In litigation as in politics, fortunes turn suddenly. And since the case of Jones vs. Clinton lies at the crossroads of both, the relative positions of the two sides have been swapping faster than Yankee baseball cards.X X X XXX XNearly two months have passed since President Clinton went on national television and came clean, sort of, about his "improper relationship" with former intern Monica Lewinsky. As he did so, Paula Jones and her Dallas lawyers were left with the rest of the herd, learning about the presidential stonewall on national television.
Despite the fact that Jones' lawyers were the first to press allegations of an affair between the president and Lewinsky, no one offered thanks--not the Republican leadership, not Matt Drudge, not MSNBC's shareholders, not even the Office of Independent Counsel. More importantly, no one offered an advance copy of Starr's report. Jones' lawyers had long assumed that the president lied when he denied the Lewinsky affair in sworn testimony in Jones' case, but just like everyone else, they had to wait for Starr to prove it. So, this summer as Starr boxed in his prey, the Jones team went quietly about its business, tending to paying cases and preparing the appeal of Jones' sexual harassment suit against Clinton.
"The OIC has always kind of kept us at arm's length," partner Wes Holmes explains. "I guess they really had to." And so it was that on the afternoon of September 11, in their Stemmons Freeway offices, the six-lawyer firm of Rader, Campbell, Fisher and Pyke was busy along with everyone else downloading the goods from the Internet.
And just like that, the worm had turned. Again.
What a gift the Starr report seemed to be for Jones. There was the president, who in Jones' suit had sworn he never propositioned a federal-or-state-employee-not-his-wife, admitting that he had an "improper relationship" with a White House intern. There was his laughable parsing of the definition of sex. There were the Lewinsky love letters he claimed he never received and the presidential gifts to Lewinsky hidden beneath the bed of Clinton's secretary. Best of all, there was the strikingly similar pattern: Jones was a lowly Arkansas state employee when, she claims, then-Gov. Clinton flashed her in a hotel room and asked her for oral sex.
None of this was likely to sit well with U.S. District Judge Susan Webber Wright, who dismissed Jones' suit against the president last spring. Wright was the one who ruled that Lewinsky and the president had to answer all of those nosy questions and pony up those letters and gifts to begin with. She also is the one who will preside over Jones' case if her lawyers persuade the 8th U.S Court of Appeals to reinstate it. Whatever happens in Congress with the Starr report, it looks as if the president may have to explain himself to one mad-as-hell federal judge.
Yet Jones' lawyers seemed unable to believe their fortune. After viewing Starr's report, internal assessments of their chances on appeal ranged from giddily optimistic to vaguely doomed. They debated whether to haul the president before Judge Wright for sanctions. "We'll file a motion when we figure out how it gains Paula something," Holmes says. Says one partner, "We aren't being paid to drive the guy into the dirt."
In fact, they aren't being paid at all. The Rutherford Institute, a conservative think tank that is paying the expenses of Jones' appeal, has picked up more than $400,000 in travel and other costs, but attorneys fees are another matter. Partner David Pyke estimates that Rader, Campbell has more than $1.5 million of attorney time invested in the Jones case. The same week Starr sent his report to Congress, the firm offered to settle with Clinton for $1 million. There was no response.
Then the White House began sending smoke signals. On September 17, White House aides floated the notion that they expected the 8th Circuit to reinstate Jones' case. A week later, the White House sent over a $500,000 counteroffer.
After a year of the bloodiest sort of litigation, Jones' lawyers seemed puzzled by the White House's new attitude. "You know, why not go to oral argument [before the appeals court] and get a read on the judges?" Pyke wonders. "But they don't want to do that." With arguments set before the 8th Circuit in less than two weeks, time is growing short.
"The 8th Circuit seems to be rocketing this appeal forward," he says. 'I don't think it's unrealistic to expect an opinion before November. Why not wait for November? I guess they think it's going to be the wrong opinion."
But Clinton isn't the only one for whom danger lies ahead. The good news for Jones is that, in the wake of Starr's report, some 60 percent of the nation now believes her story. But there is bad news too. Even if the 8th Circuit reinstates her case and the Lewinsky affair is admitted as evidence, post-Starr report polling hints that Jones would still have significant obstacles to overcome.
