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.”
When Attorney General Janet Reno told reporters last week that the
charges of secret payments to key Whitewater witness David Hale demand
“appropriate action” by the Justice Department, a pressing question
hung in the air: Who will lead the investigation — the Justice Department or independent counsel Kenneth Starr?
Although Starr would no doubt prefer to maintain
control of such a sensitive probe of Hale — who has given critical
testimony about Bill Clinton pressuring him to make an illicit $300,000
loan to Clinton’s Whitewater partners — the political and personal
conflicts of interest that have already injured Starr’s credibility may
require him to step aside.
What could block Starr from any role in examining the alleged payments to
Hale is his tangled relationship with Richard Mellon Scaife, the right-wing Pittsburgh billionaire
and financier of the Arkansas Project, a three-year, $2.4 million
effort to discredit the president. As reported by Salon, witnesses have alleged that money from Arkansas Project representatives was paid to Hale while he was cooperating with Starr’s investigation.
The nagging problem for Starr is that the same Scaife-controlled foundations that funneled money to
the Arkansas Project have also contributed more than $1 million to the
Pepperdine University School of Public Policy in California, where Starr will become
dean after he completes his duties as independent counsel. Following
the money trail of the alleged payments to Hale inevitably would lead
to Pepperdine benefactor Scaife.
The possibility that Hale was paid by avowed adversaries of the
president left Reno little choice but to open an investigation of the Arkansas Project. Ordinarily, an attempt to influence a witness in a
criminal case would be handled by the case’s prosecutor, but the
circumstances surrounding Hale, Scaife and Starr are unusually
sensitive and politically controversial. While Reno still could allow
Starr to investigate the accusations against Hale, Justice Department
officials have indicated that she is considering whether action by the
department’s public integrity section or office of professional
responsibility would be more appropriate.
Stephen Gillers, an expert on legal ethics at New York University Law
School, told Salon that “payments to David Hale, under certain
circumstances, could be a federal crime, even if he was being induced to
testify truthfully.
“Ordinarily, there would be no problem with a prosecutor investigating
whether a favorable witness was suborned, bribed or paid a gratuity,”
Gillers said. “But there are two reasons why Starr should not investigate
this matter. First, whether accurately or not, Starr is perceived to have a
personal interest in making a case against Clinton. Hale is a central
witness for Starr. Consequently, I don’t think a Starr investigation of
payments to Hale will win public credibility.
“The second reason, of course, is Scaife,” Gillers continued. “Starr has
acknowledged that when his investigation is concluded, he will walk into a
prestigious and comfortable job funded by the man who is the alleged source
for the money paid to Hale. Starr cannot investigate that man for possible
violation of federal criminal law.”
Columbia University law professor Gerald Lynch, a respected former federal
prosecutor who served under two independent counsels, said that turning the
probe of Hale and the Arkansas Project over to Justice Department personnel
might thwart the purpose of the Independent Counsel Law, which is to remove
any case involving the president from the purview of presidential
apppointees. But, he added, in this case, “Starr’s relationship with Scaife
would give rise to the possibility of a conflict of interest there.”
In determining how to approach Hale and the Arkansas Project,
the attorney general must consider whether Starr can fairly and
impartially investigate the role of Scaife, his Pepperdine benefactor.
That problem first came to Reno’s attention last year in the form of a
complaint by a Connecticut public defender, Francis Mandanici, who has
repeatedly petitioned federal judges in Little Rock, Ark., to disqualify Starr from the Whitewater case because of various alleged conflicts of
interest, including the Pepperdine matter.
Mandanici’s complaint bounced back and forth between the federal court
in Little Rock and the Justice Department until last November, when
Reno decided against taking action. A majority of the judges in Little Rock
finally dismissed Mandanici’s complaints, in part because the lawyer
was perceived to be pursuing an ideologically motivated “vendetta”
against Starr. But Senior Judge G. Thomas Eisele, a Republican,
dissented from the majority opinion. “I have concluded that Mr. Starr
is suffering under at least the appearance of a conflict in
his relationships with Pepperdine University, Mr. Scaife and Mr.
