Online NewsHour: Making a Deal -- January 19, 2001



	MAKING A DEAL
January 19, 2001

A discussion of the arrangement reached between President Clinton and Independent Counsel Robert Ray that ends the criminal investigation of the president.

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The White House

MARGARET WARNER: We get more on this agreement from two journalists who followed the Clinton investigations closely over the years, Stuart Taylor of the National Journal and Newsweek, and Tom Oliphant of the Boston Globe. Well, gentlemen, all right, Tom. How and why did this come about on the last full day of the Clinton presidency?

Admission of wrongdoing

TOM OLIPHANT: Well, for a number of reasons, and I must say this is one of these settlements that has the complexity worthy of the Vietnam peace talks in many respects. But there was a kind of a deadline in the sense of President Clinton about to leave office. My understanding is that Robert Ray, the prosecutor, was most anxious, in the public interest, to get an admission from a sitting President of wrongdoing -- that that was the highest priority that he had. And he also had a club down the stretch in the sense that if these discussions had not been successful, the possibility would have existed that he would have started as a prosecutor with a clean slate next week, and could have proceeded with a case that might have resulted in indictment.

MARGARET WARNER: So in other words, are you saying that Ray made clear to Clinton-- to President Clinton's lawyers that if they didn't reach a deal by today, all bets were off.

TOM OLIPHANT: That doesn't prejudge what would happen. But it was very important for him in the public interest I'm told that this admission come from somebody who was a sitting President of the United States. And of course from President Clinton's standpoint, the advantages again are obvious in the sense that while he drew some very firm lines that he would not cross in these negotiations, getting it over with is obviously preferable to having it go on.

STUART TAYLOR: I can only really think of one reason why it would have been so important to Ray for it to happen while he was President, and that is the amount of attention it gets. It gets huge attention when he does it on January 19 of this year. If he had done it three weeks from now, it would have been a blip or close to a blip.

MARGARET WARNER: As a legal matter, does it also establish any kind of principle about a sitting President having to acknowledge something?

STUART TAYLOR: No, I don't think so. I think probably the better of the argument is that you cannot indict a sitting President in a criminal proceeding, at least not for something like this. And I don't think this changes that at all. He has not admitted to committing a crime. You notice - he only admitted - and it is exquisitely negotiated -- I won't call you a liar if you don't call me a vast right wing conspiracy, right. But he has admitted that some of his answers were false. He has admitted that he was deliberately misleading. Some of that he had admitted before. He admitted that it obstructed the bar proceeding-- I'm sorry, the civil lawsuit and agreed to accept a five-year suspension. He hasn't agreed to any criminal sanction at all, and he has most definitely has not said anything that's tantamount to "I committed a crime."

MARGARET WARNER: It is worth noting here he's only admitting anything about his testimony in the Paula Jones deposition, not about the Grand Jury testimony.

TOM OLIPHANT: Margaret, that was the first line that President Clinton's set down on his end of the negotiations and said he would not cross. I mean, as a matter of fact, as I'm sure Stuart knows, the bulk of the resources expended by Robert Ray in this investigation in recent months did not involve the deposition in the Paula Jones case about Monica Lewinsky and their relationship, whatever it was. It involved the President's testimony before the Grand Jury many months later, viewed as a much more serious potential charge. But the President would make no admission of any kind with regard to that Grand Jury testimony, however controversial it was and remains. In addition, he would make no... and here's where the language becomes so fascinating. He wouldn't use active verbs in his acknowledgment. In other words, when he filed this down in Pulaski County in Arkansas, today, in Little Rock, that the evasive and misleading answers he gave was prejudicial to the administration. It doesn't say I blocked any investigation.

Warner MARGARET WARNER: I obstructed justice.

TOM OLIPHANT: And it went on to insist to say that what we mean by that, it caused everybody to spend a lot of extra time and money and resources on the case - not that we covered it up - and even the use of the word "false;" it is not in the filing in Pulaski County, it is in the statements issued by Clinton and Ray.

STUART TAYLOR: And frankly to the extent that it focuses on the Paula Jones deposition and not on the Grand Jury law and getting Monica Lewinsky to lie, getting Betty Currie to lie, that's all good for Clinton because a lot of people look at what he did in the deposition and say what is he supposed to do? Are you surprised -- is he supposed to say yes, I had an affair.

MARGARET WARNER: We should remind people. This was the Paula Jones deposition -- he was suddenly blindsided and asked about a relationship with Monica Lewinsky.

