- The Washington Times - Sunday, July 28, 2002

Former independent counsel Robert Ray has acknowledged asking President Clinton's own Justice Department for guidance at a critical juncture of his investigation in the hope of nudging Mr. Clinton into a plea bargain deal while still president.
Mr. Ray, interviewed this week by The Washington Times, conceded the previously undisclosed strategy might raise questions about his own independence. But he defended it as a proper and necessary way to force an admission of guilt from Mr. Clinton while he still occupied the Oval Office.
"A maximum amount of pressure was applied to make sure that it happened before he left," Mr. Ray said. "This was part of that." He broke his silence about why an independent counsel would take the unprecedented step of posing two crucial strategic questions to Attorney General Janet Reno's Office of Legal Counsel (OLC).
Mr. Ray's questions led to formal opinions prepared by Assistant Attorney General Randolph D. Moss, who ruled:
On Aug. 8, 2000, that it would not be double jeopardy for a grand jury to indict an ex-president acquitted by the Senate after impeachment, a circumstance that applied to Mr. Clinton.
On Oct. 16, 2000, three weeks before the presidential election, that the law creating the office of independent counsel did not nullify the constitutional barriers to indicting a president still in office and that a sitting president, therefore, could not be indicted.
Mr. Moss, now in private practice in Washington, said such opinions from OLC, the primary legal adviser for presidents and attorneys general, "are generally treated as binding" unless a court contradicts them.
Mr. Ray said his endgame tactic of obtaining formal rulings by the Clinton administration was based on his belief that Justice Department officials would notify the president of such an extraordinary request especially exploration of prospects for his indictment after return to private life.
"[Deputy Attorney General] Eric Holder picked up the phone and informed the White House," Mr. Ray told The Washington Times, an assertion that Mr. Holder contradicted in a separate interview. Both men agreed that passing on such information would not violate any rule or law.
"Absolutely not. That's what they're supposed to do," Mr. Ray said. "I counted on it." Now practicing in New Jersey, he said he had anticipated the request would prod Mr. Clinton to enter a plea-bargain deal before leaving office, which ultimately did occur on the last full day of his presidency.
Key to the deal was Mr. Clinton's admission that he "knowingly violated" a federal judge's order to testify truthfully about his relations with former intern Monica Lewinsky and failed in his attempt "to walk a fine line between acting lawfully and testifying falsely." He accepted a five-year suspension of his law license and paid a $25,000 fine imposed with the suspension by the Arkansas Supreme Court Committee on Professional Responsibility.
"I've been expecting that question since January 19, 2001. I'm amazed, still amazed, that nobody has picked up on it until now," said Mr. Ray, whose final report cited the opinions in footnote 22 without mentioning their intent.
He would not confirm if he knew of opposite conclusions reached by constitutional law professor Ronald Rotunda, whom independent counsel Kenneth W. Starr hired to advise on those points.
Mr. Rotunda would not discuss advice to Mr. Starr or Mr. Ray, but he has made clear in other forums that he believes a president can be indicted, a controversy debated at length during the 1998 impeachment-related hearing by a Senate Judiciary subcommittee.
Mr. Rotunda said he never knew that Mr. Ray asked for OLC advice on the case.
"I think one doesn't become independent of someone by asking them their legal view," Mr. Rotunda said in an interview.
The law setting up the separate investigative office free of influence by a president or his appointees says "an independent counsel shall, except to the extent that to do so would be inconsistent with the purpose of this chapter, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws." Other former Justice Department lawyers expressed surprise at Mr. Ray's tactic and said "established policies" would not include performing legal research for a specific case.
Joseph diGenova, the former independent counsel who probed the first Bush administration's inspection of Mr. Clinton's passport records, said he never requested an OLC opinion but did seek informal guidance on wiretap law from career lawyers at the Justice Department.
"The issue would be, once you heard what the OLC had to say, if you agreed with it and what you did with it. I generally wouldn't be bound by it if I thought their opinion was wrong for policy reasons or other reasons," Mr. diGenova said.
Mr. Moss said Mr. Ray's official actions were "consistent with the opinions." Mr. Moss defended his OLC research, which conflicts with other constitutional scholars who believe the law creating the office of independent counsel and the 1988 Supreme Court opinion in Morrison v. Olson negated obstacles to indictment cited in a Watergate-related Supreme Court brief filed in 1973 by Solicitor General Robert Bork.
"We confronted some significant issues but reached what I believe was the correct results," Mr. Moss told The Times.
When contacted for this article, Mr. Bork said he still believes a sitting president is immune to indictment solely on his position in the structure of government, without regard to the independent counsel law.
"As to the wisdom of asking OLC, I don't think it's particularly helpful because you know what answer he's going to get from that president's Office of Legal Counsel," said Mr. Bork, now a scholar at American Enterprise Institute.
"Actually, indictment of a sitting president was an academic question," said Mr. Ray, who took over from Mr. Starr in October 1999. "Even if I disagreed with that opinion, and put aside for the moment whether I do or not, there would not have been a decision by the Supreme Court in time to resolve the matter before Mr. Clinton left office.
"I wanted the Department of Justice to tell me that was their opinion," Mr. Ray said. "I had to fix their position so it [couldnt be changed].had nowhere to go." By then, he said, the only vital issue was whether his powers or options were limited after Mr. Clinton left office.
"I wasn't unaware of the fact that if I communicated with the Department of Justice on the issue it would travel back in the other direction, and it did," Mr. Ray said.
Asked if that ploy was successful, Mr. Ray said: "The answer is yes. I learned that only very recently." That sparked Mr. Holder's anger, although the former No. 2 aide to Attorney General Janet Reno conceded that Mr. Moss's research, in fact, was passed on to the White House under what he thought were different circumstances.
"I'm telling you it didn't happen. That just wouldn't happen, even if it wasn't wrong," Mr. Holder said, insisting he was unaware Mr. Moss did any research for Mr. Ray. "We asked Randy to do it. He did it. We shared it with the president."

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