Scaife’s foundations,” the judge wrote. “I am further of the opinion
that such a conflict is continuing and unwaivable.”
For her part, Reno declined to act because, according to Michael
Shaheen, then counsel for the Justice Department’s office of professional responsibility, she believes her department has only limited scope under the
Independent Counsel Act to discipline Starr. Only if the charges
against him were serious enough to warrant his removal would she act,
Shaheen explained in a series of letters to the federal judges in
Little Rock — and she did not believe the Pepperdine conflict aroused
that level of concern.
But in an Aug. 19, 1997, letter, Shaheen denied
an assertion by Starr that the Justice Department had “found that no
conflict of interest exists.”
“We did not intend to suggest … that we would not investigate the
Pepperdine-Scaife allegation if it involved an ordinary Department of
Justice attorney instead of an Independent Counsel,” Shaheen wrote. “To
the contrary, because the Attorney General has available a variety of
sanctions for a U.S. Attorney, the allegations might present issues
that would be appropriately examined for an employee we directly supervise.”
Probing Hale and his relationship with the Arkansas Project could prove
awkward to Starr for other reasons as well. The funding for
the Arkansas Project was funneled through the American Spectator
Educational Foundation, the tax-exempt group that publishes the
conservative American Spectator magazine. Starr’s longtime friend and
former law partner, Washington attorney Theodore Olson, is a Spectator
board member and counsel to the magazine, and has also represented Hale.
The links between Scaife and Starr first drew wide attention in February
1997, when the independent counsel suddenly announced that he intended
to step down and accept two deanships at Pepperdine University, a
conservative institution in Malibu, Calif. Starr was invited to become
dean of the Pepperdine law school and also of a new school of public
policy. His decision immediately came under severe criticism, not only
because he seemed to be abandoning the Whitewater case but also because
the Pepperdine public policy school had been underwritten by $1.1
million in grants from Scaife-controlled foundations. Within a few days Starr rescinded his resignation, and Pepperdine officials said they would hold the jobs until he was ready to take them.
By then, the normally reclusive Scaife had attained a degree of
notoriety for promoting the theory that Clinton confidant and deputy
White House counsel Vincent Foster had been murdered, even though his
gunshot death in July 1993 was officially determined to have been a
suicide. Reports suggesting foul play in Foster’s death and the
subsequent investigations have been pursued obsessively in the
Tribune-Review, a Pittsburgh-area newspaper owned by Scaife. He has
funded a variety of conservative groups — Accuracy in Media, the Western
Journalism Center, National Empowerment Television and the National
Taxpayers Union, to name a few — that have amplified those suggestions.
As Starr noted last year, he has been criticized by some of those
Scaife-linked groups because the results of his own investigation
ratified the finding of suicide. Some critics wondered, however,
whether Starr’s decision to reopen the Foster case, and his long delay
in reporting his findings, were swayed by political considerations.
Whatever their differences over Foster’s death, Starr and Scaife
certainly share an intense interest in the fate of the Clinton
presidency. Scaife’s unabashed desire to ruin Clinton is what led him
to fund the Arkansas Project, which began in late 1993, almost a year
before Starr was appointed as independent counsel.
While the Arkansas Project’s specific activities remain somewhat murky,
there is little doubt about its aims. Backed by Scaife’s largesse, the
project’s operatives chased every conceivable
allegation against the Clintons, from the Foster murder
scenario and tales of an Arkansas cocaine-smuggling ring supposedly protected by then-Gov. Clinton to the more
mundane charges of financial wrongdoing in the Whitewater development
deal. In that pursuit they were assisted by private detectives and
local conservative activists, including Parker Dozhier, the Arkansas bait shop owner who allegedly passed payments to Hale.
