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On the last full day of the Clinton era, a not quite presidential president signed a less than fully confessional confession as part of a plea bargain with an “inferior” officer who was inferior to no one. Call it a poetic coda to an age when words seemed to lose their meaning, as Clinton lovers denied that “sex” meant “sex” and “is” meant “is,” while Clinton haters insisted that “high” crimes meant “low” crimes. And call Clinton’s exit rough justice — a proportionate penalty, when heaped atop all the other formal and informal sanctions he has been made to endure. But don’t call Clinton’s deal with independent counsel Robert Ray a triumph of the rule of law. Clinton’s words at his Jan. 17, 1998, Paula Jones deposition, denying that he had a “sexual affair” with Monica Lewinsky, were indeed self-serving falsehoods. But so were Robert Ray’s words on Jan. 19, 2001, when he claimed that his deal “respects America’s institutions and demonstrates sensitivity to our constitutional system of government.” As a constitutionally “inferior” officer picked by unelected federal judges and answerable to no one, Ray overstepped, wielding powers that the Constitution properly gives to more democratically accountable decision makers. The substance of the plea bargain, in broad outline, seems fair enough. Ray agreed to decline prosecution “with prejudice” — in effect forever immunizing Clinton from any Lewinsky-related federal criminal liability. In exchange, Clinton agreed to give up his Arkansas law license for five years and to pay yet another fine, and finally admitted that he “knowingly violated” judicial orders with deposition answers that were “evasive” and “misleading” and at times downright “false.” Better still would have been a forthright admission — in person, and not just on paper — that “I lied.” Clinton’s lies were brazen, yet his confession was not equally blunt. He lied with his own lips, and it would have been better for him to confess in the same way, righting his earlier wrong in the most symmetrical way. Instead, Clinton’s legalistic “confession” was read aloud by a press secretary. I confess — he did it. Mistakes were made. The real problem, however, is not that the wrong person read the confession but that the wrong person demanded and accepted it. Who is Robert Ray, and why was he the one to make the momentous decisions about whether President Clinton had already suffered enough, about how much additional formal and informal punishment would be proper, about when and how Clinton must confess, and about whether permanent immunity is appropriate? Constitutionally, Robert Ray is supposed to be an “inferior” officer. He was never nominated to his office by the president, nor confirmed by the Senate. Instead, he was picked by a panel of judges, pursuant to a post-Watergate independent counsel statute. (The statute has now expired, but investigations already under way are allowed to be wrapped up.) Article II of the Constitution allows judges only to appoint “inferior” officers. Thus, if Robert Ray is not, in fact, an inferior officer, he is a legal nullity, with no authority either to threaten Clinton or to spare him. In what sense was Ray an inferior officer on Jan. 19, 2001? If he was an inferior officer, who, exactly, was the superior officer authorized to supervise and countermand him? Can an inferior officer properly exist without such a superior? And the decisions Ray took it upon himself to make were hardly the small decisions appropriately resolved by a petty officer lacking the special seal of approval conferred by the advice and consent process required for major officers. Surely it cannot be said that the judges who appointed Ray were his superiors, with broad power to supervise and countermand him — for that would turn judges into super-prosecutors in ways that would make a hash of separation of powers. (The judges would be regularly obliged to meet ex parte, to make secret policy decisions without giving public legal reasons, and to do many other things inconsistent with their judicial roles.) Nor can it be said that Clinton’s attorney general, Janet Reno, was Ray’s supervisor, given that she did not hire him, could not fire him at will, and indeed could not consistently countermand his decisions or order him to follow her suggestions. Precisely to the extent that Robert Ray was independent, he was not inferior, as the Constitution requires. Ray would doubtless seek to wrap himself in the mantle of the 1988 Morrison v. Olson case, which upheld the constitutionality of the independent counsel law. Morrison did seem to say that an inferior officer could exist without having a clear superior. But in 1997, the U.S. Supreme Court reversed course in the less-noted case of Edmond v. United States, proclaiming that “generally speaking … whether one is an inferior officer depends on whether he has a superior… . In the context of a clause designed to preserve political accountability relative to important government assignments, we think it evident that inferior officers are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.” Although Edmond did not formally overrule Morrison, it plainly echoed Morrison‘s dissenting opinion and undermined Morrison‘s conceptual foundations. Even if the Court were to reaffirm Morrison on its unique facts, that case still provides inadequate support for Ray. Alexia Morrison was investigating underlings in the executive branch. If she had decided to prosecute anyone the president did not want prosecuted, the president could in effect nullify her decision by pardoning her targets. Indeed, the first President Bush effectively countermanded Lawrence Walsh by pardoning