The Magazine

Pardon Him

If he's indicted, and despite everything, Clinton's successor should let him off

May 15, 2000, Vol. 5, No. 33 • By TOD LINDBERG
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Upon taking office January 20, 2001, our forty-third president, Democrat or Republican, may face an unpleasant but important unresolved matter from the tenure of the forty-second: the issue of a pardon for Bill Clinton.

Although President Clinton's impeachment and acquittal a year ago created a sense of climax to the scandals that have plagued his administration and to the independent counsel investigation that has dogged him since 1994, it is beginning to sink in that Clinton's troubles may not be behind him. His legal jeopardy is real and ongoing.

Though the independent counsel statute expired last year, investigation into President Clinton's conduct continues under the terms of the old law. Robert Ray, who succeeded Kenneth W. Starr, is apt to be the last of the breed of statutory independent counsels, but that in no way diminishes his power: He is accountable only to himself on decisions to prosecute or not to prosecute.

In media interviews going back to the time of his appointment in 1999, Ray has said he is eager to complete his investigation and file his final reports. But recently, he has also all but said he is actively contemplating an indictment of Bill Clinton -- presumably on charges of perjury and obstruction related to the president's sworn statements about Monica Lewinsky in his deposition in the Paula Jones case and his testimony before Starr's grand jury. As he recently told the Washington Post, "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 is reportedly hiring additional lawyers to help him consider the matter.

Though many of Clinton's defenders think this is outrageous, it should perhaps come as no great surprise. The law under which the independent counsel operates calls for him to follow Justice Department guidelines on whether or not to indict. Prosecutors are to indict when they believe an impartial jury would convict the defendant on the available evidence. If the evidence against Clinton is as strong as Starr believed, it might be harder for his successor to turn his back on the case than people generally assume.

The Office of Independent Counsel Ray inherited is on record in its impeachment referral in no uncertain terms that "there is substantial and credible information" Clinton repeatedly "lied under oath" and "endeavored to obstruct justice." Also weighing on the side of potential danger for Clinton is the finding by Judge Susan Webber Wright, the Jones case judge, that Clinton "gave false, misleading, and evasive answers that were designed to obstruct the judicial process." The president did not contest her ruling, choosing instead to pay the fine she levied against him for civil contempt of court. He is currently embroiled as well in a disbarment inquiry in Arkansas.

Bill Clinton is not, of course, without a defense against perjury and obstruction charges; during the impeachment proceedings, his lawyers argued strenuously that Clinton's statements, though evasive and misleading, could not legally be construed as perjury and that the obstruction case was a thin reed of inference and speculation.

Ray will reach his own conclusions. He is free to repudiate Starr's or stand by them yet decline to prosecute. He may issue a final report on the Lewinsky-related matters before Clinton leaves office. If he does, that is the end of the matter. But mere quiet from the Office of Independent Counsel through the end of his term may not be good news for former President Clinton. Ray may conclude, as most scholars argue, that for constitutional reasons, or even prudential reasons, he cannot indict a sitting president. But the statute of limitations covering the events in question will not have tolled by January 2001. So the real test of the independent counsel's intentions may not come until then. In the absence of a clear resolution before that time, this is when Clinton's possible criminal liability becomes an acute problem.