Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P41 potx

WHITEWATER Whitewater is the name given to the scandal involving President BILL CLINTON, First Lady HILLARY RODHAM CLINTON, members of the Clinton administration, and private individuals

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death in 1921 White’s legacy includes his contribution to antitrust JURISPRUDENCE, which long shaped how the Court viewed the area of law concerned with unfair business competition

Born on November 3, 1845, in Lafourche Parish, Louisiana, White was the son of wealthy sugar farmers He was the son of Edward Douglass White, Sr., a former governor of Louisiana, and grandson of Dr James White, a U.S representative, physician, and judge On his mother’s side, he was the grandson of U.S

Marshal Tench Ringgold, and related to the famous Lee family of Virginia Educated in Jesuit schools during his youth, he later attended Georgetown College From 1861 to

1863 he fought in theU.S.CIVIL WARon the side

of the CONFEDERACY and was captured and imprisoned by Union forces Private legal study followed the war, and after being admitted to the Louisiana bar in 1868, he established a private practice

The origin of White’s political and judicial careers reflected the spoils systems of late nineteenth century politics In the 1870s White served as a lieutenant to Louisiana Governor Francis T Nicholls Nicholls appointed him to the state supreme court in 1878, a post which lasted only until the governor’s electoral defeat

in 1880 But after the governor battled back into office in 1888, he appointed White to a newly vacant seat in the U.S Senate Serving in office from 1891 to 1894, Senator White understood how to serve the system that had created him:

he used the position almost entirely to advance the interests of his state’s sugar growers

In 1894 President GROVER CLEVELAND nomi-nated White to the U.S Supreme Court For several weeks White, who still had the state’s sugar interests on his mind, could not be persuaded to leave the Senate He remained there to ensure passage of the Wilson-Gorman Tariff Act, a protectionist bill that served the interests of domestic sugar producers A year later, White eagerly voted to uphold his favorite provisions of the Wilson-Gorman Tariff Act, but a majority of justices struck down those provisions inPOLLOCK V.FARMER’S LOAN AND TRUST

CO., 157 U.S 429, 15 S Ct 673, 39 L Ed 759 (1895)

White’s major contribution came in the area

ofANTITRUST LAW In the late nineteenth century, the issue of regulating business competition was

a paramount issue before lawmakers and the courts Congress passed theSHERMAN ANTI-TRUST

Edward Douglass

White.

LIBRARY OF CONGRESS

Edward Douglass White 1845–1921

1845 Born,

Lafourche

Parish, La.

1868 Admitted

to La bar

1914–18 World War I 1861–65

U.S Civil War

◆

1874–79 Served in

La State Senate

1891–94 Served

in U.S.

Senate

1921 Died, Washington, D.C.

1861 Graduated from Georgetown College (later Georgetown University

1879–80 Sat on the Louisiana Supreme Court

1895 Wrote dissent in Pollock v Farmers' Loan & Trust Co.

1894–1910 Served as associate justice of the U.S Supreme Court

1911 Wrote majority opinion in

Standard Oil Co of New Jersey

v United States, which

introduced the "rule of reason"

◆

1910–21 Served as chief justice

of the U.S.

Supreme Court

WHICH AN ELABORATE

DISSENT CAN

IS TO WEAKEN THE

EFFECT OF THE

OPINION OF THE

ENGENDER WANT OF

CONFIDENCE IN THE

CONCLUSIONS OF

COURTS OF LAST

—E DWARD D OUGLASS

388 WHITE, EDWARD DOUGLASS

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ACTin 1890 (15 U.S.C.A § 1 et seq.) in order to

combat the unfair constraint of trade that

was rampant in the nation’s biggest markets

Section 1 of the Sherman Act prohibits every

contract, combination, orCONSPIRACYto restrain

trade White found this provision contrary to

his probusiness sentiments He argued for

reading the act objectively: constraints upon

trade should be declared illegal only when they

are unreasonable

In 1911, a year after his elevation to chief

justice, White persuaded a majority of the Court

to accept his view It was contained in his most

important opinion as a justice, Standard Oil Co

of New Jersey v United States, 221 U.S 1, 31 S

Ct 502, 55 L Ed 619 (1911) This landmark

decision affected the course of anti-trust

jurisprudence by introducing the so-called rule

of reason According to White, the Sherman Act

only prohibits unreasonable restraints of trade

that hurt the“public interest.”

