THE COST OF IT ALL

This scandal has scorched everyone it has touched--the President, his family, the prosecutor, the press. Even if Clinton's testimony puts it behind us, the damage is done

By NANCY GIBBS and MICHAEL DUFFY

Imagine spending your whole life wanting to be President and being told time and again that you could be. The favored child, you get the master bedroom. Your teachers call you a diamond in the rough. When you make mistakes, you charm the facts and the language into doing your bidding, and like magic, the problem goes away. You can have whatever you want. And when you reach the crowning glory, Hail to the Chief, you find that your luck and timing are so peerless that you get to preside over the most peaceful, prosperous era in the country's history. You dream of greatness, statues, monuments, your name next to your heroes', maybe even your face on a coin someday.

Now flip it. Most of the country thinks you are a liar and a cheat. A zealous prosecutor is working overtime to put you into early retirement. Every single night, the comics who truly write the first draft of history spit on you and smile. Your attempts to hide behind the powers of your office have diminished them as a result. Your hands are tied overseas; at home your agenda is dead. Your only daughter is back from college, and whatever you decide to say, you have to explain to her first. Your wife looks the way she did the day her father died. Psychiatrists report of teenagers who act up and behave badly who are using, as their last line of defense, "Well, hey, Clinton got away with it."

More than any politician in memory, Bill Clinton does not hide his dark underbelly; he rubs it lovingly; it is part of who he is. His inconstancy makes him flexible; his mistakes have made him smarter; he is a glutton for sympathy. And so last week, as he considered what to say under oath, the best and worst in him took the measure of the hopes and fears in us.

From its very first days this scandal has divided the nation between those who want to leave Clinton alone and those who want him to pay, between those who think everyone lies about sex--that he has been persecuted just because he is President--and those who think this fate goes with the job. Presidents aren't like kings, but they aren't supposed to be like the rest of us either. The office confers a mystic expectation, a combination of Roosevelt's brains and Johnson's clout and Reagan's grace, that helps Presidents persuade Congress and the people to follow their lead. The agony of Clinton's choice was that his best chance for survival demanded that he declare himself less than we expect a President to be and more like the rest of us after all.

The moment Clinton confesses to anything, he loses some magical powers; his decisions during the past seven months have already cost him some actual powers as well. The shrapnel from this scandal is now embedded in the polity, the culture and the law, and it will take more than the passage of time to dig it out. The wreckage spreads across the whole field of battle: his moral authority, his ability to respond to a crisis, his room to negotiate with a Congress that might soon be his judge, and his ability to get the advice he needs.

As for the rest of us, there is no going back. Boundaries have been broken and precedents set about the personal privacy of public figures that are already down in permanent ink. We may hate that this is so; we may curse every sex scandal to come along for the next generation; but whenever the next one does, it will have a new historical marker: "Not since the Clinton scandal ..."

The process of deciding what to say and how to say it began, as it always does with Clinton, late in the game, late at night. Early in the week he was still all business, raising money, threatening vetoes, worrying about Iraq and Africa. Because of the bombings, Hillary was filling in for him Wednesday at campaign events in Wisconsin with Senator Russell Feingold. She told her husband to get some sleep. But Clinton's friend Harry Thomason had just finished his testimony before Starr's grand jury the day before, and had arrived that night at the White House to see to his friend, play their favorite word games, talk things over.

For months the legal barriers that protected Clinton from Starr had been falling one after another, even as Clinton's denials remained intact. So at just the point when Clinton had to prepare the most important testimony of his life, he had to have the hardest conversations first.

It is taken as gospel in some circles that Hillary Clinton has known everything about her husband all along, that she made her deal with the devil years ago. Neither her admirers nor her enemies can imagine this proud, private woman as a victim, trusting and gullible. But her best friends say otherwise. They will tell you that she loves him, has since law school, the brainy girl who beat out the beauty queens. She always dismissed them; they meant nothing to her.

