Contempt Page 10

  Our youngest associate, Eric Jaso, a Harvard Law–educated attorney whom I recruited from a top corporate firm, took on the challenge of researching and answering a blizzard of defense motions.

  One of the first things Robert Hirschhorn, our jury consultant, told us was that the defense would attack the independent counsel at every opportunity. Ray Jahn sat me down and said, “Ken, I’m sorry to say this. The defendants will be pointing fingers in your direction and trying to put you on trial. We have to bench you. You cannot darken the door of Judge Howard’s courtroom.”

  This was a distressing turn of events for me. I had been banned. No appearances in the courtroom, no press statements. For someone who thrived in a courtroom, it was painful to be sidelined. But I couldn’t say I disagreed.

  I became the OIC’s ghost leader. Every day, I waited until the proceedings had gotten under way to drive downtown from our west side offices. I’d park my car in a lightly trafficked lot, sneak through a back door into the federal annex adjacent to the courthouse, and head down the stairs to the basement.

  A spacious but entirely nondescript area with numerous cubicles served as our trial headquarters. We kept the office locked tight, with coded access and a skeleton support staff on hand. Festooned prominently on the wall was an enormous, homemade trial banner: “We are honored by our friends and distinguished by our enemies.”

  I felt a sense of powerless frustration. In my furtive comings and goings, however, I never encountered the press. They were all on the courthouse steps, sitting in the courtroom, or milling around in the hallway.

  Hungry for information, I tried to control my impatience but practically pounced on any of our team members who entered our dungeon offices fresh from the trial proceedings upstairs. My most frequent companion from the courtroom battleground was Eric, our prolific wordsmith.

  Throughout the trial, the lunch break provided a midday respite from the tension. I was joined by the prosecutors and agents in the windowless conference room. Over sandwiches or pizza, we dissected the morning’s events and planned for the afternoon. We studiously avoided the courthouse cafeteria, where, we assumed, the walls had ears.

  The trial gamesmanship started even before the jury had been chosen. Governor Tucker arrived on the first day of jury selection with a full retinue of Arkansas state troopers as bodyguards. He marched into the courtroom clutching his wife’s hand.

  That prompted our jury consultant to ask Ray Jahn why he didn’t wear a wedding ring. Ray confessed that he had gained fifty pounds since he and LeRoy had married. His ring no longer fit.

  This was socially conservative Arkansas, Hirschhorn told him. Married people wore rings. The next day, Jahn sported a brand-new wedding ring. Like Tucker and his wife, Ray and LeRoy entered the courtroom holding hands. (He still wears the ring.)

  Hirschhorn recommended that voir dire—questions for potential jurors—be split between Ray, the tough guy, and Amy St. Eve, the youthful and appealing woman. Amy was anxious; barely out of law school, she’d never participated in voir dire before. Ray told her that he was practically in the same boat. In many federal trials, voir dire is handled by the judge.

  Jury selection got off to a poignant start. One older man, told that he had been deemed acceptable by both the prosecution and the defense, was asked by the judge to wait in the corridor. A bailiff came in a few minutes later. The man was crying. He didn’t want to be on the jury. He said he couldn’t read or write, but was too embarrassed to say so in front of the judge. Understandably, Judge Howard dismissed him.

  Then there was the petite female juror who appeared for jury selection dressed in a Star Trek uniform. She made it on to the jury as an alternate; our team preferred her to the man who sat next to her.

  Several weeks into the trial, she asked the judge if the proceedings could be adjourned earlier than usual. She needed to go home and attach her Spock ears because it was her duty to preside over that night’s meeting of the Interplanetary Intergalactic Confederation—or something like that. The judge thanked her for her service and dismissed her from the jury. A headline read: JUDGE BEAMS UP JUROR.

  After voir dire, the prosecution’s case got under way. Because the trial was so dependent on documents, our team brought in a high-tech projector system that allowed the lawyers to highlight or point to a line of text. The defense immediately objected, saying the court didn’t need this “newfangled stuff.” But by the end of the day, the defense was asking the prosecutors if they could borrow our equipment.

