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Friday, Dec. 08, 2000

All the clues suggest that William Jefferson Clinton is going to be indicted by Independent Counsel Robert Ray shortly after the president leaves office. This action, if it happens, will have major political consequences for the new president. If Al Gore becomes president, the indictment will begin a nightmare that could ruin his presidency. But if George W. Bush becomes president, Clinton's indictment could make his presidency.

As for the soon-to-be former president, although he will never go to prison (with his Secret Service detail to protect him and the nation's national security), he may be seriously considering granting himself a pardon. Not merely for himself, but for his wife, his daughter, his party and his country.

Why A Clinton Indictment Is Likely

As I see it, Independent Counsel Robert Ray has only one purpose in life: to indict Bill Clinton when he leaves office at noon on January 20, 2001. That has been evident since Ray replaced Ken Starr in October 1999 as independent counsel. During an exit interview with Larry King Live, Judge Starr explained that he was leaving — in essence — because he had become "politicized," and that for the good of the continuing investigations and potential prosecutions, he needed to step aside. In short, Robert Ray, an ambitious and able career prosecutor, did not take the independent counsel job merely to write the final report required by the law and close down the operation.

While Ray initially ducked the questions about indicting Clinton, as the months have passed, his plans have become clear. Last summer, just before the Democratic National Convention in Los Angeles, it was accidentally leaked to the media that Ray had empanelled a new grand jury. In September, when reporting that he had "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" relating to the Whitewater matter, Ray acknowledged that his new grand jury was investigating President Clinton's conduct in the Lewinsky scandal. More specifically, Ray told CNN's Late Edition he would give his decision about indicting Bill Clinton "very shortly after the president leaves office in the best interest of the country, and also not to unfairly tread on the new president's administration."

Robert Ray has not been twiddling his thumbs for over a year in his job, not knowing what he plans to do with Bill Clinton. Rather, Ray is waiting for Clinton to leave office because it is doubtful whether a sitting president can be indicted.

No career prosecutor is going to ignore this evidence of the president's criminal conduct and give him a pass. Nor will he let Bill Clinton recover millions of dollars (in legal fees) from the government, which would happen under the independent counsel law if he is not indicted. The retiring president is about to leap from the proverbial frying pan into the fire.

Gore's Nightmare: A Clinton Indictment and Trial

Should Al Gore become president, the indictment and criminal trial of Bill Clinton at the outset of his presidency would be a horror show. Only the resurrection of Richard Nixon could be more disquieting to the Capital City than the return of the Lewinsky scandal. For Gore to govern without the spectacle of the former president in the dock for lying about his sexual dalliances would be difficult enough, given Washington's proclivity for gridlock compounded by the controversy over this presidential election. A Clinton trial would send phalanxes of fuming Republicans, all near paranoid in their conviction that Gore had stolen the election, into a partisan tizzy.

There are only two people Republicans loathe more than Al Gore — Bill and Hillary Clinton. Now fearful that Senator Hillary may one day reclaim the White House, Republican zealots will find the Clinton criminal trial an irresistible opportunity, seeing in it the opportunity to further savage Bill Clinton and thereby also taint his wife, as well as any Democratic defenders of the former president. This is exactly the type of nasty partisan activity that the Gore Administration would need to avoid, yet there would be nothing the administration could do to prevent or ameliorate it.

High-powered Democrats would then pressure Gore to pardon Clinton, to end the carnage. He can't do it. For Al Gore to deprive Republicans of both the Oval Office, and their revenge on Bill Clinton, would be political suicide. It would tear the already divided Capitol apart. Gore would lose all hope of working with Republicans, who would be incapable of containing their anger. Fury knows no wrath like that of a politically scorned right wing Republican — I know about that, and it's not sane. In fact, many Democrats might oppose a pardon for Clinton. Thus, a pardon could guarantee that Gore, like Jerry Ford, serves only one term.

Bush's Pardon of Clinton: A Political Masterstroke

On the other hand, if George W. Bush is in the Oval Office when Clinton is indicted, a pardon of Clinton will present a marvelous political opportunity for Bush. It would be chance to pacify partisan rancor, and offer an olive branch to the Democrats.

Inherent in the power to pardon is the authority to forgive an offense before an indictment, as President Ford did with Richard Nixon. Thus, Bush can prevent the political embarrassment and distraction of the Clinton criminal trial with an act of grace — his presidential pardon. That pardon, of course, would send Independent Counsel Ray packing, for then his work, other than a final report, would be done. While a Clinton pardon would upset a few Republican zealots who want to drive a stake into Clinton's political heart, at best they could only groan, grumble, and growl, and maybe snap at their new leader, but none will harm him.

