After Clinton, expect more legal smearing

By Norman Ornstein

As the independent counsel's report sits portentiously in the Capitol, it's worth stepping back to consider the source of this trauma. It is not the Monica Lewinsky relationship, nor Ken Starr's investigation, per se. Look instead to the Supreme Court.

On May 27, 1997, the court ruled unanimously that Paula Jones' civil suit could go forward while Bill Clinton served as president. The court blithely suggested a civil suit would be, at worst, a minor annoyance: "It appears to us highly unlikely to occupy any substantial amount of the president's time."

When I read that opinion 15 months ago, I wondered what planet the nine justices were living on. Long before the court ruled, it was clear to anybody who had followed the practice of law in the '90s that we were knee-deep in the age of litigation. Civil lawsuits had exploded as ways not just of achieving justice but of settling scores, scoring points, hurting rivals and making big bucks.

The courts had emerged as a rival to the legislature as a way to achieve policy and political goals, and the discovery process had become a means for individuals, companies and others to harass adversaries and uncover embarrassing information that could be leveraged.

Assume that Jones had a real grievance against then-Gov. Clinton, that her lawyers were acting in good faith. It was still clear from her first appearance at a conservative political gathering and through the financing of her suit that she was at minimum being used by partisan and ideological forces.

It was evident the discovery process would be a prime element in these forces' efforts against the president. The possibility this suit would involve little of his time was close to zero.

We now know that Linda Tripp and Lucianne Goldberg took the story of Lewinsky's relationship with President Clinton to Newsweek reporter Michael Isakoff. Subsequently, an anonymous female called Jones' lawyers to suggest they raise the Lewinsky/Clinton relationship in discovery. And we know Tripp made a connection with the Jones legal team; right after the wired Tripp delivered Lewinsky to Starr and the FBI, she met with the Jones team for an extensive debriefing that led to the lengthy and detailed questions Jones' lawyers asked the president in his deposition in the Jones case.

It is his responses to their questions in that deposition that form the basis for a perjury inquiry and everything else that has followed since January of this year. The subsequent summary dismissal of the Jones case by its judge has had no effect.

No specter of impeachment

If the court had ruled otherwise, there would have been no deposition, no questions of perjury or obstruction, no expansion of Starr's investigation, no imminence of impeachment hearings. Quite likely, the story of Clinton and Lewinsky would have emerged in the press. But the consequences would have been confined appropriately to the realm of public opinion.

The exploitation of the courts and the discovery process for political purposes may have reached a peak with the Jones case. But it will not end with it. If anything, the headaches for Clinton caused by the Jones litigation will embolden partisan and ideological operatives on all sides to use the discovery process for their political ends. It's already happening.

On the right, Larry Klayman and Judicial Watch launched a class-action suit on behalf of some of the individuals whose FBI files were sent to the White House. With the assistance of a pliant judge, Royce Lamberth, Klayman has been granted extraordinary authority to issue subpoenas to Clinton friends and allies, even those who had no conceivable connection to the files, depose them on videotape under oath and then release the videos to the media to embarrass them and the president.

On the left, the White House's Sidney Blumenthal has used the same approach to depose political adversaries in his libel suit against Internet columnist Matt Drudge.

Can only hope future courts will be wise

We're standing on the tip of the iceberg. Every bitter political dispute in the future will lead to strategy sessions by political operatives and their legal allies to figure out ways to extract private memos, confidential information or embarrassing details by hauling their foes in for depositions - and if they can, punish them with fines or other judicial penalties, not to mention saddle political adversaries with hefty personal legal bills.

There may be no way out. But one hopes the Supreme Court justices and their counterparts on lower courts will reflect on what they've inadvertently wrought - and seek ways to curb future use of the courts for cynical partisan purposes.

Norman Ornstein, a senior resident scholar at the American Enterprise Institute, is a member of USA TODAY's board of contributors.

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