1/11/01 1:00 p.m.
To Indict or Not to Indict?
The Wall Street Journal’s John Fund and National Review’s Rich Lowry square-off on Bill Clinton’s future . . .

By Rich Lowry and John Fund

Indict Him
By John Fund, member of the Wall Street Journal editorial board

"There is a principle to be vindicated. And that principle is that no person is above the law, even the President of the United States. That is what we have been charged with doing." — Independent Counsel Robert Ray

r. Ray is a careful prosecutor who has already demonstrated an ability to make prudent judgment calls. Last September, his office "determined that the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President Clinton or Mrs. Clinton knowingly participated in any criminal conduct" in the Whitewater probe. A month later, just before the New York Senate election, he publicly declined to take any legal action against Mrs. Clinton for her role in the White House Travel Office firings despite abundant evidence of a cover-up of her actions.

All well and good, and Mr. Ray's decisions were hailed by the establishment media. But if he were to indict President Clinton for perjury and obstruction of justice upon Clinton’s leaving office, there would be howls of outrage. Mr. Ray, who was a registered Democrat until he became a political independent upon joining the independent counsel's office in 1998, would be pilloried as a right-wing zealot out to hound Mr. Clinton over what the Louisville Courier-Journal called lying "about sex in an irrelevant deposition in a politically motivated lawsuit that was subsequently dismissed."

Harry Reid, the third-ranking member of the Senate Democratic leadership, has already said that any Ray indictment would be "the brink of lunacy." Of course, this is the same Senator Reid who, according to the AP, cosponsored a Democratic censure resolution "that would have provided for the president to remain subject to criminal actions in a court of law."

It's now clear that the Democratic censure resolution was sheer hypocrisy, intended to avoid Senate responsibility in letting the president escape any sanction for his perjuries. To some extent, the truncated Senate impeachment trial was also an effort by Senate Republicans to avoid their constitutional duty of a full exposition of the president's actions.

We've had a lot of buck-passing when it comes to the eight-year national nightmare called the Clinton administration. Independent Counsel Ray knows the buck stops with him.

Rich Lowry and I agree that the president has treated the Rule of Law like a used tissue. The House impeached him for lying under oath, despite fair warning not to. Federal Judge Susan Webber Wright fined the president $90,000 for giving false and misleading testimony while sitting in front of her in a deposition. The president could have contested her ruling and fine, but chose not to. That's tantamount to an admission of guilt.

And yet the rewriting of history has already begun. President Clinton vented to Esquire magazine last year that his critics have "never apologized to the country for impeachment." He added that "they have yet to come up with one example of official misconduct in office — not one."

While those are seen by some as fighting words, prudent observers know that a presidential refusal to recognize objective reality or to acknowledge his legal lapses in exchange for a pardon doesn't constitute grounds for a presidential indictment. Mr. Ray will have to make his decision based on the law, leavened with prosecutorial discretion.

Many who say President Clinton should be indicted argue that no jury would ever convict him. Perhaps, and Mr. Ray should weigh that issue. But he certainly would have the option of having a grand jury in Northern Virginia hear the evidence, as his predecessor Ken Starr frequently did. And while Washington, D.C., juries have seen examples of jury nullification, the jury pool in a federal trial is usually substantially different from that of a run-of-the-mill criminal trial. In other words, a simple trial focusing on what the real "meaning of the word 'is' is" isn't necessarily an O. J. Simpson courtroom fiasco.

Should President Bush decide the country is best served by not going through a prolonged legal controversy over President Clinton's perjury, he has the option of a pardon. President Clinton does not have the option of rejecting one. But the indictment would remain in the history books — just as impeachment does — as proof that even rogue presidents must recognize that there are consequences for their actions. Even if those consequences aren't everything we were told in high-school civics class about what Equal Justice Under Law really means.

In today's Washington Post, George Will quotes Richard A. Posner, chief judge of the 7th Circuit, on Clinton's illegalities: "they were felonious, numerous and nontechnical" and "constituted a kind of guerrilla warfare against the third branch of the federal government, the federal court system." Placating those who would subvert the country's legal institutions while holding high office will do nothing to help preserve the Rule of Law. Indeed, allowing a president to so clearly violate the law without an appropriate response would be serious and long-term blow to the Rule of Law.

