As a matter of historical fact, it may be correct, as The Washington Post reported Sunday, that Whitewater prosecutors now say they came “close” to filing charges against then-first lady Hillary Clinton back in the 1990s. As a matter of legal and factual analysis, from one who observed this investigation at every step: Never … a … close … call … at … all.
Putting aside significant ethical questions about the propriety of prosecutors casually reminiscing, decades later, about the potential guilt of subjects who were never charged, the facts speak for themselves. While independent counsel Kenneth W. Starr and his staff may have secretly hoped for and ruminated about the possibility of bringing a criminal case against Clinton, they never even presented an indictment to the many grand juries they used.
This was not for want of trying: The independent counsel investigation lasted eight years, generated more than 3,000 grand jury subpoenas, collected more than 10 million pages of documents and cost more than $70 million (unadjusted for inflation), which dwarfed all other independent counsel investigations, including Iran-Contra, and exceeded the cost to the government of the failure of the savings and loan ostensibly under investigation. Clinton testified fully and truthfully under oath six times. If she had in fact given false testimony, there was an ample opportunity for prosecution.
Largely forgotten today is the origin of the Starr investigation, which was a failed $203,000 Arkansas land deal (Whitewater Development Corp.), in which the Clintons were passive investors. Notably, all loans and taxes were ultimately paid, and only the Clintons (and their partners, James B. and Susan McDougal) lost money. After the McDougals abandoned the project, it fell to Hillary Clinton to ensure that the project’s obligations were properly paid and accounted for, a role which led, many years later, to her minute scrutiny by the independent counsel.
The Post article quoted the Starr prosecutors as estimating a 10 percent chance of obtaining a conviction against the first lady. To be clear, the ability of that office to calibrate successfully the chances of prosecutorial success is hardly persuasive, particularly since it lost three out of four cases it took to trial, as well as both appeals it made to the Supreme Court.
It is now clear that the first Whitewater independent counsel, Robert B. Fiske Jr., a respected and experienced Republican prosecutor who had served as U.S. attorney for the Southern District of New York and had been nominated by President George H.W. Bush to be deputy attorney general, was set to close out the investigation within a year of his appointment. He was replaced by the court supervising independent counsels ostensibly because he had been appointed by then-Attorney General Janet Reno, herself an appointee of then-President Bill Clinton.
But that court then appointed Starr, a partisan with no prosecutorial experience who had offered to file a brief in the Paula Jones suit against Clinton. The Starr investigation dragged on interminably, despite a statutory mandate that it be “prompt, responsible, and cost-effective.” It finally pivoted after four years to Monica Lewinsky in January 1998. The rest is lamentable history, which led to a bipartisan decision not to renew the independent counsel statute.
Except as a cautionary tale of prosecutorial excess, Whitewater is irrelevant today.
David E. Kendall, an attorney at Williams & Connolly, represents Hillary Clinton.