The Trial of Ex-President Clinton


The latest redundant evidence that the House Judiciary Republicans lack the maturity to run an impeachment proceeding, or possibly a flea circus, came this week when they decided to turn the impeachment hearings into yet another trawl through Democrats' campaign finance practices. The Judiciary Committee seems to have trouble grasping the fact that partisan, overtly anti-Clinton hearings make the Congress look clownish, which makes President Clinton look like the only grown-up in sight, which makes the public more determined to hang on to him. With enemies like these, Clinton needs no friends.

Never mind. The big news is that this column–jumping the gun just a little–happily announces the beginning of the post-nonimpeachment era. With the impeachment process staggering toward censure or outright collapse, the country is almost out of the woods, which is a prospect worth celebrating.

But the end of impeachment is not the end of the post-nonimpeachment era (or at least shouldn't be). Bill Clinton and Kenneth Starr are not out of the woods (or at least shouldn't be). The slow but fine-grinding mill of the criminal justice system awaits them both. And that, too, is worth celebrating.

"The purpose of impeachment," Rep. John Edward Porter, R-Ill., said recently, "is not to punish an errant president but to protect the country." In the Lewinsky affair, Clinton's behavior was sordid, dishonest and probably unlawful, but it posed no threat to the country. Impeachment is an extraordinary constitutional punishment, whereas Clinton's misdeed–lying to cover up an affair–was as ordinary and nonconstitutional as they come.

As it happens, we do have a mechanism for dealing with ordinary, nonconstitutional crimes in an orderly way: ordinary criminal law.

I can think of reasons to make Clinton exempt from any criminal process after he leaves office. Trying former public officials for crimes they allegedly committed while in power does seem, as a friend of mine puts it, redolent of Mexico before Salinas. Besides, the country is already sick of the whole business. Still, I think the objections are outweighed by two great benefits. One is the benefit of example. Those who commit crimes should be called to account. The other is the benefit of restoring some sense of jurisprudential normalcy in the case, which means restoring some sense of justice.

By indicting Clinton's crony Webster Hubbell, the Whitewater Office of the Independent Counsel (OIC, in the jargon) pretty much guarantees itself another two years of operation, even if Starr himself is no longer in charge. If the OIC is still in business when Clinton leaves office, then it will have to decide whether to indict Citizen Clinton. (If the OIC is not in business, then the Justice Department makes the call.) For the OIC to face this painful choice would be a healthy thing.

Jeffrey Rosen, of The New Republic and George Washington University law school, is right to argue that the independent counsel, as currently constituted, is a kind of extraconstitutional monster–a sort of jurisprudential Andromeda Strain virus, genetically engineered to defeat all of the government's usual checks and balances. The independent counsel is appointed by the judiciary, enjoys the full investigative powers of the executive, and reports to Congress. He combines the functions of a court officer, an FBI agent, a U.S. attorney, and a congressional investigator, without the accountability of any of them.

In all of Starr's work on the Lewinsky matter, however, there is one role he has never had to play: that of an ordinary prosecutor. Ordinary prosecutors are supposed to pursue a case only if they believe they have proof beyond a reasonable doubt and think they can win a conviction. In the Lewinsky matter, an ordinary prosecutor would long ago have had to ask himself, "Can I win this thing in court, or can't I?" All Starr has had to do, by contrast, is to write a report and kick the whole matter to Congress.

With impeachment not happening, the onus shifts to Starr or his successor to put up or shut up. The choice will not be easy. If the OIC declines to prosecute, it effectively mumbles, "Never mind." What an embarrassment! On the other hand, several criminal law specialists I talked to all agreed that the case against Clinton is one that most ordinary prosecutors would cross the street to avoid. "I have prosecuted perjury cases," says one criminal defense attorney, who is also a former independent-counsel staff member and a former Justice Department official, "and this would be a difficult one."

If you are a prosecutor looking at the Clinton-Lewinsky case, here is what you see:

Burden of proof. I believe Clinton lied under oath, probably perjuriously. In a court of law, however, the OIC would need to meet the "beyond a reasonable doubt" standard, which is much more exacting than the "I believe" standard. Clinton can raise reasonable doubts concerning many of the main charges against him. Did he tell his secretary to retrieve his gifts to Lewinsky? We don't know for sure. When he rehearsed cover stories, did he do it intending to deceive an investigation, or just to cover up an embarrassing affair? Take your pick. Did he touch Lewinsky's breasts? No direct evidence, other than her say-so, which could be contradicted by his. When he swore he didn't remember giving gifts to her and asked what they were, did he mean he didn't remember what particular gifts he gave, as he claims? And how would you prove he did remember?

On these and some other key charges, says Paul F. Rothstein, a criminal law specialist at Georgetown University Law Center, the hard evidence is equivocal. "And if it is at all equivocal, you've got trouble with the `beyond a reasonable doubt' standard."

Rothstein thinks Clinton's biggest vulnerability is his claim, under oath, not to remember ever being alone with Lewinsky, which is preposterous if they ever had any kind of sex at all. But here arises another issue:

Materiality. A sworn lie is not perjury unless it is material, meaning it could influence the court's decision. The trial judge in Paula Corbin Jones' sexual-harassment lawsuit against Clinton has already found that the Lewinsky business was not central to the case. Prosecutors could still argue, with good reason, that it was legally material. But that would be up to Clinton's jury to decide. The jury could quite reasonably reject the whole Lewinsky matter as irrelevant to the Jones matter. Especially given:

The D.C. jury. Clinton would probably be tried in the District of Columbia, where a jury would probably be sympathetic to him. "There's a real question about jury appeal," says John Q. Barrett, who was a staff prosecutor for then-Independent Counsel Lawrence Walsh and is now at St. John's law school. "Can you imagine any jury voting to convict? Is there anyone left who cares enough to vote `guilty'?"

Throw everything into the stew–burden of proof, D.C. jury, possible departure of Starr, and whatnot–and I guess the chances of indicting ex-President Clinton are maybe one in four, and the chances of both indicting and convicting him are maybe one in 20. As it happens, those odds are probably in the same ballpark as the odds that an ordinary citizen would be prosecuted and convicted for lying about sex on a matter tangential to a civil suit.

Seeing Clinton walk away untouched no doubt would gall his antagonists, understandably. But regular people, even people who have done bad or dishonest things, escape prosecution and punishment all the time. That, finally, is the essence of routine justice, which is the one sort of justice that has so far been denied to everybody involved in the Clinton-Lewinsky-Starr business (including, by the way, Starr, who has had to work under conditions of political siege).

Rothstein says, "I think the thing that would demonstrate the rule of law and equality of treatment would be to at least subject [Clinton] to the filters of the criminal justice system, and look at his case to see if it meets the standards that would be applied to other people." And that, in the end, is the point. Justice cannot seem just if it does not seem routine, assuring that one person is treated pretty much like another. The Clinton-Lewinsky-Starr affair has seemed like a circus because it has been battlefield justice, pinned under a political cross fire and making up rules as it goes along.

So there should be no impeachment, and there should also be no arrangements either to assure Clinton's prosecution or to assure his nonprosecution. If Congress censures Clinton, it should make no deals implying that censuring the president rules out prosecuting the ex-president. And there should be no pardon. In 2001, Clinton should take his chances in the criminal system. And so should Starr. And nothing else needs to be done.