  The White House was closely monitoring the trial. That point was dramatically illustrated when David Kendall appeared unannounced at the courthouse. Our team members kept a watchful eye on him and his colleagues as they sat in the courtroom. Sure enough, during the lunch recess, our staff spotted Kendall counseling Susan McDougal. It was open and notorious.

  Susan’s lawyer had been taking some hits. Though her defense was that she knew little about the business going on at Madison Guaranty, that Jim handled everything, one witness testified about her standing in the middle of the lobby one day and shouting, “I own this f****** place!”

  David Hale had testified that Susan had arrived at his office in a tennis dress, signed documents for the $300,000 Master Marketing loan, then bounced out, saying, “We’ll have to do this again sometime soon.”

  We believed Susan knew a lot about the president. If she testified, she could damage him politically. By remaining silent, she could protect him. Kendall’s involvement was understandable, but shameful from a constitutional standpoint. It appeared that Clinton had sent defense lawyers to get his friends and political allies acquitted on charges of looting a federally insured bank. By my lights, this was a mockery of the president’s duties to faithfully enforce the law.

  The defense tried to brand us as a Republican hit squad dispatched from the banks of the Potomac to do the GOP’s dirty work. That tactic worked outside on the courthouse steps. But inside the courtroom, it backfired. Tucker’s lawyer got into an embarrassing jam by trying to divorce the OIC from the federal government in the minds of the jurors. At one juncture, Buddy Sutton, Tucker’s attorney, leaped up with an objection: “Your Honor, Mr. Jahn says he represents the United States. That’s not so. He represents the independent counsel!”

  Judge Howard responded with mild righteous indignation.

  “Mr. Sutton, your objection is overruled. I draw your attention to the indictment returned by the federal grand jury in this case.”

  The judge then held up a copy of the indictment, and pointed with his left hand to the caption. “Mr. Sutton, the indictment reads ‘The United States of America v. Jim Guy Tucker, James B. McDougal and Susan McDougal.’”

  Roundly cuffed, the defense lawyers didn’t try that stunt again.

  But to some people in Little Rock, we remained unwelcome outsiders. Even though Arkansas boasted a populist, antielitist culture, complete with a deep-seated suspicion of politicians, hometown pride ran deep. Their governor was in the dock, as were the Clintons’ well-known business associates. And, of course, the president had been summoned by the defense as a trial witness. That was big news in Little Rock.

  Not everyone felt antagonistic, though.

  “This is hard for us,” the spouse of one prominent Little Rock businessperson confided to me. “We know the folks you have charged. We go to church with them. We see them around town. They’re our neighbors.” Then she added in a resigned voice, “We do want to know what really happened. We want the truth to come out.”

  A small anecdote illustrates our status as invaders. One day in May, I had remained in our west side offices in the morning to attend to other duties. After getting word that Judge Howard had declared a longer lunch break than usual, I took advantage of the additional time and told the trial team: “I’ll meet you at Luby’s for lunch”—a treat compared to our usual fare.

  Hot, muggy weather
had already settled in on the banks of the Arkansas River. I met the prosecutors and support team at the entrance to the mercifully air-conditioned mall where Luby’s was located.

  Grabbing a tray, I went ahead of my colleagues so I could pick up the tab as they made their way through the cafeteria line. As the cashier rang up the charges, a middle-aged gentleman came up to me and smiled.

  “Mr. Starr, how’s the trial going?” He didn’t introduce himself.

  Truth be told, that morning had not gone particularly well for us. The jury had seemed bored. After two months, the document-heavy trial was becoming a grind. But I put on a brave face, and responded at a high level of generality that we were pleased to have an able, upright judge presiding over the trial, that the jurors were conscientious and attentive. As my colleagues headed to a large table, I paid the tab and warmly shook the hand of my new Little Rock friend.

  “Thanks so much for asking about us,” I said. “I really appreciate it.”

