The court of St. Paula

The man who is backing Paula Jones' lawsuit against President Clinton says he is not in for the politics, but for the constitutional issue at stake. An examination of his record suggests otherwise.

Published January 13, 1998 8:00PM (EST)

WASHINGTON -- John Whitehead loves a good constitutional brawl, especially when the defendant is the president of the United States. The 51-year-old lawyer with a thick Tennessee drawl is founder and president of the Rutherford Institute, a nonprofit conservative organization that is paying Paula Jones' legal expenses in her sexual harassment suit against President Clinton.

The case reaches a new milestone later this week when the president is scheduled to be deposed by lawyers, a proceeding that Jones says she will attend. "This case is not about politics," Whitehead told Salon. "It is about the guiding philosophy in the United States that all people are equal before the law."

Framing the case this way has special appeal for Whitehead, who named his Virginia institute after Samuel Rutherford, a 17th century Scottish minister and rector at St. Andrews University. In 1661, the English Parliament accused Rutherford of high treason for suggesting that the rule of law bears on the conduct of every man, including the monarch, thereby challenging the prevailing Divine Right of Kings doctrine. The elderly Rutherford already lay on his deathbed when the summons arrived to appear before his accusers. "I have got a summons already before a superior judge and judiciary, and ere your day arrive, I will be where few kings and great folks come," he is said to have taunted Parliament.

Critics charge that such high-minded constitutionalism is merely a front. They say Whitehead is running a legal defense fund for anti-gay activists, Christian fundamentalists who want to erase the separation between church and state and neo-Nazis running for public office. Clinton's attorney, Robert Bennett, calls the Rutherford Institute "an extremist organization (that is) trying to humiliate the president."

Bennett has subpoenaed the names of the organization's donors and its files in an attempt to prove his charge. The institute filed an affidavit in federal court earlier this month calling Bennett's subpoena a "witch hunt" whose purpose was to "intimidate, injure and harass" the organization. But A. Eric Johnston, a Rutherford board member, may have inadvertently bolstered Bennett's argument when he wrote in the institute's affidavit that donations "are most often accompanied with letters which express political, social, philosophical or religious viewpoints. The contributors often are quite frank and personal in the remarks. They are not legally trained. They would not understand ... that redacted donor lists or letters have been turned over in discovery. Many of these people also fear big government so they will experience the fear of government harassment. They will only understand redaction to mean that their privacy and confidentiality has been violated ... Consequently they will stop giving to The Rutherford Institute in the future."

Whitehead disputes the charges -- "I'm not political," he insisted -- and says he has nothing personally against President Clinton. "I think he's been a good president," said Whitehead, praising Clinton's backing for greater religious activity in schools and his support for Christians persecuted in foreign countries.

But a look at Whitehead's record suggests a fondness for right-wing Christian politics. A year before Whitehead and fellow lawyer Jerry Nims founded the Rutherford Foundation, Whitehead worked as an attorney for the legal defense fund of Rev. Jerry Falwell's fiercely conservative Moral Majority. Nims served as the chief executive officer for Falwell's organizations and later took over from Falwell as president of the Moral Majority. After the Moral Majority disbanded in 1989, Falwell said the group's work would be taken over by several conservative groups, including the Rutherford Institute.

In 1994, Falwell used his "Old-Time Gospel Hour" television show to sell two now-infamous anti-Clinton videotapes -- "The Clinton Chronicles" and "The Circle of Power" -- which allege that Clinton was addicted to cocaine, that he was involved in drug smuggling, that Vince Foster and Hillary Clinton were having an affair and that Foster was murdered, rather than the victim of suicide. In June 1995, the Rutherford Institute's monthly magazine, Rutherford, repeated many of the charges contained in the two videos and echoed Falwell's charge that the mainstream media had covered up Clinton's alleged actions.

In the same issue, Whitehead wrote a column excoriating Clinton over the Paula Jones affair, the alleged Whitewater scandal and the president's character. "Even a short inventory of Clinton's waffling, gaffes and poor judgment calls raises serious questions about the President of the United States," Whitehead wrote.

"I was more critical of Clinton in the early days," Whitehead now says. "But as he has progressed, I have become much less critical."

He said he became involved in the Paula Jones lawsuit last September when he read a newspaper report that her lawyers were dropping out of the proceedings because she had refused to settle. Concerned she would not have her day in court, Whitehead said he contacted Jones through her spokeswoman, Susan Carpenter MacMillan, and offered the institute's legal services. Whitehead said he convinced conservative Dallas lawyer Donovan Campbell Jr., a member of the Rutherford Institute board, to handle the case. "Yeah, I suppose you could say his firm is pretty conservative," Whitehead allowed.

That's an understatement. A few years ago, Campbell tried to have a Texas law forbidding oral sex between two consenting adults reinstated after it was found to be unconstitutional. He also picketed a gay performance at a Dallas theater and helped, along with the Rutherford Institute, to provide legal support for a group that wanted Christian nativity scenes to be permitted in public buildings, a violation of the separation of church and state.

"Sure, his credentials open me up to accusations that this is all political," said Whitehead. But the question is: Do you pick the best person for the case, or do you play politics and chose someone who is a bit more moderate? What lawyers believe politically is not that important. We're there to win the case."

Whitehead said it was his same concern with constitutional rights that moved him to defend Ralph Forbes, a former member of the American Nazi Party who sued Arkansas Public Television in 1992 after it excluded Forbes, then running for Congress, from a televised candidates debate. Arkansas Public Television noted Forbes had no campaign office, no cash and minuscule support, all suggesting there was little interest in his views, which included public statements like "Clinton hates me and Hillary has tried to roast me with her eyeballs." But Whitehead won in both the federal district court and the court of appeals. The Supreme Court is now weighing the case, which could have far-reaching implications for the future of political debate on public broadcast stations nationwide.

"We take just about everything that comes in the door if it touches on civil liberties, First Amendment rights and human rights," Whitehead said of the Forbes case. "It's the same thing with Paula Jones. It's not the person involved; it's the principle."

That sounds like something Samuel Rutherford would admire, but given Whitehead's record,
the Rutherford Institute's absence in civil liberties cases involving liberals and leftists and the legal screen he has tried to throw around his institute, it's unclear whether that principle is equality before the law or the not-so-secret politics of his donors.

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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Bill Clinton Hillary Rodham Clinton Robert F. Bennett