At least they didn't until now. There is knowing and then there is knowing, and whatever she may have suspected long ago and wondered back in January and feared as each new piece of evidence emerged, she did not fully confront it until last week, when her husband had no other choice but to tell her not just what had not happened but what had.

The private confessions had to be completed by Friday morning, when the New York Times took over with a front-page story suggesting that Clinton was considering admitting to a sexual relationship with Monica Lewinsky but not to perjury or obstruction of justice. With that, the wheels of speculation spun well out of control, and the day was given over to lawyers and former prosecutors and anonymous aides writing an imaginary speech that the President had still not decided he would give. Hillary, meanwhile, had to play host at his 52nd birthday party on the South Lawn.

Clinton knew going into his testimony that Americans by a vast majority believed there was sex; believed he shouldn't perjure himself; thought Starr had no case if it's just about sex. We don't want to know all the details; we just want an acknowledgment from him that he did wrong and then to move on. Clinton needed to give us precisely that--just enough and nothing more. The battle between him and the independent counsel can be cast as another skirmish in the 225-year-old war over whether any of us can be safe in our persons, houses, places and effects. Clinton is shrewdly counting on the notion that Americans would give up a lot to preserve their own fragile privacy, and so most will vicariously defend his. That is why he has done everything possible to suggest that this investigation is about something that is nobody else's business, obsessively pursued by a prosecutor who has no business asking about sex in the first place. It is why Starr will confront a reluctant Congress and an angry public if all he produces after four years is a report that reads like a family diary best left to therapists and theologians. And it is why Clinton's aides are most defiant when the subject of obstruction of justice comes up.

Until recently, neither side showed much restraint, and each blamed the other for the cost. It has been maddening to watch Starr and Clinton go at it, because they gave the sense that they were in this for themselves and not the rest of us. If they were concerned about the tender pressure points between the branches of government, they would have called a truce long ago. Instead they barreled through, conducting the nation's business like alley cats.

The only antagonist equipped to corner a man as elusive as Clinton is an independent counsel as relentless as Starr. Clinton did not think he should be forced to talk about what he considered totally private matters. Just as firmly, Starr thought that the President was lying in this case as he had lied in others, and that the pattern needed to be exposed. Starr would make a demand, and Clinton's lawyers would try to block it, forcing Starr to ratchet up the demands.

Because Starr had two things most career prosecutors never have--an unlimited budget and virtually unbridled power to probe--he was acting as his own judge as well as Clinton's. "You have to set your own ethical bounds as a prosecutor because of the sheer power you have, especially at the grand-jury stage," says former Watergate prosecutor Henry Ruth. "Because federal grand-jury case law is practically all on the prosecutors' side, the system places a lot of reliance on voluntary ethical limits. This is one of the great dangers of the independent counsel act."

Starr hasn't paid much attention to voluntary limits; he may be in that tiny minority of Americans who have no secrets, and so sees nothing wrong with pinching the zone of confidentiality to a tiny crease. There is nothing wrong with summoning Monica's mother to talk about her daughter's sex life, nothing wrong with going after bookstore receipts and hard drives and voice mail; these are all standard prosecutorial tactics. Yet earlier prosecutors like Lawrence Walsh and Robert Fiske elected not to use all the weapons in their arsenal. Even Nixon's adversaries never subpoenaed the President. In the past there has been a grease of custom and compromise that kept Presidents and prosecutors from getting this far in the hole. "You never want to litigate questions of separation of powers," says C. Boyden Gray, George Bush's White House counsel. "When you litigate these things rather than bargain over them, you tend to lose them."

But then Starr was dragged in that direction by the winner-take-all strategy employed by the White House. Clinton used his office to thwart an investigation sanctioned by his own Attorney General, thereby violating some precedents of his own. Ronald Reagan waived all Executive privilege at the start of the Iran-contra investigation, which arguably dealt with the very matters of national security and diplomacy in which Executive privilege is most legitimate. He turned over his documents and diaries; he told everyone, including White House lawyers, to do likewise, because he said he wanted the facts to come out. Jimmy Carter urged his lawyers and allies to cooperate in the investigation into the operations of his family's peanut warehouse in Georgia.

