By Ruth Marcus
Meanwhile, independent counsel Kenneth W. Starr investigates Clinton's relationship with one of those women, former White House intern Monica S. Lewinsky, after obtaining secretly recorded tapes of Lewinsky's telephone conversations and copies of Lewinsky's e-mail.
Whatever happened to privacy?
Seventy years ago, in a dissenting opinion in Olmstead v. United States, involving whether wiretapped telephone conversations could be used as evidence, Justice Louis Brandeis described the "right to be let alone" as "the most comprehensive of rights and the right most valued by civilized men."
In recent years, courts have found a right to privacy within the Constitution and invoked it to restrict the government's right to intrude on a variety of personal decisions, from using birth control or having an abortion to refusing anti-psychotic drugs or life support.
Yet the law has also developed in ways that allowed new governmental intrusions on people's privacy in pursuit of other societal goals such as fighting crime. They include law enforcement techniques such as tapping telephones and using wired undercover informants and such practices as mandatory drug testing or random road-checks for drunk drivers.
"We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government," Justice William O. Douglas lamented in a 1966 dissent in Osborn v. United States.
Likewise passage of laws prohibiting discrimination in the workplace or in public accommodations by necessity also infringed on employers' or restaurant owners' decisions to hire or serve whomever they wished. And in the years after passage of those laws, the legal definition of sexual discrimination was expanded to encompass claims of sexual harassment, allegations that by their very nature can touch on the most private of activities and -- as Clinton and others caught up in the Jones lawsuit have found -- can force them into public view.
The result is that a legal system that protects the right to privacy in some arenas is in others the engine for requiring people to answer questions about some of their most intimate relationships.
"On the one hand, the law seems to say that under some circumstances, you really can't keep it secret, it is our business," said University of Texas law professor Sanford Levinson. "On the other side of the coin is the enhanced protection of privacy that we're also accustomed to. We're fairly schizoid on this. We live in a world of conflicting values."
"Historically, there's been an equation between the private sphere and freedom, or the absence of government intervention," said Georgetown University law professor Michael Seidman. "One of the things that the feminist movement did quite effectively was to demonstrate that that equation was not always an accurate one. . . . What that has led to is a blurring of the lines between public and private and more of a readiness to police what was once the private sphere."
Issues of privacy have come up in a number of contexts in the Clinton investigation: Are the president's private conversations with his top aides shielded by executive privilege? Does the attorney-client privilege protect from being subpoenaed notes White House lawyers' took during their conversations with administration officials?
But perhaps the most controversial privacy questions concern the Jones lawsuit and its spillover into Starr's investigation. Jones's lawyers, as part of their pretrial discovery, pursued evidence about Clinton's other alleged sexual relationships as they tried to prove that Clinton had a pattern and practice of using his authority to obtain sexual favors.
Because of the suggestion that Clinton and others attempted to suborn perjury and obstruct justice by covering up evidence in the Jones lawsuit about Clinton's involvement with Lewinsky and perhaps other women as well, that information about Clinton's alleged private sexual behavior is of concern to Starr and his prosecutors.
In one sense, Starr is focusing on serious allegations that relate directly to the integrity of the legal system: Did the president lie under oath, suborn perjury and obstruct justice? But at the same time his inquiry involves quintessentially private matters -- sex, which if it occurred, took place between two apparently consenting adults -- that have only been wrenched into public view by the existence of the Jones litigation and the broad discovery that has been permitted in that case.
Because sexual harassment cases are fraught with disputes about whether sexually charged conduct was offensive or welcomed, or about whether sexual activities were coerced or consensual, the litigation often seeps into delicate and intrusive areas: Did a woman alleging she was sexually harassed have a lengthy sexual past or a history of emotional problems? Did a man accused of sexual harassment have sexual relations with other women in the workplace? What do they have to say about it?
"The bottom line in all this is in these types of cases a lot of individuals get hurt," said Lawrence Lorber, who represents employers in such cases. "And the reason why is that, particularly where it's arguably consensual, what you want to show is a pattern and . . . so you've got people being dragged in. There are stories of people's marriages being ruined because they had an affair and it comes out in some trial."