For starters, she'll have to pick a jury.
"We did some jury research," said one Jones team member the day after Starr's report came out. "And what we found was that, for some black women, there was no set of facts under which Paula won.
"We'd give them hypotheticals--you know, 'What if he admitted it,' that sort of thing. And they'd still say 'Naw, I'd throw her out.' Black men were almost as bad. Black women were the worst, then black men. White women were in the middle, and white men were the most likely to condemn him [Clinton]."
If the Jones case does go to trial before Wright's court in eastern Arkansas, picking a jury that excludes blacks is statistically unlikely, a fact that gives Clinton some leverage in settlement talks with Jones--and, for that matter, with Congress.
"He knows he can count on the black [congressional] caucus, because there'll be hell to pay with their constituency if they abandon him," the Jones team member says.
The question is, Why?
According to polls taken since the Lewinsky story broke last January, black people are far more likely than whites to support President Clinton. By 30 to 40 percent margins, more blacks than whites believe the president is doing a good job, trust him to keep his word, blame his enemies for his problems, and oppose his removal from office.
Dallas is no exception. A local weekly, the Dallas Examiner, put it succinctly two weeks ago. Across the cover, over a picture of Clinton, the Examiner splashed, "Bill: We Don't Care."
"Most of the calls I've had have been supportive of the president and supportive of moving on, and about the economy doing better and, basically, that he has been a friend to African-Americans and other people of color," says Cheryl Smith, who hosts Reporter's Roundtable on KKDA.
The conventional analysis is that this is simply a party-line phenomenon. "Blacks are the most loyal Democratic constituents in America, with the possible exception of Puerto Ricans," says David Lublin, an associate professor of history at American University in Washington, D.C., who specializes in African-American politics. "You would expect that strong Democrats would be the last people to desert him."
Maybe, but Puerto Ricans aren't threatening to stage marches on the president's behalf, as is Nobel Prize-winning author Toni Morrison. And some feminists--generally a Democratic bunch--have broken ranks with their leadership and are supporting Jones' appeal. "We were gagging under the hypocrisy," says Marie-Jose Ragab, president of the National Organization for Women's Dulles chapter near Washington, which filed a friend-of-the-court brief on Jones' behalf.
Moreover, black people's fidelity to Clinton is puzzling in part because he has betrayed them too. "What is perhaps interesting is that black elites have feuded with President Clinton over his budgetary priorities at times," notes Lublin. And some black presidential appointees have accused Clinton of abandoning them. Among them are Lani Guinier, who was Clinton's nominee to head the Justice Department's civil rights division, and Jocelyn Elders, the surgeon general whom Clinton somewhat ironically dismissed for publicly suggesting that masturbation should be mentioned as an alternative to sex in sex-education classes. But in Clinton's time of troubles, black voters recall only the good--the black nominees who got through, his friendship with Vernon Jordan, and the president's Initiative on Race.
"African-American voters in many cities have been unusually forgiving of politicians whom they like," Lublin continues, citing crack-smoking Washington Mayor Marion Barry. "And this may be part of a stand-by philosophy for politicians whom they like.
"Clinton has always been very good at casting himself and particularly this [scandal] in the sense of the Southern religious tradition of forgiveness and redemption, which is very much a part of the Southern Baptist tradition. And perhaps there's a section of African-Americans [who] can relate to this better [than whites]."
Carmen Pagano, who hosts a show on love and relationships on KKDA, says she hears this absolution especially from African-American women. "I do hear defense of the president, almost in the sense of forgiveness. They're very forgiving," says Pagano. "And also from Latino women."
Many say they identify with Clinton's life story. "They know the history," says M.T. A'Vant, a militant black activist. "Born poor, fatherless, his mother, the divorce, the gambling. You know, Clinton is a black man."
This notion of Clinton as an honorary black man is a common refrain. "Years ago," writes Toni Morrison in a recent issue of The New Yorker, "in the middle of the Whitewater investigation, one heard the first murmurs: White skin notwithstanding, this is our first black president. Blacker than any actual black person who could ever be elected in our children's lifetime." The black comedian Chris Rock told The New York Times that Clinton was "the first black president" because he was being "persecuted." "He got his hair cut for $200, and people lost their minds," Rock said. "It's very simple. Black people are used to being persecuted. Hence, they relate to Clinton."
