Bush’s Signals on Indictment Are Key

Whether President-elect George W. Bush actually pardons citizen Bill Clinton may be far less relevant, in the course of history, than the immediate signals Bush sends to independent counsel Robert Ray with respect to whether Clinton should be indicted when he vacates the White House.

If the experience of President Gerald R. Ford in 1974 is any guidepost, Bush’s best hope for getting his own presidency on a strong footing may depend on reaching some quiet understanding with the special prosecutor, heading off the pardon issue before it crashes out of the gate.

From the moment of his first press conference Aug. 28, 1974, President Ford was plagued by a single question: Would he pardon his predecessor, Richard M. Nixon? The drumbeat continued daily. Ford’s close advisor, Robert T. Hartmann, would later say that the decision to pardon Nixon was purely a “selfish” act. Without some end to the Watergate misery, Ford believed that he would never get his own presidency launched.

Twenty-five years later, at a Duquesne University forum, Nixon’s criminal attorney, Herbert J. Miller, revealed that a key ingredient in the ultimate resolution was Watergate Special Prosecutor Leon Jaworski. Miller disclosed that he met privately with Jaworski at the Jefferson Hotel in Washington to gain the prosecutor’s tacit agreement not to undercut the pardon. Both Miller and Ford’s advisors understood that, although they could not control Jaworski, they needed to be tuned to the same frequency. Otherwise, a pardon would hurl the nation into a new phase of political chaos. Jaworski signaled his agreement to the pardon for two reasons, according to Miller. First, he felt that the public spectacle of a criminal trial of a former president would damage the United States. Second, he believed that there would be serious questions whether a fair trial could ever be assured, given the massive publicity surrounding the Watergate case.

In the case of Clinton, President-elect Bush has good reason to emit careful radio signals to independent counsel Ray. After the bruising and rancorous presidential election, bringing closure to the Clinton debacle might go a long way toward averting another national sideshow and allow Bush’s unfurling agenda to stay at the forefront of the news.

Simply tendering a pardon, however, will not end the matter. As Gerald Ford’s attorneys discovered a quarter of a century ago, a 1915 Supreme Court decision in Burdick vs. United States held that a pardon carries with it an “imputation of guilt”; acceptance of a pardon constitutes an “admission of guilt.” President Ford was acutely aware of this legal precedent. He dispatched attorney Benton L. Becker to San Clemente to meet with Nixon and inform him of the ramifications of accepting the pardon. According to his lawyer’s account, Nixon balked at the pardon; Miller had to talk him into taking it.

When it comes to Clinton, the criminal case is fraught with complications. Proof of perjury (particularly in a settled civil case) is no easy matter. Moreover, it is hard to envision empaneling 12 jurors in Washington, D.C.--where Clinton is extremely popular--who will unanimously vote to convict him.

Finally, even more unusual than in the Nixon case, Clinton has undergone a full-blown impeachment trial, at which he was acquitted. Most of the evidence from that trial (including grand jury testimony) was disgorged and made available to the public worldwide. The complications inherent in moving forward with a criminal prosecution of Clinton are messy and certain to spiral into a bloody battle for years.

It is far from certain that Clinton’s lawyers would advise him to solicit a pardon. It is equally uncertain whether Clinton would accept it. The temptation to tweak Clinton and allow him to wallow in his own decision, if he chooses to reject a pardon, may be alluring to those frustrated with his behavior. But Bush will have to live with the chaos that ensues, during the most critical months (and perhaps years) of his presidency.

Although Bush cannot and should not tell Ray what prosecutorial decision to make, the vibes emitted over the next few weeks will be critical. Ray, the well-respected prosecutor who took over Kenneth Starr’s operation, will certainly take into account the incoming administration’s views in deciding whether an indictment of citizen Clinton is in the best interest of the nation.

Whether Bush’s signals are positive, negative or neutral may be a deciding factor in Ray’s decision whether to set a criminal process in motion from which there may be no graceful return. By making clear to Ray early on that he is prepared to pardon Clinton if it comes to that, and that gearing up for a full-blown prosecution isn’t worth the national cost, Bush may shut the door on a house-of-horrors before it is opened and allow his own administration to shine beginning inauguration day.