Whitewater, which started one day in 1992 in a downtown Little Rock office and expanded into the costliest and looniest investigation in American history, ended Monday morning in the most appropriate way. The U. S. Supreme Court refused to hear an appeal from Jim Guy Tucker, who was tricked by prosecutors into pleading guilty to cheating on taxes that he did not owe.
Yes, you read that correctly. After Whitewater Prosecutor Kenneth S. Starr and his cohorts finally packed their bags and left the remnants of Whitewater to the career men in government, the Justice Department and the Internal Revenue Service (and the federal courts, too) agreed with Tucker that the tax law under which he had been prosecuted had been repealed nearly two years before the cable-television bankruptcy transactions in 1988 that ensnared him. Rather than skipping out on $3.8 million in taxes, which is what Starr told the grand jury that indicted Tucker, he owes at most $62,714.94 and may be entitled to a refund.
For 40 years, U.S. courts have followed a precedent that says the government must give a man a new trial if it withholds any information from him that might affect his guilt or innocence or his penalty. A panel of the 8th U.S. Circuit Court of Appeals at St. Louis simply said the precedent did not apply in Tucker’s case. It did not really explain why. As Tucker’s trial approached in 1998, Starr had refused to divulge to him the particulars of the case against him, including the specific law that he was accused of violating. Recuperating from a liver transplant and worrying about serving prison time if he lost, the former governor accepted a bargain from Starr to plead guilty to a reduced charge and not go to prison. Much later he would learn that they were using the outdated law, and then he wanted to withdraw his guilty plea and go to trial.
No one expected the Supreme Court to hear his appeal. It accepts fewer than 2 percent of the cases that reach it, and manifest injustice in an individual case is not usually a reason to accept an appeal. Settling the issue must have wider consequences. What are the chances a case like Tucker’s will ever arise again?
The legal non sequitur in Tucker’s case is the most fitting monument to Whitewater. It began in 1992 when Jim McDougal sat down in the Little Rock office of Sheffield Nelson, a political foe of Bill Clinton and Tucker, and told him about his unhappiness with his former friends over their failed business transactions together and their refusal to help him. (Clinton would not give him a state job.) Nelson told a New York Times reporter with whom he had done business. The reporter wrote about the transactions, including McDougal’s land venture in 1979 with Bill and Hillary Clinton on a remote mountainside in Marion County called Whitewater Estates.
When Vince Foster, a White House lawyer who had the old Whitewater records, committed suicide in 1993, Republicans in Congress got interested in the Whitewater deal. The interest quickened when Clinton’s Small Business Administration turned in a small-time Little Rock crook and Republican bankroller named David Hale for defrauding the agency of loan funds and Hale claimed that some of his dirty work was done for Clinton.
Hale’s accusation proved bogus, but the Whitewater investigation was off and running. Eventually, the government through the independent counsel’s office and the FBI would spend $70 million on the prosecution of 17 people for small-time business dealings in Arkansas, mostly with Hale and McDougal. But only one had even a remote connection to the Clintons. That was the conviction of Webb Hubbell for defrauding his business partners at the Rose Law Firm. One of his victims happened to be Hillary Clinton, a partner in the firm and, like her husband, at one time a friend.
Tucker always maintained that if the Republicans had not gone after Clinton he would never have been accused of any wrongdoing.
“It’s probably true,” the deputy prosecutor who handled Tucker’s case acknowledged Monday.
That was Whitewater and it is finally, mercifully dead. R.I.P.
Ernie Dumas writes editorials for The Leader.
