Clinton Could Have Been Convicted, Prosecutor Contends

TIMES STAFF WRITERS

In his final report on the Monica S. Lewinsky investigation, independent counsel Robert W. Ray contended he could have won a criminal conviction of former President Clinton for his testimony that he did not recall being alone with the former White House intern.

But Ray, who is considering a run for the U.S. Senate, did not say what charges he could have brought. His report makes no mention of perjury. Instead, he says rather vaguely that Clinton "impeded the due administration of justice" when he falsely denied his sexual relationship with Lewinsky during his deposition in the Paula Corbin Jones case.

Ray also derides the "cynics and political opponents" who saw partisan motives in his investigation.

"We have reaffirmed the principle and the spirit of law that no one--absolutely no one--is above the law," he said, quoting the Watergate special prosecutor Leon Jaworski.

"A generation later, let it also be said so here," Ray said in closing.

Lewinsky had a less charitable assessment.

"I will forever contend that the spirit of law was abused," she wrote in a rebuttal that was attached to Ray's report. Lewinsky quoted former Supreme Court Justice Robert H. Jackson, who said: "The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway."

Wednesday's report is not the last word from Ray's office. The independent counsel has also filed a report on the long and inconclusive probe into the Clintons' investment in the failed real estate venture known as Whitewater. But a three-judge panel has kept that report under seal.

The inquiries, which began in 1994, had cost $65 million as of March 31, 2001, Ray said. This month, he acknowledged that he is considering entering the Republican primary in New Jersey to challenge embattled Democratic Sen. Robert Torricelli.

Some key players in the impeachment saga issued statements making clear they had no interest in revisiting the matter.

Clinton attorney David E. Kendall called the investigation "intense, expensive, partisan and long. There's still no Whitewater report, and there's nothing new in this report. It's time to move on."

Rep. Henry J. Hyde, the Illinois Republican who led the House managers in the impeachment proceedings, said Ray's report should be the end of the matter. "I think that's where America wants it, way back there."

Jennifer Palmieri, a former Clinton spokeswoman, told Associated Press that it was "not clear what the purpose of the report is other than to promote Robert Ray's Senate campaign, Monica Lewinsky's HBO special and the Paula Jones vs. Tonya Harding boxing match." Lewinsky was the focus of a documentary shown on HBO, and Jones is set to do battle with Harding, the former figure skater, on the Fox television network.

Ray took over the independent counsel's post after the Senate acquitted Clinton, and after his predecessor, Kenneth W. Starr, resigned. His main task was to decide whether to prosecute the former president after Clinton left office.

"The independent counsel concluded that the evidence was sufficient to prosecute President Clinton [and] there was a substantial federal interest in prosecuting [him] for his testimony and conduct in the Jones case," Ray wrote. And the "evidence would probably be sufficient to obtain and sustain a conviction."

Instead, however, Ray and Kendall arranged a deal that was announced on Clinton's next-to-last day in office.

Clinton admitted he "knowingly gave evasive and misleading answers" in his Jones case deposition in the presence of U.S. District Judge Susan Webber Wright. For this misconduct, he agreed to a five-year suspension of his license to practice law.

Earlier, Clinton also paid $850,000 to settle the Jones sexual harassment case, even though it had been officially dismissed.

Those sanctions were sufficient, Ray concluded. The "public interest" had been satisfied because Clinton had admitted his wrongdoing.

But several legal experts faulted Ray for announcing now that he could have brought criminal charges and claiming he would have won a conviction before a jury in the District of Columbia.

"I don't like it when prosecutors say, 'He's really guilty, and he got a break,' " said George Washington University law professor Stephen Saltzburg, who once served as assistant independent counsel. "I didn't like when it happened to Ed Meese [U.S. attorney general under Ronald Reagan], and I don't like it here. Ordinary prosecutors don't say things like this."

Ray's report recounts the now-familiar facts that led to Clinton's impeachment in December 1998. But it does not describe the legal difficulties in bringing a criminal case.

A perjury charge requires proof that a person deliberately lied under oath about a "material" or significant fact.

Ray had strong evidence that Clinton made false statements during his deposition in the Jones case. But Wright later dismissed Jones' lawsuit prior to a trial and ruled that Jones had no legal claim of sexual harassment. As such, it would have been hard to show how Clinton's lies regarding Lewinsky were "material."

Federal law makes "obstruction of justice" a crime, but the law refers to actions that hinder a criminal investigation or an "official proceeding."

For example, threatening a judge or juror or trying to hinder an FBI agent can be charged as obstruction of justice. But the criminal law had been rarely applied to disputes involving private civil suits that seek money damages, such as a sexual harassment claim.

Nancy Luque, a defense lawyer in Washington, said she found Ray's statement perplexing. "Usually, a prosecutor says, 'Here are the facts, here's the law, and here's how facts fit the law.' But this is strange. He doesn't say what the charge would be. And I can't find a federal crime that fits these facts."

For his part, Ray acknowledged that a final verdict is not in yet.

"All will no doubt agree that the decisions recounted in this report form an indelible part of the American historical record," he said. "But there agreement is likely to end."

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