- The Washington Times - Tuesday, August 22, 2000

Independent counsel Robert W. Ray should immediately end the unstatesmanlike and seemingly interminable criminal investigation of President Clinton. An indictment or prosecution for suspected Monicagate-related crimes would smack more of partisan vendetta than impartial enforcement. Prolonging the president's self-inflicted travails does more to discredit than to honor the law.

Mr. Clinton should not be punish any further, such action is not necessary to deter or express community outrage. But, according to a confessed leak by Democratic federal appellate Judge Richard D. Cudahay, Mr. Ray has impaneled a new grand jury to consider the post-presidency indictment of Mr. Clinton for lying under oath and otherwise seeking to obstruct justice in the Monica S. Lewinsky affair. To what end?

His ignominious mendacity under oath occasioned his unprecedented two-count impeachment by the House of Representatives. In the Senate trial, 50 senators voted to convict and to remove the president from office. Although short of the required two-thirds majority, even Mr. Clinton's Senate impeachment defenders, including Democrat vice-presidential nominee Joseph I. Lieberman, lacerated his character and deplored his immorality. The president's acquittal turned on not whether perjury and obstruction of justice had been proven, but on whether the repugnant misconduct constituted "high crimes and misdemeanors" justifying disturbing the results of a presidential election. Democrat presidential nominee Al Gore proselytized in favor of Mr. Clinton's canonization hours after his impeachment by the House, but history seems destined more to celebrate his accusers generally and the House impeachment managers in particular. In sum, Mr. Clinton's impeachment ordeal and obloquy, simpliciter, would deter any sapient president from emulation.

That deterrent, moreover, has been fortified by Mr. Clinton's civil contempt conviction for lying under oath and obstruction beyond a reasonable doubt and $90,000 fine by U.S. District Judge Susan Webber Wright; by the initiation of disbarment proceedings in Arkansas; and by the $850,000 settlement in the Paula Jones sexual harassment suit. Furthermore, the inevitable publication of the voluminous incriminating report Mr. Ray must file with the three-judge independent counsel panel upon closing his investigation will deepen Mr. Clinton's disgrace.

Proponents of Mr. Ray's Furies-like investigation unpersuasively urge that perjury and obstruction of justice may jump among ordinary citizens if Mr. Clinton eludes criminal prosecution. A commanding majority of non-Clinton haters recognize that the sanctions visited on Mr. Clinton for his wrongdoing approach criminal punishment, and neither support nor encourage testimonial lying on the theory the president sets the nation's moral standard.

Justice requires the appearance of justice. On that score, Mr. Ray cannot shut his eyes to history or public perceptions. Republican President Gerald R. Ford pardoned former Republican President Richard M. Nixon for crimes more constitutionally egregious than those charged against President Clinton and before any indictment had been sought by special prosecutor Leon Jaworski. Mr. Ray's exercise of prosecutorial discretion to close down the Clinton investigation forthwith would replicate the Ford pardon in favor of a Democrat president. But to continue onward would inescapably create the impression of prosecutorial persecution and partisanship manipulation of law enforcement for political objectives.

Prosecutorial discretion, moreover, is infused with public interest considerations. The vast majority of protestors during the Republican and Democrat national conventions in Philadelphia and Los Angeles, respectively, guilty of simple trespass or clogging thoroughfares escaped misdemeanor charges in deference to the First Amendment's protection of political protest and its centrality to popular government. President Thomas Jefferson ordered the cessation of all pending Sedition Act prosecutions from a conviction that the then expired law punished the constitutional right to criticize government. Mr. Ray, moreover, is operating under a defunct independent counsel law that the nation concluded did more to destroy than to strengthen public confidence in evenhanded law enforcement. He is a relic of the past, and should not add to its notoriety.

But what about retribution for President Clinton's sacrilege of the Oval Office? That objective may be pertinent to punishing the most repulsive crimes, like malicious or serial murders or treason. Generally speaking, however, vengeance is an illegitimate prosecutorial motivation, especially when high-profile political leaders and the public interest in domestic tranquility trumps Rhadamanthine justice.

As Alexander Hamilton analogously justified the pardon power in Federalist 75: "[I]n seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall."

Finally, a post-presidential trial of Mr. Clinton would make the O.J. Simpson farce seem like a stately quadrille. A search for impartial jurors would be chimerical. Anyone without an unshakable conviction regarding the president's guilt or innocence would be tainted by cerebral inertness. And the saturation publicity the trial would unleash would tempt participants to sensationalize or economize on the truth by visions of post-trial royalties and lucrative interviews dancing in their heads.

To paraphrase Oliver Cromwell's chastisement of the British Rump Parliament, Mr. Ray has sat too long for any good he has been doing lately. Depart, I say; and let us have done with you. In the name of God, go.



Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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