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Ray Is Damned if He Does or if He Doesn't

August 22, 2000|JONATHAN TURLEY | Jonathan Turley is a professor at George Washington University Law School and the author of a recent study on the prosecution of American presidents

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.

It 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.

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