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Take the Fourth

TRB From Washington

After his appearance before Kenneth Starr's grand jury, President Clinton said that he had answered "questions about my private life, questions no American citizen would ever want to answer." But, "as to a very few highly intrusive questions," his lawyer, David Kendall, declared, "in order to preserve personal privacy and institutional dignity," the president "gave candid but not detailed answers." Clinton appears to have followed a version of the strategy proposed by Nathan Lewin, who urged him in The New York Times last week to decline to discuss the lurid details of his affair with Monica Lewinsky by invoking "the zone of privacy protected by the Fourth Amendment."

Because few commentators believe that the privacy claim would stand up in court--Lewin himself called his own argument "legally unsound"--Starr may try to recall Clinton to the grand jury, issuing a formal subpoena to force the president to answer his prurient questions. Starr has also recalled Lewinsky to ask her precisely who touched whom, with what, and where. But, although a presidential subpoena would precipitate a constitutional confrontation of the highest order, the battle would be well worth fighting. For the constitutional roots of Clinton's privacy claim are, in fact, far sounder than most judges and scholars have acknowledged.

It's now conventional wisdom to argue that, in a similar predicament, an ordinary suspect in a criminal investigation should plead the Fifth. But, as Monica Lewinsky's immunity deal shows, the Fifth Amendment privilege against self-incrimination offers very little protection to innocent citizens who want to tell the truth but who also want to avoid answering leering questions about their legal but embarrassing sexual conduct. If a prosecutor really wants to humiliate you, all he has to do is grant you or your sexual partner immunity from future prosecutions, and suddenly your shared right to remain silent about your sexual secrets disappears. Moreover, suspects aren't allowed to plead the Fifth selectively. If you agree to answer six questions about your sex life, you may lose the right to object if the seventh question becomes really embarrassing.

Instead of pleading the Fifth, then, Clinton was correct to plead the Fourth. The Fourth Amendment protects " t he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." As the eighteenth-century battle over John Wilkes's diaries suggests, prying invasions of sexual privacy were precisely the kind of unreasonable searches and seizures that the framers of the Constitution meant to forbid. And it's hard to imagine how citizens aren't searched and seized when they're commanded to appear before a grand jury and threatened with prison for contempt of court if they fail to answer a prosecutor's lascivious questions.

At the turn of the century, the Supreme Court recognized that a grand jury subpoena for a suspect's business records was clearly a seizure of his " papers and effects." Unfortunately, in the 1970s, the Court began to narrow privacy protections, holding implausibly that subpoenas to appear before a grand jury simply weren't covered by the Fourth Amendment. The perverse result: The Fourth Amendment now protects objects more than persons where subpoenas are concerned. Still, in other cases, the Court has stressed that the Fourth Amendment protects people, not places, and is triggered any time the government violates a citizen's "reasonable expectations of privacy." And, in the wake of polls suggesting that 63 percent of Americans agree with Clinton that the Lewinsky affair is "nobody's business" but his family's, it appears that most citizens have a reasonable expectation that the details of consensual sexual affairs won't be forcibly exposed by the state.

In a properly functioning legal system, as Akhil Amar of Yale Law School argued years ago, citizens who were asked overly intrusive questions before a grand jury would be able to object that their Fourth Amendment rights were being violated. A judge would then decide whether or not the questions were " reasonable," balancing the seriousness of the alleged crime and the relevance of the question against the seriousness of the intrusion on personal privacy.

Because the Fourth Amendment, unlike the Fifth, applies in civil as well as criminal trials, it might have also saved the president from having to answer questions about his relationship with Lewinsky during his deposition in the Paula Jones case. Under the ordinary rules of civil discovery, when Jones's lawyer, James Fisher, asked Clinton whether he had sexual relations with Lewinsky, Clinton's lawyer, Robert Bennett, could have asked Judge Susan Webber Wright to allow Clinton not to answer the question, to protect him from "annoyance, embarrassment, oppression, or undue burden."

Bennett chose not to ask for a protective order, perhaps because he thought the request would be politically embarrassing. But, if Judge Wright had been more sensitive to Fourth Amendment values, she would have ruled out of bounds the entire inquiry into whether or not Clinton rewarded women who had sex with him. To prove Jones's implausible theory, her lawyers had to compel testimony about consensual affairs that innocent people preferred to keep private. Rather than allowing this cavalier invasion of the privacy of Clinton and Lewinsky, a judge sensitive to the Fourth Amendment's requirement that all searches be "reasonable" would have prevented the questions from being asked.

"I intend to reclaim my family life for my family," Clinton said after his grand jury appearance. "It's nobody's business but ours." Unfortunately, once unreasonable questions are asked and answered, it's impossible to reconstruct the boundaries between public and private life that have been destroyed. In the months ahead, as Starr obsessively rubs the country's face in the most minute and humiliating details of the president's sex life, it may seem quixotic to lament the erosion of privacy protections rather than the president's indiscretions. But, as the philosopher Thomas Nagel eloquently writes in the latest Times Literary Supplement, "Civilization is a delicate structure that allows wildly different and complex individuals to co-operate peacefully and effectively only if not too much strain is put upon it by the introduction of disruptive private material, to which no collective response is necessary or possible. Americans who recognize this fact can only look on in shame at the destructive spectacle now being acted out by a group of childish and powerful figures who have never understood it."