truth about ClintonÃs private life. Yet even if ClintonÃs sex life was clearly beyond the terms of that trust, he would have done better to remain silent than to do what he did. Grade: D-.
Honesty 503 ó Perjury: Perjury law stops short of requiring full disclosure in every instance, so perjury cannot simply be adding a legal sanction to the ordinary moral proscription of lying. Furthermore, the question of whether Clinton in fact committed perjury depends on legalities, not ethical principles. Perjury laws are morally justified because they are essential to the judicial system, which is in turn essential to an orderly society. It is possible to evaluate ClintonÃs conduct with respect to this moral purpose, while deferring the legal question to experts. Did ClintonÃs lack of candor threaten the stability of the legal system? On the one hand, his narrow testimony and misleading answers were initially given in response to questions that were deemed immaterial in a lawsuit that was dismissed ó hardly a serious threat, and Clinton had no responsibility to volunteer information to Paula JonesÃs attorneys. On the other hand, sexual harassment law seems to make the entirety of a personÃs private life fair game in a legal proceeding. That would either make candid answers to the questions posed by the Jones lawyers relevant to the stability of the legal system, or it should lead us to question what we have wrought with recent laws on sexual conduct. Grade: C+.
Now letÃs take a look at ClintonÃs opposition.
Sexual Morality 250 ó Pandering: Whatever else we learn, this controversy has introduced the word ìsalaciousî into everyoneÃs vocabulary. It 's important to note that the sexual matters that disgust many were not placed before the public by Clinton, but by others. As such, it is they, not he, who are primarily responsible for the discomfort and the breach of taste that the affair has caused. Of course, these matters would not have been available to the public if not for Clinton, and disclosure was arguably necessary for understanding the nature of the perjury charge. So this was not the anti- Clintonsà finest hour, but on balance a justifiable act. Grade: C+.
Legal Ethics 100 ó Morality and the Law: A growing school of positivist legal theorists holds that law is only about power, and not ethics. Fortunately, common citizens are not so cynical. The criminal law is morally justified to the extent that it constrains harmful actions, reinforces social order, symbolically communicates standards of public morality and punishes offenders in a manner commensurate with their crime. There are few legal positivists among those who oppose Clinton, but the final exam on that ìcommensurate with the crimeî stuff isnÃt in yet, either. Grade: B+
Legal Ethics 201 ó Enforcement: Every law enforcement officer must make judgments about when to enforce the law. In one episode of the old Andy Griffith Show, Deputy Barney Fife has locked up the entire town of Mayberry while Andy has been away for a mere four hours. Acting as Justice of the Peace, Andy restores order by finding a reason to dismiss all charges. Barney represents overzealous enforcement, while Andy is the epitome of judicious common sense. Is Kenneth Starr an Andy or a Barney? Would any ordinary person who committed ClintonÃs alleged offenses merit indictment? Are impeachment and indictment comparable in this respect? Does a President have a special responsibility to follow the letter of the law? How should a Congress approach the question of when to enforce the law? Grade: C.
Legal Ethics 202 ó Fairness: Prosecutors are expected to mount the strongest possible case for conviction while defense attorneys are expected to mount the strongest possible case against. It is the system, and neither prosecution nor defense on its own, that is supposed to be fair and to yield a just result. But special prosecutors investigating a president may be, well, special. Their work will inevitably be framed by politics and evaluated by a public with no legal training. Perhaps they ought to avoid even the appearance of badgering or colluding with those whose clear purpose is to damage and embarrass the president politically. Grade: C-.
Legal Ethics 350 ó Entrapment: Is it ethically acceptable for a private party to bring an action of questionable legal merit primarily for the purpose of forcing the defendant to testify under oath about matters that would be personally embarrassing and publicly damaging? Meanwhile, may a law enforcement officer (who cannot get other charges to stick) wait in the wings to hit the defendant with a perjury charge? Bad as his own report card is, none of the impeachable offenses with which Clinton is charged would have happened if a trap like this had not been laid. WeÃve all applauded TV cop shows where some crafty prosecutor succeeds in getting the crooks that way, but hasnÃt that applause also been tinged with irony and regret? IsnÃt this also a strategy that should be reserved for gangsters, serial rapists and other truly heinous criminals? Grade: D.
Constitutional Ethics 550 ó The Presidency: Has there ever been a president who would not have been vulnerable to the kind of trap sketched above? Granted, itÃs hard to imagine Jimmy Carter, Ronald Reagan or George Bush in a sexual imbroglio, but there are other ways to be embarrassed. Would any of these presidents have been inclined to split hairs about the conduct of family members, for example? What if they had been required to split those hairs under oath? Should we admire and follow a person who submits to that sort of intimidation? Now that the cat is out of the bag, and the effectiveness of this ploy has been demonstrated, can any president ever govern effectively again? Or maybe we think that attacks on the presidency are always justified when someone we disagree with occupies the office? Grade: D-, tending toward F.
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