Anyone who wishes to see how the American judicial system can be prostituted for political purposes will never need to look further than United States v. Jim Guy Tucker, 03-3559, as the case will finally be catalogued at the 8th U. S. Circuit Court of Appeals.
This is the last of the so-called Whitewater cases prosecuted by independent counsels Robert B. Fiske Jr. and Kenneth W. Starr, and the one in which sheer spite and prosecutorial and judicial bumbling trumped the law time after time for 10 long years until its baffling conclusion last week. A panel of the circuit court held that Tucker could not withdraw his guilty plea to a bankruptcy fraud charge in 1998 after he learned that the government had secretly accused him of violating a law that did not exist.
The judges dismissed Tucker’s arguments in a brief opinion that included such fundamental errors and omissions that it would be hard to argue that they were not willful. No matter if the government tricked him into a guilty plea, if he said he was guilty he was guilty, the court essentially said.
In 1995 the Whitewater prosecutor, searching for a Democratic politician in Arkansas to charge with a federal crime, obtained an indictment against Gov. Tucker, who was as close as Starr could get to Bill Clinton, a bitter adversary of Tucker. He accused Tucker of putting a Texas cable television system that he was acquiring through a sham bankruptcy in 1988 to avoid paying $3.7 million in corporate income taxes. The alleged crime occurred when Tucker was a businessman.
Three years later, Starr and his deputies were still refusing to tell Tucker the specific tax law that he had violated, and U.S. District Judge Stephen M. Reasoner agreed that Tucker was not entitled to know until the trial. Reasoner would later express profound regret for this “egregious error” when he learned what the government had done. As the trial neared, a Starr deputy offered Tucker a deal: if he would plead guilty to some lesser wrong of Tucker’s choosing, he would pay a fine and small restitution and be allowed to continue his life and leave the country on business at his will. And if the courts overturned Tucker’s 1996 conviction for another private venture in the 1980s, Starr would not seek a new trial.
Having undergone a recent liver transplant and not knowing what the case against him was, Tucker made what he thought was a life-or-death decision. He told the judge that he had not given all the details of the cable transaction to the bankruptcy judge in 1988, although he had furnished them to the Internal Revenue Service, which did an audit and found nothing amiss.
It would be months later in a presentencing report when Tucker learned of his mistake — more precisely, of the government’s mistake (or lie). Starr was accusing Tucker of violating a tax provision that had been repealed by President Reagan’s tax reform act in 1986, two years before the transaction. When Starr’s office mercifully disbanded, the new government agents, the IRS and George W. Bush’s Justice Department, calculated that Tucker either owed very little in taxes on the deal or else, according to a Bush tax lawyer, was entitled to a refund.
Those stunning admissions came in a hearing that Judge Reasoner held to determine how much Tucker owed in restitution. You had to wonder, did Starr discover the error in 1998 and rush to get a guilty plea from Tucker, who was literally scared for his life, before he had to reveal his error at the trial?
But the 8th Circuit opinion last week characterized it as a dispute all along over which of two virtually equally plausible provisions of law applied, the old or new and that the court finally opted for the one that touched Tucker the lightest. He was still guilty because he admitted he did something wrong. But there was never anything close about the issue. One was the law, the other was not the law.
Judge James B. Loken, a Reagan judge who sat on all the Tucker panels, wrote in the order last week that “the assistant U.S. attorney” had adequately outlined the case before Tucker pled guilty. But the U.S. attorney’s office was never involved in the case. It was Hickman Ewing, Starr’s deputy and lead attorney in the courtroom. The 8th circuit never mentions the independent counsel. What a bizarre omission.
U.S. attorneys would never have brought the case. Under the rules, U.S. attorneys are never to bring criminal tax cases without the IRS’ consent and involvement. They are the people who know tax law and they would have realized instantly that there was no criminal case.
Loken also wrote that Tucker had agreed with the government that whatever law applied the government was owed $125,429.88. That was not true either. All sides had stipulated that the maximum owed was that sum but that it could be nothing, and the Bush tax lawyer conjectured that the government could actually owe Tucker.
Under established case law since 1963, the courts were bound to give Tucker a new trial if the government withheld information from him that would affect either his guilt or his penalty. Even while recognizing on another page that it did affect his penalty, the 8th circuit judges said the precedent did not apply. They did not say why.
The 1963 decision was intended to see that an accused person received a fair trial, “understood as a trial resulting in a verdict worthy of confidence.” Does this one give you much confidence in your judiciary?