White’s application of the rule of reason

gave the Supreme Court more power to

interpret the Sherman Act, and the approach

dominated its decisions for the next two

decades Much like the earlier phases of his

career, White’s tenure as chief justice was

marked by his changing constitutional views,

and his strong belief in judicial power He died

on May 19, 1921 in Washington, D.C

FURTHER READINGS

Pratt, Walter F., Jr 1999 The Supreme Court under Edward

Douglass White, 1910–1921 Columbia: Univ of South

Carolina Press.

Reeves, William D 1999 Paths to Distinction: Dr James

White, Governor E D White, and Chief Justice Edward

Douglass White of Louisiana Thibodaux, La.: Friends of

the Edward Douglass White Historic Site.

WHITE PRIMARY

A legal device once employed by some Southern

states to prevent African Americans from

exercis-ing their right to vote in a meanexercis-ingful way

In the 1920s Southern states began using the

white primary as a way of limiting the ability of

African Americans to play a part in the political

process The white primary was an effective

device because of the virtual one-party political

system in the South that existed until the late

1960s In all but a few areas nomination by the

DEMOCRATIC PARTY was tantamount to election,

with Republicans often not bothering to run in

the general elections

In order to keep African Americans out of the political process, the Democratic party in many states adopted a rule excluding them from party membership The state legislatures worked in concert with the party, closing the primaries to everyone except party members

The Supreme Court had ruled in 1921, in Newberry v United States, 256 U.S 232, 41 S

Ct 469, 65 L Ed 913, that political parties were private organizations and not part of the government election apparatus Therefore, by means of the white primary device, African Americans were disenfranchised without official

STATE ACTION that would have triggered JUDICIAL REVIEW under the Fourteenth Amendment’s Equal Protection Clause

Beginning in the late 1920s the Supreme Court reviewed a series of cases involving the white primary In Nixon v Herndon, 273 U.S

536, 47 S Ct 446, 71 L Ed 759 (1927), the Court ruled that the state could not formally endorse the white primary, but in Grovey v

Townsend, 295 U.S 45, 55 S Ct 622, 79 L Ed

1292 (1935), it upheld a Texas white primary that was based solely on a resolution adopted by the state Democratic party

In United States v Classic, 313 U.S 299,

61 S Ct 1031, 85 L Ed 1368 (1941), the Court ruled that the federal government could regulate party primaries to prevent voter FRAUD In recognizing that primaries were part of a state’s electoral scheme, it overruled the Newberry precedent and weakened the Grovey v Townsend holding Finally, in Smith v Allwright, 321 U.S

649, 64 S Ct 757, 88 L Ed 987 (1944), the Court overruled the Grovey decision and struck down the white primary as a violation of the Fifteenth Amendment’s prohibition against voting discrimination based on race

Following Smith v Allwright, Texas Demo-crats established a private association from which African Americans were excluded The members of the association held “preprimary”

elections to select candidates for the Democratic primaries The Supreme Court declared in Terry

v Adams, 345 U.S 461, 73 S Ct 809, 97 L Ed

1152 (1953), that the preprimary device was unconstitutional, as it made the primary and general elections “perfunctory ratifiers” of the decisions made during the preprimary process

CROSS REFERENCES Civil Rights; Civil Rights Movement; Elections; Voting.

WHITE PRIMARY 389

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WHITE SUPREMACY GROUPS Organizations that believe the Caucasian race is superior to all other races and therefore seek either

to separate the races in the United States or to remove all non-Caucasians from the nation

White supremacy is an umbrella label applied to the beliefs of a number of groups

of activists in the United States Although the beliefs of the various groups differ in some ways, they share a desire to preserve what they call the “genetic purity” of the Caucasian race

Among the better-known white supremacist organizations are the KU KLUX KLAN, the Aryan Nations and its offshoot the Order, the White Patriot Party, and the White American Resis-tance movement These groups also are anti-semitic, as they classify Jews as non-Caucasian

Some members of white supremacy groups have committed violent acts against nonwhites and those whites who are opposed to their beliefs

The Ku Klux Klan has been the most enduring white supremacy group It was established after the Civil War and became a white underground resistance group to RECON-STRUCTION in the South Klan members used violence and intimidation against newly enfran-chised African Americans as a way of restoring white supremacy in the states of the former

