How newspaper articles of questionable origin were used by Kenneth Starr to remove a federal jurist in a Whitewater case.
Operatives of the anti-Clinton Arkansas Project mounted a campaign in the summer of 1995 to discredit a federal judge because they did not want him to preside over a criminal prosecution brought by the Whitewater independent counsel, documents obtained by Salon indicate.
Months after the campaign was launched, independent counsel Kenneth Starr prevailed in a highly unusual motion to remove the jurist, U.S. District Judge Henry Woods, from a case involving then-Arkansas Gov. Jim Guy Tucker, a move that was questioned at the time by legal scholars.
“I can tell you that when the court recused Judge Woods, it raised a lot of eyebrows among legal ethicists,” said Stephen Gillers, a professor of legal ethics at New York University Law School, who labeled the court’s decision “unjustified and a wild stretch.” “I really can’t think of an incident in the recent past, by which I mean the last 20 years, in which there has been a formal motion by the government to recuse a district judge in a criminal case,” Gillers said.
Woods’ removal in March 1996 came several months after the judge had quashed Starr’s indictment of Tucker in a crucial pretrial motion. In his motion to remove Woods, Starr cited newspaper articles about Woods that contained questionable and erroneous information in part generated by individuals associated with the Arkansas Project, a four-year, $2.4 million campaign to investigate and discredit the president that was funded by billionaire Richard Mellon Scaife.
There is no indication that Starr knew of the origin of the questionable information, but after examining papers belonging to one of the operatives of the Arkansas Project, Judge Woods demanded an official investigation of the apparent attempt to “successfully interfere with the proper workings of the judicial system.”
In a written statement issued April 10, Judge Woods said: “It is important to me, and I believe to the integrity of the judicial process to know whether any person in the justice system (including those in the Office of Independent Counsel) or in the legislative branch was aware of machinations to affect and determine what judge would preside over the Tucker case.”
The papers in question belong to Parker Dozhier, a Hot Springs, Ark., bait-shop owner and Arkansas Project employee. The papers and other notes and documents kept by Dozhier were provided to Salon by Caryn Mann, who lived with Dozhier from 1994 to 1996. Mann has told FBI agents and reporters that Dozhier made payments from Arkansas Project funds, funneled through a foundation that publishes the American Spectator magazine, to key Whitewater witness David Hale.
The Justice Department has requested an investigation of the alleged Hale payments, which Hale, Dozhier and other officials connected with the Arkansas Project and the American Spectator have denied happened.
According to documents obtained by Salon, materials used by Starr in his motion to disqualify Woods included newspaper articles that appear to have relied heavily on allegations circulated by Dozhier and others involved in the Arkansas Project. Asked about the use of news articles to make its case against Woods, Debbie Gershman, a spokeswoman for the Office of Independent Counsel, told Salon: “It is traditional for prosecutors to use information in whatever form it may take.” She declined any further comment.
Starr’s indictment of Tucker in June 1995 related to alleged bankruptcy fraud involving a Texas cable television firm. It was not related in any way to Whitewater, the Clintons or Madison Guaranty Savings & Loan, and preceded the better-known Whitewater-related indictment of Tucker and James and Susan McDougal. Recently, Tucker pleaded guilty to a single count in the bankruptcy fraud, and the case awaits further disposition.
Woods had been assigned to the case by a computerized lottery after another federal judge declined to take it. The independent counsel initially voiced no objection to Woods hearing the case.
Shortly after the indictment, attorneys for Tucker (and two business associates in the cable firm who were charged with him) moved to strike the indictment on the grounds that Starr had exceeded his original mandate as Whitewater independent counsel. But well before any motions were entered, a public campaign against Woods had commenced.
The opening salvo came on June 23, 1995, in the form of a lengthy op-ed article in the conservative Washington Times by Jim Johnson, a former Arkansas Supreme Court justice and avowed segregationist who is a longtime adversary of Woods. In the article, Johnson described Woods, among other things, as a Clinton crony who was corrupt and had narrowly escaped indictment for misusing highway funds in the 1950s. Johnson wrote that the late Orval Faubus, the segregationist Arkansas governor, told him, “Henry was measured for prison stripes, and now he wears the purple.”
