National Journal, September 9, 2000
In August, millions of Americans who were riveted by the networks' exhaustive coverage of the Democratic convention looked up briefly from their television screens to register an odd and not entirely pleasant piece of news. According to the Associated Press, Robert W. Ray, Kenneth Starr's successor as Whitewater independent counsel, had impaneled a new grand jury to hear evidence against President Clinton in the Monica Lewinsky scandal. "As the independent counsel," Ray subsequently wrote in The Washington Post, "I am bound by the oath I took to consider whether criminal charges should be brought against the President once he leaves office, weary though the country may be of the subject." Just when you thought it was safe to go back in the water.
Actually, the grand jury's appointment may mean little or nothing. Ray may be dotting his i's and crossing his t's, performing due diligence before deciding not to indict. Ray knows that the country is tired of the Lewinsky business, that his key witnesses (Betty Currie, Vernon Jordan, and Lewinsky herself) would all be hostile to him, and that his chances of obtaining a conviction from a jury in the District of Columbia, a Democratic stronghold where Clinton is immensely popular, would be slender.
On the other hand, Ray may decide that Clinton broke the law and that ex-Presidents, even impeached ones, should face charges. "There is, as I have said," he wrote in The Post, "an important principle at stake: that none of us, not even the President, is above the law." Ray may decide that acquittal is not a foregone conclusion and that being popular is not part of the independent counsel's job description (a fact that Starr went to great lengths to establish). Suppose he indicts. What then?
Two extraordinary decisions would land with a crash on the desk of Clinton's successor. The first is whether a trial ought to happen, or whether instead Clinton should be pardoned. The second is an offshoot of the first, but so momentous in its own right that it deserves to be considered separately: Should Clinton, if convicted, be sent to prison?
Prison would be a real possibility. In fact, avoiding it would take some doing. Under the federal sentencing guidelines, perjury, the crime of which Clinton would most likely be convicted, is a level 12 offense. That means 10 to 16 months in the slammer. Obstruction of justice is also a level 12.
The guidelines are usually binding, but they can be set aside now and then. "The judge has authority to depart from the guidelines in unusual cases," says Ronald Weich, a former special counsel to the U.S. Sentencing Commission who is now a lawyer with the Washington firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker.
To make an exception, the judge would have to do more than just announce, "I don't want to send Bill Clinton to jail." He would have to lay out substantive reasons why, in the words of the governing statute, "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." That is do-able, but it isn't a slam dunk. Presumably the commission did not write its guidelines with already-impeached former Presidents in mind. On the other hand, the commission could have exempted high public officials from its rules but chose not to.
Moreover, a judge might have to cope with factors that, according to the guidelines, could militate for a sentence that is more, rather than less, harsh than usual in Clinton's case. For instance, perjury is bumped up three levels, to level 15 (18 to 24 months in prison), if it "resulted in substantial interference with the administration of justice," which includes causing "the unnecessary expenditure of substantial governmental or court resources." Ouch. And, of course, Clinton might draw an unsympathetic judge.
An ex-President, imprisoned? Or threatened with prison? For a nonviolent offense that neither compromised the country's security nor corrupted the government? For lying in a civil suit about a peripherally relevant adultery? The spectacle would be wrenching, the symbolism right out of some banana republic. America has impeached two Presidents, but never has it imprisoned a former President for acts he committed in office. That would be a momentous bridge to cross, and Clinton's case seems about the worst imaginable with which to cross it.
My strong hunch is that, one way or another, Clinton would ultimately be spared prison time. But that is just a hunch. "Nobody can say for sure if President Clinton is going to prison," says Weich. "When he stands before a judge for sentencing, we'll find out." The very possibility of a prison sentence would hang ominously over a Clinton trial, raising the stakes by an order of magnitude and possibly skewing the outcome (toward acquittal).
The most obvious way to preclude the prison scenario is to pardon Clinton. Should he be indicted, his successor will come under immense pressure to pardon him—and also not to pardon him. In favor of the pardon is one extremely compelling argument: "For God's sake, enough already. Move on."
A pardon, however, is not unproblematic. For one thing, the public is against it. According to two polls, one by Fox News/Opinion Dynamics and the other by NBC News-The Wall Street Journal, 53 percent of respondents oppose the pardon option, and fewer than 40 percent favor it. Interestingly, in the NBC-Journal poll, roughly the same percentage said that criminal charges should not be brought against Clinton in the first place. The seeming paradox may be only apparent. The people would rather the justice system dropped the matter, but they bridle at special treatment for Clinton should the matter be pressed. That makes sense. Clinton wasn't just anyone. He was the country's chief law enforcement officer.
In dealing with Clinton, moreover, a further problem arises. I asked Michael A. Simons, a former federal prosecutor who now teaches law at St. John's University, whether he would be offended by a pardon that short-circuited the process in Clinton's case. "It depends on how it would be interpreted by the public," he replied. "If it were interpreted as Richard Nixon's pardon was—he's guilty, everybody knows he's guilty, but let's move on as a country—that would not offend me. If the message people took from the pardon was that lying under oath was no big deal, then that would offend me. Or if the message is that lying under oath when you're the President is OK, that would also offend me."
President Nixon never confessed, but he did resign. President Clinton continues to insist that he didn't lie under oath. If pardoned, he probably would not say, for instance, "I lied under oath, I'm sorry, and I'm lucky to be spared the indignity of a trial." More likely, he and his supporters would spin the pardon as yet another sign that the country was on his side and that his prosecutors were ruthless and unfair.
If the only two choices are a pardon or a trial under the cloud of a prison sentence, I'll take the pardon. Reluctantly. Clinton, you can be sure, does not often pardon ordinary Americans who run afoul of the harsh laws he signs. (According to Weich, by the way, Clinton's Justice Department regularly argues for tougher sentencing guidelines and less judicial flexibility in imposing them.)
But one other choice remains. Don't pardon Clinton. Commute his sentence. Maybe a symbolic fine, maybe even some community service, but no prison.
At a minimum, the next President could pledge right off the bat to commute Clinton's sentence, and very probably he could do the actual commuting in advance of any trial. "Pardons can be given in advance," says Paul F. Rothstein, a law professor at Georgetown University. "Commutation of a sentence is a subset of pardoning power, and therefore also can be given in advance."
Either way, the advantages of letting the trial proceed while taking the prison sentence off the table are considerable. Commutation is admittedly special treatment, but it is much less special than a pardon, both because it would subject Clinton to a trial and because letting him off lightly is something that a judge could and quite possibly would do in the normal course of things. If Clinton were convicted, there would be no nightmare scenario. If he were acquitted, he would finally have his vindication. Either way, the wheels of justice would have been allowed to turn. Clinton propounded a Third Way; perhaps, if he is indicted, he deserves one.