Occam's Razor

Senator Kirsten Gillibrand (D-NY) said last week that because Bill Clinton had an affair with Monica Lewinski, he should have resigned.

Gillibrand appears to be applying the new emerging conduct standards some twenty years after Clinton’s tawdry oral affair with the then White House intern. Her complaint does not appear to be that there was sexual harassment involved, but that the relationship was inappropriate. By that standard though Donald Trump should have never taken the oath of office, although as best we can tell so far Trump has not overtly sexually harassed any women since assuming office. Given his track record though, I’d not be taking bets he makes it through his term unscathed in this area.

Bill Clinton was impeached by the Republican-controlled House not for having an affair but for lying about it under oath. In truth, Republicans wholly loathed Clinton as would have impeached him for pretty much anything they figured they could get away with however spurious and minor. The Senate refused to convict him. That Clinton had the affair was not in doubt and was confirmed by the infamous blue dress that Lewinski kept with his semen stains on it.

Clinton tried to use legal semantics to dodge an allegation of perjury, claiming that in his mind “sex” meant intercourse. It was a dodge worthy of the weasel that many saw him to be. Ultimately it was an unsuccessful defense. Clinton was only the second president in history to be impeached, so in some sense he will always carry that mark of shame. Apparently that would be insufficient for Gillibrand now. (In any event Clinton left office at the end of his term with record high approval ratings, so it doesn’t appear the American people saw him as an ineffective president or were particularly upset with the consensual conduct.)

It’s highly debatable whether Clinton’s affair with Lewinski constituted sexual harassment. Exactly what sexual harassment was in the mid 1990s was very murky. I should know because I was a federal employee at the time and we were still trying to puzzle it out. The standard was quite murky and subjective. Much of the murkiness had to do with how the conduct was perceived. Basically you were sexually harassed if you felt you were sexually harassed. There was a clear rule that someone who had power of you should never harass you: a boss or someone in your chain of command. Coworkers were also not supposed to harass each other, and harassment could be in three forms: physical, sexual or emotional. Penalties were not criminal but civil. Most involved discipline like letters of reprimand but in extreme cases could have resulted in being fired. What I took away from the training was that I should be professional at work and if I were to have an affair I should do it with someone outside the office.

Part of the standard (and what made it so murky) was that the conduct had to be unwelcome. I don’t think that standard ever applied in the Clinton-Lewinski affair. It’s hard to know for sure but what we do know about it appears to show that Lewinski initiated the affair, so it was not conduct that she spurned. So while Clinton may have dropped his pants from time to time for various women, it does not appear that the conduct was unwelcome when it got that far.

This can be readily contrasted with more than a dozen women who have publicly accused Trump of sexual assault. Even Trump seems to have qualified his conquests, looking for women in his social circles as opposed to within his organization. So it’s not clear based on what we know that Trump has engaged in any sexual harassment as it is legally defined. His conduct might still be illegal, because sexual assault is a different crime than sexual harassment and one with much harsher penalties. There is no evidence that Bill Clinton ever sexually assaulted anyone. There are women (like Paula Jones) who say that his advances were unwelcome but because there was not a power relationship involved it was not sexual harassment.

Clinton was in a power relationship with Lewinski, but with some caveats. Lewinski was a White House intern that received no salary. Implicit in being an intern is the ephemeral nature of the work. She could have been dismissed at any time for any reason and there was no real damage in doing so. Lewinski was there to learn about the mechanics of governing and likely to make connections to further a political career. It’s unsurprising that given the opportunity to be closer to Clinton that she would take it. Lewinski was also not a minor and was at least 23 when the affair began. The same cannot be said about many of the women accusing Roy Moore of sexual assault and pedophilia.

There is also the problem of trying to hold someone to a standard that was murky at best two decades ago. As a lawyer Clinton was well aware of what conduct was legal, murky and illegal and was careful not to engage in conduct that went beyond the murky stage. Sexual harassment at the time definitely fit into the murky category. Lewinski herself never reported sexual harassment. Her heart was broken when the affair proved ephemeral and Clinton would not move into a closer relationship, which is understandable given his marital status. It took Lewinski’s friend Linda Tripp who secretly (and illegally) recorded her conversations with Lewinski in which she disclosed the affair for it to see the light of day. So Lewinski was disappointed and probably heartbroken but never felt sexually harassed. Since much of the definition of sexual harassment depends on how it is perceived by the victim this standard simply doesn’t apply.

Obviously it was stupid conduct, both by Clinton and Lewinski, and that’s basically Gillibrand’s complaint. Stupid conduct like this in her mind is not excusable or could be remedied by a president except apparently through resignation. In short, in Gillibrand’s mind if the conduct makes you feel ashamed or should make you feel ashamed you should resign.

By that standard Trump would never resign. He is clearly unrepentant for his past sexual misconduct. This misconduct was well known to voters, who voted him into office anyhow. It does not appear to bother Republicans enough to initiate impeachment proceedings against him and in any event it occurred before he took office. It’s well within the purview of Congress to impeach and remove a president for such conduct, as impeachment is a political act. Impeachment and removal implies no illegal conduct. Such conduct may be prosecutable, which happened to Clinton, but only for incidents outside of his presidency. In his case he was sued for his conduct and settled out of court. He also lost his law license, not a matter of breaking the law but one of privilege and which had no effect on his standard of living.

Gillibrand’s look backward about what Clinton should have done is aspirational at best. Perhaps someday this sort of conduct will rise to the level of an impeachable offense. Even with this Year of the Woman though it looks like we are quite far from reaching that standard.