CONFEDERACY Dressed in white robes and sheets

to disguise themselves, Klan members burned property and whipped, assaulted, and some-times murdered African Americans and their white supporters in nighttime raids These violent acts led Congress to pass the Force Act

in 1870 and the KU KLUX KLAN ACT in 1871, measures that authorized the president to

suspend the writ of HABEAS CORPUS, suppress disturbances by force, and impose heavy penal-ties upon terrorist organizations By the end of the 1870s, the Klan had virtually disappeared The Klan reemerged in 1915, adding new enemies to its list The revitalized organization drew upon immigrant, Catholic, anti-semitic, and anti-Communist prejudices, be-lieving that the ethnic character of U.S society was changing and that white Protestants were losing their dominant position The reinvigo-rated Klan extended its reach outside the South and into the Midwest, drawing most of its members from small towns By the late 1920s, Klan membership exceeded four million na-tionally Klan members participated in marches, parades, and nighttime cross burnings Klan membership dropped dramatically, however, during the Great Depression of the 1930s, and the national organization was virtually dis-banded in 1944

The CIVIL RIGHTS MOVEMENT of the 1960s ignited interest in the Klan in the South Klan members terrorized CIVIL RIGHTS workers, with many instances of bombings, beatings, and shootings The Klan was ultimately unsuccessful

in preventing the expansion of civil rights for African Americans, and membership declined again However, there was a resurgence of Klan activity in the late 1970s and early 1980s, with most groups located in southern towns and cities Since 1981 the SOUTHERN POVERTY LAW CENTER, located in Montgomery, Alabama, has monitored Klan activity through an effort called

“Klanwatch.” It issues a quarterly report that identifies Klan leaders, locations, and activities Neo-Nazi groups, which base their beliefs

on Adolf Hitler’s Nazi ideology, have been active since the 1960s The American Nazi Party conducted many demonstrations during the 1960s and 1970s In the 1980s and 1990s, other groups arose that espouse similar racist and anti-semitic beliefs, most prominently the group Aryan Nations, also known as the Church

of Jesus Christ Christian The religion of the Aryan Nations is the Christian Kingdom Identity Movement, whose adherents believe that white Europeans are the chosen people of the Bible, that Jews are the offspring of Satan, and that all others are fit only forSLAVERY The rise ofVANDALISMand violent crimes by persons associated with white supremacy groups led states to enact HATE CRIME statutes

Members of the

National Socialist

Movement gather in

Madison, Wisconsin,

to hold an event in

support of

anti-immigration policies.

White supremacists

use the freedom

of speech to express

their views.

DARREN HAUCK/GETTY

IMAGES

390 WHITE SUPREMACY GROUPS

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These laws provide additional penalties if a jury

finds that a defendant intentionally selected a

victim based on race, religion, color, national

origin, or sexual orientation In addition, federal

civil rights statutes that derive from the original

1870s anti-Klan laws have been used to

prosecute members of white supremacy groups

for their ideologically based criminal acts

In the 1990s white supremacy groups

became linked to right-wing MILITIA

organiza-tions These militia groups, while espousing

anti-government violence, often share a belief in

white supremacy The bombing of the Murrah

Federal Building in Oklahoma City in 1995 by

Timothy McVeigh, with the help of Terry

Nichols, was motivated in part by white

supremacist ideology McVeigh was an avid

reader of The Turner Diaries, a 1978 novel by

William Luther Pierce that described a violent

revolution in the United States that led to the

extermination of Jews and non-whites

Many white supremacists maintain low

profiles, seeking to champion their beliefs

through support of their racist organizations

Others, however, have come to use the Internet as

a recruiting tool and communication link to

others who share their beliefs The Southern

Poverty Law Center’s Intelligence Project tracks

white supremacist groups and hate crimes in the

U.S It has also filed civil lawsuits that have

resulted in damages awards against 40 individuals

and nine major white supremacist organizations

However, in 2008 the organization identified

926 U.S hate groups, an increase of 50 percent

since 2000 The election of BARACK OBAMA, the

nation’s first African American president, has

also fueled white supremacist rhetoric

FURTHER READINGS Gallaher, Carolyn 2003 On the Fault Line: Race, Class, and the American Patriot Movement Lanham, Md.: Row-man & Littlefield.

