Columns » Ernest Dumas

The Whitewater tragedy


The one failing of "The Hunting of the President," the Harry Thomason film based on the book by Gene Lyons and Joe Conason, is that it goes too light on Kenneth W. Starr and the Republican judiciary that shielded his predations. National audiences may think the film is partisan because Starr is always caught flashing his adolescent smirk, even when you know he's lying. Little Rock audiences boo when he prances up to a microphone. They know him better. They know what the rest of the country doesn't, that the 16 Whitewater convictions that Starr's office bragged about when the independent counsel's office closed March 23 were for small-fry real-estate and loan fudging on which most prosecutors would not have wasted a minute and that had absolutely nothing to do with the president or the first lady. They know what has not been reported nationally, that the plea-bargain conviction of former Gov. Jim Guy Tucker, Starr's biggest catch, for a sham cable television bankruptcy was bogus. The Internal Revenue Service and the Bush Justice Department admitted last winter that the law under which Starr pursued Tucker, his business partner and attorney had long since been repealed by Ronnie Reagan's tax-reform act of 1986 and that Tucker never ducked a dime in taxes. Susan McDougal spent 16 months in prison for refusing to make a proffer to Kenneth Starr and a grand jury implicating the Clintons in something illegal. When she was asked after the film's screening about the lesson she learned from Whitewater it was that you could not after all depend on the federal courts to protect your rights. That indeed is the tragedy of Whitewater. Justice slept while loyal judges put politics ahead of the law. Whitewater was the first real manifestation of the politicization of the judiciary begun under Reagan and continued under the second Bush. It has always been true that a federal judge is a lawyer who knows a senator, but under Reagan ideologically pure lawyers usually were the only ones who got the call. Republicans deemed not sufficiently "reliable" were passed over. It began with a Reagan panel of judges' selection of Starr to pursue Clinton, continued with ruling after ruling expanding Starr's power - he once lied to the attorney general in an affidavit to get his probe expanded - and ended with a panel of judges at Little Rock giving him and his lawyers immunity for repeated ethical breaches. But it really didn't end there. The worst folly was yet to come. You remember how it began. Sens. Jesse Helms and Lauch Faircloth, upset with Republican independent counsel Robert Fiske because he hadn't found Clinton complicit in the death of Vince Foster, his deputy counsel, lunched with Judge David Sentelle, the Reagan-appointed chief of the panel supervising the independent counsel. A few days later, Sentelle removed Fiske and appointed Starr, who had lost his job as solicitor general when Clinton took office. Starr had proffered advice to Paula Jones, represented clients at war with the Clinton administration and, worst of all, his law firm was being sued for $3 million by the Resolution Trust Corp. for aiding the fraud of a Colorado thrift it represented. The RTC was involved in the Whitewater case because it was supervising the dissolution of Madison Guaranty Savings and Loan. Starr's first act as special prosecutor was to order an investigation to see if the RTC was illegally involved in Whitewater. (It wasn't.) Lo and behold, Starr's firm then was able to settle its fraud case with RTC by paying only a third of its liability. Conflict of interest? Starr, a senior partner, said someone forgot to tell him about the fraud suit. Judge Sentelle said Starr's political vendettas didn't bother him. Judges and prosecutors can't be expected to be nonpolitical, he said. When a similar argument was made at the 8th Circuit Court of Appeals in an ethical complaint against Starr, Judge James B. Loken, another Reagan judge, said prosecutors with political vendettas are great for the country. So much for the ancient doctrine that prosecutors owe people their impartiality as well as their vigor. When a Connecticut lawyer filed ethical complaints against Starr in federal District Court at Little Rock, the senior judge, the esteemed G. Thomas Eisele, a Republican appointed by Richard Nixon, found appearances of grave improprieties by Starr. Most Democratically appointed judges recused because they had at one time or another voted for Clinton; the Republican judges, except Eisele, dismissed the complaint on the ground that the lawyer wasn't directly involved in Whitewater dealings and had merely observed Starr's violations. If someone sees a lawyer bribe a person at Capitol and Main he apparently can't complain unless he is a party to the bribe. No law or district court rule permits such exceptions. The country did not seem particularly outraged by a politicized judiciary. Can five of its seven Republican justices of the Supreme Court be blamed if they thought they had a green light to set aside the 2000 election and declare George W. Bush the president-elect? That is the real fruit of Whitewater.

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