President Clinton and Independent Counsel Robert Ray agreed Friday to settle the seven-year Whitewater probe. The president admitted that he gave misleading testimony in the 1998 Paula Jones case about his affair with Monica Lewinsky, accepted a five-year suspension of his Arkansas law license, and promised to cover $25,000 in legal fees related to disbarment proceedings against him in Arkansas. In exchange, Ray agreed not to indict Clinton on perjury charges. What kind of agreement is this?
It’s not your everyday legal agreement. It’s not a declination, in which a prosecutor drops a criminal investigation because the case isn’t solid enough to indict. Nor is it a plea bargain, in which a prosecutor accepts a guilty plea from the indicted in exchange for a lenient sentence (because, of course Clinton was never indicted). Nor is it a referral of a criminal case to civil authorities for resolution (such as when a criminal antitrust case is referred to civil prosecutors). The most unusual aspect of the deal is that Clinton reached a civil resolution with a criminal prosecutor.
The Clinton-Ray agreement occupies a legal space somewhere between a declination and a plea bargain. Ray declined to indict Clinton for criminal perjury (as in a declination), but he also struck a deal that requires Clinton to admit his evasions in the Jones proceedings and to pay a price (as in a plea bargain).
The deal brings in a third party, the Arkansas Supreme Court’s Committee on Professional Conduct, which was considering disbarment of Clinton–a civil action–over his alleged perjury. How exactly the deal was brokered is not clear. But here’s what it offers the three parties: Ray goes home knowing that Clinton received some punishment for his behavior. The Supreme Court’s committee gets the same satisfaction. And Clinton frees himself from the clutches of a criminal prosecutor and from a civil proceeding in which he could have been disbarred.
Explainer thanksPaul Butler, professor of criminal law at George Washington University Law School, and Jamin Raskin, professor of constitutional law at American University.