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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The fact that the Senate acquitted Clinton on charges related to the same conduct that might bring criminal charges may or may not be decisive for Ray. Impeachment proceedings and criminal proceedings are separate matters. There is no constitutionally prohibited "double jeopardy" here. Consider a case of the reverse sequence: Judge Alcee L. Hastings stood trial in 1983 on federal charges of conspiring to solicit a bribe. He was acquitted. Yet the House subsequently voted to impeach him on the same allegations (as well as lying under oath in his own defense at the trial), and the Senate voted to remove him. Hastings protested at the time that the impeachment proceedings amounted to double jeopardy, but Congress was unmoved. (Hastings, unrepentant, went on to be elected to Congress from Florida in 1992; during the Lewinsky affair, he was one of a group of Democrats who introduced a resolution calling for the impeachment of Starr.) The Senate's judgment is final and cannot be reviewed judicially or elsewhere, but the Constitution holds that the Senate's power "shall not extend further than to removal from office, and disqualification" from holding future office. The Senate, in other words, does not sit as a criminal court.

Indeed, the Constitution specifically contemplates the possibility of a criminal trial following impeachment and conviction: "The party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law." But what about impeachment and acquittal? There is no precedent for criminal proceedings following an acquittal in the Senate. But the absence of a precedent does not dispose of the matter.

During the impeachment debate, many members of Congress, Democrats especially, insisted that a courtroom, after the president leaves office, is in fact the appropriate place to deal with Clinton's transgressions. Said Rep. Jerrold Nadler, Democrat of New York, a House Judiciary Committee member, "Is the president above the law? Certainly not. He is subject to the criminal law -- to indictment and prosecution when he leaves office like any other citizen, whether or not he is impeached." And the president himself has weighed in on the subject, saying, "I'm prepared to stand before any bar of justice that I have to stand before."

One may question whether any of these sentiments is more than a rhetorical strategy. But no matter: After January 20, 2001, indictment may well remain a possibility. What then?

A presidential pardon of a former president, the second in our history, may be distasteful to contemplate. It may also be politically inconvenient for the next president. Al Gore will recall the political damage done to Gerald Ford when he pardoned Richard Nixon. Ford's job approval rating, he notes in his memoirs, A Time to Heal, declined virtually overnight from 71 percent to 49 percent. Ford is not alone in the belief that the Nixon pardon was the single biggest contributor to his defeat by Jimmy Carter in 1976. On the other side of the partisan divide, a George W. Bush pardon of Clinton would court the anger of conservative Republicans, many of whom would likely feel Clinton was getting away scot-free yet again. And as it happens, a pardon is distasteful to Clinton himself -- "I'm not interested in being pardoned," he insists -- which is perhaps no surprise, since a pardon would be an insult to his contention that he committed no crime.

In a fundamental sense, however, the issue of a pardon should not be about one's view of Bill Clinton, nor about calculations of political advantage. It is about one's view of the presidency. We have had a number of presidents who have acted dubiously. Yet this has never been a country that has hauled its former presidents into the dock, let alone locked them up. The issues at stake in deviating from that practice are bigger than the fate of any particular ex-president.

This unspoken American tradition became explicit in the case of Nixon, the first time the climate of opinion favored the indictment of an ex-president (on more severe charges than Clinton might face, be it noted). When Gerald Ford issued his pardon proclamation on September 8, 1974, he emphasized his concern that Nixon might not be able to get a fair trial and that the matter might drag on, continuing to polarize the country. His aides emphasized in the aftermath that Ford's action was "an act of mercy." Yet this is not the aspect of the pardon decision Ford says weighed heaviest on him.