-Caveat Lector-
A Pardon For Clinton
By Benjamin Wittes
Washinton Post
Wednesday, December 13, 2000 ; Page A47
Last week's disclosure that independent counsel Robert Ray will
re-interview Monica Lewinsky removes any doubt that he is
seriously contemplating the prosecution of Bill Clinton when the
president leaves office next month. Whether he will ultimately
do it remains unclear. Ray has performed admirably so far as
independent counsel, and it's still hard to believe he would make
the grave mistake of prosecuting Clinton.
But Ray has said he means to examine the question carefully, and
he has convened a grand jury to assist him. His evident
seriousness about his inquiry makes it impossible for the public
to avoid any longer the question of whether we really want to see
Clinton stand trial. The prospect ought to be unthinkable.
Whether Al Gore or George W. Bush becomes president, the new
president should preempt any indictment by pardoning his
predecessor.
Ray's predicament deserves a certain amount of sympathy. The
whole point of the independent counsel law was to remove politics
from investigations of high-level officials. Ray is therefore
not supposed to consider political questions in evaluating
whether to bring a case. One can, of course, construct a
persuasive argument against going forward based purely on law
enforcement concerns: the slim likelihood of success before a
jury and the fact that Clinton has already been held in contempt
of court and faces bar discipline as well.
But while these arguments would sway me were I in Ray's shoes,
they do not make an overwhelming case against prosecuting
Clinton--particularly not in the face of some fairly clear crimes
and a potential defendant who keeps publicly blaming others and
attempting to rewrite history. The strongest reasons not to
prosecute Clinton rely on political, not law enforcement,
considerations: The country has had enough of this affair, and
Clinton has already been roundly humiliated.
The beauty of the pardon power is that it is political by design.
The president enjoys an unreviewable authority to bestow grace
for any reason the president sees fit. Pardoning Clinton would
serve a number of functions simultaneously. It would, first and
foremost, head off a trial that would only further divide a
nation eager to leave the combat of the past few years behind.
It would give conservatives a presidential proclamation that
Clinton's conduct had been criminal. For the left, it would
allow Clinton--a man still widely admired--to get on with his
life, and it would finally bring an end to the much hated
Starr-Ray investigation.
To be sure, issuing a pardon would probably be hard for a
President Gore, since it would be seen as a political fix and
attacked by conservatives already furious over the disputed
election. For Bush, on the other hand, it would be a political
master stroke by the man who promised to unite and said he could
govern across the partisan divide. For either president, it would
be the right thing to do.
Clinton has said he doesn't want a pardon and won't seek one.
Gore has raised the possibility that Clinton might not accept
one. But it would be wrong for a new president to conclude from
Clinton's bravado that he should not intervene. Even if a pardon
must be accepted to be valid as a matter of constitutional
law--and that proposition is dubious--no sane independent counsel
would proceed with a case in the face of a pardon. As a practical
matter, a pardon would be final, however Clinton reacted.
Perhaps the greatest lesson of the Clinton battles is that using
the criminal law as an instrument of political combat yields
outcomes both unjust and unsatisfying politically. To continue
to pretend that the Lewinsky endgame presents mainly a law
enforcement issue is to ignore that lesson. The Constitution
gives us a tool to address the Clinton problem, a majestic power
that recent presidents--Clinton included--have too often feared
to use. Here's hoping that the next president will have the guts
and good sense to wield it where it counts.
The writer is a member of the editorial page staff.
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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