  In a friendly tone, he threw a curve: “Well, to tell the truth, I’m rooting for the other side.” That sentiment captured the mood of the town.

  Each day after the testimony, the defendants and their lawyers made their way to the courthouse steps to denounce the prosecution. The New York Times, the Washington Post, many other newspapers, and all the major TV networks gathered on the steps at the end of each day. Some just reported the defense spin, encouraged by Tucker’s energetic public relations apparatus and the colorful orations of Jim McDougal.

  Our office manager, Debbie Gershman, would take notes of the questions that reporters asked, and if necessary, Hickman would emerge to set the record straight.

  The McDougals put on a grand show after each day’s testimony. But Jim was visibly aging as the trial wore on. Suffering from several physical ailments, his spark seemed to have gone out.

  Despite occasional setbacks and adverse trial rulings, glimmers of hope abounded for the OIC. Judge Howard remained in firm control. He allowed the lawyers, prosecution and defense alike, to try the case. If an objection was raised, he listened to both sides, and then ruled promptly with quiet confidence.

  We lost more than our fair share of objections, but the judge always remained scrupulously within bounds. Trials require constant judgment calls, and an effective judge can’t dally or take the matter “under advisement.” Even so, Judge Howard instinctively leaned slightly toward the defense.

  “Mr. Jahn, liberty is at stake,” he’d say. “I’m going to allow the defendants a little leeway.” In stentorian tones, His Honor emphasized the “lee . . .” in “leeway.” It became one of our “clubhouse” takeaways: “Well, the judge is likely to allow the defense lawyers a little leeeee-way today.”

  We adjusted. As the trial wore on, we made fewer objections, even though we believed we would have been on solid legal ground. We came to know our judge well, and could predict the likely outcome.

  One Whitewater trial lesson was this: In the dignity of a courtroom, with all the cacophony raging outside, a United States district judge can become the living symbol of our system of law. Daily, Judge Howard reminded the jurors of their duty.

  On March 27, the first real mention of the president came up in the trial. Little Rock judge Bill Watt, who had been granted immunity, said that Hale had told him in 1986 that during an encounter at the State Capitol Bill Clinton had asked Hale “if he would be able to help Jim and him out.”

  Hale had already pleaded guilty but had not been sentenced. Since he had been accused of making up the allegations about Clinton in 1993 to get a shorter sentence in return for his testimony in this trial, Watt’s testimony was important to show that Hale had told him years before then that Clinton was pestering him about the loan benefiting the McDougals.

  “Doesn’t the testimony today mean that Bill Clinton was a coconspirator?” one TV reporter asked Hickman that afternoon. He declined to comment. The reporter tried again: “Wouldn’t a reasonably prudent person conclude from this testimony that Clinton was a coconspirator?”

  Hickman again declined to comment, but did say that our team was allowed to put on testimony showing that Hale had discussed the matter well before he was indicted.

  Hale testified for eight days in early April and pointed the finger directly at Clinton. He told of a meeting between himself, Clinton, and McDougal at a sales office for Castle Grande, one of Madison Guaranty’s problematic development properties. They talked about the Master Marketing loan to Susan McDougal—further confirmation that Clinton knew about the fraudulent loan, despite his denials.

  The media’s reaction to Hale’s testimony was hostility.

  “Is Bill Clinton going to be indicted?” Sara Fritz of the Los Angeles Times asked Hickman on April 11, at the end of Hale’s last day on the stand.

  Hickman told her, “I can’t comment on that even if I knew the answer.” On April 14, Fritz published a very negative article about Hale.

  She falsely claimed that Hickman acknowledged that the independent counsel’s office “sees this trial primarily as a way to obtain more evidence against the president” and that “Starr hopes that, by winning the conviction of Tucker and the McDougals, he can persuade the three to give incriminating evidence against Clinton.”

  Notes taken at the time by Hickman’s assistant showed that he had been egregiously misquoted. We contacted Fritz, who said she stood by her story.

