Tuesday, August 22, 2000
Los Angeles Times
Ray Is Damned if He Does or if He Doesn't
By JONATHAN TURLEY
Independent Counsel Robert Ray may have the strangest and most
conflicted job in America. As the independent counsel
investigating the president, Ray's job description is clear and
unambiguous: He must prosecute the president if he finds
compelling evidence of criminal conduct. However, his ultimate
employer--the public--is overwhelmingly against such a
prosecution and he would invite his own ruin if he faithfully
carried out his mandate. Yet, this is not like asking the town
sheriff to take a well-timed fishing trip to avoid witnessing
crimes. At the end of the day, Ray has to stand in the middle of
compelling evidence of criminal conduct and claim that he sees
nothing that demands a response.
For Ray, it does not take much of an imagination to see what
awaits him if he actually does what he was told to do under the
federal law. Ray needs only contemplate the fate of his
predecessor, Kenneth Starr, to understand what awaits prosecutors
who pursue popular presidents. The White House certainly gave
Ray a glimpse of the treatment to come when it attacked his
office for leaking the fact that a new grand jury was
investigating the president on the same day as the convention
speech of Vice President Al Gore. Clinton supporters immediately
pointed to Ray's office as the source and insisted that it proved
a raw partisan agenda was behind his investigation. In reality,
a liberal federal judge admitted that he, not Ray, was the source
of the story. Ray must know that any indictment of the president
would leave him forever controversial and effectively barred from
higher office. By the time the well-oiled White House attack
machine had finished its work, the public would believe that Ray
was a charter member of the Four Horsemen of the Apocalypse.
There is no question that Ray would desperately like to have this
poisoned chalice pass from his lips. Yet, in the chorus of
opposition to the new grand jury, no one has actually addressed
the greatest problem facing Ray. The problem for Ray is not how
to explain a decision to prosecute President Clinton on this
evidence. The problem is how to explain a decision not to
prosecute. Ray does not have the luxury of commentators and
citizens who simply want the case dropped out of exhaustion or
unpopularity. Ray, a career prosecutor, cannot base a decision
on its public support. To the contrary, he has sworn to proceed
even in the face of public ridicule or personal costs when the
evidence supports a charge.
Nevertheless, this may be the one time when a prosecutor
desperately longed for a weak case. Ray is not that lucky. The
evidence of crimes committed by President Clinton is both
compelling and largely uncontradicted. It is certainly stronger
than the evidence in past cases brought against average citizens.
In this case, a federal judge has already reviewed the evidence
and dismissed the president's defense as wholly unconvincing.
The judge found that the president intentionally lied under oath
and obstructed a federal case. Clinton then repeated his false
testimony before a federal grand jury after months of preparation
and deliberation.
Ray is unlikely to suggest that the president's past defenses
present serious barriers to prosecution. The president has never
been successful in convincing neutral parties that he was simply
"lawyering" the language of the testimony and not really lying
under oath. Even when the public opposed his removal, an
overwhelming majority believed that he had lied under oath.
Both a committee of the Arkansas Supreme Court and a federal
judge rejected his defenses as completely without merit. I
t may be for this reason that politicians and commentators are
simply arguing that this prosecution should be dropped because
most people oppose it. Yet, such arguments are merely demands
that a prosecutor yield to public opinion regardless of his being
convinced that a crime has been committed. Ray was given his
independent office precisely to allow him to pursue unpopular but
justified prosecutions. So Ray must choose between prosecuting
the president and being labeled a heretic or refusing to
prosecute the president and being labeled a hypocrite. Hardly an
enviable choice.
None of this means that President Clinton will be indicted, let
alone convicted, on these allegations. Yet, the outcome of this
case may say more about our principles than those of President
Clinton. It is easy to support the prosecution of individuals
who we hate or with whom we have little identification. Our most
difficult test comes when the person in the dock is not some
pusher but our president. It is at that moment that we must
either be bound by a common faith in the rule of law or cut
ourselves adrift in a legal system driven by popularity rather
than principle.
- - -
Jonathan Turley Is a Professor at George Washington University
Law School and the Author of a Recent Study on the Prosecution of
American Presidents
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