The chief executives of the richest and most powerful technology corporation and the richest and most powerful nation on the planet have both been under fire all year for the same offense.
Hold on -- I'm not saying I possess never-before-revealed evidence of Bill Gates' dalliance with some thong-flashing Microsoft intern. But at heart, the case against Gates that has unfolded all fall in federal court and the case against President Clinton that has snowballed through Congress this past month are similar: Both men are accused of abusing language.
Clinton is charged with perjury -- deliberately lying under oath in a matter "material" to a legal proceeding. Gates is charged with unfair monopoly tactics -- twisting the threads of program code to undermine a rival company in violation of antitrust laws. And in the course of the proceedings against them, both men have found themselves painted by opponents as devilish seducers wielding an almost supernatural ability to twist words inside out for their own insidious ends.
"He picks out a single word and weaves from it a deceitful answer," the House Judiciary Committee's lead counsel, David Schippers, said of Clinton in his closing statement last week. "He also invents convoluted definitions of words and phrases in his own crafty mind. Of course he will never seek to clarify a question, because that may trap him into a straight answer. Can you imagine dealing with such a person in any important matter? You would never know his secret mental reservations or the unspoken redefinition of words. And even if you thought you had solved the enigma, it wouldn't matter. He would just change the meaning to suit his purpose."
Gates' opponents might read Schippers' complaint and feel it provides a pretty good description of their enemy, too. If you study the transcripts of the Microsoft chairman's testimony, you find a man resolutely unwilling to grant words a common meaning -- to the extent that he questions whether the "we" in internal Microsoft e-mails actually refers to Microsoft. In one hilarious passage, Gates digs in his heels and says he has no idea what a fellow executive meant in writing that "we're going to be pissing on [Java] at every opportunity."
Bill Clinton and Bill Gates -- inveterate hairsplitters, separated at birth! Have our leaders simply lost the ability to talk straight? Or is something more complex and disturbing happening to public discourse: Are we confusing the rules of the courts with the norms of everyday life?
A New York Times editorial Monday, demanding an admission from Clinton that he lied, describes the president's evasions as "the language of Lawyer World, where Mr. Clinton seems to live." The Times means this as a term of derision, but Clinton isn't the only inhabitant of the planet of double talk. His congressional foes live there, too. So do the Beltway pundits. So, increasingly, do the leaders of American business, like Bill Gates.
Lately, like it or not, we've all had to beam down to Lawyer World.
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In Lawyer World, language aspires to absolute precision: Words like
"browser" and "perjury," phrases like "operating system" and "sexual
relationship," must mean one, and only one, thing. Yet because words have
grave consequences in Lawyer World -- say the wrong thing and you can end
up in jail, your company can be broken up, your election can be overturned
-- people are perpetually fighting over what they mean.
Lawyer World demands that meanings be fixed and constant, yet it
ensures that they will be perpetually contested. As a result, the place is
tedious beyond imagining and frustratingly obtuse. But at best, its tedium
and obtuseness serve a valuable end: Its processes require such formalities
because they serve as a check against the arbitrariness of power and the
abuse of law for corrupt or nakedly partisan ends.
At the other end of the cosmos from Lawyer World there's a place we
might call Common Sense World, where words mean, well, pretty much what
everyone knows they mean. In Common Sense World, Gates has a monopoly
because, gosh darn it, look around the courtroom -- do you see anyone
who's not using a Windows computer? In Common Sense World, of course Clinton had a sexual relationship with Monica Lewinsky -- they don't
call it oral sex for nothing.
Americans and our politicians love to sneer at the sophistries of Lawyer
World and embrace the down-to-earth populism of Common Sense World. Common
Sense World is a great place to decide the outcome of elections, to choose
whether to go to war or to resolve great national debates. Lawyer
World is the appropriate place for deciding whether individuals are
innocent or guilty, or businesses have broken the law. But we get into
trouble when we apply the standards of one realm to the other.
