The other day Robert Ray-the prosecutor appointed to succeed former independent counsel Kenneth Starr in the six-year-old Whitewater-Foster suicide-Travel Office-F.B.I. files-Rose Law Firm files-Monica Lewinsky-Kathleen Willey investigation-announced that he may seek to indict Bill Clinton after the President leaves office next January. Evidently he is in no hurry to complete the legally required reports about the long list of pending probes left behind by his predecessor. Instead, he apparently considers it his primary duty to vindicate Mr. Starr.
Even the editorialists at The New York Times , who strained to excuse the excesses of the Starr investigation, think that Mr. Ray’s proposed adventure is a bit much. Richard Posner, the ultraconservative legal eminence from the University of Chicago and no friend of the President, has written that the prospect of a Clinton indictment next January is far-fetched.
Winning a felony conviction of Mr. Clinton might lie beyond the reach of the most persistent prosecutor. Would he be charged with perjury? He certainly lied, but the independent counsel would have to prove beyond a reasonable doubt that the President’s prevarications were actually material to the Paula Jones case.
Would Mr. Clinton be charged with obstruction of justice? Given what we already know about the grand jury testimony of Ms. Lewinsky and others, an obstruction count would be equally hard to prove. Had the independent counsel really believed that Vernon Jordan or Betty Currie were lying about the Lewinsky scandal, he could have indicted them two years ago and tried to induce them to testify against the President. Evidently there was insufficient evidence to support any such theory, no matter how fervently Mr. Starr may have believed it.
That leaves the Kathleen Willey affair, in which Mr. Starr and his deputies attempted to show that someone associated with the Clinton White House had tried to intimidate her from testifying about the alleged Presidential grope. But Linda Tripp, Mr. Starr’s other star witness, severely undermined Ms. Willey’s credibility when she swore that Ms. Willey had desired a romantic involvement with the President.
Yet Mr. Ray may not be discouraged by such factual obstacles. It must be tempting to make history as the first prosecutor to indict a former President; and if most Americans would not approve, there is still a small and very powerful minority who would applaud loudly. Conservatives who once tried to justify the pardon afforded Richard Nixon-a man whose crimes in office make Mr. Clinton’s peccadilloes seem vanishingly insignificant-now admonish us that “no one is above the law.”
Based on Mr. Ray’s previous service, he may indeed become the perfect champion of that unreconciled faction. Prior to taking over from Mr. Starr, he served as chief deputy to Donald Smaltz, the independent counsel who spent years and millions in the bumbling, intensely politicized and ultimately unsuccessful prosecution of former Agriculture Secretary Mike Espy. While Mr. Espy was found innocent of accepting an illegal gratuity from Tyson Foods, the giant Arkansas poultry processor, others caught up in that probe didn’t fare as well.
One of those unfortunates was Archie Schaffer. As a Tyson official, Mr. Schaffer invited Mr. Espy to two events in early 1993: an inaugural party and a birthday party for company chairman Don Tyson. On that basis, Mr. Ray charged Mr. Schaffer with violating the Meat Inspection Act, a statute whose true purpose is obvious from its title-that is, to punish butchers who try to bribe federal inspectors.
Mr. Ray won a conviction of Mr. Schaffer, which was overtuned on appeal by the trial judge. Among other problems, the judge noted that the Meat Inspection Act doesn’t cover the poultry industry. He ruled that “no rational trier of fact” could find that Mr. Schaffer had tried to influence Mr. Espy’s official actions.
Two months after Mr. Schaffer’s conviction was overturned in September 1998, the former Agriculture Secretary was acquitted on all counts. That repudiation by the jury, however, didn’t dissuade Mr. Ray from seeking to punish Mr. Schaffer on the flimsiest grounds. He sought and won reinstatement of the conviction, even though the aims of the investigation had been permanently thwarted.
Just weeks ago, Mr. Ray once more demonstrated that he is ruled by a vengeful impulse, well beyond any necessity to uphold the law. He personally appeared in a federal courtroom in Virginia to oppose Julie Hiatt Steele’s plea for reimbursement of the enormous costs of Mr. Starr’s failed perjury prosecution of her. Under Federal law she is entitled to such assistance, but Mr. Ray thinks the destitute single mother should be denied it. The prosecution of Ms. Steele was a low point for the Starr office, but Mr. Ray appears doggedly intent upon “vindication” there, too. Such poor judgment is a bad omen for the heavy decisions that still await him.