Death of American Virtue - Ken Gormley [445]
A month earlier, Mike Emmick—who had been quietly working on this matter during the Senate impeachment trial—convened an “all-hands” meeting that lasted a full weekend. The issues on the table related to every angle of a possible Clinton prosecution: Were crimes provable? Did it make sense to go forward after the Senate had conducted an impeachment proceeding? After Judge Wright had held Clinton in civil contempt? After the underlying Jones case had settled for a hefty sum of $850,000? At the conclusion of the marathon session, the group reached a consensus: “There were definitely counts that were provable … before a neutral jury,” recalled Emmick.
The Justice Department, too, was exploring the question. In a confidential memo dated August 18, 2000, the Office of Legal Counsel submitted a fifty-page memorandum to Attorney General Janet Reno, addressing the issue of whether a president or former president found “not guilty” in an impeachment trial could nonetheless be indicted. The DOJ lawyers agreed that “the question is more complicated than it might first appear,” but concluded that the Constitution did not preclude such action, so long as prosecutors waited until the president left office.
With these memos on his desk, Robert Ray quietly constructed his own plan: He would clear the decks of extraneous matters and make a final decision about indicting Clinton by January 20, 2001—the day Bill and Hillary Clinton walked out of the White House. To do this, he needed to wrap up the FBI Filegate matter, the Travel Office case, and the original Whitewater probe. In a low-key fashion, Ray accomplished his goal by mid-September, announcing that there was insufficient evidence to move forward with criminal action against the president or Mrs. Clinton in each of these matters.
The Whitewater case was particularly touchy. By this time, First Lady Hillary Clinton was in the final stretch of her quest for election to the U.S. Senate seat in New York. Ray knew that Republicans supporting Hillary’s opponent might not like it, yet he concluded he had a duty to announce publicly that he had “declined to prosecute” Mrs. Clinton. Ray later explained, “I thought it was up to the voters to use this information as they deemed appropriate.”
Even most of his own staff members, it turned out, were not privy to the chief prosecutor’s plan. The tight-lipped Ray was laying the foundation, preparing to deal with the eight-hundred-pound gorilla.
At night, Ray sat at home reading and rereading a book written by Watergate special prosecutor Leon Jaworski, The Right and the Power. He was impressed that Jaworski, a consummate Texas trial lawyer, had demonstrated such strength and foresight by helping to forge a deal, entirely behind the scenes, that amounted to a masterful compromise: President Nixon resigned from office, and the special prosecutor elected not to pursue criminal charges. Ray recalled, “There were so many parallels. I thought to myself, ‘Wow. The country has been through this before. A prosecutor has faced this before.’”
Ray also met with Attorney General Reno and her top deputies, signaling that he would work with them cooperatively rather than poking sticks in their eyes; he needed the assistance of the Justice Department to accomplish his plan.
The special prosecutor also took steps to instill the fear of God in the White House. He hired a fresh crop of prosecutors,