October 18, 1999
Mr. Ray's Decision
Ken Starr is leaving as independent counsel for the Clinton presidency, the advance reports have it, to be replaced with Robert Ray, who has served as an aide to both Mr. Starr and Independent Counsel Donald Smaltz. This puts a central question before the nation: What is left for the law to do with Bill Clinton?
The House impeached the President, and the Senate voted not to remove him. The initial reporting on Mr. Ray suggests that his office will try to tie up loose ends, pursuing the intimidation of Kathleen Willey and the Travel Office firings. The seriousness of those matters notwithstanding, Mr. Ray will face a big decision of his own: Whether to indict Mr. Clinton for perjury once he is no longer President.
The issue here is whether Mr. Clinton will be held accountable for his "other perjury." Federal Judge Susan Webber Wright in Arkansas has addressed the first perjury, which was in her court during Paula Jones's civil suit. Judge Wright worried about the precedent set by Mr. Clinton's behavior, and so held him in contempt of court and ordered him to pay an additional $90,000 to lawyers for Mrs. Jones. She wrote of the need "to deter others who might themselves consider emulating the President of the United States by engaging in misconduct that undermines the integrity of the judicial system."
But there is another perjury, even more serious because it took place before a federal grand jury and after extensive preparation by counsel. This is the testimony that was the subject of the famous leaks in Bob Woodward's latest book -- including a protest about the planned testimony from presidential attorney Bob Bennett, "It's insanity." The serious legal implications of this testimony have received scant attention, though there were spelled out on these pages by Gary McDowell on Aug. 30. The point is that Mr. Clinton testified before the grand jury on the Lewinsky matter on Aug. 17, 1998, and the statute of limitations will not have run by Jan. 21, 2001, when he will be a private citizen without the protections of the Presidency.
At that point Mr. Ray will have to decide whether to indict citizen Clinton. It may sound strange for him to bring a rather belated indictment, except that is what leaders of Mr. Clinton's own party repeatedly urged. Consider this remarkable set of quotations from Democratic Party leaders during the impeachment debate:
"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. Herbert Kohl (D., Wisc.)
"Rejecting these articles of impeachment does not place this President above the law. As the Constitution clearly says, he remains subject to the laws of the land just like any other citizen of the United States."
-- Sen. Barbara Boxer (D., Calif.)
"Whether any of his conduct constitutes a criminal offense such as perjury or obstruction of justice is not for me to decide. That, appropriately, should and must be left to the criminal justice system, which will uphold the rule of law in President Clinton's case as it would for any other American."
-- Sen. Joseph Lieberman (D., Conn.)
"For those who believe that the President is guilty of perjury and obstruction of justice -- criminal offenses -- there is a forum available for that determination."
-- Sen. Richard Bryan (D., Nev.)
"[T]he legal system, our civil and criminal laws provide the proper venue for a President who has failed in his private character. . . . And in this case, the legal system can and will continue to address the President's personal transgressions."
-- Sen. Frank Lautenberg (D., N.J.)
"Offensive as they were, the President's actions have nothing to do with his official duties, nor do they constitute the most serious of private crimes. In my judgment, these are matters best left to the criminal justice system."
-- Sen. Kent Conrad (D., N.D.)
"[P]unishment for alleged criminal law violations is not up to the United States Congress. That's up to the criminal justice system. After his term is up, less than two years from now, he is like any other American. He would have any other defenses that any other American has. That's the proper forum for that."
-- Rep. Zoe Lofgren (D., Calif.)
"I have concluded that the Constitution was designed very carefully to remove the President of the United States for wrongful actions as President of the United States in his capacity as President of the United States and in carrying out his duties as President of the United States. For wrongful acts that are not connected with the official capacity and duties of the President of the United States, there are other ways to handle it. There is the judicial system. There is the court system. There are the U.S. attorneys out there waiting. There may even be the Office of Independent Counsel, which will still be there after all of this is finished."
-- Sen. John Breaux (D., La.)
Resolving this President's perjury is a matter of principle. That said, however, let us acknowledge plainly that there are two competing principles in play here. The first is the dignity of the presidential office. It would be impugned by putting the just-impeached President in the dock. Against this there is the principle, a matter of faith grasped at every level of American life, that no one is above the law.
In considering whether to indict Bill Clinton for his perjury, Mr. Ray will have to strike a balance. But there can be no doubting that his primary job as an officer of the federal court is upholding the rule of law. Doing nothing would do damage to this most fundamental idea. The issue of dignity can be weighed in other forums -- for example by an application to Mr. Clinton's successor for a presidential pardon.
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