Clinton, in contrast, tipped his bully pulpit into a street barricade. He asserted Executive privilege to prevent his aides from testifying, and lost. His aides invented a "protective function" privilege to prevent the Secret Service from talking, and lost. He invoked attorney-client privilege to prevent White House lawyers from testifying, and lost. By picking, and then losing, fights on Executive privilege, he gave a legitimate right a bad name and has made it harder for future Presidents to invoke it. "All they were doing," says presidential scholar Mark Rozell, "was buying time and buying time."

At Williams & Connolly, David Kendall's firm, says Ruth, "they litigate every case the same way, and that's hardball. Give 'em nothing, tell 'em nothing, delay, fight at every turn. But when you're defending the President, you can't run a defense like you would for a private citizen," he says. Result: "Just like in the White House, after all the attacks, the prosecutor gets his own bunker mentality and starts to figure, O.K., this is a war." And by the time the White House began attacking Starr for zealotry and moonlighting and hiring aggressive deputies, Starr felt he had no option but to meet Clinton blow for blow.

Taken together, Starr and Clinton's decision to fight to the death will change the way the government works. Until now, it was widely assumed that government officials--the President, the Cabinet, members of Congress--could seek advice from government lawyers without worrying about those conversations becoming public. It is now clear that this and other presidential privileges did not have the force of law; they depended largely on the willingness of a President's enemies and critics not to challenge them. By testing so many prerogatives, Starr and Clinton have made good advice that much harder for Presidents to find.

Although it is too strong to say, as a White House staff member did last week, that "there is now settled law that the President can't consult with his closest advisers," the whole White House staff feels under siege. Some legal experts suggest this shouldn't affect the normal, noncriminal workings of the White House, but that's too technical a reading, especially in a climate when so much that is political has the potential to be criminalized. "Who's to say that there might not be a criminal investigation into the granting of waivers for satellite launches in China, something that's been done since the Bush Administration?" asks a Clinton aide. "It's an institutional nightmare--Presidents will cease confiding in or seeking confidential advice from their senior staffs."

So leaders are likely to try two things instead, both of them bad: form independent and probably unaccountable shadow cabinets outside government, to whom they can go for sensitive advice; or, worse yet, keep their own counsel entirely. And getting good advice in the future will depend on talented people being willing to expose themselves to new legal risks. "If somebody asked me to serve now," says Rozell, "I'd say 'No way.' You'd have to be independently wealthy even to think about it." Some White House staff members in private moments express bitterness about how their friends and colleagues have been hounded and forced to run up huge legal bills. "I will never again work for the U.S. government," one said. "And I've told other people, Don't do it. When you have these high-profile jobs that require Senate confirmation, there's somewhere between a possibility and a certainty that you're going to be investigated."

Part of the gloom will pass once this crew leaves office, and a few years of normalcy could make much of this fretting seem quaint. But that assumes some restoration of restraint: at least a partial dismantling of the political-prosecutorial-press complex that invites journalists to make their careers by bringing down an official, talk shows to boost their ratings by analyzing events that haven't happened yet, political partisans to eviscerate the opposition rather than engage it, and prosecutors to seek more money and more power in pursuit of ever smaller transgressions. For that to happen, the American people will have to be heard, and it is hard to imagine their yelling any louder than they have for the past seven months.

The Lewinsky scandal "is like the Hope diamond," says Robert Lichter, president of the Center for Media and Public Affairs. "It attracts people and destroys everyone that comes into contact with it. The President's moral standing is destroyed, the political process is suspended and the press, instead of filtering out the fire hydrant of information in the information age, is like a dog urinating on it."