Pointing to Clinton appointees such as late Commerce Secretary Ron Brown and former Agriculture Secretary Mike Espy, who have come under Congressional scrutiny, some black intellectuals give credence to the notion of a plot by racist Republicans to target a president who has been too friendly to blacks. "And when virtually all the African-American Clinton appointees began, one by one, to disappear," Toni Morrison continues, "when the president's body, his unpoliced sexuality became the focus of the persecution, when he was metaphorically seized and body-searched, who could gainsay these black men" who claimed the president was a brother?
In the world of black talk radio, the leader of the free world is the helpless victim not only of Ken Starr, but also of Monica Lewinsky. "They see her as someone who clearly went after something and got it," says Cheryl Smith. "She is not seen as some little innocent naif."
The entire discourse shows a curious blindness to sexual politics. "To hear women, black women, say 'It's his business. He's doing a good job,' is simply beyond my comprehension," says Joe Howard, former editor of the Black Economic Times. "That grieves me. Especially when the behavior that [Clinton] has exhibited is the kind of behavior that...is the linchpin to what's happening in the black community. We have upwards of 65 percent--I think it's as high as 70 percent--of black families headed by females. So what does that mean? It means that black men have walked away saying that 'it's my business.' That 'sex is my business. She wanted it. We had it. So what?'"
"It's some kind of phenomenon," says A'Vant. "And it's worse with the black women than with the white. I talk to Anglo women; 50 percent think he's some kind of a freak. But when you go in my community, I'd say 90 percent of them [support the president]."
A'Vant says it isn't the first time he's noticed black women, especially, making excuses for a man. "It's a sickness," A'Vant asserts. "You look at the Mike Tyson thing? They want to blame everybody but him for raping that girl. O.J.? The same thing. That's the way they do...And what happened when Warren Moon choked his wife? What did [Felicia Moon, the choked wife] say? I don't know--what is it--the downtrodden, beat-me syndrome?"
Moreover, the apparent blind spot of African-American women to Clinton's actions is especially perplexing. Black women have a long history as the victims of sexual harassment--much more so than white women, since black women have been in the work force in proportionally greater numbers much longer.
To be sure, some black women do take Clinton's sexual harassment seriously. "Absolutely," says Carmen Pagano. "Some women have called the show and said, 'This is a problem...This is something that's not acceptable, and we need to start with him.'"
How many? "Maybe 10 percent of black women [callers]," she says.
"Look, I find some of these things puzzling too," says David Lublin. "When I watched the O.J. verdict, one of the cameras on the station I was watching was trained on black women at a battered women's shelter, who were all cheering hysterically that O.J. was acquitted. Can I explain that? No."
Nevertheless, he does so quite convincingly, in simple rock-breaks-scissors political terms. "Interestingly, regrettably, I think the racial politics trumped the facts and the sexual politics."
It isn't the first time this phenomenon has been noted. In The Run of His Life, Jeffrey Toobin recounts the findings of the prosecutions' jury consultants in the O.J. Simpson trial:
"Between the two focus groups and a general telephone survey...[Don Vinson, the prosecution's jury consultant, found that] African-Americans remained devoted to Simpson's innocence, with black women his strongest supporters. According to the telephone poll, black men were three times more likely than black women to believe that Simpson was guilty. Moreover, black women felt overwhelmingly that even if Simpson had engaged in a pattern of domestic violence against his ex-wife, that didn't make him appreciably more likely to have killed her. According to the telephone poll, a full 40 percent of black women felt that the use of physical force was appropriate in a marriage. And black women especially could not abide [prosecutor] Marsha Clark."
Nor was Clark the only white woman in the case they didn't much care for. When mock jurors were asked to rate everyone in the case on a sympathy scale from one to 10, black women gave O.J. all nines and tens. According to Toobin, they gave the late Nicole Brown Simpson "a 7, a 5, and a 3."
The results are not only similar to those described by members of the Jones camp; on at least one side, the jury consultants are the same. (According to members of the president's defense team, Bob Bennett, the president's lawyer, has hired the Los Angeles-based Vinson to do the primary jury research in the Paula Jones case.)
