Almost exactly a decade after Whitewater commenced with a confusing article in the New York Times, the great pseudo-scandal finally concluded last Wednesday with the release of a mind-boggling, five-volume report from the Office of Independent Counsel. Ten years of investigative mania, partisan malice and misplaced ambition haven't improved the story, but merely inflated a footnote into an epic.
To read the contents of the 2,200-page document produced by the OIC -- at $73 million, or more than $33,000 per page, probably the costliest publication in human history -- is to marvel at how stubbornly these prosecutors evaded the obligation to admit that their primary targets, Bill and Hillary Clinton, were innocent. Even now they cannot confront that damning verdict without resorting repeatedly to the weasel phrase that has become their fraternal motto: "insufficient available evidence to establish beyond a reasonable doubt."
It is likely by now that most Americans have forgotten what, exactly, Kenneth Starr and his persistent assistants were attempting to prove. The Whitewater allegations were vague and constantly shifting, as each headlined accusation quietly evaporated. The few clear and pertinent questions about the defunct development deal were answered with finality at least seven years ago.
Did the Clintons abuse their political authority to help their real-estate partner James McDougal keep afloat Madison Guaranty, his insolvent savings and loan, as the original Times article suggested? No. The investigation quickly revealed that then-Governor Clinton ordered his appointees to treat McDougal no differently than anyone else. Did the Clintons profit illicitly from McDougal's manipulations? No. Investigators learned within a year after the probe began that the president and first lady were swindled by McDougal and had lost about $40,000. Did Bill Clinton play any part in obtaining an illegal loan from the crooked businessman David Hale? No. The only testimony to that effect came from Hale and McDougal, both sources that the OIC knew were bereft of credibility.
There was never, in short, a plausible case that the Clintons had committed a single illegal act, or that they even had the slightest idea what McDougal had done. The footnotes to the final report show that the OIC failed to uncover any significant information about Whitewater beyond what the lawyers at Pillsbury, Madison & Sutro had found when they completed an exhaustive and exculpatory report on the land deal "and related matters" in late 1995. Yet by then the creative prosecutors working for Starr -- and their allies in the media -- were focused on another target. If they couldnt get the president, they would settle for indicting his controversial spouse.
Once it became obvious that the Whitewater deal itself would never yield an indictment against either of the Clintons, Starr's zealous lawmen decided to rake through the files of the Rose law firm, looking for some violation by Hillary Clinton or any of her former partners. Rose had represented Madison, which sounded suspicious, or could be made to sound suspicious. And they did discover that Webster Hubbell, a Clinton friend and former Rose partner, had committed multiple frauds, mostly against his own firm. The problem, from the prosecution viewpoint, was that Hillary Clinton, instead of being complicit in Hubbell's crimes, had been among his victims.
Eventually, Starr's prosecutors turned to the task of proving that Mrs. Clinton had lied about or hidden something -- and it didn't much matter what. They spent years trying to show that she had testified falsely about who had first arranged for Rose law firm to represent Madison Guaranty, and whether Jim McDougal had or had not paid his legal bills on time. Had she correctly remembered brief conversations that had taken place eight or 10 or 12 years earlier? Could she recall, with perfect accuracy, every minute she had billed a client connected to Madison from that bygone era?
The account of this phase of the investigation is numbingly pointless. Mrs. Clinton's version of various events differs in minor detail from testimony offered by her former partners and associates -- but then none of them agree precisely with each other. The notion that anyone might face criminal charges over such minutiae would be amusing if it weren't so sinister. (If you want to understand the OIC's gambit, try to recall perfectly a conversation or a circumstance from 10 years ago, and then imagine that you might be indicted by an unscrupulous lawman if somebody else contradicts you.) Perhaps someday Starr will explain why he and his colleagues regarded the endless parsing of these irrelevancies as a mission of national importance.
The final report does contain a tantalizing reference to the missing Rose billing records that caused all of Washington to swoon in January 1996, when they were found in the White House. The theory was that Mrs. Clinton had concealed her billing records because they would prove that she had guilty knowledge of swindles by McDougal and others. They proved the opposite, confirming her testimony (and reaffirming information previously available in other copies of the same records). There was no conceivable reason to hide them, and even less motive for producing them suddenly at the beginning of an election year.
But Starr's successor, Robert Ray, could not resist the impulse to impugn her reputation one last time. So he includes a reference to three witnesses who claimed to have seen Mrs. Clinton carrying a box of what "could have been" a "rolled-up sheaf" of billing records sometime in July 1995. Actually, only two of these individuals said they saw her carrying any papers, and none explained how they would have guessed what the billing record looked like.
"Insufficient evidence" is putting it mildly. But Ray has spent the past few months preparing to run for the Senate in New Jersey, where he must think that smearing Hillary Clinton will impress Republican primary voters.
With all its discussion of obstruction and concealment, this report is itself a form of cover-up. Its massive size and complexity are designed to obscure the fundamental truth. This case was dead as early as July 1995, when the Clintons were cleared by the Pillsbury report (a comparative bargain at only $3.5 million), and no later than January 1997, when Starr made his first abortive attempt to resign in frustration.
There was never a "Whitewater case." There was only a political prosecution that was transformed from a failed financial investigation into a successful sexual inquisition, encouraged by a media elite that ought to have exposed rather than applauded this gross abuse of prosecutorial power.