There are many reasons, some of them fiercely personal, why people hate this story so much. It makes it hard to watch the news with our children. It leaves garbage in the living room. Every story gets viewed through a dirty prism: How much is our foreign policy shaped by domestic scandal? Did the tobacco bill fail because the President couldn't afford the fight? Cynicism is a political poison we've been absorbing into our bloodstream for a generation. But this time cynicism is just the beginning.

All along this story has been less about crime than punishment. From the nails in Kathleen Willey's tires to the jokes about Linda Tripp's chins to the around-the-clock evisceration of Monica Lewinsky, the story has nourished a culture of cruelty that sacrifices empathy for entertainment. If Clinton has been more mercilessly ridiculed than past Presidents, we can excuse it as partly a response to his own decisions--beginning with his decision to run for office. But the other civilians caught up in the story never ran for anything. They may have done something foolish or wrong, but who of us can imagine paying such a price in humiliation for our stupidities and failures?

"This whole thing is horrible," says Todd Gitlin, a professor of culture, journalism and sociology at New York University. "I'm filled with disgust with what has become of this country, and I hold the media crucially responsible. What has happened is that in the glee, sometimes even the guilty glee, of enthusiasm for this story, the press has sent a very clear signal to the public that it lives in a different world than the world of a self-governing democracy."

Gitlin and other journalism scholars are hard-pressed to remember any other story that has triggered such furor. It has forced some healthy choices, a necessary filtering reaction to the information age: so much is available around the clock that viewers and readers become editors themselves, making judgments not about what they can find out but about what they want to know. "The general discourse had been getting cruder and cruder," observes Judith Martin, a.k.a. Miss Manners. "Privacy and discretion had almost disappeared from the general public usage before the scandal. Now that the salacious nosiness has been carried to this logical conclusion, there's been a reaction on the side of propriety. Now, this is a society that has had nonstop television confessions for 20 years, people vying to get on and reveal everything they can. With this story, what a pleasant surprise--people are reacting by saying, you know, we really shouldn't be discussing this."

And maybe soon we won't be. It is possible, even likely, that Clinton will skate through here. There is no hunger on Capitol Hill to go through impeachment. Senior Republicans have insisted for several weeks now that only a clear-cut case of obstruction of justice would compel them to start an impeachment inquiry. "We're not going to let the Republican Party go down in flames over a sex charge," said an aide to Senator Orrin Hatch, who is chairman of the Senate Judiciary committee.

Some people believe that if Starr lacks clear evidence of obstruction, the decent thing for him to do is stop and file a report; perhaps the decent thing for Clinton to do is tell the truth and then spend a month in a monastery. But decency is a concept that gets more traction in a culture in which shame matters, like Japan, where the CEOs resign when an airplane crashes. America has always been too big, too fractious for shame to work very well--and there are too many places to start over.

Optimists and reformers already foresee laws that will undo the Supreme Court's Paula Jones decision and protect sitting Presidents from lawsuits; revisions of the independent-counsel law to preserve its value but limit its potential for abuse; even laws that would affirm a privilege for Secret Service agents and government lawyers. Clinton's successors, if they are men or women of unimpeachable character and conduct, can go a long way to set things right. Reagan was the latest President to test the resilience of the office: following the disgrace of Nixon and the disappointments of Ford and Carter, books about the presidency dismissed the job as an empty chair. Reagan showed what conviction and charisma can do. Even those who hated his policies acknowledged his mastery of the magic. Someone else will surely come along to restore the mystique; but it will take more than charm and skill in our future Presidents to undo the damage. --Reported by Jay Branegan, Margaret Carlson, J.F.O. McAllister and Michael Weisskopf/Washington and Andrea Sachs/New York

Cover Date: August 24, 1998

• THE COST OF IT ALL
• Policy of Least Resistance
• When Is Sex Not "Sexual Relations"?
• Thanks, but Hillary Doesn't Want Your Sympathy
• Everyone Loves a Freebie
• Where the Liberals Roam