Any serious examination of the alleged payments from the Arkansas Project to Hale
would involve tracing money back to the Spectator and Scaife
foundations, and might also raise questions about the legality of using
tax-exempt foundations for a political assault on the White House. As
reported in the New York Observer, the Spectator’s tax returns for 1993
through 1996 falsely listed the payments to Arkansas Project operative Stephen Boynton as ordinary “legal”
expenses.
Now Reno and her advisors at the Justice Department must determine not whether Starr should be removed because of his ties to Pepperdine and Scaife, but whether they will permit Starr to oversee an investigation that could
lead directly to Scaife. The stakes could not be higher for Starr. If
it is proved that Hale was the target of attempts to influence him, the
entire Whitewater investigation could be compromised.
And if Hale’s previous testimony is found to have been tainted by the
alleged payment scheme, even the convictions already won by Starr
against former Arkansas Gov. Jim Guy Tucker, Susan McDougal and the
late James McDougal could be overturned.
When Attorney General Janet Reno told reporters last week that the charges of secret payments to key Whitewater witness David Hale demand “appropriate action” by the Justice Department, a pressing question hung in the air: Who will lead the investigation — the Justice Department or independent counsel Kenneth Starr?
Although Starr would no doubt prefer to maintain control of such a sensitive probe of Hale — who has given critical testimony about Bill Clinton pressuring him to make an illicit $300,000 loan to Clinton’s Whitewater partners — the political and personal conflicts of interest that have already injured Starr’s credibility may require him to step aside.
What could block Starr from any role in examining the alleged payments to Hale is his tangled relationship with Richard Mellon Scaife, the right-wing Pittsburgh billionaire and financier of the Arkansas Project, a three-year, $2.4 million effort to discredit the president. As reported by Salon, witnesses have alleged that money from Arkansas Project representatives was paid to Hale while he was cooperating with Starr’s investigation.
The nagging problem for Starr is that the same Scaife-controlled foundations that funneled money to the Arkansas Project have also contributed more than $1 million to the Pepperdine University School of Public Policy in California, where Starr will become dean after he completes his duties as independent counsel. Following the money trail of the alleged payments to Hale inevitably would lead to Pepperdine benefactor Scaife.
The possibility that Hale was paid by avowed adversaries of the president left Reno little choice but to open an investigation of the Arkansas Project. Ordinarily, an attempt to influence a witness in a criminal case would be handled by the case’s prosecutor, but the circumstances surrounding Hale, Scaife and Starr are unusually sensitive and politically controversial. While Reno still could allow Starr to investigate the accusations against Hale, Justice Department officials have indicated that she is considering whether action by the department’s public integrity section or office of professional responsibility would be more appropriate.
Stephen Gillers, an expert on legal ethics at New York University Law School, told Salon that “payments to David Hale, under certain circumstances, could be a federal crime, even if he was being induced to testify truthfully.
“Ordinarily, there would be no problem with a prosecutor investigating whether a favorable witness was suborned, bribed or paid a gratuity,” Gillers said. “But there are two reasons why Starr should not investigate this matter. First, whether accurately or not, Starr is perceived to have a personal interest in making a case against Clinton. Hale is a central witness for Starr. Consequently, I don’t think a Starr investigation of payments to Hale will win public credibility.
“The second reason, of course, is Scaife,” Gillers continued. “Starr has acknowledged that when his investigation is concluded, he will walk into a prestigious and comfortable job funded by the man who is the alleged source for the money paid to Hale. Starr cannot investigate that man for possible violation of federal criminal law.”
Columbia University law professor Gerald Lynch, a respected former federal prosecutor who served under two independent counsels, said that turning the probe of Hale and the Arkansas Project over to Justice Department personnel might thwart the purpose of the Independent Counsel Law, which is to remove any case involving the president from the purview of presidential apppointees. But, he added, in this case, “Starr’s relationship with Scaife would give rise to the possibility of a conflict of interest there.”
