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Friday, Mar. 02, 2001

Has anyone paused to think about the implications of investigating a former president? Hauling aides before Congress for a political show is one thing, but hauling them before a grand jury is another story.

It strikes me that we are witnessing the creation of a very dangerous precedent. Not only do we seek to destroy presidents while they are in office, but we do so after they leave office as well. The time will come — if it has not already — that only a fool or idiot will seek the highest office in the land.

If the facts reported in the newspapers and revealed in the Congressional hearings are accurate, a lot of officeholders may be in trouble if Clinton's activity is found illegal. The distinction between illegal bribery and legal campaign contribution, as some would have it, is as fine as the hair on a frog's back. Accordingly, there are 435 members of the United States House of Representatives and 100 members of the United States Senate whose conduct, where campaign contributions are concerned, is probably legally indistinguishable from that of former president Clinton.

The Southern District's Investigation

Notwithstanding President Bush's disposition to move on and leave the Clinton administration's issues behind, his United States Attorney in New York has convened a grand jury to investigate the pardons of Marc Rich and others. According to press reports, some 30 of the pardons granted by Clinton during his term in office related to cases arising in the Southern District of New York. Obviously, these prosecutors aren't big on mercy, and they are angry. This investigation looks like pure revenge.

As Attorney General Ashcroft and President Bush have apparently already discovered, the United States Attorney's Office for the Southern District of New York often proceeds as if it were not part of the Department of Justice, marching to its own drummer. For this reason, the investigation of Clinton may well be proceeding without the blessing of Washington. I certainly hope that is the case.

Perhaps the new Attorney General has not yet figured out how to deal with these independent minded prosecutors, who would probably like to do to former President Clinton exactly what they did to Marc Rich: run him out of the country. It appears that the New York prosecutors could care less about the impact their investigation may have on the pardon power, or about the precedent they are establishing. In fact, they probably would be delighted if their investigation serves as a warning to all future presidents: Don't pardon the Southern District's criminals.

The only potential upside of the investigation is that if there is, in fact, no quid pro quo for the pardons, it may clear Bill Clinton, and his wife, Senator Hillary Clinton. The Southern District is staffed by some of the best and brightest of federal prosecutors; they can be counted on to do a thorough and vigorous investigation, which will either find evidence of wrongdoing or exonerate the Clintons.

It is a small step from investigating a pardon grant to investigating other presidential actions. Apparently there is no concern, caution, or restraint about investigating a former president because we have become so accustomed to criminal investigations of presidents. (Though the public does not always remember this, not only Nixon and Clinton, but Reagan, Bush, and even Carter were all investigated).

Once, Presidents Got The Benefit Of Our Doubt

There was a time, during my lifetime, when most everyone gave a president the benefit of the doubt. When, as an undergraduate, I first started studying the presidency, I had the opportunity to attend an Eisenhower press conference in the Old Executive Office Building beside the White House (now the Eisenhower Building). A few years later, as a law student, I attended a Kennedy press conference at the State Department.

I remember that, when mingling with the reporters before and after these sessions, I was struck by the respect they had for these presidents, and the institution of the presidency. While every bit as tough and cynical as today's reporters, if not more so, journalists once thought that when a president was being less than candid it was because he believed it was best for the good of the nation — not because of ulterior motives.

Thus, when Eisenhower told bald-faced lies about American intelligence gathering activities, he was given the benefit of the doubt. So too with Kennedy, when he bungled the Bay of Pigs invasion of Cuba. Even during the early years of the Johnson Administration, the news media largely accepted the president's explanations of troop buildup in Vietnam, and never questioned phony White House-sponsored actions, like the Gulf of Tonkin resolution, meant to justify a war that could not be justified.

Since Vietnam And Watergate, We Doubt All Presidents

It was, of course, the protracted war in Vietnam, and then Watergate, that changed first the news media — which rightly believed it had been lied to — and then the public. Every president since Richard Nixon has been perceived as guilty as charged, no matter what the charge may be. This changed attitude has been politically exploited in an effort not merely to defeat presidential opponents, but also to destroy them —by encouraging, if not demanding, partisan criminal investigations whenever possible.

First, there was President Ford. There was not a newsman in Washington, including the President's own press secretary (who resigned), who believed that Ford had not pardoned Richard Nixon for some nefarious reason. He was tarred and feathered, and accused of lying when he explained his actions to the Congress. Democrats called for a criminal investigation. He lost his re-election bid because he pardoned Nixon. Yet time has shown it was the right decision, and there is not a scintilla of evidence there was a deal, illicit or otherwise, that motivated the pardon.

Then there was Jimmy Carter, a man only a sick cynic would not agree has shown himself to be among the most honest, honorable men to ever serve as our chief executive. Yet as president, Carter fought Republican accusations that led to scandal after scandal, and investigation after investigation: Lancegate (involving Budget Director Burt Lance), Pillgate (claiming a White House doctor was passing out Quaaludes), Billygate (searching for ties between the president and his brother's association with the Libyan government) — among others. Again, it was assumed that all this smoke meant fire: The president must be guilty of something.

No one needs to be reminded of the last eight years, during which President Clinton has been continuously investigated for wrongdoing, and accused of everything from murder and rape to drug running. Again, it is simply assumed by many that he is guilty as charged.

Because no president enjoys a presumption of innocence, the public tolerates (and the news media encourages) this unfortunate pattern of destructive political behavior, in which opponents demand criminal investigations rather than simply engaging in criticism, debate, and commentary with respect to a President's actions. The court of public opinion repeatedly has given way to other, more formal forums. How long will it take for a Democrat to demand an criminal inquiry of the new administration? It is only a matter of time, and no one will be surprised when it happens.

What is overlooked is the dire impact of these criminal investigations on the presidency as an institution; they are seriously weakening it. Similarly ignored is the devastating human impact on both presidents and those who serve them. Talk with anyone, from a former President to the secretaries in the Correspondence Unit, and they will tell you how debilitating these investigations are for everybody within the White House. We treat our presidents now like vicious criminals, not public servants. We ignore the reality that the politics of personal destruction hurt everyone, breeding cynicism and distrust amongst all Americans, while destroying the institution of the Presidency.

Now We're Going After Former Presidents

Most federal crimes are governed by a three to five-year statute of limitations. Thus, Jimmy Carter's Justice Department could have instituted a criminal investigations of former president Jerry Ford, alleging that he obstructed justice in issuing a pardon to Nixon. Similarly, Bill Clinton's Justice Department could have criminally investigated whether George H. W. Bush obstructed justice in granting a pardon to Caspar Weinberger. These investigation did not happen, and rightly so. Nor should an investigation of former President Clinton for his official acts — including pardons — occur.

The federal criminal code is so broad that it would not have been very difficult for any president (or local U.S. Attorney's Office) to find a reason to launch a criminal investigation of the president's predecessor. In the past, this was considered out of bounds. But given the precedent being set by the Southern District of New York now, that is no longer the case.

We have made another big leap without looking. There is a Yin and Yang to these undertakings, and the pendulum swings. Once the first investigation occurs, it is not difficult to start another, and soon they will be commonplace. Today, it is former president Bill Clinton; tomorrow, it will be another former president -- maybe George W. Bush?

Clearly, we have found another way to inflict damage upon those who hold the highest office in the land. The expanding criminalization of presidential politics is foolish, shortsighted, and ultimately hurtful to everyone. Isn't it time for more constructive, rather than destructive, politics? When is enough, enough?

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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