In the Simpson case, Vinson came up with a theory to explain the numbers:
"Evaluating the data in social science terms, he came up with what he called a 'psychosexual' reason for the results," Toobin wrote. "He said that African-Americans viewed O.J. as a symbol of black male virility in a predominantly white world. He was handsome, masculine, likable, and charming. As a consequence...black women in particular saw Clark as a 'castrating bitch' who was attempting to demean this symbol of black masculinity."
Black feminist scholars and writers have offered possible explanations. In her book Black Feminist Thought, Patricia Hill Collins, an associate professor of Afro-American studies at the University of Cincinnati, writes of an "Afrocentric" worldview that places greater emphasis on the extended family and the good of the community than does the more individualized, "Eurocentric" worldview.
Similarly, Collins emphasizes what she dubs the "love and trouble" tradition in the black family--a tradition that provides, in part, that black women should "unquestioningly support black male sexism" because "black men experience more severe oppression than black women." Central to this notion is the idea that black men have been denied their masculinity, and often respond by dominating or even abusing women. An important part of this tradition, Collins notes, is the idea that if a black man uses or abuses a black woman, she should "keep it in the family."
"This 'conspiracy of silence' about black men's physical and emotional abuse of black women is part of a larger system of legitimated, routinized violence," she writes. "Because of its everyday nature, some women do not perceive of themselves or those around them as victims."
Radio talk-show host Pagano puts it more succinctly: "I do think that part of [the black community's support for Clinton] is machismo. It's the old, you know, 'protect the guy.'"
Cheryl Smith explains: "Really, as black women, if we are wronged by a black man, we have to think twice, and three times and four times, before we become public with it because we're going to get ostracized for tearing down another black man. When, in actuality, who's going to make that black man be accountable for his actions?"
If black women are unlikely to put the issue of sexual discrimination above race, then the civil rights claims of white women certainly exert no rival claim upon most black women's loyalties. Collins notes that many black women feel that "white feminists identify with their victimization as women but ignore the privilege that racism grants them." Nor is class the only issue driving a wedge between black and white women. Some black literature deals expressly with the notion that white women regularly look the other way at white men's subjugation and harassment of black women. It is a grudge that finds frequent expression in the memoirs of black women and observers of slavery: "Any [white] lady is ready to tell you who is the father of all the mulatto children in everybody's household but her own," writes one 19th-century slaveowner. "Those she seems to think drop from the clouds."
And there are the lingering class resentments. "You've been caught up in this thing because, you know, you worked my grandmother and after that you worked my mother, and after that you worked me," wrote Fannie Lou Hamer, an early-20th-century black author, analyzing white women's culpability in black women's oppression. "And you really thought you was more because you was a...white woman, you had this kind of angel feeling that you were untouchable."
Given the common perception that white women have long overlooked and even benefited from racial discrimination, black women are not inclined to be overly sympathetic to a young white woman's claim of victimization. And this is especially true where, as in Paula Jones' case, the harm she has suffered cannot be easily shown in dollars and cents.
If, as expected, the full House votes this week to hold impeachment hearings, the politics of supporting the president could become exceedingly weird.
Some Democrats on the House Judiciary Committee concede that the smart play for Republicans would be to open a serious examination of the sexual harassment issues underlying the Jones case and the accusations of Kathleen Willey, the White House volunteer who alleged this spring on 60 Minutes that the president groped her. After all, the president is in charge of enforcing the country's laws--not only the criminal laws (e.g., perjury) but also the civil rights laws such as those against sexual harassment.
One thing is clear: the Congressional Black Caucus and the racial civil rights community will be the president's most vocal supporters. Twenty-nine of the 35 CBC members in the House voted against release of the Starr report. Indeed, the CBC has appointed itself a sort of superset of presidential defense lawyers, scrutinizing the fairness of every decision the committee makes and leading the effort, for example, to search Starr's files for evidence that exculpates the president. Last week, the White House enlisted the aid of the civil rights lobby to produce a series of attack ads.
On the other side, potentially, are white voters, who, fortunately for Clinton, seem to be fairly happy so long as the economy keeps roaring. "I do think that it's very volatile, and that President Clinton should be sending roses to [Federal Reserve Chairman] Alan Greenspan every other day," says David Lublin. Because of this fear, many Democrats are desperate to cut some sort of deal with Republicans to avoid a divisive spectacle that could hurt them at the polls by alienating a key group of swing voters: white women.
