As the era of Clintonized expectations crawls into its sixth year, huge numbers of Americans have long since forgotten to be upset that their elected government conducts itself like a used-car dealership. So bored is the mass opinionocracy with the Clinton administration’s compulsive disingenuousness, in fact, that it is now widely considered poor form to call the habit by its rightful name: lying. And anyone who makes this mistake too loudly is almost instantly written off as a hysteric.
Which is exactly what’s happened to Judge Royce C. Lamberth of the U.S. District Court in Washington, D.C.
On December 18 in Washington, Judge Lamberth determined that the White House and the Justice Department had systematically deceived his court while defending Hillary Clinton’s 1993 health-care task force against a lawsuit. As sanction for this deception, Lamberth ordered the government to reimburse the lead plaintiffs in the case for nearly $ 300,000 in attorney’s fees. This sort of result is exceedingly rare; the United States enjoys sovereign immunity from financial penalty whenever it litigates, as it usually has, “in good faith.” But here, the judge decided, the government’s faith had fallen rather short of “good” — all the way down, in fact, to “reprehensible” and ” shocking.”
In the early spring of 1993, as Mrs. Clinton’s health-care task force was getting underway, its spokesmen liked to brag that hundreds of experts from all walks of American life were actively involved, advising and deciding things. It was supposed to be “the most open policymaking process in history.” But it was open by invitation only. The task force’s 12 “cluster groups” and 38 “subgroups,” which actually wrote what became the Clinton health-care bill, were meeting in strictest secrecy. And they were doing so in seeming violation of the Federal Advisory Committee Act of 1972, or “FACA.” Under this law, any working group on assignment to the president must convene its meetings in public unless all its members are full-time federal employees.
So the American Association of Physicians and Surgeons and two other interested parties brought suit against the government before Judge Lamberth. Lamberth was asked to block further work by the cluster groups and subgroups pending a review of their records to determine whether they were covered by FACA. This he refused to do, accepting instead the accuracy of a sworn declaration, signed by top Clinton health-policy aide Ira Magaziner under penalty of perjury, and formally submitted to the judge by the Justice Department on March 3, 1993. That declaration read, in relevant part: “Only federal government employees serve as members of the interdepartmental working group.” Development of the Clinton health-care plan, in other words, was exempt from FACA. And it proceeded in secret.
To make a long story short, this initial District Court decision was eventually reversed by the U.S. Court of Appeals. The case was sent back to Judge Lamberth’s chambers for subsequent litigation. And that litigation continued, unresolved, fought by the government with arguments Lamberth would later call “preposterous,” for more than a year. The case was not finally declared moot until December 1994, when the Clinton health-care plan was dead politically.
But by then, an exhaustive documentary record of that plan had already been pried loose from the White House and Justice Department, piece by piece. And those papers made clear what had always seemed obvious. The “cluster groups” and “subgroups” had met illegally: Most had lots of private citizens as members; some of them had no federal employees at all. In short, the ” Magaziner declaration” to Judge Lamberth — never explicitly corrected by the administration — was a falsehood.
This falsehood was the principal basis for Lamberth’s finding, last month, that the entire lawsuit had been defended in bad faith, and that the defendants were therefore subject to financial sanction. “The Executive Branch of the government, working in tandem, was dishonest with this court,” the judge wrote, “and the government must now face the consequences of its misconduct.”
It all seems straightforward enough. But it seems also to have violated an unspoken taboo against blunt criticism of the Clinton administration’s ongoing veracity problem. Five days after Lamberth’s opinion was issued, and five days before the White House had anything to say about it in public, the Washington Post editorial page weighed in as guardian of the city’s rhetorical etiquette and slapped the judge around pretty hard. It might be okay to say, the paper acknowledged, that the Magaziner declaration was ” tricky” and even “highly misleading.” But it was really excessive of Lamberth to call Magaziner’s signature on this declaration “dishonest.” In 1995, after all, the U.S. attorney’s office declined to prosecute Magaziner for perjury or contempt of court in the matter, and it so advised the District Court in an 18-page memorandum. Lamberth, according to the Post, has quoted this document “selectively” and characterized it “inaccurately,” effectively slandering Ira Magaziner in the process.
It’s hard to follow the logic of this complaint, which turns on a gnostic distinction between “tricky” and “misleading” on the one hand, and “dishonest” on the other. It’s harder still to square the Post editorial with the actual facts of the case. The 1995 U.S. attorney’s memorandum concluded that the Magaziner declaration was deliberately drafted to convey a commonsense impression: that “only federal government employees serve as members of the interdepartmental working group.” The 1995 memo also concluded that this impression was a mirage — that the declaration’s key words, “employees” and ” members,” were merely a lawyerly artifice, wholly without fixed meaning. In a funny, echt-Clintonian sense, that is, the Magaziner declaration was too dishonest to be proved criminally dishonest. This judgment hardly “exonerated” Magaziner, as the Post editorialists would have it.
But the paper’s criticism of Royce Lamberth stands — unrebutted, so far as we are aware, by any major columnist or talking head or editorial page anywhere in the country. The White House has been pleased to second that criticism. Ira Magaziner parades around as a victim, claiming to be “outraged by the judge’s irresponsible action.” The president of the United States, no less, has called Lamberth’s opinion “unfair and unsupported by the facts.” For attempting to reimpose traditional standards of integrity on the federal government — and for doing so pointedly and visibly — a sitting judge has had his own integrity challenged. The world is turned on its head.
But what’s new about any of this, exactly, and who is ultimately responsible for creating a Washington ethos so intolerant of justified moral outrage? Ira Magaziner’s bleatings to the contrary, Royce Lamberth did not issue an individual sanction in the health-care lawsuit. He sanctioned the government as a whole, because the evidence indicated that the Clinton administration, “at the highest levels,” was broadly and knowingly complicit in the deception of his court. The White House has announced that it intends to pay this penalty from general, taxpayer derived government funds. This prospect has drawn an angry reaction from Rep. Bill Archer, chairman of the House Ways and Means Committee.
We understand why Archer is peeved. But we’re not quite convinced he’s right to be. Bill Clinton is a dishonest man who runs an executive branch rivaled in history for dishonesty only by Richard Nixon’s. Such dishonesty costs money. American taxpayers have already spent tens of millions of dollars on inconclusive independent-counsel investigations and congressional oversight hearings the nub of which has always been the administration’s instinct for lying. They spent this money in Clinton’s first term. They had every reason to believe they would be forced to continue spending it if they returned him to office for a second term. And they did so anyway.
In their collective, electoral wisdom, in other words, Americans have decided to pay the fine rather than be brutally confronted with the nature of their chosen leaders. In the grand scheme of things, another $ 300,000 will be just a drop in the bucket. And in some sense, too, it will serve the country right.
David Tell, for the Editors
