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Lawyers in the Crosshairs

By Ken Ringle
Washington Post Staff Writer
Saturday, September 19, 1998; Page B01

The great mystery here, of course, is why The Voters, which is to say, Those People Beyond the Beltway, refuse to demand the president's head at the same time that they express general outrage at his behavior, plus that of independent counsel Kenneth Starr, and at media messengers trumpeting all the smutty little details of l'affaire Lewinsky.

It's really all about language.

Lawyers have taken over our minds here in Washington, sort of like the pod aliens in "Invasion of the Body Snatchers."

Only a lawyer could contend, as David Kendall has on television, that no lying was involved in the president's denial that he ever had sex with Monica Lewinsky. Even though they did have a sexual relationship. Because the sex wasn't really sex.

Kendall, a partner in Washington's legendary law firm of Williams & Connolly, makes some $500,000 a year coming up with arguments like that, and for many here in Lawyerville, the flaw in his line of reasoning is not that it sounds like dialogue from the Mad Hatter's tea party, but that it might not fly before Congress.

Out in The Real World, where non-lawyers dwell, people understand such reasoning is from Mars.

But they also recognize, according to several experts on linguistics, that the game of legal "Gotcha!" being played by Starr and the Republicans is equally bizarre. How else, many people wonder, could anyone equate deceits born of a pathetically reprehensible kamikaze dance between a lubricious 22-year-old groupie in thong underwear and a self-gratifying president, with the "high crimes and misdemeanors" envisioned by the impeachment section of the U.S. Constitution?

The only people who could, the language experts say, are people who think like lawyers.

"I think that's one of the key things going on" in the current presidential scandals, says Deborah Tannen, professor of linguistics at Georgetown University and the author of "You Just Don't Understand" and "The Argument Culture."

"I think it is also the source of the enormous disconnect between the average person and the . . . politicians, the pundits and the press. It's a kind of taking over of the mental mind-set by the legal mind-set" here in Washington, she says. "One of the things that happens in law school is you get taught not to use your common sense."

Tannen says the multiplying ranks of attorneydom and the consequent plague of litigation in American society increasingly widens the gulf between "real" people, who use language as a tool, and lawyers who try to twist and slice it into a weapon. She believes Starr has overdrawn his case even more than has President Clinton's team in defending him.

"People don't understand that lawyers use words in a very, very technical sense," says Ron Butters, an expert on law and language at Duke University. And, say he and other linguists, there is a great rage abroad in the land over the miscommunication that results.

The rage is not just over the president and Monica Lewinsky. It is the rage of the Missouri farmer fined $14 million (until the jury acquitted him) because the levee he built to keep his farm from flooding was considered to have altered a "wetland" – his farm. Terms like "wetland" and "hazardous waste" (which can consist of such common substances as copper and paint) become semantic quicksands in the hands of lawyers, the linguists say.

"It is a deep point and an accurate one that those who control what words mean legally have the ultimate power," Tannen says. And increasingly in our society those people are Washington lawyers, even when their definitions are sharply at odds with those of the nation as a whole.

Like the medieval priests who saw themselves as crucial intermediaries between man and God, she says, the lawyerly minds of Washington increasingly interpose themselves and their mentality between the average American and reality. And the average American beyond the Beltway, like Martin Luther and the Protestant Reformation, wants them out of the way.

"What the polls keep saying," says Butters, "is that people reject the legal hairsplitting of both sides and can put things in perspective themselves using common sense. However loathsome the president's personal behavior, he was just lying to save his marriage and to save his butt, not to subvert the country. Lawyers never seem interested in motivation, just the letter of the law."

Bernard Cooperman, who teaches Jewish history at the University of Maryland, notes that throughout history in almost every tribe there has been a tension between the average person and the high priests or witch doctors charged with interpreting the law.

One of the earliest Christian attacks on Judaism, he says, was Paul's contention that the Jews' worship of Jehovah had bogged down in a morass of religious laws that had become more important than the worship it supposedly governed.

Even among Jews themselves today, he says, the aridity and endlessness of some esoteric Talmudic debates, are derided as pilpul – a Hebrew word meaning sophistry or theological tail-chasing pointless to the average person.

Yet the Christian church soon became famous for pilpul of its own, some of which metastasized darkly from debates over the corporal nature of angels to the horror of religious wars, witch burnings and the Spanish Inquisition.

Political pilpul obviously can get way out of hand.

In his famous 1978 speech at Harvard, Alexander Solzhenitsyn warned Americans of the stultifying effects of the legalistic culture.

"I have spent all my life under a communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed," he said. "But a society with no other scale but the legal one is also less than worthy of man. . . . The letter of the law is too cold and formal. . . . Whenever the tissue of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man's noblest impulses."

Former secretary of education William J. Bennett, whose recent book "The Death of Outrage – Bill Clinton and the Assault on American Ideals" cites Solzhenitsyn's speech, writes of "the corrupting effect of reducing large civic questions to narrow legal ones."

"Interpreting the actions of a president solely through a legal prism habituates Americans to think like lawyers instead of citizens . . .," he says, as a lawyer himself. "Legalism and the rule of law are two different things. In the hands of skilled and deceitful men, the former can too easily be manipulated to dodge or even subvert the latter and thus further poison the wells of public life."

Tannen agrees "absolutely" with Bennett about that, even though she thinks the assault on common sense by Starr and his fellow lawyers is the greater turnoff for the public.

"The biggest issue is the cynicism," she says, "and the sense of disconnect between the average person and their faith in government and in the legal system and the press. That faith is getting chipped away by lawyers and the cynical games they play in the name of pursuing justice. The O.J. Simpson trial took a big bite out of the public's faith in the legal system. Lawyers have a completely different concept of morality than the average person."

Butters at Duke agrees. People get further turned off by the process in Washington, he says, "because so much of the purported search for legal truth is obviously rhetorical posturing. Both sides have agendas. . . . And both sides play these lawyer games with language as if the public isn't smart enough to see through them."

© Copyright 1998 The Washington Post Company

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