Jones appears to be holding firm to her million-dollar demand, especially since at least one wealthy Democratic stalwart offered last week to pony up the million on his own. Despite all the hoopla over Jones' I-want-an-apology demand, the truth is that Paula Jones was willing to forgo that condition last summer if only the numbers had been right. In a hearing last September, during which Jones and her previous lawyers, Joseph Cammarata and Gil Davis, discussed her reluctance to settle for $700,000, the lawyers denied that the apology was a deal-breaker. "It's our client's view that the settlement is...unacceptable to her for reasons that have varied a bit between language and money, but that primarily, at the end...focused on the amount of money." As correspondence released this summer makes clear, the problem boiled down to a dispute over attorneys fees. Davis and Cammarata asserted that Jones owed them hourly fees in an amount that would eat up the entire $700,000; Jones believed she had a contingency fee contract that called for her attorneys to receive no more than a third. (The contract itself, written hastily on a 99-cent notepad and never clarified, is a masterpiece of ambiguity.) Davis and Cammarata "compromised" by demanding two thirds, after outstanding expenses were deducted, an offer at which Jones understandably balked.
This time around, there is no ambiguity between Jones and her lawyers. The Rader, Campbell firm knows they are on a 40 percent contingency fee. Though Jones' husband is unemployed, she will likely not settle for the current $700,000 offer, which after deduction of costs and attorneys fees would net her less than $200,000. Though she would probably receive far less than $700,000 if she prevailed at trial, financially she could be better off, since anything she won would be her own. By law, in cases likes Jones', fees are awarded separately to lawyers representing winning plaintiffs. Thus Jones' current attorneys know they could come out better at trial than in any settlement. It's conceivable that Jones could be awarded nominal damages, while her lawyers win millions.
Assuming, of course, they prevail.
"I hope they do it [go to trial]," says Leah Farrish, a Tulsa lawyer who represents the Dulles NOW chapter and who has filed a friend-of-the-court brief on Jones' behalf. "Because, you know, it's a historic case." Strange though this coalition may seem, Jones and crew are the only ones the NOW chapter sees looking out for sexual harassment laws at the moment.
"We are very concerned that, for the moment, the only people who are defending the sexual harassment laws are the conservatives, who are the people who didn't want the laws to start with," says Marie-Jose Ragab, president of the Dulles NOW chapter. "And it is true, that for the moment, it fits within their political agenda.
"But there is another aspect," Ragab says. "Deep down they have understood that it has to do with the dignity of women, the dignity of their daughters. And so I think that the reaction that they may have had 10 years ago, which was of a sexist nature, now it has reached a point where they recognize that those rules are good. So there is a great deal of sincerity on their part."
Some black activists are questioning the topsy-turvy politics of it all. "I don't know what it is," marvels M.T. A'Vant. "What's wrong with the feminist movement? All of those women...they support the president! It's almost shocking. I mean, you would think they'd be telling Hillary she needs to get a divorce. He's got a pattern of this. If it's one time, I understand. But this man's been doing this forever. What kind of example does it set for women, for young girls, for his daughter?"
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It's a fair question. After all, why should black civil rights leaders be expected to step in to criticize a friendly president in an area--sexual harassment--that supposedly is the proper domain of feminists? Then again, why not?
"With Clinton, [black] people feel like ever since he stepped foot in office, on every turn he's been fought," says Cheryl Smith. "He's tried to speak out, and do some things [for black people] that were noticeably absent with other presidents. I feel like that has a lot to do with what he's going through.
"So if it comes to [impeachment], I think black people will be very upset. I think it might be the thing that gets black people to the polls."
They may not have to. If the Jones case doesn't settle, it may well be sent back down to Arkansas for trial. The voting-age population of the 11 counties that constitute the Eastern District of Arkansas is 15 percent black. While they aren't exactly South Central Los Angeles numbers, they could nevertheless be a significant factor. Since, as a practical matter, jury service is the only real political power many citizens ever exercise, 12 jurors in Arkansas could send a very loud message to Congress about just how it should view Clinton's failings.