Rewriting the History of Whitewater

With Hillary Clinton’s official entry into the 2016 presidential contest, expect to see a lot of bowdlerization of her past, like this from Vox:

Investigations into Whitewater uncovered real wrongdoing. Fifteen people, in total, were convicted of various charges. The McDougals were convicted of fraud, as was Jim Guy Tucker, Clinton’s successor as governor of Arkansas. Webster Hubbell, a law partner of Hillary’s who served in the Clinton Justice Department, pleaded guilty to fraud charges. But ultimately, none of the many investigations into Whitewater — including, most famously, one by independent counsel Kenneth Starr — found that the Clintons did anything criminal. The conclusion was that it’s likelier they were victims of Jim McDougal’s malfeasance than that they were co-conspirators. [Emphasis added]

No, that is not the conclusion.

Were the Clintons convicted of a crime relating to Whitewater? No.

Were they even indicted for any such crimes? No.

Was there evidence that they engaged in criminal behavior in that affair? Decidedly yes, and it is documented not in the Starr report on Whitewater, which was, in fact, never issued, but in the report put out by Robert Ray, who replaced Judge Starr before he had completed his task. The fact that the Vox writer even writes about the Starr investigation without mentioning the Ray report indicates that, if he is not being disingenuous (as most Clinton defenders usually are), he is ignorant of the history that he is attempting to “explain” to us.

While the full report doesn’t seem to be any longer available from the Government Printing Office, it seems to have been preserved here. In particular, the evidence in the Whitewater affair is described here. While it’s far too long to quote, or even summarize properly, here is a sample:

On December 22, 1993, Mr. McDougal and the Clintons executed the transaction to get the Clintons out of Whitewater. Mr. Foster obtained the Clintons’ signature for the documents executing the sale. It is unclear whether Mr. Foster, Mr. McDougal, or the Clintons knew that Mr. Blair gave Mr. McDougal the $1000 to buy the Whitewater shares from the Clintons.

Mr. Blair then assigned Mr. Foster the task of contacting the accountants and preparing the Clintons’ tax returns. The issue facing Mr. Foster in the months preceding his death was how to treat the $1000 sale on the Clintons’ 1992 tax returns. The basic dilemma stemmed from the Clintons’ claim, bolstered by the publicly released Lyons report, that they had incurred significant losses on their investment in Whitewater. The problem with declaring the loss on the Clintons’s tax return was the lack of a proper basis with which to calculate the cost of the venture to the Clintons. Despite their claim that they were 50% partners in the venture, the Clintons had contributed less than 25% of the funds used to cover Whitewater’s losses.

Also among the documents in Mr. Foster’s office at the time of death were his notes of conversations with the Clintons’ accountant, Yoly Redden. The notes, in Mr. Foster’s hand, identified the tax problem as a “can of worms you shouldn’t open.” [Emphasis added]

If one reads through the whole report (or at least the summaries of the evidence) of what was happening in Arkansas, and what later happened in the nineties both there and in Washington as the matter started to be investigated, it is difficult for an objective observer to not discern a pattern. It is one of conflicting stories, sudden memory loss under oath, destruction of documents, disappearance and mysterious reappearance of sought evidence in unlikely places (e.g. the Rose Law Firm billing records in the White House, documents being found in a car trunk after a tornado), multiple convictions of Clinton associates on charges of fraud and perjury, refusal to testify, and multiple convenient deaths under mysterious circumstances. When Clinton defenders would say that there “wasn’t a shred of evidence” against them, one always had the sense they were saying it with confidence that it was because the evidence had been literally shredded.

Clinton defenders are also fond of saying that multiple reports (such as the Pillsbury, or the Ray report) had “exonerated” Bill and Hillary Clinton. In so doing, they again display disingenuousness, or a lack of knowledge of the meaning of that word, whose first definition is to “(especially of an official body) absolve (someone) from blame for a fault or wrongdoing, especially after due consideration of the case.”

In the case of the so-called Pillsbury report done for the Resolution Trust Corporation in the matter of Madison Guaranty, Charles Patterson, lead attorney for the law firm that performed the investigation, said himself that “it was not our purpose to vindicate, castigate, exculpate.”

In the case of the Ray report, Mr. Ray released a statement with the report which said in part:

This Office investigated whether President and Mrs. Clinton knowingly participated in any criminal conduct related to Madison Guaranty, CMS, or Whitewater Development or had any knowledge of such conduct. 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 involving Madison Guaranty, CMS, or Whitewater Development or knew of such conduct. The evidence relating to their testimony and conduct, in connection with this investigation and other investigations involving the same entities, was also, in the judgment of this Office, insufficient to prove to a jury beyond a reasonable doubt that either of them committed any criminal offense, including perjury (18 U.S.C. § 1621) or obstruction of justice (18 U.S.C. § 1503). [Emphasis added]

Note, he didn’t say they had found exculpatory evidence. He didn’t even say that he had found no evidence. What he said, or at least implied, is that he found a lot of evidence, but didn’t think he’d be able to get a conviction with it. Perhaps if so much of the evidence hadn’t been destroyed, and so much obstruction of justice hadn’t occurred for years, he might have been able to.

But regardless of the state of the evidence he was probably also recalling the trial of Susan McDougal, wife of James McDougal (who had died under mysterious circumstances in prison), who went to jail for contempt of court rather than testify against the Clintons. In 1999, in a trial by Ken Starr for continuing contempt of court and refusal to testify, the jury was hung. She was one of the many people who Bill Clinton pardoned as he left office.

Based on that history, Ray probably correctly judged that, no matter how much evidence he accumulated, it would be impossible to find twelve jurors who would convict a Clinton. There would always be at least one to hang the jury, whether out of love for the Clintons, or fear of them. Given the history, prosecutorial discretion would be the better part of valor.

Ken Starr was out of his depth in investigating the Clintons (and profoundly so in the Foster investigation). The job called for an experienced federal prosecutor with RICO experience, not a distinguished federal judge. We’ll never know what would have happened in such a situation. But the notion that there was no criminal behavior in Whitewater on the part of the Clintons is a rewriting of history. They won’t suffer any legal consequences for their actions, but they can, and should sustain political ones. While the Democrats don’t seem to care, the nation should ask itself if it wants yet another Democrat president who thinks they are above the law.