Caspar Weinberger before trial in December 1992. Because of this presidential pardon power, perhaps we might say that independent counsel are “inferior” in the sense that the president can typically — at any time and for any reason — countermand any undesirable prosecution they might initiate. But this argument for inferiority fails when the target of prosecution is the president himself. Surely, a sitting president may not properly pardon himself. (This is why President Clinton was not fully presidential in dealing with Robert Ray, for he could not properly wave or wield his mighty pardon pen, which can make all other independent counsel disappear at a moment’s notice.) Viewing the issue from another angle, the decision whether a president should be prosecuted should never be seen as a petty issue properly resolved by an inferior officer acting on his own. Of course, Ray did not seek to prosecute a sitting president, but rather was pondering whether to pursue Clinton after Clinton’s term. Yet even the prosecution of an ex-president can raise issues of high statecraft inappropriate for final resolution by an inferior officer. To what extent was Clinton’s presidential impeachment trial itself, with all its publicity and stigma, punishment enough, or close to it? Generally speaking, are national interests well served by criminal prosecutions of ex-presidents? Even if discretion counseled against indicting ex-president Clinton, should Clinton be given permanent immunity — the functional equivalent of an acquittal or a pardon, a vested legal right that no later administration can undo? These are large public issues, properly resolved by those with direct public accountability — the president himself, and his handpicked Cabinet, who have been personally vetted and approved by the Senate. In other words, these were precisely the issues that the Constitution properly left to President George Bush. Had Ray waited one more day, it would have gradually begun to dawn on his fellow Americans that his very raison d’etre had been overtaken by events. True, Clinton couldn’t be trusted to investigate Clinton — although even that doesn’t somehow mean that Ray should have the last word (as opposed to the House and Senate in impeachment and oversight, or some special independent counsel appointed by the president or attorney general, � la Teapot Dome and Watergate). But why couldn’t President Bush and his incoming administration be trusted to make the Clinton call? According to prominent sources quoted by The New York Times, Ray “did not want to leave the new president to deal with a problem relating to Mr. Clinton, especially the thorny issue of whether to pardon him.” But the Constitution is, of course, designed to give many thorny issues — from treaty negotiation to federal law enforcement — to presidents, who are accountable to the people and to history. To deter and punish presidential misbehavior in law enforcement — improperly pardoning friends or persecuting foes — the Constitution vests a democratically accountable Congress with important oversight and impeachment powers. Lame-duck presidents might be thought immune from these checks — but highly visible exit pardons can be judged by the court of history, whose anticipated verdicts generally weigh heavily in the minds of outgoing presidents. What’s more, even ex-presidents are theoretically subject to the dishonor of impeachment for their official misdeeds — an impeachment court could declare an ex-president ineligible to hold any future federal office. The attorney general is another important and accountable decision maker with a mandate to make big calls deriving from a personal endorsement of both president and Senate. In special situations, presidents and attorneys general can name other citizens of high repute to bring independent perspectives to bear on an issue — an Owen Roberts in Teapot Dome, an Archibald Cox in Watergate, a John Danforth in the Waco investigation. All these actors had democratic credentials that Ray lacked. Robert Ray’s decision to exit the national stage is welcome. Substantively, the deal that he cut seems fair enough and is plausibly in the national interest. Enough already! Ray may also have done the incoming president a big political favor by whisking a hot potato off his plate. But constitutionally, Ray overreached by making decisions that were anything but inferior, distorting the Constitution’s carefully wrought mechanisms of democratic accountability. By acting as he did, Ray in effect improperly helped President Clinton pardon himself and denied President Bush a decision that belonged to him and his new administration. For these reasons, Ray would have shown more fidelity to the Constitution by either declining to serve in his unconstitutional office in the first place, or by offering to resign as soon as Bush took over. (Had Bush asked him to stay on, the new administration could then be held publicly accountable for Ray’s subsequent conduct.) In short, there were even better exits available than the one that Robert Ray chose. But even if he missed his constitutional cue, at least he did get off the stage. And he is the last independent counsel we are likely to see, given that the statute that made his office possible has now expired. For that we should all be thankful. America can now return to the system devised by the framers, in which politically sensitive crimes are handled by politically accountable actors. Akhil Reed Amar is Southmayd Professor of Law at Yale Law School and author of “The Bill of Rights: Creation and Reconstruction” (Yale University Press, 1998). He can be reached by e-mail at [email protected]

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