Johnson’s accusation of cronyism appeared to stem from the fact that Woods knew the Clintons socially and had appointed Hillary Clinton to a panel overseeing integration of the Little Rock public school system, which Johnson bitterly opposed. But there is no evidence that Woods ever used his position as a federal judge to favor the Clintons. In one major and highly politicized case involving a controversial nuclear power plant, Woods ruled against the wishes of then-Gov. Clinton’s administration and in favor of Arkansas Power & Light, the state’s electric utility.
Nor is there any basis for Johnson’s charge that Woods was involved with the misapplication of highway trust funds. In fact, there is no record that Woods faced any legal problems during his tenure as a judge.
Johnson also referred in the article to ties Woods allegedly had to Little Rock investment company Stephens Inc., which Johnson described as the largest commodities broker in the country. In fact, Stephens does not trade in commodities. Nor is there any record of a political relationship between the company, which openly supported the segregationist Faubus, and Woods, who supported school integration.
The article also claimed that Woods’ 1980 appointment to the federal bench was the result of an election-year bargain between Stephens Inc. and former Arkansas Sen. David Pryor. In fact, it was U.S. Sen. Dale Bumpers who pushed for Woods’ appointment. Johnson went on to write that a “Stephens subsidiary” loaned Clinton’s 1992 presidential campaign $3.5 million. In fact, the loan was made by Little Rock’s Worthen Bank, in which Stephens had divested its minority holding several years before the loan was made.
Despite these inaccuracies, Johnson’s claims were extensively quoted in a subsequent article in the Arkansas Democrat Gazette, and echoed on the editorial pages of the Wall Street Journal, notably in an article by Journal op-ed page writer Micah Morrison.
A page of contemporaneous notes from Dozhier’s files show numerous references to both Woods and Johnson, often known as “Justice Jim.” The notes say, “Woods’ charge is to protect the President by taking care of Tucker.” They refer to “JJJ papers,” an allusion to papers placed by “Justice Jim” Johnson in the archives of the Arkansas Historical Commission that contained derogatory material about Woods.
Another page shows Johnson’s telephone number along with the following notation: “Wesley Pruden [editor of the Washington Times, in which Johnson's story appeared] told me Wesley sent material to M.M.” It is not known whether the initials refer to the Journal’s Morrison, although according to Mann, Morrison spent many hours at the Dozhier bait shop.
Morrison did not return repeated phone calls requesting comment. Pruden acknowledged that he had met with Johnson on several occasions but denied passing on any material to Morrison and insisted, “I never talked to Parker Dozhier in my life.”
Pruden is a Little Rock native whose father served as chaplain to the racist White Citizens Council there during the 1950s and was closely associated with Johnson in resisting federal school desegregation orders.
In 1966, Johnson was the Democratic gubernatorial nominee, losing a close election to his Republican opponent, a loss he blamed in part on opposition from Woods. During the campaign, Johnson said that “the crime of desegregation” was worse than “the crime of rape” and “the crime of murder.” Dozhier, who, according to acquaintances, shared Johnson’s intense dislike of blacks, was an aide to Johnson during that campaign.
Two decades later, Judge Woods further infuriated Johnson. In 1989, in response to a lawsuit filed by black state legislators, Woods voided the notorious “Johnson Amendment” to the Arkansas state constitution. The 1956 measure, authored by Johnson, empowered the governor of Arkansas to resist what it called the U.S. Supreme Court’s “unconstitutional” 1954 Brown vs. Board of Education desegregation decision.
The Arkansas Project documents provided to Salon by Mann include a derogatory memo about Woods — authored by “pd,” as Dozhier was known to his associates — that was faxed to the office of Sen. Lauch Faircloth, R-N.C., Aug. 28, 1995. Markings on the fax indicate that it was routed to Faircloth’s office from the office of Stephen Boynton, the Virginia attorney who controlled the Arkansas Project money for the American Spectator foundation. Boynton frequently visited Dozhier’s bait shop along with Hale and others involved in the Arkansas Project.
The Dozhier fax, which was addressed to Faircloth aide Jim Highland, claims that Clinton and Woods plotted to fix the Tucker case in order to hamper Starr’s probe. “Now Judge Woods is considering a motion by Tucker’s defense team regarding the [independent counsel's] jurisdiction on the indictments against Tucker,” the memo says. “Tucker is in the position of offering testimony which would send the President to prison.” There is no indication that Tucker possessed any such information.