In determining how to approach Hale and the Arkansas Project, the attorney general must consider whether Starr can fairly and impartially investigate the role of Scaife, his Pepperdine benefactor. That problem first came to Reno’s attention last year in the form of a complaint by a Connecticut public defender, Francis Mandanici, who has repeatedly petitioned federal judges in Little Rock, Ark., to disqualify Starr from the Whitewater case because of various alleged conflicts of interest, including the Pepperdine matter.
Mandanici’s complaint bounced back and forth between the federal court in Little Rock and the Justice Department until last November, when Reno decided against taking action. A majority of the judges in Little Rock finally dismissed Mandanici’s complaints, in part because the lawyer was perceived to be pursuing an ideologically motivated “vendetta” against Starr. But Senior Judge G. Thomas Eisele, a Republican, dissented from the majority opinion. “I have concluded that Mr. Starr is suffering under at least the appearance of a conflict in his relationships with Pepperdine University, Mr. Scaife and Mr. Scaife’s foundations,” the judge wrote. “I am further of the opinion that such a conflict is continuing and unwaivable.”
For her part, Reno declined to act because, according to Michael Shaheen, then counsel for the Justice Department’s office of professional responsibility, she believes her department has only limited scope under the Independent Counsel Act to discipline Starr. Only if the charges against him were serious enough to warrant his removal would she act, Shaheen explained in a series of letters to the federal judges in Little Rock — and she did not believe the Pepperdine conflict aroused that level of concern.
But in an Aug. 19, 1997, letter, Shaheen denied an assertion by Starr that the Justice Department had “found that no conflict of interest exists.”
“We did not intend to suggest … that we would not investigate the Pepperdine-Scaife allegation if it involved an ordinary Department of Justice attorney instead of an Independent Counsel,” Shaheen wrote. “To the contrary, because the Attorney General has available a variety of sanctions for a U.S. Attorney, the allegations might present issues that would be appropriately examined for an employee we directly supervise.”
Probing Hale and his relationship with the Arkansas Project could prove awkward to Starr for other reasons as well. The funding for the Arkansas Project was funneled through the American Spectator Educational Foundation, the tax-exempt group that publishes the conservative American Spectator magazine. Starr’s longtime friend and former law partner, Washington attorney Theodore Olson, is a Spectator board member and counsel to the magazine, and has also represented Hale.
The links between Scaife and Starr first drew wide attention in February 1997, when the independent counsel suddenly announced that he intended to step down and accept two deanships at Pepperdine University, a conservative institution in Malibu, Calif. Starr was invited to become dean of the Pepperdine law school and also of a new school of public policy. His decision immediately came under severe criticism, not only because he seemed to be abandoning the Whitewater case but also because the Pepperdine public policy school had been underwritten by $1.1 million in grants from Scaife-controlled foundations. Within a few days Starr rescinded his resignation, and Pepperdine officials said they would hold the jobs until he was ready to take them.
By then, the normally reclusive Scaife had attained a degree of notoriety for promoting the theory that Clinton confidant and deputy White House counsel Vincent Foster had been murdered, even though his gunshot death in July 1993 was officially determined to have been a suicide. Reports suggesting foul play in Foster’s death and the subsequent investigations have been pursued obsessively in the Tribune-Review, a Pittsburgh-area newspaper owned by Scaife. He has funded a variety of conservative groups — Accuracy in Media, the Western Journalism Center, National Empowerment Television and the National Taxpayers Union, to name a few — that have amplified those suggestions.
As Starr noted last year, he has been criticized by some of those Scaife-linked groups because the results of his own investigation ratified the finding of suicide. Some critics wondered, however, whether Starr’s decision to reopen the Foster case, and his long delay in reporting his findings, were swayed by political considerations.
Whatever their differences over Foster’s death, Starr and Scaife certainly share an intense interest in the fate of the Clinton presidency. Scaife’s unabashed desire to ruin Clinton is what led him to fund the Arkansas Project, which began in late 1993, almost a year before Starr was appointed as independent counsel.