Swain, Carol M 2002 The New White Nationalism in America: Its Challenge to Integration New York: Cam-bridge Univ Press.

Zeskind, Leonard 2009 Blood and Politics: The History of the White Nationalist Movement from the Margins to the Mainstream New York: Farrar, Straus, and Giroux.

CROSS REFERENCES Jim Crow Laws; Second Amendment; Militia; Terrorism.

WHITEACRE

A fictitious designation used by legal writers to describe a parcel of land

Whiteacre is frequently used with Blackacre, another fictitious designation, in order to distinguish one piece of land from another

vWHITEMAN, MARJORIE MILLACE Marjorie Millace Whiteman was a scholar and expert in INTERNATIONAL LAW who served in the U.S STATE DEPARTMENT from 1929 to 1970 She participated in the drafting of the United Nations Charter and the 1948 UNIVERSAL DECLA-RATION OF HUMAN RIGHTS, and as a scholar published a fifteen-volume Digest of Interna-tional Law between 1963 and 1972

Whiteman was born on November 30, 1898,

in Liberty Center, Ohio She graduated from Ohio Wesleyan University in 1920 and received LL.B and J.S.D degrees from Yale Law School in

1927 and 1928, respectively At Yale, Whiteman studied with Edwin M Borchard, a leading international law scholar After law school

Marjorie Millace Whiteman 1898–1986

1986 Died, Liberty Center, Ohio

1898 Born,

Liberty Center

Ohio

1920 Graduated from Ohio Wesleyan University

1929 Joined the State Department

as a special assistant to the legal advisor

1945 Helped draft the United Nations Charter

1948 Helped draft Universal Declaration of Human Rights and the Organization of American States Charter

1949 Named first assistant legal advisor for American republic affairs

1965–70 Served as counselor for international law in the Office of Legal Advisor

1963–72 Digest of International Law published

1914–18 World War I

1939–45 World War II

1950–53 Korean War

1961–73 Vietnam War

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Whiteman served as a research associate with the Columbia University Research Commission

on Latin America She joined the State Depart-ment in 1929 as special assistant to the department’s legal advisor Green H Hack-worth, a position she held until Hackworth’s election to the INTERNATIONAL COURT OF JUSTICE

in 1946

In the State Department Whiteman became

a specialist in international organizations In

1945 she helped draft the United Nations Charter and the 1948 Universal Declaration of Human Rights She served as legal counsel to

ELEANOR ROOSEVELT when Roosevelt represented the United States on the United Nations Commission on Human Rights

Whiteman had a strong interest in, and knowledge of, inter-American affairs She played a major role in many Pan-American conferences and proposed the idea of consulta-tion for the inter-American system In 1948 she took part in the conference at Bogotá, Colom-bia, which drafted the charter of the Organiza-tion of American States

When the State Department was reorga-nized in 1949, Whiteman was named the first assistant legal advisor for American republic affairs, which involved relationships with Central and South America In 1965 Whiteman became the first counselor for international law in the Office of Legal Advisor (an office in the State Department that advises theSECRETARY

OF STATE on all matters of international law arising in the conduct of U.S foreign rela-tions), a position she held until her retirement

in 1970

Despite her activities in the State Depart-ment, Whiteman found time for scholarly work

in international law She was a major contribu-tor to Hackworth’s eight-volume Digest of International Law (1937–1943), and established herself as a world expert with the publication of her Digest of International Law Whiteman died

on July 6, 1986, in Liberty Center, Ohio

FURTHER READINGS

“Marjorie M Whiteman.” 2005 Ohio History Central.

Available online at http://www.ohiohistorycentral.org/

entry.php?rec=409&nm=Marjorie-M-Whiteman;

website home page: http://www.ohiohistorycentral.org (accessed September 7, 2009).

Whiteman, Marjorie M 1963 Marjorie Whiteman’s Digest of International Law Washington, D.C.: Government Printing Office.

CROSS REFERENCE United Nations.

