Bush's Luck, Clinton's Dilemma

The final indignity of the Clinton presidency may bring yet another piece of good fortune to the man who just won the White House while getting fewer votes than his opponent. Although the Independent Counsel Act is defunct and will therefore never cause the least trouble for George W. Bush, the office created under the act to investigate Bill Clinton still survives and continues to trouble him. Indeed, Robert Ray, Kenneth Starr's successor, has been extremely busy of late and shows every sign of intending to indict Clinton for perjury in the Monica Lewinsky case after the president steps down.

If Al Gore had won the election, Clinton's indictment would have presented Gore with an excruciating political choice. Not so for Bush. People in public life rarely have the chance to appear magnanimous, compassionate, high-minded, and bipartisan all at once. This is just the sort of opportunity that will fall into Bush's hands--that is, if Clinton does not preempt a Bush pardon before January 20 or foreclose one afterward.

Clinton all along has denied that he is interested in a pardon, and Bush's representatives have denied that he is considering one. There are good reasons, however, to ignore both of these denials. While Clinton would have the advantage of a favorable venue (Washington, D.C.), he cannot look forward to the humiliation of a trial, much less the possibility that he would be convicted. It is hard to imagine the United States sending a former president to jail (would his Secret Service agents accompany him?), but after all the inconceivable developments that have actually happened in the past few years, that risk cannot be ruled out.

Nor is it in Bush's interests to see Clinton put on trial. Just as the impeachment hurt Republicans in the 1998 congressional elections, so a Clinton indictment and trial would likely hurt them again. It would energize Democrats, and many others would feel it was purely an act of political vengeance at a time when the nation ought to be moving on. To be sure, if Bush were to pardon Clinton--most likely, after an indictment but before a trial--he would face howls of outrage on the right, yet those reactions would only reinforce the impression of presidential statesmanship. By pardoning Clinton, Bush would put an ugly chapter of the past behind us and affirm the importance of his own agenda. He would be demonstrating his concern for the dignity of the presidency at the very moment he was forgiving his predecessor's failure to uphold it. Bush is surely shrewd enough to see the beauty of this gesture.

Clinton, however, might want to avoid the condescension of a pardon by one of two means. He could turn it down, although legal experts are uncertain about whether anyone can do so. The president has a plenary power to pardon; there are no limits on his authority. But according to a recent article by John Dean, Richard Nixon's White House counsel, there is at least one precedent, Burdick v. United States, in which the Supreme Court held that the recipient of a pardon had a right to turn it down to prove his innocence in court. If a trial had some high purpose such as upholding a constitutional principle, I could see Clinton turning down a pardon. But the petty and degrading aspects of this case argue in favor of an acceptance. Instead of winning approval of his bravura, Clinton would more likely infuriate people by dragging the nation through the Lewinsky scandal again.

Alternatively, Clinton could avoid a trial and deny Bush the opportunity to pardon him by issuing himself a pardon before leaving office. While such a move would contradict his earlier statements, he could say he was protecting his family. As he has endured the shame of the scandal, so he could endure the marginal increment in criticism for the pardon. Because of the plenary nature of presidential authority to pardon, a self-pardon would probably stand up, although Ray might contest it up to the Supreme Court. That would create another possibility for Republicans to demonstrate that they can rise above partisanship, by giving the five justices who put Bush in the White House a chance to make a show of impartiality in a decision upholding Clinton's self-pardon.

While I doubt Clinton will do it, I would prefer that he pardon himself rather than have Bush gain credit for being compassionate and bipartisan when he would be conceding nothing of substance. After the election, many observers thought Bush would bring Democrats into his administration and adopt a conciliatory posture on various issues. His initial appointments, particularly John Ashcroft as attorney general, don't suggest anything of the sort. A Clinton pardon would give him a cheap way to achieve the image of conciliation without the real thing. Clinton should close the book on the Lewinsky scandal himself. ¤

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