Sex, Lies, and Wiretaps

One of the few positive things to come from the impeachment of Bill Clinton a decade ago was our brief national conversation about the law and common sense. It was never framed in those terms, of course. No responsible media outlet would dare entertain the notion that some laws are just too stupid to enforce. But the debate over Clinton's culpability was, in the end, neither entirely about sex nor entirely about perjury. Rather, it combined both in some fairly instructive ways.

By any narrow, technical standard, President Clinton did, in fact, lie under oath. That he was, as the Grateful Dead once put it, set up like a bowling pin does not change that fact. He had the option of honestly addressing his relationship with Monica Lewinsky and he chose not to. Republicans, focused by their hatred on this single point, remain utterly flummoxed over the public's inability to comprehend a very simple truth: the President of the United States committed perjury.

What they still don't understand is that we were fully cognizant of Clinton's misdeeds, legal and personal, and that most of us long ago judged him guilty as charged. We simply didn't care. The standard for impeachment involved "high crimes and misdemeanors" and the American public took in the evidence, laughed at a few Bubba jokes, and then determined that Clinton, at worst, had committed low crimes and trivial misdemeanors. Nobody seriously argued that perjury laws should be banished from the books; rather, a clear majority objected to the criminalization of lying, even in sworn testimony, about consensual sex.

So here we are ten years later with another high profile public official apparently caught with his hand (or some other appendage) in the cookie jar. New York Governor Eliot Spitzer appeared on our television sets yesterday to engage in that 21st Century rite of public humiliation, the post-scandal press conference. Shell-shocked wife by his side, Spitzer tendered a non-specific apology for unspecified naughtiness and then refused to take questions. He subsequently retreated behind closed doors to determine exactly how much of his political and personal life can be salvaged before the spotlight turns on the next cheating chief executive.

Assuming rumors are correct, Governor Spitzer evidently arranged a rendezvous with a high-priced prostitute in a Washington hotel, the arrangements for that transaction caught on a government wiretap. What could be merely a bad episode of COPS, however, turns a bit more serious as the feds suggest that the luv-guv might have violated the Mann Act, an anachronistic piece of legislation that deals with transporting women over state lines for immoral purposes. Limo your favorite hooker from Manhattan to Westhampton and you are simply another john; fly her over New Jersey and Maryland and you're suddenly a U.S. felon.

This is as dumb as it is excessive. According to Wikipedia.com, the Mann Act dates back to 1910 and was originally titled the "White Slave Traffic Act". There is, in that designation, the notion of kidnapping, the movement of women against their will. The Act, however, has been selectively enforced over the decades to allow the federal government to prosecute men for crimes that typically fall within state jurisdiction. In any event, whatever Eliot Spitzer was doing last month, it certainly didn't have anything to do with the white slave trade (a bigoted term in itself, which should also provide a hint about the ludicrously dated nature of the law).

Reasonable people can and do disagree over whether prostitution should be regarded as a victimless crime. Certainly, desperately poor and drug-addicted women (and men) cannot be regarded as fully capable of giving consent, at least in the moral—as opposed to legal—sense. But in this case we are talking about transactions that involve multiple thousands of dollars. Except perhaps under the most severe reading of feminist theory, it is difficult to regard elite-level prostitutes as victims. Aside perhaps from Spitzer's family, whose feelings and concerns are none of the law's business, no actual human being was hurt by what the governor allegedly did in his Washington hotel room.

Ah, but what about the hypocrisy? Spitzer was Mr. Law and Order, the Eliot Ness of New York State, the one-time Attorney General who sent the corrupt to prison, busting white-collar, blue-collar, and, in the case of prostitution, no-collar criminals. Isn't it only right, scream Republicans, that the governor now be hoisted on his own, uh, petard?

Democratic partisans are particularly vulnerable on this point, having demanded the resignation of Louisiana Senator David Vitter not so long ago after Vitter called his own press conference to confirm, obliquely, his preference for the hookers of Bourbon Street. Vitter, a family-values conservative, faced immediate calls for his resignation, most offered by Democrats citing the hypocrisy of a pillar of the Christian right apparently thumping something other than a Bible. (Of course, many of the Republicans who defended Vitter now demand Spitzer's scalp; inconsistency is truly bipartisan, though the GOP seems to handle it with more shameless self-confidence.)

Still, if hypocrisy were a firing offense, most of us would be spending many afternoons in the unemployment office. Our humanity generally gets the best of all of us at one time or another. We rationalize and compartmentalize. We repress our longings and our fears, often with devastating results. Political leaders, too cowardly (or self-interested; same difference, really) to risk their lives in combat validate their masculinity by sending other people's children into gratuitous wars. Some outwardly devout men and women, struggling against self-doubt, turn their anger and contempt toward the small, harmless minority of non-believers. Candidates for higher office speak incessantly of campaign finance reform while making common cause with capitol lobbyists.

In some respects, sexual hypocrisy is the most forgivable of political transgressions. The sex drive is primal and most people spend a lifetime trying to master it. This does not excuse Vitter or Spitzer, of course, but it makes them, perhaps, more sympathetic characters than those whose perfectly legal inconsistencies are driven by cold-hearted ambition, or greed, or power-hungriness.

And of course we voters are hypocrites, too. Bill Clinton did not survive the Lewinsky scandal simply because we were mature enough to distinguish between real perjury and lying about consensual sex. He also survived because we felt, back in the late 1990s, that he was delivering peace and prosperity. Had the revelations about sex with an intern surfaced in, say, 1994, when Clinton was generally unpopular, Al Gore might well have found himself sitting in the Oval Office for the remainder of the decade.

Because he is currently unpopular, it is unlikely that Eliot Spitzer will remain Governor of New York for too much longer. Some media outlets suggest that his resignation simply awaits the satisfactory conclusion of a plea deal with federal prosecutors. Certainly, any federal indictment would make it nearly impossible for him to continue in office.

Regardless, nobody, Democrat or Republican, should be happy about this outcome. The criminalization of sexual deeds and misdeeds must come to an end. Real crimes have real victims. I thought we learned that lesson ten years ago.