STUART TAYLOR: He wasn't suddenly blindsided; he knew a month before the deposition they were asking-- and he had a choice. He could have gone ahead and lied, which is what he did, although he hasn't quite admitted that yet. He could have settled the case. Or he could have said I'm not going to testify about my private life. And so in that sense it was a very... it was not a spur of the moment thing at all. But I think that kind of gets lost in the shuffle and all he is really admitting to is being accidentally false while trying to be deliberately misleading in the deposition.
Oliphant quote

Walking a fine line

MARGARET WARNER: Here is something that's unclear and the way the spokesmen talked about. He used the word knowingly -- I knowingly gave these answers. Is he saying he knew at the time he was giving false answers? Is he admitting that, or is he saying I realize now that... Well, you explain.

TOM OLIPHANT: Again that's the perfect question. To show how this was done. Because knowingly does have context, but not... In the formal document, all you see is the word. But, for example, in the letter from his attorney, David Kendall, to the prosecutor, you get a narrative where you have some of the language Stuart was alluding to, that he was trying to walk this fine line in order not to disclose a sexual affair or whatever the heck you call that relationship. But he is not... he is saying almost that I discovered it in retrospect. In other words, I didn't go in there to lie is what Kendall is saying in this letter. But I realized....

STUART TAYLOR: I would have been lying if I meant to lie.

TOM OLIPHANT: This is why compromises I think are often ridiculous if you start to parse the sentences the way the President has.

STUART TAYLOR: Remember, his own lawyer, Greg Craig, said in late 1998 to the House, he was being "evasive, incomplete, misleading, even maddening." The next day Chuck Ruff, his other lawyer, the late Chuck Ruff, a great lawyer, said he thought he was being evasive but truthful. A reasonable person might think that he crossed over the line and what he said was false. Now he has given that last inch on that one front.

TOM OLIPHANT: It's a very important point because I think up until now, Stuart, the President's language-- I mean a lot of this was made in response to the civil contempt finding that Judge Susan Webber Wright hit him with after his testimony. What is different even if it is just in a White House statement is the use of the word "false." And this is what I mean about Ray's effort to get an admission from a sitting President of the United States however modulated of wrongdoing and that was the key interest of justice here.

STUART TAYLOR: I was just counting them and in that sentence there are 60 words between knowingly and false.

A just decision

MARGARET WARNER: All right. But let me go away from this textual analysis and ask you, Stuart, about Ray's decision here because he defended or he asserted why he did it. He thought this was -- served the administration of justice. Do you think it is the right prosecutorial call?

Taylor STUART TAYLOR: I think it probably is. Ray was in a very difficult position because he had what looked to him and to a lot of other people like a technically slam dunk criminal prosecution on various grounds. Now you're supposed to prosecute cases like that. But -- on the other hand - nobody really -- very few people really wanted Clinton prosecuted. And it was a good chance, a very good chance that a prosecution would have failed or the jury wouldn't have bought it. So Ray is sitting there, and there is no easy wait out for him. Well this seems like a pretty good way out for everybody.

TOM OLIPHANT: I think there was another factor. Also hanging in the background as you exercise this enormous discretion that a prosecutor has was the possibility or the likelihood of some kind of pardon from the next President, President Bush, should this case have proceeded. So that making that judgment about whether there's going to be a conviction, and then you also factor in President Clinton's intention to contest the case on the grounds that he's not guilty. And you have a situation, I think, that leads a prosecutor to get this admission in the interest of justice; that that's really what's important here is the acknowledgment. And I don't, from all I can gather today, I don't think Ray was very close to an actual decision whether to proceed with a criminal case.

STUART TAYLOR: Actually they've only had six or seven years.

TOM OLIPHANT: Right. And we're only three hours into this. But what I sense is a tremendous feeling not just of relief, but that Clinton and Ray were right to get this done.

Warner MARGARET WARNER: Ray did say, Stuart, as you know, he cited Justice Robert Jackson when he was Attorney General, saying the citizens' safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth not victims, who serves the law not factional purposes and approaches his task with humility. How do you read that?

STUART TAYLOR: Well, I think the central message is punishing wrongdoing is not the only thing I'm supposed to have on my radar screen. There are lots of other factors that come into prosecution, and I think especially in an extraordinary case like this, the President of the United States. On the one hand he shouldn't be above the law, on the other hand we don't want to be a banana republic that starts trying to put its former Presidents in jail. He also quoted I think in the same spirit, a great learned hand quote "the spirit of liberty is the spirit of not being too sure that you are right." And I think he went about this in that spirit, as in, well, you know-- he never decided I have to prosecute him. I have to get him. But he never decided to walk away from it, either.

MARGARET WARNER: All right. Thank you both.