Death of American Virtue - Ken Gormley [533]
As judges Cudahy and Sentelle: See Judge Richard D. Cudahy to Chief Justice William H. Rehnquist, 29 Aug. 2000. A judicial misconduct complaint was filed against Judge Cudahy by two Republican congressmen. He was ultimately cleared of any wrongdoing by the Judicial Council of the Seventh Circuit, in a sweeping opinion by Judge Richard Posner, a Republican heavyweight who could not be accused of throwing the game for Cudahy (In Re: Complaint Against Circuit Judge Richard D. Cudahy, 294 F. 3d 947, 7th Cir. Judicial Council, 24 May 2002).
A month earlier: Michael Emmick, interview by author.
The DOJ lawyers agreed: There was a plausible argument that the Impeachment Judgment Clause in Article I, Section 3, of the Constitution “[could] be read to bar prosecutions following acquittal by the Senate.” The better interpretation, the DOJ memo concluded, allowed for subsequent criminal action in order to “[make] for a sensible and fair system of responding to the misdeeds of federal officials.” However, the Office of Legal Counsel prepared a separate memorandum taking a strong position that the president, under no circumstances, could be indicted or criminally prosecuted while in office. Reaffirming the legal opinion of then Solicitor General Robert Bork during the Nixon-related Watergate scandal in 1973, the Justice Department lawyers wrote to Attorney General Reno: “Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.” This immunity lasted until the president was removed from office by impeachment or had left office at the conclusion of his term (Randolph D. Moss, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” Memorandum for the Attorney General, Office of Legal Counsel, 16 Oct. 2000, OIC archives).
the Constitution did not preclude: Randolph D. Moss, “Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the Senate,” Memorandum for the Attorney General, 18 Aug. 2000, OIC archives.
With these memos on his desk: Robert W. Ray, interview by author.
Ray accomplished: Ibid.; Bill Miller, “Prosecutor Clears Clintons: 6-Year Probe of Their failed Arkansas Real Estate Dealings Ends with No Charges Filed,” Pittsburgh Post-Gazette, 21 Sept. 2000. With respect to the lengthy and expensive Whitewater probe, for instance, Ray wrote tersely: “This office determined that the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President or Mrs. Clinton knowingly participated in any criminal conduct.”
“I thought it was up to”: Robert W. Ray, interview by author. At first, David Kendall fired off letters to Ray warning that there would be hell to pay if Ray released his findings before the election, because these might provide fodder for opponents who would try to suggest that Mrs. Clinton had done something wrong that simply wasn’t provable. Ray released the results anyway, sticking to his plan.
a number of messy problems: Among other things, David Kendall’s barrage of motions in court had led to the lodging of criminal charges against Starr’s former press spokesperson, Charles Bakaly. In October 2000, Judge Norma Holloway Johnson finally cleared Bakaly of contempt charges, although Starr’s own prosecutors testified against him. Bakaly was accused of leaking an earlier plan to indict Clinton during the midst of the impeachment trial (Byron York, “The Ordeal of Charles Bakaly,” American Spectator, September 2000; David Stout, “Aide to Starr Is Acquitted of Contempt,” New York Times, 7 Oct. 2000; David Grann, “Background Noise—Starr Wars: The Finale,” New Republic, 28 June 1999).
Although Judge Kern: Reliable sources confirm that the special master had concluded that at a minimum, Starr’s prosecutors had