The issue of whether President Clinton should be prosecuted for perjury and obstruction of justice has arisen again in the Office of the Independent Counsel.
In November 1998, Kenneth Starr advised the House Judiciary Committee he had determined that he had the constitutional authority to indict Mr. Clinton while still in office, but did not plan to make a decision until the impeachment proceeding had run its course.
Legal authorities consulted by Mr. Starr were unanimous that he had the power to prosecute. But, with an eye to avoiding disruption of the presidency, they differed about whether indictment and trial should await the president's departure from office. The Constitution is clear that an official convicted by the Senate "shall nevertheless be liable and subject to indictment, trial, judgement, and punishment, according to law."
Starr came to believe that this was also true if the president was acquitted by the Senate, but in the end, Starr left the question and massive files, to his successor, Robert W. Ray.
Mr. Ray has been expanding his prosecutorial staff, and has publicly indicated that the question is under active consideration.
In an ABC interview he said, "The judgment was made by the country that it was not appropriate to remove the president from office. It is now my task, as prosecutor, with a very limited and narrow focus, to determine again whether crimes have been committed and whether, in the appropriate exercise of discretion, it is appropriate to bring charges."
He added, "It is an investigative mandate that we still retain, and the matter has not been closed."
In a New York Times interview, Ray said, "The process has to be vindicated. No person is above the law."
The leading precedent, of course, is the Nixon case. The Watergate grand jury unanimously favored indicting him, in 1974, but was advised by Special Prosecutor Leon Jaworski that preferring charges while he was in office was probably unconstitutional. Instead the grand jury voted secretly to name him, in the Watergate indictment, as an "unindicted co-conspirator," with the expectation that indictment would follow his departure from office.
After Nixon's resignation in 1974, Jaworski sent word to President Ford that an indictment was imminent unless Nixon was pardoned. Mr. Ford hastily issued the pardon.
There is no way of knowing, short of an improbable grand jury leak, whether or when Ray will move against Clinton.
But the question is clearly high on his agenda.
(c) Copyright 2000. The Christian Science Publishing Society