"There are no winners in sexual harassment litigation. I tell that to plaintiffs and I tell that to defendants," said employment law specialist Jane Lang. Lang, who represents employees, said she stopped doing sexual harassment litigation a few years ago because she found the process "so distasteful . . . the inquiry into personal lives, the infringing on people's privacy, the intimacy of their relationships with too many people -- that I find personally terribly, deeply offensive."
The ability of Jones's lawyers to ask about Lewinsky stems from the broad range that federal rules give lawyers conducting pretrial discovery in civil cases combined with the legal theory that Jones's lawyers are pursuing, in essence that Clinton is a serial harasser with a pattern and practice of using workplace settings to obtain sexual gratification.
The Federal Rules of Civil Procedure permit almost unlimited inquiry into anything "relevant to the subject matter involved in the pending action"; the evidence sought does not itself have to be admissible at trial so long as "it appears reasonably calculated to lead to the discovery of admissible evidence."
Because Jones's lawyers argue that Clinton has a history of using state troopers to procure women for him, and a pattern of inappropriate sexual behavior in the workplace, the judge overseeing the case has allowed them wide latitude to question other women alleged to have had relationships with Clinton.
Thus, the lawyers have questioned or tried to question Gennifer Flowers, who said she had a 12-year affair with Clinton and later obtained a state job; former White House volunteer Kathleen E. Willey, who alleged that Clinton groped her when she went to him seeking full-time work; Dolly Kyle Browning, a high school friend of the president's, and a half dozen or more other women.
Sexual harassment experts said that the discovery in the Jones case appeared exceedingly broad, ranging far afield in time and place from the incident of which Jones complained. But, they said, questioning even unwilling witnesses about their experiences with a defendant is at times something of a necessary evil in sexual harassment cases.
Washington University law professor Jane Aiken, who has represented sexual harassment plaintiffs, said that the Jones case was atypical because most women claiming sexual harassment do not have the resources to engage in such an intensive search for other possible victims.
"In most cases you don't see this kind of wholesale discovery," she said. "But it is necessary if we're truly going to try to get rid of sexual harassment in the workplace . . . because history has taught us that generally, to be believed, a plaintiff needs to have some kind of support that this has happened before."
In 1995, Congress changed the federal rules of evidence to protect women who bring sexual harassment claims from having their sexual histories delved into at length. But the rules change limited only what evidence can be used at trial -- not necessarily what lawyers can find out in pretrial discovery. And at the same time Congress also appeared to open the door to more evidence about prior conduct by defendants in sexual harassment cases.
Nan K. Hunter, a sexual harassment specialist and visiting professor at Harvard Law School, said the Jones lawsuit points up the "fundamental confusion between sexual harassment and sexual conduct. To the extent that Jones is asserting that her job tenure or conditions of employment were changed or affected by her alleged encounter with Clinton, then it's a legitimate claim, but it has been used as the basis for discovery and inquiry into purely consensual acts that don't have any allegation or inflection of harassment."
Still, Hunter said, questioning Lewinsky about her relationship with Clinton was "a tough area" because, while there is no allegation that the former White House intern was sexually harassed by Clinton, she may have benefited from submitting to his advances and "isn't that just the flip side of a sexual harassment complaint?"
Others said they thought that the judge hearing the case, Susan Webber Wright, should have put more controls on the questioning by Jones's lawyers. "The whole process seems to smack of an inquisition rather than any kind of court-approved discovery," said plaintiff's lawyer Judith Vladeck.
Yale Law School professor Akhil Amar said Wright could have the authority federal rules give her to protect witnesses from "annoyance, embarrassment, oppression or undue burden or expense." More broadly, he said, courts have erred in failing to apply the Fourth Amendment outside the criminal context to shield privacy rights. Amar said that the amendment, which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures" is relevant to situations like the Lewinsky questioning.
"It's an intrusion, it's a search and seizure, it's an invasion of privacy that requires justification," Amar said. "One factor is how badly does the government need this information and the other side is how intrusive is it. . . . Being asked questions about your sex life is the verbal equivalent of a strip search. It's a strip search by lawyers, which makes it even worse."
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