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The final chapter of the Clinton era will be written shortly after George W. Bush is inaugurated on Jan. 20 as the 43d president of the United States. A spokeswoman for Independent Counsel Robert W. Ray says he will announce by mid-February whether a federal grand jury has indicted Clinton on charges stemming from the Monica Lewinsky scandal, the one remaining strand of the seven-year Whitewater inquiry. There is disagreement over whether Ray has the political will to indict a former president for the first time in history. Moreover, several experts interviewed by The National Law Journal say that the charges he would probably bring would not be sustainable. This dynamic has been complicated by calls by some Republicans, including Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, that Bush pardon Clinton — a proposal that one Clinton sympathizer says may be a setup. “That, to some degree, makes it easier for them to indict,” says Los Angeles attorney Mark Geragos, who represents Whitewater figure Susan McDougal. “Indict him, and we take care of him,” is what the call for a pardon communicates, says Geragos. “It gives them an escape valve because they don’t ever have to worry about proving their case.” Lead Clinton defense lawyer David E. Kendall declined to comment, but a lawyer close to the defense team who requested anonymity says that Clinton’s lawyers expect an indictment. “I don’t see any way they will go all the way with this investigation and then say, ‘Let’s drop it,’ ” the lawyer says. POSSIBLE CHARGES Putting aside the possibility that Ray, who succeeded Kenneth W. Starr in 1999, has developed new evidence since convening a new grand jury on July 11, any indictment of Clinton would likely fall under five possible categories: perjury, subornation of perjury, conspiracy, witness tampering, and obstruction of justice. All of these were originally described in Starr’s 1998 referral to the House of Representatives, which led to Clinton’s impeachment. “It’s a most unattractive case,” says former Iran-Contra prosecutor John Q. Barrett. “It’s stale, it’s something that the public has largely made up its mind about and doesn’t find compelling, and I don’t think it will try very well to a jury, and that is something a prosecutor has to consider.” A perjury charge would likely revolve around Clinton’s denial — during a 1998 deposition in the Paula Jones sexual harassment suit — that he had “sexual relations” with former White House intern Monica Lewinsky. The other charges would stem from alleged attempts by Clinton and others to conceal his contacts with Lewinsky. The problem of materiality — whether an alleged lie about a consensual sexual relationship during a deposition is material to a civil suit about sexual harassment — is “insurmountable” when it comes to bringing a perjury charge, claims Geragos. “You’re going to end up getting into the minutiae of the definitions used during the depositions, and that’s a dog chasing its tail,” he says. Geragos adds that the 1999 civil contempt citation by U.S. District Judge Susan Webber Wright may allow Clinton to argue that a new prosecution would constitute double jeopardy. That citation is the basis of a pending effort to revoke Clinton’s license to practice law in Arkansas. But Barrett says that the contempt citation buttresses a perjury indictment. “I don’t think it’s a big legal problem. Judge Wright addresses the materiality issue,” he says. Ex-Reagan administration U.S. attorney and independent counsel Joseph E. DiGenova predicts an indictment and a pardon. He says that materiality is an issue for a jury. “The real issue is not whether there’s enough to prosecute, but whether not doing so creates a double standard,” says DiGenova. Anyone else would be prosecuted on the same facts, and a double jeopardy argument would fail since Clinton was not cited for criminal contempt, he says. But former Iran-Contra prosecutor John G. Douglass, a professor at the University of Richmond T. C. Williams School of Law, says that the “few reported cases … that deal with perjury in civil depositions almost always involve another element, normally financial fraud against the government.” He notes that a defendant can be cited for contempt for making misleading statements that don’t amount to perjury. According to the U.S. Bureau of Justice Statistics, fewer than 1 percent of all federal prosecutions are for perjury. The vast majority of those arise in criminal, rather than civil, proceedings. The other possible counts that the federal grand jury may hand up — subornation of perjury, conspiracy, witness tampering and obstruction of justice — likely would stem from what Starr alleged to be a concerted effort by Clinton to keep his relationship with Lewinsky secret. These efforts included the alleged concealment of gifts to Lewinsky, an agreement between Clinton and Lewinsky that they would lie under oath, efforts to have her avoid a deposition by filing an affidavit, and efforts to influence the grand jury testimony of White House secretary Betty Currie and several aides. If indicted, Clinton would likely be asked to surrender to the FBI and be arraigned in U.S. district court in Washington, Barrett says. Or he could be charged in federal court in Arkansas, where the Jones suit was filed. Barrett says that, due to the nature of the charges and the stature of the defendant, fingerprints, mug shots and bail probably wouldn’t be issues for Clinton. Bush has said that he has no immediate plans to pardon Clinton. But calls by Republicans to do so are increasing. A lawyer close to the defense team says that it is unclear whether Clinton would accept a pardon. DiGenova contends that a presidential pardon cannot be rejected. Most lawyers interviewed say that an indictment would set off a firestorm of defense motions. Several predict that Kendall would file various pretrial motions to derail the prosecution, including one based on prosecutorial misconduct. Says Barrett, “Even if [Mr. Ray] has new, surprising, devastating evidence, the historical significance of indicting a president and putting the nation through this … well, I would hope it is a very hard trigger to pull.”

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