Robert Ray's Decision
By Victoria Toensing and Joseph E. diGenova

George W. Bush has said he won’t pardon his predecessor because he hasn’t been indicted.  Why would and should a career federal prosecutor, like Independent Counsel Robert Ray, decide to charge William Jefferson Clinton and, thus, place this issue on President Bush’s new oval office desk?

First, the prosecutor must decide there are facts sufficient to constitute a federal offense and to convict.  Although Ray and his grand jury’s deliberations are secret, we assume he has reached that factual threshold or he would have closed shop months ago.  But that does not end the prosecutor’s evaluation of whether to bring a case.  Next, he must consider the relevant factors under the U.S. Justice Department’s “Principles of Federal Prosecution,” which are the nature and seriousness of the offense, the subject’s culpability, his willingness to cooperate in the investigation, his personal circumstances, and whether there exists an adequate non-criminal alternative to prosecution.  These factors support, indeed demand, indictment.  If this were a lesser citizen, the question wouldn’t even be close.

The facts are as well known to most Americans as Grimms Fairy Tale plots.  President Clinton participated in sexual acts with a twenty-something intern in the White House.  When that workplace misconduct became the subject of a civil deposition in a separate sexual harassment case brought by Paula Jones, and Judge Betsy Wright held that the President must answer questions about it in the deposition, he denied the affair.  Moreover, over that weekend he summoned his secretary to the White House and attempted to “refresh” her recollection.  Throughout the following days and weeks he repeatedly denied to aides (who he knew were going to testify before the Grand Jury about the truth or falsity of the misconduct) that he ever had sex with the intern.  He also looked the American people in their television eye and falsely lectured them that he had never had sex with “that woman.”  Clinton only admitted, albeit obliquely and without remorse, to his improper conduct after the Independent Counsel’s office told his lawyer that the intern’s dress tested positive for semen stains.  Before he did though, he used the power of his office to intimidate potential witnesses (Tripp, Willie etc.) by White House leaks about them in a calculated attempt to smear and silence them.

According to news accounts, Ray is considering charging Clinton with two crimes: 1) obstruction of justice, which is “engaging in misleading conduct toward another person with the intent to influence” that person’s testimony in an “official proceeding,” and 2) perjury, a false statement under oath about a material matter.

Nature and seriousness of offense:  To state that the chief law enforcement officer of the United States has obstructed justice or committed perjury is to define the seriousness of the crime. Such seriousness is not lost because it was a civil proceeding or later dismissed by the trial court.

Courts “categorically reject any suggestion” that perjury is “less serious when made in a civil proceeding.”  Clinton’s Justice Department agrees and has indicted a number of people for perjury because they lied in civil depositions and affidavits.  For example, in 1995, a year of Clinton’s reign yet prior to the troubles, a U.S. Attorney in Virginia indicted Edward Conk for perjury for lying in a civil deposition; a U.S. Attorney in Michigan indicted William Sassanelli for perjury for signing a false affidavit in a civil action: and a Georgia U.S. Attorney indicted Wendell J. Kersey for perjury for lying in both an affidavit and a deposition.  In the midst of the scandal the Clinton Justice Department charged Barbara Battalino, a Veterans Administration psychiatrist, with obstruction of justice for denying, in a civil case, her sexual relationship with a patient.  In 1999, a Wisconsin U.S. Attorney charged EPA Attorney, Marc Radell, with perjury for false statements he made in deposition and affidavit.

These were “little people.”  Not to charge the ex-President under similar circumstances creates an unacceptable prosecutorial double standard.

That the trial judge dismissed the Jones case has no bearing on these putative charges.  For perjury, for example, the legal test under majority federal case law is whether at the time of the statement it was material, a minimal standard requiring only that the truthful answer could “reasonably lead to discovery of evidence admissible at trial of the underlying case.”  If Clinton had truthfully admitted in the deposition he had the sexual contact with a subordinate, that fact would have been admissible by Paula Jones during trial to support her allegations.  Subsequent events, even dismissal, do not alter that materiality. Moreover, settling the case for $850,000 while it was on appeal evidenced the Clinton concern that the trial court’s dismissal might be reversed.