This is the great fallacy behind the drive to impeach Clinton: Its
leaders keep unfairly hopscotching between Lawyer World and Common Sense
World. They demand that Clinton drop his lawyers' guard, give in to common
sense and admit that he lied; then they charge him with the highly
technical crime of perjury, which by definition exists only in Lawyer World.
In fact, of course, Clinton's disputed testimony took place entirely in
Lawyer World -- operating in the Paula Jones case courtroom under a
ludicrously detailed definition of "sexual relationship" that very
plausibly gets him off the legal hook. Where Clinton plainly did lie was
outside Lawyer World, on TV, wagging his finger and saying he "did not have sex
with that woman."
But the Republican Congress is gnashing its teeth because it cannot
impeach a president for this common-sense offense. In fact, the only
charges that the House Judiciary Committee dropped from its articles
of impeachment on Saturday were those that related to Clinton's "false and
misleading public statements for the purpose of deceiving the people of
the United States."
Impeachment is essentially a Lawyer World process -- and if lying to
the public is by itself a "high crime or misdemeanor," then virtually
everyone in Washington had better start preparing a defense. So Clinton's
congressional foes have no choice but to go after the president using the
Lawyer World concept of perjury, even though Lawyer World is where
Clinton's defense is strongest.
This is why the public isn't buying the impeachment process.
The polls favoring censure aren't a sign of the electorate's boredom or
disengagement or short attention span. They show that the public
understands what Congress doesn't: Clinton's common-sense offense demands a
common-sense penalty like censure, not the legal formalities of a
full-blown trial in the Senate.
The Justice Department's effort to prosecute Microsoft for antitrust
violations faces a similar paradox. Microsoft's offenses lie in the realm
of common sense, but the only remedies available derive from the Lawyer
World rule book of antitrust law -- and antitrust law is a notoriously
skimpy, ill-defined canon that often confounds both the lawyers and the
common sense crowd.
In Common Sense World, Gates has already condemned himself a million
times over. He has appeared in one videotape excerpt after another at the
Microsoft antitrust trial, professing a level of ignorance about his
business that, if it were true, would have stockholders clamoring for his
removal.
Of course, Gates does know what goes on inside his company. But
in his persnickety testimony he has taken avidly to the ways of Lawyer
World. Maybe that's because he can afford the coaching of extremely
high-priced lawyers. Or maybe it's because there's some subterranean
kinship between the code of law and that of software. Each demand inhuman
precision and are intolerant of procedural error. They are both realms in
which language itself is functional and performative -- where words don't
just mean things but actually do things. And both computers and
legal cross-examination obey the principle of "garbage in, garbage out":
Bad data and bad code lead to bad computing results, and imprecise
questions allow witnesses to avoid providing real answers. Perhaps
computers, with their strict parameters and binary logic, are the ideal
inhabitants of Lawyer World: The words in programming languages always mean
the same thing.
In Lawyer World, just as Clinton has the right to evade his
prosecutors through a poorly worded definition of "sexual relationship," Gates has the right to run rings around his questioners if their fuzzy
use of the language of technology gives him an out. We non-lawyers may not
like it, and we may think the worse of them for it. But if our society
turns to the courts to resolve powerful conflicts, we shouldn't be
surprised when the participants adopt the legal system's rules of engagement.
I happen to believe that, on the one hand, Clinton's follies do
not warrant impeachment, and on the other, Gates' competitive
excesses do warrant antitrust action -- even though it's probably too slow
and ineffectual a remedy for Microsoft's practices. But I don't hold either
man's equivocations and hedgings under oath against them. If I were in
their shoes, both hounded and defended by phalanxes of lawyers, I'd
quibble over the meaning of "is" and dispute every comma as fiercely and
annoyingly as they have.
When in Lawyer World, you'd be stupid not to think and act like a lawyer
yourself. And whatever else they may be, neither of the Bills is an idiot.
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