While the Arkansas Project’s specific activities remain somewhat murky, there is little doubt about its aims. Backed by Scaife’s largesse, the project’s operatives chased every conceivable allegation against the Clintons, from the Foster murder scenario and tales of an Arkansas cocaine-smuggling ring supposedly protected by then-Gov. Clinton to the more mundane charges of financial wrongdoing in the Whitewater development deal. In that pursuit they were assisted by private detectives and local conservative activists, including Parker Dozhier, the Arkansas bait shop owner who allegedly passed payments to Hale.
Any serious examination of the alleged payments from the Arkansas Project to Hale would involve tracing money back to the Spectator and Scaife foundations, and might also raise questions about the legality of using tax-exempt foundations for a political assault on the White House. As reported in the New York Observer, the Spectator’s tax returns for 1993 through 1996 falsely listed the payments to Arkansas Project operative Stephen Boynton as ordinary “legal” expenses.
Now Reno and her advisors at the Justice Department must determine not whether Starr should be removed because of his ties to Pepperdine and Scaife, but whether they will permit Starr to oversee an investigation that could lead directly to Scaife. The stakes could not be higher for Starr. If it is proved that Hale was the target of attempts to influence him, the entire Whitewater investigation could be compromised.
And if Hale’s previous testimony is found to have been tainted by the alleged payment scheme, even the convictions already won by Starr against former Arkansas Gov. Jim Guy Tucker, Susan McDougal and the late James McDougal could be overturned.
The outpouring of information (and disinformation) from Kenneth Starr’s
grand jury seems to be regarded by most Washington journalists as a piñata
party, with everyone grabbing for goodies — and some, most notably
reporters for the Wall Street Journal and the Dallas Morning News, turning
up with big booby prizes. Reporters and pundits — who apparently consider
leaks from official sources to be their professional birthright — have
barely deigned to notice that the leaking of grand jury material is not only a
felony, it involves a violation of the very constitutional rights the
American press is supposed to defend.
President Clinton’s lawyers have noticed, of course, and gone to court this
week in what will probably turn out to be a futile attempt to penalize
Starr, whom they blame for the leaks. Taking umbrage at such accusations, the
independent counsel says he’ll get to the bottom of this leaking problem.
Given his expenditure of well over $30 million since August 1994, getting
to the supposed bottom of the Whitewater land deal, nobody has dared to
estimate the potential cost and time line of a Starr-led leaks
investigation. And almost nobody has mentioned the conflict of interest
Starr faces in a probe of his own office. (Isn’t that exactly the same kind
of conflict we try to avoid by appointing independent counsels?) Presumably
the byword of Starr’s internal investigation will be, as the paranoid
commie-hunter in Bob Dylan’s classic “Talking John Birch Society Blues”
frets when he finally decides he must investigate himself: “Hope I don’t
find out nothin’!”
While it’s unlikely the leaks from Starr’s grand jury will stop, there is
a real moral issue for editors and producers about using them. Many,
however, think the idea of refusing leaks is utterly ridiculous. Frank
Rich summed up this attitude in his New York Times column on Feb. 11
when he called leaks “a legitimate source of news.” Without them, he contended,
“We’d never know what anyone in Washington was up to.” Like many pundits, the former theater critic is in
over his head when discussing the nuances of what passes for
“investigative reporting.” There is in fact a big difference between a
grand jury leak and any other kind.
That difference was summed up, ironically enough, in the juxtaposition
of two columns attacking Clinton in the New York Post on the same day that
Rich’s column appeared. In the first, former New Republic editor and perennial Clinton-hater Michael Kelly pompously declared: “There are a great many laws on the books of this country, many of them
onerous and some of them odious. Nevertheless, we are all required to obey
them all.” Kelly mentions several of these laws, but not the prohibition
against violating grand jury secrecy.
Abutting Kelly’s rant was a piece by Washington Post syndicated columnist Richard Cohen, arguing that the
White House protest about leaks from the Starr grand jury is a diversion
that echoes the last gasps of Spiro Agnew. “Patriotism may be the resort of
a scoundrel, but yelling about leaks is a close second.” In other words, we
all should obey all the laws all the time — unless we are members of the
press colluding with a prosecutor to violate grand jury secrecy.
