In a time of deceit, telling the truth is a revolutionary act.
Before beginning an intermittent series on the Clinton legacy, it’s necessary to try to disturb the general relief among most of the citizenry, including George W. Bush, about independent counsel Robert Ray’s agreement to end any criminal liability for William Jefferson Clinton. This discounting of justice is far more pernicious than the late-night pardons of Marc Rich and others.
Titled “An Agreed Order of Discipline,” the deal was calculatedly made with Clinton and his lawyer by Robert Ray just before Clinton left office. On succeeding the much bastinadoed Kenneth Starr, Ray pledged that he would affirm the principle that “no person is above the law, not even the President of the United States.”
On January 19, Ray told the nation what he had secured from Clinton to prevent his indictment. Clinton admitted he “knowingly gave evasive and misleading testimony” in his deposition in the Paula Jones case. Clinton also admitted his testimony was “prejudicial to the administration of justice.” As punishment, Clinton’s law license was suspended for five years, and he paid a $25,000 fine to the Arkansas Bar Association. Furthermore, he agreed not to try to get reimbursement for his legal fees connected with the independent counsel’s investigation.
Immediately, Robert Ray had to deal with the meticulous manipulation of language that Clinton’s defenders—in the White House, in Congress, and in the professioriat—had engaged in during the impeachment process.
On the day the deal was revealed, the president’s lawyer, David Kendall—who had negotiated with Robert Ray for weeks—was asked by a reporter whether Clinton now admitted he had intentionally lied.
“He did not lie,” Kendall said. “We have not admitted he lied. And he did not do so today.”
Upholding the slippery tradition of Clinton press secretaries, Clinton’s last presidential spokesman, Jake Siewart, solemnly told a reporter that Clinton was not saying that he knowingly gave false testimony.
But on NBC’s Meet the Press (January 21), Robert Ray was ready for the spinners. “That’s why it’s in writing,” he said of the deal. Clinton had indeed admitted that his answers during the Paula Jones deposition, made under oath, were false.
Ray, however, allowed Clinton to agree that he had lied only in his Paula Jones testimony. But Clinton had lied again, under oath, before a federal grand jury—as the American public watched on television. By clearing Clinton of this more serious act of perjury, Ray failed his own responsibility to make sure that Clinton—as president and chief administrator of the law—was not above the law.
Predictably, on the same edition of Meet the Press, James Carville, Clinton’s longtime whirling minister of propaganda, said triumphantly about the deal:
“Never, ever was there any allegation about the president’s testimony before the grand jury; never, ever anything about obstruction of justice.” But Ray, as the January 20 New York Times reported, “had been investigating whether to charge Mr. Clinton after he leaves office with crimes like perjury and obstruction of justice.”
Clinton did commit perjury and obstruction of justice, and Robert Ray has let him off the hook on his testimony before the grand jury.
Richard Posner, chief judge of the federal Seventh Circuit Court of Appeals, also lectures at the University of Chicago law school and is a prodigious writer of scholarly books on the law. In one of those books—An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (Harvard University Press), Posner states unequivocally:
“It is clear that Clinton perjured himself in the Paula Jones deposition, even though, as Clinton’s defenders emphasized, the crime of perjury is narrowly defined in federal law.”
Posner continues: “A number of the president’s lies before the [federal] grand jury were incontestably material to the grand jury’s investigation into whether he had perjured himself in the Paula Jones case, and whether he and others had committed other obstructions of justice in that case . . . The charge of perjury before the grand jury [was] even stronger than the charge of perjury at the deposition in the Paula Jones case.” (Emphasis added.)
Posner makes a point of noting that perjury is included in the definition of obstruction of justice—along with tampering with witnesses, which, Posner writes, Clinton also did. (Remember the then president’s craftily planned conversation with his secretary, Betty Currie?)
“The maximum punishment,” Posner writes, “for one count of perjury or subornation of perjury is five years in prison, and for one count of witness tampering, 10 years.”
In Clinton’s case, said Posner, if justice had been done—and considering the skills of his defense team—the likely sentence would have been 30 to 37 months.
But Robert Ray refused to indict Clinton because—as Ray told Tim Russert on Meet the Press—he acted “in the best interest of the country, so that the new president would be afforded an opportunity with some space . . . for a fresh start.” Astonishingly, Ray added, “Sometimes we may rely too much on law and constitution and statutes.” History will judge Robert Ray’s commitment to the Constitution, along with Clinton’s.
So for the convenience of George W. Bush, who doesn’t have to worry about pardoning Clinton, and to fulfill the desire of many in this country to let all of this ignominy come to closure, Ray has carved an exception into that mantra, “the rule of law.” So Clinton will escape. An ordinary citizen who obstructed justice—even the CEO of a major company who committed serial perjury—would have to face a trial.
Jennifer Qureshi, a 26-year-old teacher, delivered the judgment of history when she told the January 20 New York Post: “It’s not a good message for our country. It tells people that if you do something wrong, there’s a way to get away with it.”
This article from the Village Voice Archive was posted on February 13, 2001