WHITEWATER Whitewater is the name given to the scandal involving President BILL CLINTON, First Lady

HILLARY RODHAM CLINTON, members of the Clinton administration, and private individuals and public officials in Arkansas Though the alleged wrongdoing took place before Clinton was elected president in 1992, investigations by an

INDEPENDENT COUNSEL continued into Clinton’s second term of office As with PresidentRICHARD

M NIXON’s WATERGATE scandal, the focus of the independent counsel’s investigation shifted from the underlying event to the question of whether the president and members of his administration participated in a cover-up The role of Hillary Clinton in these events also became a target of investigators As in Watergate, the Whitewater scandal quickly became politicized Democrats accused Republicans in Congress as well as the Republican independent counsel of conducting a political witch hunt

The Whitewater scandal involved a failed resort development on the White River in the Ozark Mountain region of Arkansas In 1978 Bill Clinton, then Arkansas attorney general, and his wife Hillary Clinton joined a partner-ship with James and Susan McDougal to form Whitewater Development Corporation, a real estate development firm that built vacation homes near the White River Although the development failed financially, and neither Bill nor Hillary profited from the venture, members

of the national media began investigating the venture more closely once Bill Clinton an-nounced he was running for president of the United States After it was discovered that the Whitewater development implicated the Clin-tons in a series of dealings that were question-able at best and corrupt or criminal at worst, the media’s investigation quickly escalated into a political scandal that only reached a conclusion

as Clinton’s term in office neared an end

The Whitewater Developement

Bill Clinton had known Arkansas businessman and political figure Jim McDougal since 1968 and had made a previous small REAL ESTATE

392 WHITEWATER

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investment with him in 1977 Bill and his wife

Hillary Clinton were seeking ways of

supple-menting his salary of $26,500 as Arkansas

Attorney General and hers of $24,500 as a Rose

Law Firm associate

In Spring 1978 McDougal approached Bill

and Hillary with new proposal: to join with him

and his wife Susan to buy 230 acres of

undeveloped land along the south bank of the

White River near Flippin, Arkansas, in

the Ozark Mountains The goal was to subdivide

the site into lots for vacation homes, intended

for the many people coming south from

Chicago and Detroit who were interested in

low property taxes, fishing, rafting, and

moun-tain scenery The plan was to hold the property

for a few years and then sell the lots at a profit

The four borrowed $203,000 to buy land,

and subsequently transferred ownership of the

land to the newly created Whitewater

Develop-ment Corporation, in which all four

partici-pants had equal shares; Susan McDougal chose

the name Whitewater Estates; their sales pitch

was,“One weekend here and you’ll never want

to live anywhere else.” The business was

incorporated on June 18, 1979

Whitewater and the Clinton

Governorship

In 1978 Clinton was elected governor of

Arkansas but lost his re-election bid two years

later Jim McDougal bought the Madison Bank

and Trust in 1980 and in 1982 purchased a

small savings and loan company and renamed it

Madison Guaranty In 1982, Clinton was again

elected governor of Arkansas, this time holding

the position for ten years

By 1984 Madison Guaranty Savings and

Loan was in financial trouble, with federal

regulators questioning its lending practices and

its financial stability Under Arkansas law, the

state’sSECURITIEScommission could have closed

Madison Guaranty However, in January 1985,

Clinton appointed Beverly B Schaffer to head

the commission She approved two stock-sale

plans to raise money to keep Madison Guaranty

solvent Madison had retained the Rose Law

Firm of Little Rock to help it secure approval of

its stock-sale applications Hillary Clinton

worked as an attorney at Rose and was also a

partner of McDougal in the Whitewater

devel-opment In addition, McDougal held a

fund-raising event for Governor Clinton in 1985

to help pay off a Clinton campaign debt

Investigators later determined that some of the money was improperly withdrawn from depositor funds

Despite the stock sales, the bank failed to raise enough capital, and by 1986, the Resolu-tion Trust CorporaResolu-tion (RTC), the federal agency responsible for handling savings and loan failures, took over the bankrupt thrift

McDougal was charged with bank FRAUD Four years later, McDougal was acquitted of the charge, based on an INSANITY DEFENSE Mean-while, the Whitewater development proved

a financial disappointment, providing the Clintons with losses rather than profits The Clintons sold their interest in the Whitewater corporation before Bill Clinton was sworn in as president in 1993

The Whitewater scandal is grounded in these events of the 1970s and 1980s It appeared that McDougal had been helped by his business partner Hillary Clinton, the wife of the gover-nor Governor Bill Clinton had appointed the state securities commissioner who allowed the failing thrift institution to stay open By the time Bill Clinton was running for president

in 1992, the national news media was investi-gating whether favors had been granted and conflicts of interest had been overlooked in apparent disregard for Arkansas state law

