Where I Stand — Brian Greenspun: End of McDougal’s incarceration was long overdue

Friday, June 26, 1998 | 11:48 a.m.

"IT WAS a compassionate decision."

That's what independent prosecutor Kenneth Starr's office had to say about a judge's order releasing Susan McDougal from jail. What else could they say? She didn't belong there in the first place.

Whatever the reasons for the release -- in this case it was a medical problem that was getting worse during her 21-month incarceration for, in her words, refusing to tell the lies Starr needed to hear -- most Americans would say, "It's about time."

The thought of seeing a manacled McDougal shuffling between prison and the grand jury room and back again, having refused yet again to say what she didn't believe, has been more than most Americans have been willing to accept from their government. No one really condones refusing to testify about matters within one's knowledge in a criminal investigation, but very few people would ever suggest a permanent lock-up of any citizen who has not been convicted of a crime.

The civil and later criminal contempt charges that threw her orange-covered self in the can should never be used as a bludgeon to force improper testimony. That's why most, if not all, other courts about which I am aware will release reluctant witnesses once it becomes clear that no matter how long they rot in jail, they will not change their minds about testifying.

That happened many months ago in the case of McDougal, and the public knew it, too. The only ones who failed to recognize what Americans knew intuitively was Starr and the judge who did his bidding. It was only after medical evidence showed that McDougal was suffering far more than the normal effects of incarceration that the judge said go home.

So for now she's free and, I suspect, Starr is secretly pleased. Because unlike those in society who follow his public-relations efforts with blind abandon, the prosecutor understood the level of contempt with which the American people held his actions toward McDougal. At least now and for some time in the future, we won't have to see her in shackles shuffling off to Buffalo or some other place where citizens of this country are locked up merely because they refuse to tell the story the way the prosecutor wants it told.

Speaking of courts, no one should be surprised about two decisions handed down Thursday by the Supreme Court. They may be disappointed because a particular political agenda has been thwarted, but they shouldn't feel that justice wasn't done and the law wasn't well served.

I am referring to the line-item veto and the effort to upset the long-held attorney-client privilege just because the client is no longer living. In both cases the Supreme Court acted reasonably, rightly and responsibly. In the first action, the court said if Congress wants to change the way the Constitution reads, it has to do so through amendment and not the politically simple way of a majority vote.

Our Founding Fathers were quite specific when they determined how a bill became law and what the president could do to prevent such an occurrence. If he didn't like what Congress sent him, he could veto it and send it back. Simple enough. Unfortunately, some election-minded political strategists concluded that the president should be able to veto a bill on a piecemeal basis, keeping the good and throwing out the bad. While that may satisfy expedience, it was never contemplated by our Constitution. That's what the high court said when it indicated that the congressional and executive branches of government should work together if they want to enact responsible legislation.

The puzzle in this case is why the vote wasn't unanimous.

As for the Vince Foster matter, in which Starr wanted Foster's lawyer to reveal what his client told him in confidence because Foster was no longer alive, it was as close to a no-brainer as you could get in the Supreme Court. We have long cherished our right to tell all to our lawyers, knowing that what we said could never be divulged. It's the same kind of privilege that protects what goes on in the confessionals of our churches and any other private conversations between priests and penitents.

Just as we would not like our confessions spread across the public record, neither would we like our lawyers -- to whom we must tell the truth in order for them to help us -- to have to spill the beans after we are gone. Prosecutor Starr thought otherwise and tried to get the high court to overturn a lifetime of legal precedents to make what appears to be some political hay in his effort to get President Clinton.

Again, there was little question -- except on those nutty television talk shows where everyone with an opinion disconnected from rational thought tries for their 15 minutes of fame -- what the ruling had to be. The surprise was, again, that the decision wasn't unanimous.

While we commend the high court for upholding our Constitution, we must also ask the following question. In both cases the vote was a convincing but not unanimous 6-3. What on Earth were those three judges thinking?