  In late April 1996, ABC’s Nightline devoted its show to Ken Starr and the OIC, featuring Mark Tuohey, my defender, and James Carville, by now my nemesis. Prior to this, he’d denounced me as a “tobacky lawyer,” which made it sound like I was dispensing cigarettes to children at schools. In fact, I had simply argued an appeal for a long-term firm client on a constitutional issue involving nationwide class-action lawsuits.

  Carville now attacked me as the “dependent partisan persecutor,” and added, “Why, his deputy Hick Ewing said that the only reason the trial is going on in Little Rock is to get evidence to indict the President, and that is outrageous.”

  I had written a letter of protest to the editor of the Los Angeles Times and was told they would look into our assertion that Hickman had been misquoted. Audio recorded by another reporter proved that he had indeed. The newspaper did not run a correction until May 18. But from the seed sown by a biased reporter, Carville had already launched a nationally watched attack that was based on a totally fabricated quote.

  On Sunday, April 28, our team again went to the White House. In the long-running trial, Judge Howard authorized the defense lawyers to take President Clinton’s testimony. Judge Howard remained in Little Rock, presiding over the testimony by live satellite feed, which was videotaped to be shown later to the jury.

  The president sat in a chair in the Map Room at the White House. The OIC team sat at one table on the east side of the room. The defendants and their lawyers sat at another table. Attorneys for the president, the White House, and the DOJ sat at yet another table. This time, we mostly sat and listened, rather than conducted the main line of questioning.

  During his testimony, the president denied speaking to Hale and McDougal about the Master Marketing loan to Susan. But under cross-examination by Jahn, he began to show irritation. His complexion turned red, a sign—at least according to those who knew him well—of rising anger.

  It’s doubtful Clinton’s testimony affected the jurors’ deliberations, but at least he was now on the record.

  Late in the trial, Jim McDougal took the stand. He chose a foolhardy course, whereas Tucker and Susan remained silent, as was their constitutional right. It was a train wreck. Under withering cross-examination, Jahn destroyed Jim’s self-serving testimony.

  We suspected the president’s attorneys had pushed Jim to embark on this suicide mission. Their strategy to protect the president was easy to guess. Keep the blabbermouth Susan off the stand, and encourage the showboat Jim to testify
.

  Jim’s conviction would stain his credibility in any future testimony against Bill and Hillary. Even if we secured his cooperation against them, he would be damaged goods, a convicted felon who lied under oath.

  In late May, after a three-month trial, seven hundred exhibits, and thirty-five witnesses, both sides rested. The jury retired to deliberate the fate of the three defendants. Reporters for the major newspapers began a pool taking bets on how long the jury would be out before we got our heads handed to us.

  Occasionally, requests came out of the jury room for particular documents or clarifying instructions. That was a good sign, but the tension was building. After seven days of deliberation, as Memorial Day approached, the jurors asked to see the judge. Some had clearly been crying, others had red faces, suggesting they had been engaged in vigorous debate. Taking the measure of the jurors, Judge Howard—to our chagrin—told them to take the afternoon as well as the long weekend off. The OIC team was apprehensive. We were all suffering from trial fatigue.

  I headed back to Northern Virginia. Our neighbors in McLean invited Alice and me to an early dinner on Monday, Memorial Day. I’m usually talkative, but not on that particular evening. I felt empty. My mind kept drifting back to Little Rock. The entire investigation was hanging in the balance. We were predicted to lose. I tried to think of Scripture: In all things, be content. At any rate, the result was out of my control.

  Although I tried to hide it, when I got up on Tuesday morning I was anxious and concerned. I had a gnawing feeling that the jury would not be able to bring itself to convict the governor. We might find ourselves going one for three, with a conviction of Jim, and acquittals of Susan and Governor Tucker.

  I went into my office in Washington. We gathered in a conference room in a state of uneasy apprehension, anticipating a verdict at any moment. Then at midday, we got a call from Hickman about the same time we saw a notice on CNN: A VERDICT IN THE WHITEWATER TRIAL.