Whitewater and Clinton’s First Term in the White House

The news media and members of Congress pursued Whitewater during the first months of Clinton’s presidency The July 1993 SUICIDE of Deputy White House Counsel Vincent Foster heightened interest in Whitewater, as Foster had several links to it Foster had worked at the Rose Law Firm with Hillary Clinton, had handled the sale of the Clintons’ interest in Whitewater, and had talked to an attorney who had previously prepared a report for the Clintons on the investment just hours before his suicide Finally, after Foster’s death, White House staff removed Whitewater files from Foster’s office Critics suspected that the removal of files was part of a White House cover-up, while others speculated that Foster had been murdered to prevent the disclosure of damaging information

In October 1993, the RTC asked theJUSTICE DEPARTMENT to investigate whether Madison’s funds had been illegally siphoned into the

WHITEWATER 393

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Whitewater corporation and whether Madison had illegally given money in 1985 to pay off Clinton’s campaign debt Though President Clinton steadfastly denied any wrongdoing by himself or the first lady, Attorney GeneralJANET RENOcame under intense pressure to appoint an independent counsel At first she refused, noting that the independent counsel law had expired in 1992 (5 U.S.C.A § 1211) Any counsel appointed by her would appear to be politically tainted

Nevertheless, in January 1994, Reno appointed Robert B Fiske Jr., a former U.S

attorney and Wall Street lawyer, to serve as special prosecutor to investigate the Clintons’

involvement in Whitewater and any potential links between Foster’s suicide and his intimate knowledge of the Whitewater scandal

Fiske surprised the Clinton administration

in March 1994 by serving subpoenas on White House and TREASURY DEPARTMENT officials The investigation had shifted from one solely concerned with past deeds in Arkansas to one that included current official behavior Fiske discovered that senior Treasury Department officials, who oversee the work of the RTC, had discussed the Madison Guaranty probe with White House counsel Bernard Nussbaum and other aides This appeared improper, as it is highly unusual for regulatory agencies to discuss their probes with the parties they are investigat-ing As a result, the Treasury Department officials resigned

Despite this embarrassment, the Clinton administration was pleased with Fiske’s first report, issued in June 1994 He concluded that Foster’s suicide had nothing to do with Whitewater and that the Treasury Department and White House meetings had not been illegal

Fiske’s report recommended that no criminal charges be filed and generally supported the administration’s position on Whitewater

During the summer of 1995, Senate and House committees held hearings on Whitewater

The hearings were mostly concerned with the propriety of the Treasury-White House meetings

The committee reports that followed cleared administration officials of any wrongdoing

The course of the special counsel’s investi-gation changed dramatically in August 1994 In July, Congress had passed the Independent Counsel Act (28 U.S.C.A §§ 591-599), which meant that a three-judge panel of the U.S Court

of Appeals had to appoint an independent counsel for Whitewater Attorney General Reno sought to have Fiske appointed, but the three-judge panel refused, citing a possibleCONFLICT OF INTEREST because he had been appointed by Reno, a member of the Clinton administration Instead, the panel appointedKENNETH W.STARR, a

GEORGE H.W BUSH administration solicitor gen-eral, a former federal appeals court judge, and a conservative Republican Starr reopened all aspects of the investigation and reissued a

SUBPOENAfor the Rose Law Firm billing records

of Hillary Clinton The first lady informed Starr that the records could not be located In April

1995, Starr interviewed the Clintons privately

In January 1996 Hillary Clinton’s billing records were found on a table in the White House residence book room after two years of searching An aide claimed she had found them

in August 1995 but did not realize their significance until coming across them again The discovery of the records was met with skepticism, with Starr subpoenaing Hillary Clinton in a criminal probe to determine whether the records had been intentionally withheld The first lady testified before aGRAND JURYabout the billing records

Meanwhile, a Senate Special Whitewater Committee, chaired by New York Senator Alfonse D’Amato, conducted hearings in the last half of 1995, examining Whitewater and Foster’s suicide, and the actions of White House staff In June 1996, the committee divided along party lines in making its final report Republi-can senators concluded that White House officials had abused their power by trying to monitor and derail investigations of the Clin-tons and that Hillary Clinton may have obstructed justice by concealing the Rose Law Firm billing records Democratic senators dis-sented, finding no evidence to support the Republican allegations

