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Jewish World Review Jan. 30, 2001 / 7 Shevat, 5761

Nat Hentoff

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History will also judge Robert Ray -- LEWIS CARROLL would not have been surprised at the meticulous evasiveness of the language in the deal between independent counsel Robert Ray and William Jefferson Clinton on the last day of the latter's presidency.

"When I use a word," Humpty Dumpty said in "Alice's Adventures in Wonderland," "it means just what I choose it to mean -- neither more nor less. The question is, who is to be master -- that's all."

So it was that Clinton's lawyer, David Kendall, emphatically told the press -- after the deal was signed and a reporter asked whether Clinton had admitted he had intentionally lied -- "He did not lie. We have not admitted he lied. And he did not do so today."

And White House Press Secretary Jake Siewert assured the nation that Clinton was not saying that he knowingly gave false testimony.

But on NBC-TV's "Meet the Press," independent counsel Robert Ray pointed out that Clinton "clearly now had admitted that portions of his testimony under oath were false, and that his intent was to knowingly evade and mislead a federal judge." And that what he did "was prejudicial to the administration of justice."

But Robert Ray, in this deal, allowed Clinton to admit that he lied only in his deposition in the Paula Jones case. Clinton, however, lied under oath to a federal grand jury, and he did that with the American public watching on television. By clearing Clinton of this more serious act of perjury, Ray failed in his own responsibility to do justice.

Not surprisingly, on "Meet the Press" Clinton's long-time whirling flack, James Carville, said triumphantly about the Ray-Clinton deal: "Never, ever was there any allegation about the president's testimony before the grand jury; never, ever anything about obstruction of justice." But Ray had been investigating whether Clinton had committed perjury and obstruction of justice.

And both perjury and obstruction did take place. In his book, "An Affair of State: The Investigation, Impeachment and Trial of President Clinton" (paperback) and (hardcover) Richard Posner, chief judge of the Seventh Circuit Court of Appeals, stated unequivocally: "It is clear that Clinton perjured himself in the Paula Jones deposition, even though, as Clinton's defenders emphasized, the crime of perjury is narrowly defined in federal law."

Posner continued: "A number of the president's lies before the (federal) grand jury were incontestably material to the grand jury's investigation into whether he had perjured himself in the Paula Jones case and whether he and others had committed other obstructions of justice in that case. ... The charge of perjury before the grand jury (was) even stronger than the charge of perjury at the deposition in the Paula Jones case."

Judge Posner noted that perjury is included in the definition of obstruction of justice -- along with tampering with witnesses, which, he wrote, Clinton also did. "The maximum punishment," Posner wrote, "for one count of perjury or subornation of perjury is five years in prison, and for one count of witness tampering, 10 years." In Clinton's case, the likely outcome, says Posner, "would be a prison sentence of 30 to 37 months."

But Robert Ray refused to indict Clinton. Why? Because, Ray said on "Meet the Press," he acted "in the best interest of the country, so that the new president would be afforded an opportunity with some space, perhaps not as much space as one would have liked, for a fresh start." Astonishingly, Ray added, "sometimes we may rely too much on law and constitution and statutes."

All of us have been repeatedly subjected to the mantra "the rule of law," but Robert Ray has carved an exception into that rule for the convenience of the new president and to fulfill the ardent desire of many in this country to let all of this ignominy come to closure.

But Mr. Ray, when he took on this responsibility, pledged that he would affirm the principle that "no person is above the law, not even the president of the United States." Not even, Mr. Ray, if the new president and much of the populace would prefer that the former president be treated in a manner fundamentally differently from the way he would have been treated had he been an ordinary citizen who obstructed justice. Or even the CEO of a major company who had committed serial perjury.

As Jennifer Oureshi, a 26-year-old teacher, told the New York Daily News: "It's not a good message for our country. It tells people if you do something wrong, there's a way to get away with it."

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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