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Even after the post-election courtroom battles, the destructive political war between Democrats and Republicans that has marked the Clinton presidency continues unabated. Now, another politically divisive legal event looms on the immediate horizon: the potential indictment and trial of President Bill Clinton. Independent Counsel Robert Ray is reportedly presenting witnesses to a grand jury in the District of Columbia in order to obtain an indictment of Clinton for perjury in his Paula Jones deposition and Monica Lewinsky-related charges. Should the grand jury approve this indictment, the country appears headed for a post-inauguration trial with Bill Clinton in the dock. To his credit, President-elect George W. Bush has not ignored the issue. In responding to advice from Sen. Orrin Hatch to pardon Clinton, he recently said, “I think it’s time to allow the president to finish his term, and let him move on and enjoy life and become an active participant in the American system. I think we’ve had enough focus on the past.” He added, though, “But the suggestion that I would pardon someone who has never been indicted, that doesn’t make any sense to me.” So, two questions arise: Should Ray indict Clinton? And should Bush pardon Clinton, either before or after Ray takes further actions? Both questions raise tough issues regarding the exercise of prosecutorial and presidential discretion. Some will argue that if the admissible evidence supports the charges, the independent counsel should indict Clinton, and should do so as soon as Clinton leaves office to demonstrate that even the president is accountable. As Bob Dylan put it, “The ladder of the law has no top and no bottom.” Yet a prosecutor is not compelled to prosecute every provable violation of federal law. The Justice Department recognizes that prosecutors may decline to charge a person whose conduct constitutes a federal offense, even if the admissible evidence is believed to be sufficient to sustain a conviction. As the department’s Principles of Federal Prosecution manual states, where “there exists an adequate non-criminal alternative to prosecution,” discretion to refrain from prosecuting can be exercised. Such an alternative to prosecution may already have occurred in Clinton’s case. Clinton’s conduct was not only fully exposed in congressional hearings, but he was impeached by the House of Representatives. While his acquittal in the Senate prevented his removal from office, it was no vindication. Impeachment is a serious sanction no less stigmatizing than other forms of noncriminal sanctions such as administrative and civil penalties. Additionally, Ray might very well find it useful to await the outcome of the proceedings currently under way in Arkansas to strip Clinton of his law license for the same alleged perjury for which he may be criminally charged. The additional bite of a criminal conviction appears unnecessary, particularly where the unique sanction available under the criminal law — imprisonment — is not likely to be imposed. REFUSE TO EXCUSE? If Ray does indict Clinton, President Bush must consider whether to pardon him. There are several competing considerations for Bush to balance. On the one hand, Clinton is a political rival of the Bush family. Presidents rarely use their extraordinary power of the pardon in order to benefit their political foes. And, in any case, Clinton administration officials have said he will not accept a pardon, further limiting the incentive to grant one. On the other hand, a pardon serves the public interest in closing the books on the Monica Lewinsky story. Further, an unconditional pardon by Bush would demonstrate that his campaign statements about the need for reconciliation between the political parties were not mere rhetoric. The country’s need to end the political civil war favors a pretrial, or even a pre-indictment, pardon. If President Gerald Ford’s pardon of his predecessor was an appropriate act of grace, an immediate pardon of Democrat Clinton by Republican Bush would presumably be hailed as an act of statesmanship. The possible indictment and potential pardon of President Clinton could involve unique legal issues. For instance, Clinton might argue that, having been acquitted of the articles of impeachment in the Senate, he cannot now be tried and punished for the same conduct in court. While the impeachment clause of the Constitution provides that “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law,” the Constitution is silent regarding whether indictment, trial and punishment may follow an acquittal. While it would be incongruous for a criminal indictment to follow an impeachment conviction but not an acquittal, the Constitution’s silence on the effects of acquittal creates a unique legal ambiguity in Clinton’s case — he would be the only president to be indicted for the same conduct for which he was acquitted. Particularly where the grand jury that may approve the indictment of Clinton would be the same grand jury that gathered the evidence used to try him on the articles of impeachment, he has a plausible argument that the Constitution does not authorize his indictment. Clinton’s refusal to accept a pardon issued by President Bush would also give rise to difficult legal issues. If indicted, Clinton may want to put the independent counsel to its burden of proof before a jury of 12 citizens of the District of Columbia, rather than risk the implied confession of guilt that accompanies acceptance of a pardon. LAW OF PARDONS The Supreme Court’s case Burdick v. United States (1915) appears to support his right to reject the pardon and proceed to trial. There, a newspaper editor appeared before a grand jury and refused to answer questions on the grounds that his answers might tend to incriminate him. After being pardoned by President Woodrow Wilson, he again refused to testify, was held in contempt, and imprisoned. The Supreme Court reversed the contempt and ordered Burdick released. It held that Burdick could reject the pardon and that the Court had no power to force it on him. Burdick, however, may not help Clinton get a trial. The Burdick Court balanced the president’s pardoning power against Burdick’s Fifth Amendment privilege and concluded that the harm inflicted on the president’s pardon power was less than the potential injury to be suffered by the elimination of Burdick’s constitutional right to remain silent. But in a subsequent case not involving a balance between competing constitutional rights, the Court refused to extend the reasoning of Burdick and held that an offender could not refuse a presidential pardon commuting his sentence for murder from death to life imprisonment. Biddle v. Perovich (1927). Perhaps more relevant to Clinton’s situation, the Supreme Court recognized that Perovich’s consent or lack of consent to the pardon was essentially meaningless, since he could not influence whether or not the judgment of death was carried out. As Justice Oliver Wendell Holmes remarked: “Supposing Perovich did not accept the change, he could not have got himself hanged against the Executive Order.” Similarly, it is hard to imagine how Clinton could force the independent counsel to proceed to trial in the event of a full pardon — Clinton would have to argue that having signed the indictment, the independent counsel could not back away from a trial. There is little support for such a claim. So, Clinton could suffer the double indignity of an indictment and a pardon, without apparent legal recourse. This country would be ill-served by the indictment and trial of Bill Clinton. While the balance is not an easy one, Independent Counsel Ray should not indict Clinton, and President-elect Bush should, if Clinton is indicted, pardon him. As Sen. Hatch has suggested, it is time to put this matter behind us. Steven M. Salky is a partner in the Washington, D.C., office of Zuckerman Spaeder, where he practices criminal and civil litigation.

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