Don’t Indict Him
By Rich Lowry, editor, National Review

et’s make all the necessary stipulations right up front: Clinton is a creep, a liar, a pathetic, pasty-thighed excuse for a human being. He also perjured himself and obstructed justice in the Lewinsky scandal.

All that said — he still shouldn’t be indicted.

In the run-up to impeachment, there were two arguments about the proper way to consider Clinton’s misconduct: 1) Was it purely a legal matter to be taken up by a prosecutor and possibly the courts after he left office? or 2) Did it have political implications that made it an urgent matter to be taken up by the political process immediately?

Liberals — obviously, now that they have changed their tune, opportunistically and disingenuously — argued for Proposition #1. Conservatives for #2. The conservative position would not necessarily rule out subsequent prosecution, but the logic of the stance certainly suggests a deep skepticism about it.

The premise of the conservative drive for impeachment was that representative institutions, in keeping with constitutional practice, should police our politics, punishing transgressions as appropriate. In this view, it would have been a dereliction for the House not to impeach Clinton and for the Senate not to try him.

This sentiment is closely related to the original conservative opposition to the independent counsel statute, which established an extra-constitutional office in an attempt to short-circuit the need for exactly this sort of political accountability. The traditional liberal enthusiasm for the statute — until it bit Clinton — was, in turn, related to the Left’s skepticism about self-government.

All the evidence is that the conservative view makes more sense: Through congressional hearings, resignations, and media pressure, the political process can heal itself. No, it won’t render perfect justice, but the pursuit of that only leads to a fetishistic legalism.

Take Mike Espy. He was a bad guy. He took Super Bowl tickets when he shouldn’t have. The political process meted out a swift punishment: He resigned his Cabinet post. A just, totally appropriate solution. But then an independent counsel pursued Espy for years, threw the book at him, and had his case — understandably — laughed out of court by a jury. It was a pointless exercise.

Now, I’m sure someone is going to tell me, when it comes to Clinton, that it is routine for a prosecutor to indict someone for perjury in a three-year-old case stemming from a dismissed (and mostly bogus) sexual-harassment case. But I doubt it.

The fact is that the underlying offense in the Lewinsky case — tawdry and illegal as it was — wasn’t the worst thing about Clinton’s conduct. It was that he was president when he did it. That he leveraged the powers of his office to cover it up. That he dragged the country through so much.

Clinton’s offense was, in other words, essentially political, and impeachment was exactly the correct punishment (again, as conservatives argued at the time).

But here comes the best op-ed page in the country, the Wall Street Journal, to argue that Clinton should get the full Espy treatment (see last Friday’s page). Why? Because if he doesn’t get indicted, Clinton will continue to maintain his innocence.

Well, this is odd, since it would represent a purely politically motivated indictment, when the whole conceit of Robert Ray’s office is that he is gloriously above politics. But that’s the least of the problems with the Journal’s argument:

1) If you want to make a case against Clinton’s innocence, an extensive record already exists, providing all the ammunition necessary to fight him point by point for the next three decades. It’s called the Starr Report.

2) Indicting someone says nothing, strictly speaking, about his guilt. By the Journal’s logic, if Lawrence Walsh had indicted Elliott Abrams on a raft of charges — as he threatened, to force Abrams into a plea agreement — it would have proved for all time that Abrams was practically a war criminal. Same for Caspar Weinberger, who actually was indicted on five counts. This obviously is nonsense.

3) If this exercise is all about exploding Clinton’s self-justifying defense, indicting him and then having him acquitted — an entirely conceivable result — would be pretty counter-productive.

Then, there is the little matter of seemliness. Chile and Peru try their former presidents and throw them in jail. It’s something the United States has hitherto avoided, and we shouldn’t let this loathsome jerk force us across yet another important symbolic threshold between us and the Third World.

Finally, if none of this has moved you, consider one last thing: Indicting Clinton will mean at least another six solid months of attention on the former presidential genitalia. Clinton will revel in it, getting his sick fix of ego (and id) gratification. Heck, it will almost be as good as being back in office. Enough. Please, Robert Ray, spare us.