Around the same time, Woods was informed by federal judicial officials that Faircloth’s office had requested 15 years’ worth of the judge’s financial disclosure statements. The request came from David Bossie, a veteran anti-Clinton activist and researcher who then worked for Faircloth, the most implacable Clinton critic on the Senate Whitewater Committee.
According to Mann, Dozhier was, during that time, in constant contact with Bossie. Mann said that she saw at least six faxes from Dozhier to Bossie. Dozhier’s notes also show that he had been investigating the judge’s financial background and his business dealings. Bossie declined to comment. A source close to Bossie pointed out that a federal judge’s financial disclosure statements are a matter of public record; the source also said Bossie recalled speaking to Dozhier on a small number of occasions, which the source said was part of Bossie’s job as a congressional investigator.
In an interview with Salon, Highland denied knowing Dozhier and said he did not recall receiving the memo about Woods. Dozhier declined comment, saying, “You have told enough lies on me already.” Johnson told Salon, “I have no interview for you.”
In his April 10 statement on the matter, Woods recalls that Faircloth’s request for his financial records came “just days before oral arguments on a motion to dismiss the indictment in the Tucker case, scheduled for September 5, 1995.” After learning of the request, the judge called together the counsel for all parties in the case and told them he considered it “a crude attempt to intimidate me, since it was well known that Senator Faircloth had more than a passing interest in the Whitewater investigation. I assured counsel that such an attempt would in no way affect my handling of the Tucker case, one way or the other.
“No party requested that I remove myself from the Tucker case on the basis of the Faircloth contact, or on any other basis,” Woods said in his statement.
After Woods ruled in Tucker’s favor, Starr appealed to the 8th U.S. Circuit Court of Appeals to overturn the judge’s decision and to remove him for displaying “the unmistakable appearance of bias.” Starr argued that Woods’ friendship with Hillary Clinton should disqualify him from any further role in the Tucker case, even though Tucker was a longtime political rival of Bill Clinton and his indictment had nothing to do with any business dealings of the Clintons.
In oral argument before the appeals court, the independent counsel referred to newspaper and magazine articles about Woods and his connections with the Clintons. The appeals court then asked Starr to produce those articles in a supplemental brief. Among the clippings produced by Starr in response were the Wall Street Journal article by Morrison and articles from the Arkansas newspapers that quoted Johnson’s charges. In the articles, heavy emphasis was placed on Woods’ relationship with the Clintons, in particular his visit to the White House on the night Republicans captured the Congress in November 1994.
Gillers, the NYU legal ethicist, explained that in using press reports, Starr was trying to demonstrate how Woods was perceived by the public. “He was arguing that based on the press reports and perhaps other information, the public’s perception of the judge’s impartiality was compromised, not that the press reports were necessarily correct,” Gillers said.
The appeals court granted both of Starr’s requests March 11, 1996, without permitting Woods to answer any of the accusations about his alleged “bias.” In its opinion, the court cited both the articles quoting Johnson’s allegations, and the article written by Morrison in the Wall Street Journal, which the court characterized in its ruling as “a daily periodical with national — actually international — circulation.”
The judge’s removal was unprecedented, particularly because Starr had made no request for Woods to recuse himself prior to his ruling on Tucker’s motion to quash the indictment.
The appeals court said it had removed him “not because we believe Judge Woods would not handle the case in a fair and impartial manner, we have every confidence that he would, but only because we believe this step is necessary in order to preserve the appearance as well as the reality of impartial justice.”
In a dissenting opinion, two judges on the 8th Circuit panel warned of the dangers of permitting “the perceived impartiality of a judge to be held hostage by the writings or reporting of the media without concern for the accuracy of those reports or potential explanation … relying on newspaper and magazine reports as proof of substantive fact has no support in the rules of evidence.”
After the ruling that disqualified him, Woods remarked to the Los Angeles Times, “I have the distinction of being the only judge in Anglo-American history, as far as I can determine, who was removed from a case on the basis of newspaper accounts, magazine articles and television transcripts.”
Arkansas Times columnist Gene Lyons is a National Magazine Award winner and co-author of "The Hunting of the President" (St. Martin's Press, 2000). You can e-mail Lyons at firstname.lastname@example.org. More Gene Lyons.
Murray Waas is a frequent contributor to Salon. More Murray Waas.
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