In April 1996 President Clinton testified on videotape in two Arkansas criminal trials brought by Starr’s prosecution team that concerned bank fraud In the first trial, James and Susan McDougal and Arkansas governor Jim Guy Tucker were convicted of fraud and

CONSPIRACY in connection with questionable loans made through Madison Guaranty In the second case, bankers Herby Branscom Jr and Robert Hill were acquitted of illegally using bank funds to reimburse themselves for

394 WHITEWATER

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political contributions, including contributions

to Clinton’s gubernatorial and presidential

campaigns

Whitewater and Clinton’s Second Term

in the White House

In November 1996, Clinton was elected to his

second term in the White House Meanwhile,

Starr continued to investigate Hillary Clinton’s

role in the Rose Law Firm’s work for Madison

Guaranty and the missing billing records She

had stated several times she had done little work

on Madison, but at least one associate in the

firm disputed her accounts In 1997 Starr

subpoenaed the notes of government attorneys

who had met with the first lady prior to her

grand jury testimony The White House refused

to comply with the subpoena, arguing that

disclosure would violate the confidentiality of

the attorney-client relationship Starr took the

matter to court and won approval to enforce the

subpoena from the U.S Court of Appeals for

the Eighth Circuit In re Grand Jury Subpoenas

Duces Tecum, 78 F.3d 1307 (1996) The appeals

court agreed with Starr, ruling that the

govern-ment attorneys were not the first lady’s private

counsel, but rather administration officials

Therefore, there was no attorney-client

rela-tionship, and the notes were ordered

surren-dered When the Supreme Court refused to hear

an appeal from the Clinton Administration on

this issue, the notes were given to Starr

In 1997 Democrats and the Clinton

admin-istration escalated their criticisms of Starr and

his investigation, arguing that Starr’s

conserva-tive Republican affiliation had tainted the

objectivity of the probe Starr’s credibility was

hurt by his announcement in February 1997

that he would leave his position to become dean

of the Pepperdine College Law School and the

head of a new PUBLIC POLICY school The new

school was funded by a conservative Republican

with ties to persons who had asserted a White

House conspiracy concerning the death of

Foster and subsequent events Starr, who was

criticized for leaving an unfinished

investiga-tion, reversed his decision, announcing he

would not take the Pepperdine positions until

the probe concluded Even Republican Senator

D’Amato was critical of this reversal, concluding

that Starr’s indecision about staying hurt his

credibility In June, news reports circulated

claiming that Starr’s team had been questioning

Arkansas state troopers about whether President

Clinton had engaged in extramarital affairs while governor Questions arose as to whether the original investigation had gotten too far off track That same month, the GENERAL ACCOUNT-ING OFFICEreported that, as of March 1997, Starr had spent more than $25 million on his investigations Media coverage of Whitewater waned after a July 1997 Starr office report concluded that Vincent Foster’s death was definitely a suicide

PUBLIC INTEREST in scandal revived in 1998, but not the way anyone had planned Pentagon employee Linda Tripp approached Starr with allegations that President Clinton had had an affair with White House intern Monica Lewinsky Tripp also alleged that Clinton had told Lewinsky to deny the affair if questioned by lawyers for Paula Jones as part of her pending lawsuit against Clinton Tripp produced audio-tapes of her secretly recorded conversations with Lewinsky, which corroborated her story

Starr received permission to expand the scope of his investigation, to determine whether Clinton had in fact asked Lewinsky to lie under oath The Lewinsky scandal made headlines for much of 1998, culminating with the president’s

IMPEACHMENTtrial in the late fall

Starr had not forgotten Whitewater, how-ever In February 1998, both James McDougal and former Arkansas governor Jim Guy Tucker agreed to cooperate with the Whitewater investigation McDougal’s cooperation was par-ticularly welcome, but he died in March 1998

On April 23, 1998, prosecutors called Susan McDougal before a grand jury Two years earlier, in September 1996, after her conviction for fraud, she was granted IMMUNITY from additional charges in return for her testimony against President Clinton She refused to cooperate, claiming that she did not trust Starr and his investigators U.S District Court Judge