Clinton Could Refuse a Pardon

The law is not absolutely clear that Clinton could, in fact, prevent a President Bush from pardoning him — but it does suggest that this may be the case. It is difficult to find a body of constitutional jurisprudence smaller than that on presidential pardons, which have been the subject of only a handful of rulings by the Untied States Supreme Court. It appears, however, that a presidential pardon cannot be forced on a person.

In 1915, the Supreme Court ruled in Burdick v. United States that there was a "confession of guilt implied in the acceptance of a pardon," so the recipient should have a right to refuse it. However, twelve years later, in Biddle v. Perovich, the Court held that a presidential commutation of a sentence was effective notwithstanding the refusal of the recipient, stating that "[a] pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Notwithstanding the Court's language referring to a "pardon," Biddle must be distinguished from Burdick because in commuting a sentence, unlike with a pardon, guilt has been established — so a presidential commutation does not cause an admission of guilt. Biddle addresses the reduction of a sentence (which cannot be refused), while Burdick prevents an imposition of guilt by an act of clemency. Thus, under Burdick, a Bush pardon would appear to have no effect if not accepted by Bill Clinton.

But would Clinton go to court to have a Bush pardon invalidated? His statement during the presidential campaign of his Vice President that he did not want a pardon, however, does not mean that he might not welcome the relief. Faced with an indictment, and the prospect of a criminal trial that would revive all of the sordidness of his sexual liaison with Monica Lewinsky — a trial that will require graphically detailed testimony about who touched whom sexually — the former president might reconsider his decision to "stand before any bar of justice."

A Bush pardon would give Clinton the chance to avoid giving not only his detractors, but those of his wife — the junior United States Senator from New York — a new stockpile of political ammunition that could fatally wound them both. It would also allow Clinton to save his daughter, Chelsea, from further humiliation from her father's infidelity, to prevent another media circus where the details of oral sex become daily news, and to end the ongoing accrual of legal expenses that would far exceed the joint income of his presidential pension and wife's salary.

Would Clinton really, upon reflection, sacrifice all this, only to gain the benefit of undergoing a problematic trial in the hope of proving his innocence? Such a pardon might be difficult to turn down.

Clinton's Self-Pardon: Another Possibility

President Clinton is no fool. He understands that if Al Gore becomes president, Gore, for political reasons, will not be able to pardon him. He will not want George W. Bush in a position to politically profit from a pardon, if Bush is the candidate who becomes president. And he surely knows an indictment and trial have a greater downside potential than any upside. For these reasons, I would be surprised if he has not given serious thought to a self-pardon.

To pardon himself, Clinton would need only to take out a blank sheet of White House stationery, write out his pardon (he's signed 185 of them — so far the fewest of any of the modern president but enough to know what they say), and request that a couple of trusted White House aides witness his execution and delivery of his pardon deed. Is it really so simple? Yes; the courts have said there is no required form or procedure, nor need there be compliance with Justice Department clemency regulations.

If the Independent Counsel were to take him to court over his self-pardon, he would be represented by the Department of Justice, or by a private attorney hired by the Department, if the Department believed it had a conflict of interest. (With Bush in the White House, the Department would indeed suffer from such a conflict.) So this would not cost him more in legal fees.

Good Authority for a Clinton Self-Pardon

While no president has ever pardoned himself, the law supports the president's authority to do so. Scholarly inquiry into the subject was provoked first by fear that Richard Nixon would pardon himself to escape Watergate; later by thought that George H. W. Bush would do so because of the Iran-Contra grand jury; and most recently by concern about Bill Clinton's problem of a possible post-Presidency indictment and trial. And while a few scholars have concluded that the president cannot pardon himself, many more believe that he can.

As one Member of Congress said during the Clinton impeachment proceedings, "the prevailing opinion is the President can pardon himself." Thus, should Bill Clinton pardon himself, and should Independent Counsel Ray decide to go to Court to test his presidential power to do so, not only would that court case delay the prospect of resolving any criminal action against the former president quickly, it would also present a case of first impression, with the authority overwhelmingly on the side of the former president.

The president's pardon power is set forth in the constitution. Article II, section 2 grants the president "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The text of the constitution, its history, and the placement of the pardon power within the structure of the constitution, all show that there are no limits on this power, other than the exception that prevents the president from pardoning "impeachments." Accordingly, the Supreme Court has described this presidential power as "plenary." As one recent commentator summed it up, short of a constitutional amendment, there is absolutely nothing "to prevent any president from pardoning himself."

Will Bill Clinton do so? We won't know until he is indicted, for he would have to plead it as his defense. I would assume that we will have an answer to this question by March, or by end of April at the latest — if Independent Counsel Ray proceeds as he has indicated. Although I cannot predict the answer, this much I can promise: it will be interesting.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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