IN 1978, Congress first passed the statute we know as the independent counsel law. Congress reauthorized it in 1983, 1988, and 1994 but declined to do so in 1999, having decided enough was enough. The wisdom of that decision was confirmed afresh last week when Robert Ray, who succeeded Kenneth Starr as the Whitewater independent counsel, issued his “final report” on the investigation that led to the impeachment of Bill Clinton. Bearing the leaden propositional title, “Regarding Monica Lewinsky & Others,” the report is more about Clinton than anyone else. On this vexed matter, as you may recall, Clinton in effect entered into a plea bargain with Ray on his last day in office. The president conceded evasive and misleading testimony under oath and conduct hurtful to the administration of justice. And Ray shut down his investigative machinery, having concluded that Clinton had suffered punishment enough. But now, in his final report, Ray asks “whether the evidence [was] sufficient to seek charges” against Clinton–and answers that it was. That Ray decided to think out loud is itself a problem, as I will explain. But even assuming that the question of Clinton’s criminality is one he should have addressed, his answer is unsatisfying. Clinton “engaged in conduct that impeded the due administration of justice,” says Ray. He did so by “testifying falsely under oath in Jones v. Clinton”–the sexual harassment suit brought by Paula Jones–and then by “making statements to [his secretary] Betty Currie” soon thereafter. Ray cites no laws he believes were broken. That is especially unfortunate, since “impeding the due administration of justice” is nowhere found in the federal code. Presumably, Ray means that Clinton “obstructed justice” and that he did so by (to translate Ray further) committing perjury in a civil proceeding and also improperly influencing a witness. Both are statutory crimes, and both happen to be ways in which–as the code makes clear–“obstruction of justice” may be carried out. Ray’s casual approach to the question he sets for himself is unsettling. If a prosecutor is to say there is evidence to bring charges against someone, it is elementary that the charges themselves be intelligibly specified and legally defined. Moreover, with respect to his belief that Clinton could be prosecuted for perjury, Ray fails to point out that perjury requires proof that someone made a false statement under oath about a “material” or significant issue. The judge in the Jones case wound up dismissing Jones’ claim, thus raising the question of whether the president’s lies were indeed “material”–and therefore as obviously prosecutable as Ray believes. Ray doesn’t explain whether Clinton’s lies in his grand jury appearance might be prosecuted. That is odd. As the legal scholar (and federal appellate judge) Richard Posner points out, committing perjury during an investigation to avoid prosecution is a more serious offense than committing perjury in a deposition. Not incidentally, the House of Representatives impeached the president for his grand jury perjury, not his lies in the Jones case. The most important issue raised by Ray’s report, however, is whether he should have said anything at all about “the sufficiency of the evidence” against Clinton. When Congress extended the independent counsel law in 1994, it was faced with instances in which counsels had used their final reports to suggest criminality by individuals who weren’t indicted. A provision in the pre-1994 law had encouraged counsels to proceed in such a fashion. Persuaded that such pronouncements on criminality were unfair to those investigated but never indicted, much less convicted, Congress changed the law, deleting the language used by counsels to opine on their targets’ criminality. Ray is aware of this history–and not content with what Congress did. Reaching into the law’s history, he finds a way to rationalize offering his opinion that charges against Clinton could have been brought. Clinton’s most ardent defenders are objecting to what Ray has done by addressing this off-limits subject. But so should those who think Clinton guilty of prosecutable crimes or impeachable conduct or both. An independent counsel–no less than any other government officer, including the president–is bound by the law under which he works. Happily, the independent counsel law will die when Ray finally shutters his offices, and our experiment with independent counsels thus will have to yield to more well-considered means of investigating and punishing executive malfeasance. Terry Eastland is publisher of The Weekly Standard.
