- The Washington Times - Tuesday, March 12, 2002

Independent Counsel Robert W. Ray's "Final Report Regarding Monica Lewinsky and Others" (March 6, 2002) featuring former President William Jefferson Clinton, highlights a prosecutorial abuse that President George Bush should end: namely, officially pronouncing unindicted targets of investigations guilty of crimes that have not been proven beyond a reasonable doubt in judicial proceedings.

The Final Report gratuitously declares that the evidence Mr. Ray gathered proved Mr. Clinton guilty of perjury and obstruction of justice.

It elaborates: "More specifically, the Independent Counsel concluded that President Clinton engaged in conduct that impeded the due administration of justice by:

"• Testifying falsely under oath in Jones vs. Clinton that (1) Monica Lewinsky's sworn affidavit denying a sexual relationship with him was 'absolutely true'; (2) he could not recall ever being alone with Monica Lewinsky; and (3) he had not had a sexual affair or engaged in sexual relations with Monica Lewinsky.

"• And making statements to Betty Currie at a White House meeting, following his deposition in Jones vs. Clinton."

The Final Report further declares "that sufficient evidence existed to prosecute [Clinton for federal offenses] and that such evidence would 'probably be sufficient to obtain and sustain a conviction … by an unbiased trier of fact.' "

In Footnote 140, Independent Counsel Ray warns against interpreting his statements as convicting the former president of crimes that were not prosecuted. Mr. Ray avows that his opinion of Mr. Clinton's criminal culpability "does not establish that a crime was in fact committed, which can only be done under our system of justice by a trier of fact after a constitutionally required trial, or by guilty plea. The Independent counsel's conclusions regarding the sufficiency of evidence are stated here only insofar as is necessary under the Principles [of Federal Prosecution] to explain his decision-making."

But this Talmudic hairsplitting smacks of Queen Gertrude in "Hamlet":

"The lady doth protest too much, methinks." An ordinary non-obtuse reader with a non-Pickwickian grasp of the English language will equate a declaration that incriminating evidence against Mr. Clinton would "probably be sufficient to obtain … a conviction … by an unbiased trier of fact" with a finding of guilt. Footnote 140, even if perused, will be dismissed as legal blather.

The Final Report's character assassination of Mr. Clinton could be excused if required by the now-expired Independent Counsel statute. But no such mandate obtained under the Independent Counsel Reauthorization Act of 1994. Mr. Ray insisted, however, that the public interest dictated a publicized evaluation of the evidence of Mr. Clinton's alleged perjury and obstruction of justice: "[A]n independent counsel should explain a declination decision where it is in the public's interest that he do so in order for the public to understand the conduct of the person investigated, and the independent counsel's basis for declining prosecution of the person for that conduct."

But Mr. Ray's public interest objective could have been achieved by itemizing the evidence against Mr. Clinton and enumerating the reasons militating against a prosecution, simplicter. Public understanding of Mr. Ray's declination profited not a peppercorn by the Final Report's assertion that unbiased jurors would probably have convicted Mr. Clinton of felonies.

The Watergate Special Prosecution Force Final Report (October 1975) speaks volumes on that score. It refused to name names of unindicted investigatory targets; yet no one claimed that WSPF's nonprosecution decisions left the public suspcious of its integrity or professionalism. The WSPF cogently explained its fastidiousness against character assassination: "It is a basic axiom of our system of justice that every man is innocent unless proven guilty after judicial proceedings designed to protect his rights and to ensure a fair adjudication of the charges against him. Where no such charges are brought, it would be irresponsible and unethical for a prosecutor to issue a report suggesting criminal conduct on the part of an individual who has no effective means of challenging the allegations against him or of requiring the prosecutor to establish such charges beyond a reasonable doubt."

As the WSPF Report acknowledged, "This consideration is particularly important for a special prosecutor whose independence considerably reduces his accountability and who must be unusually sensitive to possible abuses of his power."

Mr. Ray similarly pontificates in Footnote 140 that prosecutors should desist from tarnishing the reputations of the investigated but unindicted.

But he then pronounces that unbiased jurors would have found the unindicted former president guilty beyond a reasonable doubt, reminiscent of Lord Byron's Julia who, whispering she'd never consent, consented.

To play judge, jury, and prosecutor, like the old Fury in "Alice in Wonderland," is tempting. Mr. Ray's Final Report thus plowed no new unsavory ground. For instance, Independent Counsel James McKay's July 5, 1988, report declared as to former Attorney General Edwin Meese, who was investigated but never charged with crime, as follows: "After a full investigation, the independent counsel has determined that a trier of fact would probably conclude beyond a reasonable doubt that the approvals [regarding the AT&T antitrust consent decree] constituted personal and substantial participation by Mr. Meese in two particular matters in which, to his knowledge, he had a financial interest, in violation of 18 U.S.C. section 208.

"The independent counsel has determined from the available evidence that a trier of fact would probably conclude beyond a reasonable doubt that Mr. Meese violated [the criminal tax code] by willfully filing a false tax return , and … by willfully failing to pay his income tax when due."

The Supreme Court's ruling in Paul vs. Davis (1976) and complementary decisions generally shield prosecutors from suit for character assassination. All the more important for alternate deterrents. President George Bush should direct Attorney General John Ashcroft to prohibit any United States prosecutor from publicly opining on the criminal culpability of the unindicted. Further, all federal and state professional codes of responsibility should require discipline of any public prosecutors guilty of such defamatory pronouncements.

Do these recommendations even need debating?


Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.


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