Had Barbara Battalino not accepted responsibility for her crime, the Clinton Justice Department would surely have brought her to trial and pressed to have her convicted, then incarcerated for at least 10 months, as federal sentencing guidelines demand. But Battalino spared the government the trouble by entering a guilty plea this past April, which qualified her for a slightly reduced penalty. Slightly reduced, but hardly trivial. Last week, U.S. district judge Edward J. Lodge fined the former VA hospital physician $ 3,500 plus court costs and ordered her to serve a one-year term of probation — six months of it in home detention, her every movement monitored through an electronic bracelet. Announcing his decision from the bench, Judge Lodge noted that the case had already cost the defendant her professional career.
Obstruction of justice in connection with a scheme to give false testimony in a federal civil proceeding about a sexual impropriety — this was the charge against Barbara Battalino. (See our June 22 editorial, “Bill Clinton: This Precedent’s for You,” for all the details.) For her, it was a serious business.
And it should be just as serious a business — an even graver business, one would think — when the very same charge, based on a heap of unrebutted evidence, surrounds the president of the United States. Yet here all parallels between Bill Clinton and Barbara Battalino fall apart.
Clinton, for one thing, has never accepted responsibility for his dubious activities with respect to Monica Lewinsky. Offering nothing more than an unbelievable, all-purpose denial, he has refused to be held personally accountable. Declining multiple opportunities to explain the Lewinsky controversy to a grand jury, he has refused as well to be held legally accountable. And in so doing, Clinton has failed to fulfill his implicit, constitutional responsibility to remain always and individually forthcoming when doubts are raised about the integrity of the nation’s executive authority. Quite the contrary, the president has compounded such doubts, by using dilatory and insubstantial assertions of testimonial “privilege” to shield his closest White House aides from criminal investigators.
Barbara Battalino, in other words, has behaved more honorably than Bill Clinton. She had an affair. She lied about it in court at first. But then she fessed up and agreed to pay the price of her dishonesty. She has behaved more honorably — and yet she has suffered the worse. And among the many reasons why is the fact that Battalino has faced a Justice Department determined to administer the law impartially. Clinton, alarmingly, has not.
Lately presented, in the Lewinsky matter, with a choice between their sworn, public duties and the private interests of their boss, Janet Reno and her deputies have sided with the boss. They have actively abetted the president’s evasion of personal, legal, and constitutional responsibility.
Barbara Battalino was sentenced in Boise, Idaho, with Justice Department representatives from Washington standing satisfied watch, on Monday, July 20. Over the preceding four business days, however, to protect the president from the consequences of an identical offense, that same Justice Department had made no fewer than six separate attempts to block grand-jury testimony by Secret Service officers about Clinton and Monica Lewinsky. In each instance, the department’s litigation, directed against independent counsel Kenneth Starr, was wholly illegitimate. The United States may not sue itself, and in the Lewinsky affair, the government is represented, under statute, exclusively by Starr.
But their lack of legal standing did not deter Janet Reno’s attorneys. Nor did the fact that four federal judges — Norma Holloway Johnson of the district court in Washington and a three-judge panel of the D.C. Circuit Court of Appeals — had already dismissed as risible the Justice Department’s basic argument: that the president will face “mortal jeopardy” unless a near-absolute bar is erected against Secret Service testimony about his words and deeds.
On Tuesday, July 14, Janet Reno filed a petition with the D.C. circuit asking the full court to hear the Secret Service case again — and reverse its panel’s earlier decision. When Kenneth Starr responded by issuing additional subpoenas to Clinton’s bodyguards — for testimony scheduled two days later — the Justice Department asked Judge Johnson for a stay.
On Wednesday, July 15, not waiting for her ruling, Justice asked the circuit court for the same relief. Not waiting for their ruling, Justice filed a duplicate request with Chief Justice Rehnquist at the Supreme Court.
On Thursday morning, July 16, Judge Johnson ruled against the department. That afternoon, nine judges of the D.C. circuit unanimously rejected Reno’s appeal. Whereupon the Justice Department sent Rehnquist a brand-new stay request — and a petition for full Supreme Court review of the “protective function privilege.”
At noon on Friday, July 17, the chief justice brought this sorry, chaotic episode to a merciful close. He could not believe, he wrote, that a majority of his colleagues would eventually vote to enshrine such a previously unimagined Secret Service privilege into law. And so long as that privilege remained in doubt, Rehnquist pointed out, the president’s personal safety could not be affected one way or another, whether or not Secret Service officers were allowed to give evidence to the Lewinsky grand jury. So Rehnquist did allow their testimony to proceed.
The chief justice’s decision was informed to some degree, it turns out, by two “extraordinarily sensitive” documentary submissions from Kenneth Starr, one describing precisely what information the grand jury was seeking from Clinton’s bodyguards — and why — and the other supporting suspicions that the administration was acting in bad faith by attempting to conceal that information. Those suspicions have already been partially borne out. One Secret Service officer has apparently told the grand jury that one day in April 1996 he found the president alone in the White House with Monica Lewinsky. Deposed under oath by Paula Jones’s attorneys in January of this year, Clinton unmistakably suggested that no such private meeting had ever taken place.
And still the Justice Department persists; granted a chance, it will argue its “protective function privilege” nonsense before the Supreme Court this fall. Why such urgency and determination to pursue a device the only logical purpose of which can be to hide evidence implicating the president in a crime? “That matter is now under seal,” Janet Reno claimed — inaccurately — last week, “so I can’t discuss it.”
And why, if he is innocent, has the president allowed this charade to continue? Bill Clinton supervises his executive-branch appointees, doesn’t he? “I don’t know if that’s true or not,” outgoing White House press secretary Mike McCurry responded last Tuesday. The Secret Service and its parent agency, the Treasury Department, have “very strong feelings” about the existence of the purported privilege, McCurry explained. And “I don’t know,” even if Clinton theoretically disagreed, “whether the Secretary of Treasury would have accepted that judgment.” Robert Rubin’s opinion might have been “sufficient to override any feelings that the president may or may not have had on the subject.”
This is amazing news, indeed. The president’s principal designated spokesman reveals that, in certain circumstances uncontemplated by the founders, the Treasury Department — and, by extension, every other executive-branch agency — has power to act against the president’s wishes and beyond his effective control. The entire administration, in short, not just the White House proper, has now gone haywire. There are few things in this world, it seems, more contagious than Bill Clinton’s corruption.
David Tell, for the Editors
