"President Clinton is not `above the law.’ His conduct should not be excused, nor will it. The President can be criminally prosecuted, especially once he leaves office. In other words, his acts may not be `removable’ wrongs, but they could be `convictable’ crimes."
-Sen. Herb Kohl, D-Wis., in arguing last year that President Clinton should not be removed from office.
Independent Counsel Robert W. Ray is a serious man with much to be serious about. Soon after Jan. 20, 2001, when President Clinton leaves office, Ray will have to decide whether to seek the first criminal indictment ever of a former President.
The alternative would be to close up shop, amid continuing claims by Clinton that his only sin had been having an affair with Monica Lewinsky, and that "I am honored … that I had the opportunity to defend the Constitution" (as Clinton said to Dan Rather in an interview on March 31, 1999) against an "indefensible" impeachment trumped up by politically motivated Republicans.
What Clinton brazenly calls defending the Constitution was the same conduct that Kenneth W. Starr (whom Ray succeeded as independent counsel last October) proved to be a criminal cover-up. It was the same conduct that Kohl and many other congressional Democrats had said should be dealt with in court, through the criminal process, rather than through impeachment.
"There is a principle to be vindicated, and that principle is that no person is above the law, even the President of the United States," Ray told The Washington Post on April 10. That sounds pretty serious. He had said essentially the same thing in a March 19 television interview. And although Ray says he has not yet decided whether to prosecute, he has been beefing up his team of lawyers and investigators.
But hasn’t Ray already had more than enough time to decide? The sprawling, $55 million criminal investigation into a smorgasbord of allegations against the President and Hillary Rodham Clinton has dragged on more than six years since its start under Robert Fiske, whom Starr replaced in mid-1994. The essential evidence about the Clinton-Lewinsky cover-up was made public back in September 1998 with the release of Starr’s report suggesting that Clinton be impeached and detailing the (essentially undisputed) evidence of multiple perjuries and obstructions of justice. The Senate declined to convict Clinton of "high crimes and misdemeanors," by a 50-50 vote on Feb. 12, 1999. The press, public, and politicians have long been sick of the whole mess.
Ray won’t say why he needs until next year to make the big decision. But if he doubted Clinton’s guilt, or had decided not to prosecute, there would be no good reason to delay the announcement. So Ray (like Starr) evidently believes that Clinton committed one or more cover-up crimes. And it would make sense to defer any indictment until after Jan. 20, to avoid having to litigate over whether the Constitution bars prosecution of a sitting President. (It does not bar indictment of a former President who has already been tried by the Senate.)
Does this mean that Ray will seek an indictment as soon as Clinton vacates the White House? Not necessarily. Ray has emphasized that even if crimes have been committed, he must decide whether "it is appropriate to bring a case" as a matter of prosecutorial discretion. A key factor in that calculus is whether he could win.
There has been no indication that Ray is hoping to clinch the case with some stunning new revelation. It seems more likely that he is hoping that Clinton may be less popular-and Ray’s own office more credible-after the presidential campaign, and after the expected filing this summer or fall of Ray’s reports detailing the Clintons’ unpretty (if unindictable) conduct in the two other matters. Those are the White House travel office firings and the Clintons’ convoluted dealings with Madison Guaranty Savings and Loan Association, including their Whitewater land investment.
As a legal matter, there is ample proof of Clinton’s guilt with regard to perjury and obstruction of justice. Even Sen. Charles E. Schumer, D-N.Y., an ardent Clinton supporter, has said, "It is clear that the President lied" to Starr’s grand jury in August 1998. U.S. District Judge Susan Webber Wright of Little Rock, Ark., who presided over the Paula Jones lawsuit, held Clinton in contempt of court last April for giving false testimony under oath "designed to obstruct the judicial process" during his Jan. 17, 1998, deposition in the case. Chief Judge Richard A. Posner of the federal appeals court in Chicago, one of the nation’s most respected legal scholars, went further in a 1999 book titled An Affair of State. He concluded that "Clinton was guilty of serious crimes," including obstructing justice by coaching Lewinsky to file a false affidavit and "perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to questions put to him by the House Judiciary Committee."
Covering up what the same Posner calls a "trivial sexual escapade" ain’t Watergate, and there is "something a little crazy about turning the White House upside down in order to pin down the details of Clinton’s extramarital sexual activities so that Paula Jones might have a shot at winning her long-shot suit." But still, Clinton’s own Attorney General, Janet Reno, decided that the matter was serious enough to require a criminal investigation of Clinton under the now-defunct independent-counsel statute.
And as the case developed, Clinton’s calculated lawlessness far transcended lying about sex. He did not face a Hobson’s choice between lying and telling the truth. He knew more than a month before his deposition that he might face questions about his relationships with women, including Lewinsky, and he could have avoided testifying by settling the Jones case or appealing Judge Wright’s ruling that he must answer such questions. Instead, he encouraged Lewinsky to file a false affidavit; used his friend Vernon Jordan to help her find a job; told lie after lie in the deposition; coached his secretary Betty Currie to lie for him; lied to the American people; got his Secretary of State and other Cabinet members to repeat the lies; used White House aides to demonize truth-tellers and truth-seekers, including Starr; lied to the grand jury; and lied to the House and Senate. If Clinton had been "the president of a corporation, university, or foundation, or the mayor of a medium-sized city," as Posner notes, his "lengthy string of crimes would invite prosecution," and would likely lead to a prison term of two or three years.
But while the stunningly shameless Clinton may deserve an indictment, Ray should not seek one. The most obvious reason is the extreme unlikelihood that Ray could persuade 12 jurors to convict-especially jurors in Washington, D.C., where Clinton remained immensely popular even as Starr and others were laying out the evidence of his crimes for all to see. (Any effort to indict Clinton in Arkansas would be blatant jury shopping and almost as futile.)
This is not to impugn D.C. jurors. Although the evidence against Clinton is logically compelling, it is tediously familiar and lacking in jury appeal. The three major witnesses-Lewinsky, Jordan, and Currie-are sympathetic to Clinton and hostile to Ray. The President would be a formidable witness for himself-charming, nimble-witted, adept at obfuscation. That’s why his videotaped grand jury testimony generated far more public sympathy than outrage. And the Lewinsky matter has become so politicized that it would be unrealistic to expect any juror, anywhere, to weigh the evidence with a completely open mind, or to convict a former President whom he or she admires.
Prosecutors are not supposed to bring cases they know they will probably lose. And an indictment ending in acquittal would only lend unwarranted credibility to Clinton’s campaign to delegitimize his impeachment.
More fundamentally, a prosecution that could possibly lead to imprisonment of any former President-unless for crimes more grave than those of Clinton-would set a disturbing precedent, and could polarize and traumatize the nation even more than impeachment did.
It’s true that nobody should be above the law. That’s why I saw impeachment as a painful but healthy effort to purge the nation of a President who had debased his office. But most of the nation and 50 Senators disagreed. The rule of law is not a fetish. Even House Judiciary Chairman Henry J. Hyde, R-Ill., who had led the crusade for impeachment under the "rule of law" banner, said after the Senate vote that Clinton had not gone unpunished and should not be indicted. It’s over.
If this means that Clinton can keep characterizing his brazen subversion of the truth and the law as a noble defense of the Constitution, so be it. In his heart, he knows he’s still lying. Don’t we all?