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.
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.
In A Time to Heal, he writes, "First of all, I simply was not convinced that the country wanted to see an ex-President behind bars. We are not a vengeful people; forgiveness is one of the roots of the American tradition. And Nixon, in my opinion, had already suffered enormously. His resignation was an implicit admission of guilt, and he would have to carry forever the burden of his disgrace. But I wasn't motivated primarily by sympathy for his plight or by concern over the state of his health. It was the state of the country's health at home and around the world that worried me." Among the handful of close advisers Ford consulted was Secretary of State Henry Kissinger. Kissinger had reached the conclusion, as he describes it in Years of Renewal, his third volume of memoirs, that the "spectacle" of a presidential indictment "would have been gravely damaging to America's standing in the world." Ford calls Kissinger's argument "very impressive."
Ford evidently wrestled with the question of whether he was holding Nixon to a standard different from other Americans: "Although I respected the tenet that no man is above the law, public policy demanded that I put Nixon -- Watergate -- behind us." Yet as Brian C. Kalt notes in the Yale Law Journal, the question of a pardon is not the question of whether a president is above the law. If a president reached the politically charged conclusion that he could pardon himself -- an erroneous conclusion, in Kalt's persuasive account -- we would rightly be concerned about the rule of law. Absent such a conclusion, Clinton remains accountable. The next president will make the decision on whether to exercise a constitutional power of the executive.
The Constitution itself provides no guidance on the exercise of the pardon power, but ample precedents in our history and in English common law, from which this power derives, demonstrate the many uses to which it has been put. Clearly, the president is not limited to the consideration of guilt or innocence. He may take other matters into account -- for example, the greater good of the country (Ford's "public policy"), the precedent at stake, reasons of state, national security.
If the decision in this case is to pardon, the next president will hardly be issuing an official proclamation of Bill Clinton's innocence. It is no honor for a former president of the United States to have the incumbent president decide to pardon him. The pardon in this case amounts to an official declaration that the former president is in such legal jeopardy, because of his own dubious conduct, that a pardon is necessary in order to avoid something worse.
The Supreme Court has gone farther than that. In Burdick v. U.S. (1915), the court averred that a pardon "carries an imputation of guilt; acceptance a confession of it." Ford says he relied heavily on the court's pronouncement in this case to assuage the concern that a pardoned Nixon could somehow represent himself as vindicated.
But if accepting a pardon amounts to a confession of guilt, why, for his part, would Clinton do that? Obviously, he could thereby avoid the time and expense of a trial, and the rehashing of embarrassing intimacies. Those are valuable considerations, even leaving aside the risk of conviction. But at the price of a "confession of guilt"? Perhaps concern for this implication lies behind Clinton's apparent disavowal of a pardon in April.
But with all due respect to Ford and the Burdick court, the idea that accepting a pardon necessarily amounts to an admission of guilt is highly dubious, and so for that matter is the proposition that an unconditional presidential pardon can effectively be rejected. The court found that George Burdick, a newspaper editor, need not accept a presidential pardon that was issued in order to secure testimony he had been refusing to provide on the ground that doing so might incriminate him. With the pardon, in the government's view, he would not be in legal jeopardy; therefore, he could not plead the Fifth Amendment and refuse to answer. In this case, the court rejected that view, contending that a pardon has to be accepted by the person to whom it is granted in order to take effect. But interestingly, the court's view that acceptance equals confession is no more than an example of a reason Burdick might want to refuse to accept the pardon -- since by the court's analysis, he could reject the pardon for any reason whatsoever (for example, because he wanted to stay mum to protect people). The acceptance-equals-confession dictum really has nothing to do with the decision in the case.
Moreover, in a 1927 case, Biddle v. Perovich (involving a convict who complained he had never accepted the presidential commutation of his death sentence), Justice Oliver Wendell Holmes, writing for the court, was withering on the deficiencies of the Burdick ruling: "The Solicitor General presented a very persuasive argument that in no case is [the] consent [of the person pardoned] necessary to an unconditional pardon and that it never had been adjudged necessary before Burdick. . . . When [a pardon] is granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than the judgment fixed." The Burdick reasoning would in fact circumscribe the president's constitutional power. And if it is outside the power of the pardoned person to refuse, "acceptance" can hardly be equated with confession, otherwise confession becomes mandatory. That's absurd.
