Published March 18, 2002

Like Blanche DuBois in A Streetcar Named Desire, former President William Jefferson Clinton is someone that has “always depended on the kindness of strangers.” This certainly seems to be the case with Independent Counsel Robert Ray who, back in January 2001, cut Clinton a deal to avoid criminal charges in the Lewinsky matter. Now, with the release of his final report, it turns out that career prosecutors in the Ray’s office concluded that Clinton could not only be charged on the evidence but could have been convicted on the basis of that evidence. What is most troubling is that the report seems to confirm Clinton’s belief that his position, and not the evidence, would dictate the outcome of any criminal investigation.

For most every felon, there is a certain calculus of risk. With the exception of crimes of passion or insanity, most criminals balance the likelihood of detection and the severity of punishment in any criminal act. For Clinton, this basic formula was different from the outset. Clinton knew that it was not simply the likelihood of detection but the likelihood of prosecution that was most relevant in any criminal investigation. From the outset, Clinton appeared too popular to impeach or to indict. Given the evidence in Ray’s report, Clinton appears entirely in that calculation.

The basis of criminal charges against Clinton is widely known. There is no question that Clinton lied under oath a fact that he ultimately admitted to in his deal with Ray. Even before this admission, however, the record was abundantly clear. Judge Susan Webber Wright in the Paula Jones case found Clinton in contempt on the basis that he intentionally lied under oath and obstructed a federal case. The Arkansas Supreme Court stripped Clinton of his license based on this misconduct.

It hardly took Oliver Wendell Holmes to see the basis for such decisions. Clinton lied repeatedly under oath about never being alone with Lewinsky; he lied when he stated that he did not have a sexual affair or relations with Lewinsky; and he lied when swore that her affidavit denying any sexual relationship was true. He then repeated false testimony before a federal grand jury and later lied about his efforts to influence the testimony of witnesses like Betty Curry.

None of this mattered, of course. It is notable that Clinton’s strategy in the scandal was always more political than legal. Despite a parade of willing law professors supporting his claims of merely artful language in testimony, neither a federal judge nor career prosecutors gave such arguments much credence. Judge Wright indicated the merits of these arguments in her opinion imposing sanctions on Clinton after this Senate trial: “[T]he President’s deposition testimony . . . was intentionally false, notwithstanding tortured definitions and interpretations of the term Œsexual relations.'” While the former president and his aides insisted that this was merely standard “lawyering” of language, a sympathetic judge found it to be clear and obvious lying under oath.

Clinton’s arguments were always geared more to a television audience than to a real legal proceeding. He was arguing for a form of jury nullification where a broader social reality would negate the specific evidence of criminal conduct. Clinton has spent his entire life playing the margins and he played his most dangerous gamble on the chances of prosecution. Clinton was banking on the fact that he could make any prosecution too costly, even for an independent counsel. He did this through a campaign of personal destruction and vilification. On Lewinsky, he insisted that she was unbalanced and that he was giving her spiritual counseling. Every other woman who came forward was treated in a similar fashion by Clinton or his close associates. Gennifer Flowers was a lying opportunist in claiming a relationship with him. Kathleen Willey was a money-grubbing position-seeker in alleging that she was groped in the Oval Office. Paula Jones was deemed a “bimbo” shilling for conservatives in claiming sexual harassment (before Clinton paid her a large settlement). Juanita Broadderick was a lying publicity seeker in claiming to have been raped by Clinton while attorney general.

Even members of Congress were treated to this scorched earth campaign, like Democratic Congressman Paul McHale who was falsely accused of lying about his war record in a story reportedly tied to a close Clinton aide. Henry Hyde was viciously attacked for an affair decades earlier despite the fact that he was not accused of any criminal act to hide the affair.

Ken Starr was the ultimate accomplishment of this campaign. Clinton operatives succeeded in shredding the reputation of one of the nation’s foremost conservative jurists. Starr, like Jones, was an irresistible “asset” in a campaign to show that these charges were merely the work of bimbos fronting for social conservatives.

It is a strategy that cost individuals and the country dearly but it worked. He gambled that an unrelenting political strategy could effectively derail both the Senate trial and any criminal charge. Clinton ultimately mouthed a tightly worded admission about lying and agreed to forego reimbursement for attorneys fees. He played the margin and relied on the kindness (and the personal interest) of others to spare him from a criminal charge.

Ray’s decision not to pursue criminal charges will be debated by academics for decades. Ray is a decent and respected career prosecutor. He made what he considered to be the decision that best served the interests of justice. I believe, however, that he was wrong. When his report was released this week, Clinton’s office released a statement that dismissed the entire investigation as a political farce and accused Ray of releasing the report to promote a Senate campaign. The statement, in true Clintonesque form, also attacked Jones and Lewinsky.

The Ray report is a unique document because it describes not simply criminal acts but successful criminal acts. It is the description of a known alleged criminal actor who was able to avoid indictment because he made such prosecution too costly for the nation. In the end, Bill Clinton produced a type of justice in his own image: indeterminate, relativistic, and personality driven. Perhaps it is a fitting end but it was hardly redeeming end for a nation based on the rule of law.