Sunday, Jul 20, 2008
The independent counsel's pathetic final report reveals what a travesty the right wing's get-Clinton crusade was.
Mar 12, 2002 | Robert Ray had enough evidence to indict and convict President Clinton -- he just chose not to. That was the headline on nearly every story about the Office of Independent Counsel's Final Report on the Lewinsky investigation, released last week. To his critics, Ray sounded like a schoolboy who, after running from a fight, later claims he could have beaten the other guy up. Really. He just decided not to.
How good was the evidence Ray had? We still don't know. The report sheds almost no light on the quality of his case against Clinton. We've known for years that during his deposition in Paula Jones' sexual harassment lawsuit against him, Clinton's answers to questions about Monica Lewinsky were comically evasive, even to the point of lying, if we mean "lying" in the common-sense, colloquial sense of the term. There's almost nothing new here.
What is new in the report is, strangely, getting very little attention. Or maybe it isn't strange. So much of the media was invested in breathless, often uncritical coverage of Clinton's impeachment, and the investigation that triggered it, that to blow the whistle on Ray's report might force reporters to look at the extent to which they colluded with the president's enemies. The investigation Ray inherited from his predecessor Kenneth Starr cost $70 million, and in the end yielded only the promise that it could have led to the president's indictment, but didn't. We all deserved more than that. (Although stay tuned: Ray promises that Part 2 will focus on Whitewater, the Clinton land deal that launched the Starr investigation in the first place. But since Starr himself decided not to proceed with indictments in that matter, it's probably safe to assume Part 2 won't contain any OIC-vindicating bombshells, either.)
But if the Clinton evidence isn't big news, the Ray report contains at least two fascinating revelations that haven't gotten nearly enough coverage. First, Ray's claim that the investigation showed that Starr's office didn't illegally leak grand jury information to the media is preposterous, based on a parsing of evidence more misleading than Clinton's famous "depends on what the meaning of the word 'is' is." And second, after spending almost $2 million to investigate her shocking claims against Clinton, the OIC apparently found Kathleen Willey, whose smeared lipstick almost toppled a presidency, not believable.
Even Ray's justification for releasing the report now ought to raise some eyebrows. He wrapped the report in a mantle of obligation: This was no press release trying to prove in the court of public opinion what he couldn't prove in a court of law! It was one of his official duties as independent counsel.
Only it wasn't. Not only was Ray not obligated to explain why he didn't charge President Clinton, it's not even entirely clear the law permitted him to do so. Yes, the original independent counsel statute, which expired in 1994, obliged the counsel to issue a report explaining the reasoning for not bringing charges against the target of the investigation, if he or she chose not to do so. But when the law was reauthorized in 1994, this clause was removed. The Senate version of the bill explicitly barred such an explanation -- figuring that an independent counsel might use the opportunity to do just what Ray did: tar his quarry in public even if he couldn't nail him in court. That was stripped away in legislative conference committee, and the law was silent on whether such a report should or should not be issued. (To be fair, Ray includes a long argument, based on the legislative history of the 1994 law, for why he decided he should issue such an explanation anyway -- but it isn't convincing.)
Even less convincing, however, is his brazen attempt to acquit Starr's office of one of the most damaging charges against it: that the OIC had illegally leaked secret grand jury testimony to the press, a violation of Federal Rule of Criminal Procedure 6(e). Now, plenty of published accounts have found that the OIC did leak secret grand jury testimony. Then there's the uncomfortable fact that countless articles were written in which leaks appeared, attributed to unnamed sources in the Office of Independent Counsel.
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