As anyone who has done investigative reporting knows, prosecutors rarely
divulge grand jury testimony, partly because they are afraid to do so and
partly because they know it is wrong. The flood of stories from inside
Starr’s jury room is unusual, and therefore particularly suspect. It is
obvious that some of the leaks about testimony linking Monica Lewinsky to
the president, for example, were intended to put pressure on Lewinsky and
her lawyer while Starr was trying to negotiate an immunity agreement with
them. Should reporters participate in this kind of unlawful maneuvering by
a prosecutor for the sake of an “exclusive” news story? Should they — and
their editors — abet the commission of a felony by government officers
because they want a scoop?
It is morally bankrupt to argue that such compromises are made in the
interest of the public’s right to know. Journalists would argue strenuously
that the public has no inherent right to know their sources, and there are
even “shield laws” in some states intended to protect the secrecy of
sources under most circumstances. Why shouldn’t reporters respect the right of
citizens to secrecy when they testify before a grand jury? If under the
Constitution there are some things that people don’t have “the right to
know,” such as a journalist’s sources, then logically there may be other
things — such as a witness’s grand jury testimony — the public just
doesn’t have the right to know either.
Taking stenography from a venal prosecutor is not exactly the highest
form of investigative reporting. While there may sometimes be reason to
accept testimony or documents produced before a grand jury that has
already completed its work — such as in the investigation of a
political figure — it is hard to think of an example when a leak from a
sitting grand jury has measurably advanced the public interest. Real
investigative journalism may well result in grand jury proceedings, but it
almost never begins there.
Besides, there are terrible reportorial problems with grand jury leaks.
In most instances they cannot be double-sourced or checked in any way,
especially when they are part of a competitive, fast-breaking story. The
only source is likely to be a prosecutor or investigator, whose word
usually must be accepted without further confirmation or documentation.
(Unusual as grand jury leaks are, the leaking of transcripts or other
documents is ever more rare.) Basing a story on a single source is always a
risky proposition, particularly if the source is a prosecutor leaking as a
tactic against a potential defendant or witness like Lewinsky. The end
result — as the Dallas Morning News and the Wall Street Journal discovered when they went with a story that there was an eyewitness to Clinton-Lewinsky sex — can be an embarrassing retraction that would never have resulted from a
double-checked, better-sourced story.
Yet the most important reasons for journalists to reject illegal leaks
from prosecutors are not practical. They are moral and constitutional. In a
country where the rights and privileges of a free press are meant to
protect the people from government abuse, what justifies the collusion
between prosecutors and reporters in violating a citizen’s rights — even
if he or she happens to be the president?
The outpouring of information (and disinformation) from Kenneth Starr’s grand jury seems to be regarded by most Washington journalists as a piqata party, with everyone grabbing for goodies — and some, most notably reporters for the Wall Street Journal and the Dallas Morning News, turning up with big booby prizes. Reporters and pundits — who apparently consider leaks from official sources to be their professional birthright — have barely deigned to notice that the leaking of grand jury material is not only a felony, it involves a violation of the very constitutional rights the American press is supposed to defend.
President Clinton’s lawyers have noticed, of course, and gone to court this week in what will probably turn out to be a futile attempt to penalize Starr, whom they blame for the leaks. Taking umbrage at such accusations, the independent counsel says he’ll get to the bottom of this leaking problem. Given his expenditure of well over $30 million since August 1994, getting to the supposed bottom of the Whitewater land deal, nobody has dared to estimate the potential cost and time line of a Starr-led leaks investigation. And almost nobody has mentioned the conflict of interest Starr faces in a probe of his own office. (Isn’t that exactly the same kind of conflict we try to avoid by appointing independent counsels?) Presumably the byword of Starr’s internal investigation will be, as the paranoid commie-hunter in Bob Dylan’s classic “Talking John Birch Society Blues” frets when he finally decides he must investigate himself: “Hope I don’t find out nothin’!”