SUSAN WEBBER WRIGHT held McDougal in civil

CONTEMPT and sentenced her to 18 months in prison At her April 1998 appearance, she once again refused to answer questions She said that she was convinced the Starr investigators were determined to convict President Clinton at any cost, and she added that she would only answer questions before the grand jury if Starr and his team resigned and were replaced with what she felt was truly independent counsel On May 4, 1998, Starr indicted McDougal for criminal contempt and OBSTRUCTION OF JUSTICE

WHITEWATER 395

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The case was tried in a U.S District Court in Little Rock

At trial, McDougal testified that Starr and his prosecutors had tried to pressure her into lying about having an affair with President Clinton She claimed that she was threatened with an EMBEZZLEMENT charge and a possible

INCOME TAX investigation unless she agreed to cooperate After months of testimony, the federal grand jury acquitted McDougal on the contempt charge and deadlocked on two counts

of obstruction of justice The judge, George Howard Jr., declared a MISTRIAL on the dead-locked charges In May 1999, Starr said that he would not seek to retry McDougal on those charges

In June 1999, Webster Hubbell, another Clinton friend and Whitewater partner, pled guilty to one of 15 charges against him In return, the other charges were dropped and he received PROBATION Hubbell made a point of insisting that Hillary Clinton had committed no crime associated with her Whitewater dealings

Meanwhile, Starr was going through his own legal difficulties In February 1999, the White House had filed a criminal complaint against the Office of the Independent Counsel for leaking information to the news media An article that appeared in the January 31, 1999, issue of The New York Times stated that Starr was considering whether to indict President Clinton for PERJURY and obstruction of justice

Moreover, Starr had decided that he had the authority to make the indictments Starr’s spokesman, attorney Charles Bakaly III, told the press,“We will not discuss the plans of this office or the plans of the grand jury in any way.”

The White House charged that Bakaly had actually discussed so much that he was in violation of Federal Rule of CRIMINAL PROCEDURE

6(e) That rule limits the amount of informa-tion attorneys may divulge about grand jury cases

Bakaly denied that Starr’s office had pro-vided any information to the Times Starr, meanwhile, decided to conduct an internal investigation, assisted by the FEDERAL BUREAU OF INVESTIGATION In March 1999, Starr forced Bakaly to resign, and the case was referred to the U.S Justice Department for criminal investigation and possible prosecution

The district court issued a preliminary ruling in July that the newspaper article did

appear to have information in it that violated Rule 6(e) The court ordered Bakaly and Starr’s office to show why they should not be held in civil contempt Starr’s office countered on appeal that the district court had misinterpreted the rule In September, a three-judge panel of the U.S Court of Appeals agreed and over-turned the lower court In re Sealed Case No

99-3091 (Office of Independent Counsel Contempt Proceeding)

As for Bakaly, who still faced his own contempt charges, his case was brought before the U.S District Court in July 2000 Prosecutors argued that Bakaly had lied about the informa-tion he had given to the newspaper, but the defense argued that he had merely provided standard information that gave away no confi-dential information The judge, Norma Holloway Johnson, agreed with the defense, and Bakaly was acquitted on all counts on October

6, 2000

Aftermath

The Whitewater investigation cost American taxpayers approximately $73 million but pro-duced only 14 convictions Kenneth Starr’s successor as independent counsel, Robert Ray, released a report in September 2000 stating,

“This office determined that the evidence was insufficient to prove to a jury BEYOND A REASONABLE DOUBT that either President or Mrs Clinton knowingly participated in any criminal conduct.” Ray nonetheless criticized the White House in a statement regarding the release of the report, saying that delays in the production

of evidence and “unmeritorious litigation” by the president’s lawyers severely impeded the investigation’s progress Ray’s report effectively ended the Whitewater investigation

The length, expense, and results of the Whitewater investigation turned much of the public against the independent counsel mecha-nism In particular, Democrats portrayed Whitewater as a political witch hunt When the independent counsel law expired in 1999, even KENNETH STARRfavored its demise Indeed,

no one ended up happy with the Whitewater investigation: Democrats felt persecuted as much as they felt vindicated Republicans were frustrated that both Clintons were cleared of wrongdoing despite the enormous cost of the investigation Ordinary Americans without par-tisan involvement found press coverage of Whitewater to be confusing at best

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