And, in fact, we have in George Bush's 1992 Christmas Eve pardon of Caspar Weinberger and five other figures in the Iran-Contra scandal an example of a president who doesn't himself seem to attach much guilt to the acceptance of the pardons he proffers. Especially in the case of Weinberger, whose case was soon to go to trial, Bush's pardon message is laudatory, not inculpating: "Caspar Weinberger is a true American patriot. . . . Secretary Weinberger's legacy will endure beyond the ending of the Cold War. . . . I am pardoning him not just out of compassion or to spare a 75-year-old patriot the torment of lengthy and costly legal proceedings, but to make it possible for him to receive the honor he deserves for his extraordinary service to our country." Bush attributed the prosecution of Weinberger and the others by independent counsel Lawrence Walsh to "a profoundly troubling development in the political and legal climate in our country: the criminalization of policy differences." Here the exercise of the pardon power seems designed to act as a check on the independent counsel's statutory powers.
Which brings us back to Clinton. The independent counsel act is history, but the last independent counsel is not. Ray may follow the facts and the law to the conclusion that he must indict Clinton. In the event that the next president thinks this would be ill-advised, he has only one effective option, and that is a pardon. Clinton would not have to say anything for the pardon to have its effect. Indeed, even a "refusal" to accept the pardon would have no legal effect. The notion that the independent counsel would go ahead and indict Clinton even if he did not "accept" a pardon is inconceivable. It was thus a deeply Clintonesque answer -- misleading and evasive -- that Al Gore gave last month when asked whether he might pardon Bill Clinton: "Well, once again, President Clinton is way ahead of you on that. He said publicly some time ago that he would neither request nor accept a pardon" -- as if a pardon by Clinton's successor would require either of these two things to be effective. (Gore, to boot, subtly misstated what Clinton had said about a pardon, which was, "I wouldn't ask for it"; "I don't think it would be necessary"; and "I don't want one.")
It takes just a simple thought experiment to see why a President Gore or a President Bush, even apart from reasons of state and reasons of tradition, might want to issue a pardon. What would the next Trial of the Century look like? How would we like a return to all-Monica cable programming for the duration? Shall we review for our children the question of whether receiving oral sex constitutes "sexual relations" within the meaning of the modified definition in the Jones case deposition? Shall we count again the times and places she says he touched her?
What if he's acquitted? What if he's convicted? What if the jury is hung? What a disaster.
Moreover, what about the potentially dangerous precedent in indicting an ex-president? What if the next prosecution of a former president has less to do with his conduct and more to do with the political power of his opponents and a taste for revenge?
There is, of course, the danger of the opposite precedent: Will presidents feel free to misbehave knowing they can escape legal accountability? Indeed, in one of the many rich ironies of the Clinton era, Clinton himself articulated this point, arguing against Bush's 1992 pardons: "I am concerned about any action which sends a signal that if you work for the government you're above the law."
Yet a courtroom jury won't have the last word on any president, and presidents know it. It's reasonable to expect them to govern their own conduct with an eye toward how history will regard them. When they lose sight of this, perhaps in the expectation that they can get away with something, they risk more than legal expenses, a trial, conviction, a fine, even a prison sentence. They risk, as Nixon and Clinton have, a certain infamy as a permanent element of their reputation.
Bill Clinton was not removed from office. But he didn't get away with anything. The Senate avoided a full-scale trial with witnesses called to the chamber because a majority of its members understood that the Senate would not oust Clinton for the offenses the House charged. Most did not, however, find his conduct anything but reprehensible. The question of whether or not Clinton should have been impeached will be debated for a long time to come. But all such debates start with the fact that he was impeached, something he has in common with only one other president -- the likewise acquitted but hardly exemplary Andrew Johnson. And those two keep some company with Nixon, who resigned rather than face impeachment.
Yet the impressive sight of Presidents Ford, Carter, Reagan, and Clinton at the funeral of Richard Nixon should serve to remind us also of the gravity of the office and of the degree to which our common history is made there, for better and for worse. It would have been wrong for any of the other presidents to decline to attend that funeral, notwithstanding Nixon's disgrace. The office is bigger than the people who occupy it, as befits the chief executive position in a democratic society. For the sake of the office, the next president ought to be prepared to pardon Bill Clinton.
Tod Lindberg is editor of Policy Review.