Lack of Indictment Shows Power of the Presidency

Americans like to say that the United States is more than just “a nation of laws, not men,” as John Adams put it.

Yet Friday’s decision by independent counsel Robert W. Ray not to prosecute President Clinton after he leaves office is a reaffirmation that this is a nation, above all else, that has a way of keeping one eye on its own best interest.

For the third time in a generation, prosecutors have considered indicting a president or former president of the United States on criminal charges. In keeping with Adams’ dictum that no man is above the law, Richard Nixon faced that possibility over the Watergate scandal, Ronald Reagan over Iran-Contra and Clinton over his attempt to conceal the Monica S. Lewinsky affair.

For the third time, no indictment will go forward.

And, while many legal scholars argue that presidents and former presidents have no special standing before the bar of justice, what weighs in the balance on decisions like the one Ray announced Friday is not just legal theory or the question of guilt or innocence.

What seems to tip the scales at these still-rare but critical moments is a profound sense of what’s good for the country. Early 1900s political humorist Finley Peter Dunne’s fictitious sage, Mr. Dooley, once observed that “the Supreme Court follows the election returns.” Just as the high court tacitly considers public opinion, prosecutors divine that most Americans find ex-presidents more valuable as elder statesmen and national symbols than as felons.

“We don’t kill our kings,” said James Hilty of Temple University, a specialist in the presidency. “It is as though we say ‘All’s fair in politics and war, but when it’s done, it’s done.’ With Clinton, we held the hangman’s noose up against him but decided not to go all the way.”

Boston University historian Robert Dallek agreed. “There is an attitude in the country that once a president leaves office, you want to treat him as an honored statesman, somebody who served the nation. It speaks to the country’s self-esteem. The country doesn’t want to think of these guys as indicted criminals.

“Even though several presidents have been vulnerable to [legal] attack and maybe could have been indicted, the idea of accommodation and excusing the flaws in human beings and keeping to the center is strong.”

Starr Lauds Deal as ‘Very Thoughtful’

Kenneth W. Starr himself, the independent counsel whose investigation fueled Clinton’s impeachment, hailed the settlement as “a very thoughtful, sensible and fair resolution by Bob Ray of an extraordinarily difficult situation.”

“The president has moved in a good direction. He has moved toward acknowledging some of his own responsibilities toward the criminal justice system. And that was important for the integrity of the system,” Starr said.

But he acknowledged that there was a larger dimension to Ray’s decision not to prosecute.

“Sometimes in our system, we overemphasize the role of criminal sanctions at the expense of securing justice,” Starr said. Much earlier, he had told associates that “the country’s interest” should be considered in any decision about a presidential indictment.

“I didn’t know it was in the offing until reports started breaking today,” Starr said Friday.

Friday afternoon, as news of the agreement spread across a capital trying to get into an inaugural mood despite the cold, rainy weather, the immediate reaction of many was that President-elect George W. Bush stood to gain almost as much from ending the threat of prosecution as Clinton.

Speaking for practical politicians of all stripes, former Sen. Warren B. Rudman (R-N.H.) said: “It’s in the best interests of everyone. It would have been tragic to distract attention away from a new administration that has many, many challenges. And had they proceeded to indict the president, there would have been a circus atmosphere. The media would have spent a huge amount of time on it.

“Frankly, I was surprised they were considering an indictment because, while it wouldn’t have been legal double jeopardy, after what he went through in public humiliation, impeachment by the House and trial by the Senate, what’s left?

“To his credit, Clinton decided to take the suspension of his law license and get on with his life and let the country get on with its life.”

That view is echoed by scholars who study public opinion.

“Both sides would have been very unhappy to see this go on,” said Deborah Schildkraut, a specialist in the presidency and public opinion at Oberlin College in Ohio. “The Democrats want to look ahead and the Republicans want to get on with governing.”

Bringing Clinton to trial after he left the White House would only have brought to the surface again the sharp divisions that existed from the moment his affair with Lewinsky was revealed. Voters who thought Clinton was doing a good job as president when the scandal broke continued to support him afterward. And those who had been critical of him saw the affair as proof of their initial views, she said.

Public reaction to bringing ex-President Clinton to trial almost certainly would have followed the same fault line, Schildkraut believes. Politicians in both parties “are glad not to have to deal with it,” she said.

The potential for the post-White House trial of a president to paralyze the country was illustrated when Nixon resigned as the Watergate scandal crashed down on him in 1974. As Vice President Gerald R. Ford assumed the presidency, special prosecutors, as they were then called, had already amassed mountains of evidence showing Nixon’s direct involvement in obstruction of justice and other indictable activities.

The scandal had been going on for more than a year, and Ford discovered almost immediately what it meant for his presidency. Jim Cannon, a member of Ford’s White House staff and author of a subsequent biography of the 38th president, recalled the scene in an interview Friday:

Three weeks after taking office, Ford called his first presidential news conference and was dismayed to see that his own agenda was buried under a torrent of questions about Nixon--”what he was going to do to relieve the country of the Nixon question.”

“When he got off the podium and read the transcript, he realized that it was even worse than he thought and he knew it would bedevil him until he swept it off the table,” Cannon said.

“There’s no question it was unpopular at the time, but it got it out of the headlines. It’s perfectly conceivable,” Cannon said, that if Ray had not reached his agreement with Clinton, “Bush would have been facing questions at his first press conference about what he would do about Clinton and whether he would pardon him if he was indicted.”

Indeed, Bush had already faced such questions, days leading up to his swearing in.

“It’s better to have had this done and get it behind us, just as it was to have had Ford pardon Nixon and get that behind us,” Cannon said, though Ford himself paid a high political price for his decision. “I always thought President Ford was an unsung hero,” Rudman said.

2 Prosecutor Aides Applaud Closure

Even some of those closest to the Clinton investigation, including lawyers who worked under Starr, are known to have strongly opposed seeking an indictment--among them two principal deputies, Mark H. Tuohey III and John Bates.

Tuohey said that the Clinton-Ray deal “is an appropriate conclusion, because it brings closure and that’s good for the country, good for the new administration and the old administration.”

Beyond such immediate concerns is the larger issue of how the country as a whole would have reacted to the spectacle of a former chief executive facing criminal prosecution.

“There’s a kind of symbolism about the presidency that exists in people’s minds,” said Robert Johnstone, professor of politics at Earlham College in Indiana. “This is more than a proceeding against an ordinary person.

“To put President Clinton through it is to put the country through it. . . . People don’t want to see their presidents in retirement hiring lawyers to keep them out of jail. They want to see them as elder statesmen in the mold of Jimmy Carter or Gerald Ford.”