Judge Wright thought Clinton’s conduct in the civil deposition so serious she found him in contempt of court for “giving false, misleading and evasive answers that were designed to obstruct the judicial process.”  She fined him $90,000 and referred the matter to the Arkansas State Bar for disbarment proceedings.

The subject’s culpability:  Forethought of criminal conduct increases culpability.  The intern question was not “off-the-wall” and Clinton’s response to it could not have been more planned.  He prepared for the deposition with his lawyer.  Well-known to both men was that Clinton’s sexual past with other women at his workplace was at issue.  Clinton also knew the specific intern was a potential trial witness and had even coached her to provide a false and/or misleading affidavit to get out of being a witness.  Prior to his deposition date, he had both a best buddy and a political ally, Vernon Jordan and then-UN Ambassador Bill Richardson, seek New York employment for her in jobs for which she was not qualified.

Clinton was not a minor character, a fact mitigating against indictment.  Rather, he was the kingpin and only participant of the crime, providing to his unwitting aides the false information for them to utter under oath to the grand jurors.  He was the maestro, providing his secretary the false notes of his conduct with the intern: “We were never alone, were we?”

The subject’s willingness to cooperate:  There was no cooperation.  In fact, one of the charges being considered is obstruction of the underlying crime, the false statements.  Clinton remains today compelled to travel beyond the pale in his attempt to rewrite history.  Rather than express contrition, a trait considered significant in every criminal charging or sentencing decision, he exudes defiance about his conduct.  “On the impeachment, let me tell you I am proud of what we did there because I think we saved the Constitution….” “I made a personal mistake, and they spent $50 million trying to ferret it out…because all the other charges were totally false….”  Of course, the sexual conduct was “totally false” until the semen stained dress appeared.  No such residue is available for Whitewater documents.

The subject’s personal circumstances:  The guideline text specifically states that “the fact that the accused occupied a position of trust or responsibility which he violated in committing the offense” could weigh in favor of prosecution.  Is there any American in a higher position of trust or responsibility?  He was not only a lawyer, but also the chief law enforcement officer of the U.S when he committed the crimes.  It signifies little and can hardly be used as a factor of consequence in his favor that the President of the United States has no previous convictions.  The guidelines also specify that even if a jury pool in a community is likely to acquit because of an unpopular factor in a case or the popularity of a defendant that is not a reason to decline prosecution.

Whether there exists an adequate non-criminal alternative to prosecution:  This factor could have mitigated in Clinton’s favor.  After all, there is pending a disbarment action in Arkansas. But Clinton, unlike Nixon, has fought it, requesting delays and reprising his old dependable defense of what “is is” by charactering his deposition responses as “misleading, evading, nonresponsive or frustrating” but “nevertheless not legally ‘false.’”  Ray should not hold his breath or his decision waiting for Arkansas to act.

Nor is impeachment the alternative process.  Impeachment and conviction would have been, but there was no conviction.  Do you recall the recurrent Democratic argument against conviction?  To quote Sen. Herbert Kohl (D.,Wis.) “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.”  Likewise Sens. Joseph Lieberman  (D.,Conn.), Barbara Boxer (D., Calif.), Richard Bryan (D., Nev.), Frank Lautenberg (D., N.J.), Kent Conrad (D., N.D.), and Rep.  Zoe Lofgren (D.,Calif.).

No one said then, as they do now that the impeachment crisis has passed, that going through impeachment was “punishment enough.”  In fact, Sen. John Breaux, (Dem., La.), after making the point that impeachment was only for official wrongs, argued that for personal conduct “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 the Independent Counsel, which will still be there after all this is finished.”  We could not have said it better.






©2005 diGenova & Toensing, LLP
All rights reserved