While it’s unlikely the leaks from Starr’s grand jury will stop, there is a real moral issue for editors and producers about using them. Many, however, think the idea of refusing leaks is utterly ridiculous. Frank Rich summed up this attitude in his New York Times column on Feb. 11 when he called leaks “a legitimate source of news.” Without them, he contended, “We’d never know what anyone in Washington was up to.” Like many pundits, the former theater critic is in over his head when discussing the nuances of what passes for “investigative reporting.” There is in fact a big difference between a grand jury leak and any other kind.
That difference was summed up, ironically enough, in the juxtaposition of two columns attacking Clinton in the New York Post on the same day that Rich’s column appeared. In the first, former New Republic editor and perennial Clinton-hater Michael Kelly pompously declared: “There are a great many laws on the books of this country, many of them onerous and some of them odious. Nevertheless, we are all required to obey them all.” Kelly mentions several of these laws, but not the prohibition against violating grand jury secrecy.
Abutting Kelly’s rant was a piece by Washington Post syndicated columnist Richard Cohen, arguing that the White House protest about leaks from the Starr grand jury is a diversion that echoes the last gasps of Spiro Agnew. “Patriotism may be the resort of a scoundrel, but yelling about leaks is a close second.” In other words, we all should obey all the laws all the time — unless we are members of the press colluding with a prosecutor to violate grand jury secrecy.
As anyone who has done investigative reporting knows, prosecutors rarely divulge grand jury testimony, partly because they are afraid to do so and partly because they know it is wrong. The flood of stories from inside Starr’s jury room is unusual, and therefore particularly suspect. It is obvious that some of the leaks about testimony linking Monica Lewinsky to the president, for example, were intended to put pressure on Lewinsky and her lawyer while Starr was trying to negotiate an immunity agreement with them. Should reporters participate in this kind of unlawful maneuvering by a prosecutor for the sake of an “exclusive” news story? Should they — and their editors — abet the commission of a felony by government officers because they want a scoop?
It is morally bankrupt to argue that such compromises are made in the interest of the public’s right to know. Journalists would argue strenuously that the public has no inherent right to know their sources, and there are even “shield laws” in some states intended to protect the secrecy of sources under most circumstances. Why shouldn’t reporters respect the right of citizens to secrecy when they testify before a grand jury? If under the Constitution there are some things that people don’t have “the right to know,” such as a journalist’s sources, then logically there may be other things — such as a witness’s grand jury testimony — the public just doesn’t have the right to know either.
Taking stenography from a venal prosecutor is not exactly the highest form of investigative reporting. While there may sometimes be reason to accept testimony or documents produced before a grand jury that has already completed its work — such as in the investigation of a political figure — it is hard to think of an example when a leak from a sitting grand jury has measurably advanced the public interest. Real investigative journalism may well result in grand jury proceedings, but it almost never begins there.
Besides, there are terrible reportorial problems with grand jury leaks. In most instances they cannot be double-sourced or checked in any way, especially when they are part of a competitive, fast-breaking story. The only source is likely to be a prosecutor or investigator, whose word usually must be accepted without further confirmation or documentation. (Unusual as grand jury leaks are, the leaking of transcripts or other documents is ever more rare.) Basing a story on a single source is always a risky proposition, particularly if the source is a prosecutor leaking as a tactic against a potential defendant or witness like Lewinsky. The end result — as the Dallas Morning News and the Wall Street Journal discovered when they went with a story that there was an eyewitness to Clinton-Lewinsky sex — can be an embarrassing retraction that would never have resulted from a double-checked, better-sourced story.
Yet the most important reasons for journalists to reject illegal leaks from prosecutors are not practical. They are moral and constitutional. In a country where the rights and privileges of a free press are meant to protect the people from government abuse, what justifies the collusion between prosecutors and reporters in violating a citizen’s rights — even if he or she happens to be the president?
