First Whitewater prosecutor says 'serious crimes' were uncovered in probe

                                                   [Hillary waves after testifying on Whitewater, 1996]
By Michael Isikoff 

The first federal prosecutor to probe the financial dealings of Bill and Hillary Clinton says he was poised to bring high-profile indictments against top Arkansas political and business figures — based in part on testimony from a chief witness against the then president — when he was abruptly replaced by a panel of federal judges, throwing his investigation into turmoil.

"I was angry, frustrated and above all disappointed that I was not going to be able to carry through and finish bringing the indictments," writes Robert Fiske, a former U.S. attorney who served as the original independent counsel in charge of the Whitewater investigation, in a forthcoming memoir, "Prosecutor Defender Counselor." 

Fiske — ever the punctilious prosecutor — offers no judgments on the conduct of the Clintons, nor on that of the man who replaced him, Kenneth Starr. 

But in his first extensive public comments on his Whitewater investigation, in his book and in an exclusive Yahoo News interview, Fiske contends his removal had a devastating impact on the agents and prosecutors working the case: It ultimately caused the Whitewater probe to stretch on for years longer than it needed to under Starr, a conservative former federal appellate judge who had no prosecutorial experience.

"The simplest way to put it, after I was replaced, the lawyers on the staff in Arkansas said the agents for the FBI and IRS were totally demoralized," Fiske said in the Yahoo News interview. "They thought we were on the brink of doing all these great things, and now that was not going to happen."

The long-ago Whitewater probe seems likely to be revived by political foes if, as is widely expected, Hillary Clinton runs for president. (The Clinton library is due to release new documents, including some that are expected to include Whitewater files, this Friday.) For years, the Clintons have sought to portray the entire investigation as a politically inspired witch hunt, pushed by partisans hunting for any ammunition they could find to damage the president and first lady. 

"I'm still waiting for them to admit that there was nothing to Whitewater," Bill Clinton said in a recent appearance.

But the new account of Fiske, a pillar of the New York legal community, offers a more complicated picture. He describes how he had quickly uncovered "serious crimes" in the Whitewater investigation but that his probe was cut short after conservatives falsely accused him of a "cover up."

"There were indictments, there were convictions," said Fiske when asked about claims that there was "nothing" to the investigation. "People went to jail. There was never any evidence that was sufficient to link the Clintons to any of it, but there were certainly serious crimes." 

Appointed by Janet Reno in January 1994, Fiske describes how he moved aggressively from the start, carving out a wide-ranging mandate and hiring a top-flight staff of veteran prosecutors. One of his first moves was to subpoena Hillary Clinton's law firm billing records — documents that were later found under mysterious circumstances in the White House living quarters.

By the summer of 1994, Fiske says, he was preparing to bring eight indictments against 11 defendants, including criminal charges for fraud against Jim and Susan McDougal (the Clintons' Whitewater business partners), Webster Hubbell (then an associate attorney general and formerly Hillary Clinton's law partner) and Jim Guy Tucker (Clinton's successor as governor of Arkansas). 

A key witness in these cases was David Hale, a former municipal judge and the owner of a federally subsidized small-business lending company. It was Hale who had made the most serious allegation against Bill Clinton: Hale had claimed that Clinton, while Arkansas governor, had pressured him to make a fraudulent $300,000 federally backed loan to a marketing company owned by Susan McDougal that was really intended to pay off the two couples' debts in their Whitewater real estate investment. ("My name can't show up on this," Hale claimed Clinton had told him, an account that President Clinton later denied.)

Defenders of the Clintons have long depicted Hale as an inveterate liar who was put up to his allegations by bitter political enemies of the then president and first lady.

But Fiske devotes a chapter of his book to how he cut a plea deal with Hale, titling it "An Early Breakthrough," and describing how Hale's information "moved us forward." 

"You used David Hale as a witness. You believed he was credible?" Fiske was asked by Yahoo News.

"Yes, we did," Fiske replied. He noted that FBI agents and prosecutors working for him (including famed Texas trial attorney Rusty Hardin) had closely vetted Hale's story.

"He provided very valuable information to us," Fiske said about Hale.

But Hale was also a confessed felon, who had pleaded guilty to defrauding the government. "Standing alone, nobody was going to bring a case based on what he was telling us," Fiske said — unless there was corroboration from other witnesses and documents. "But from what we had seen of him, we thought the story was plausible and was certainly worth pursuing," said Fiske. 

Despite Fiske's efforts to find more evidence, he soon ran afoul of conservatives in Congress and on the Wall Street Journal editorial page, who accused him of pulling his punches. In late June, he issued two reports — one clearing the Clintons and White House officials of any wrongdoing in trying to influence a regulatory agency review of Jim McDougal's savings and loan, and a second one concluding that Vince Foster, another law firm partner of Hillary Clinton's, who was serving as White House counsel, had committed suicide in Fort Marcy Park overlooking the Potomac River and was not the victim of foul play.

In his memoir, Fiske contends that the evidence that Foster took his own life was overwhelming. But Fiske writes, "conspiracy theorists" attacked his findings, suggesting that Foster may have been murdered elsewhere and his body dumped in the park. Fiske recounts how an Indiana congressman, Dan Burton, even sought to disprove his findings by shooting a watermelon in his backyard. And soon Fiske was also being accused of conflicts of interest and protecting the Clintons. "The Fiske cover up," ran the headline on one Wall Street Journal editorial. 

In August 1994, just as his investigation in Arkansas was gathering steam, Fiske was jolted when a panel of three federal judges — two of them strong conservatives — removed him on the grounds that he was not independent enough (because he had been appointed by Clinton's attorney general) and replaced him with Starr.

Fiske says he sought to reassure his dejected staff. Starr "has no experience as a prosecutor, so things may move a little slower but these indictments will happen," he told them.

The indictments were ultimately brought by Starr — only in some cases more than a year after Fiske's removal, and by then, Starr was widely being depicted by the White House and its allies as a conservative partisan. In that sense, Fiske's removal may have been a turning point that ended up undermining public confidence in the entire Whitewater probe, said Ken Gormley, the dean of Duquesne University School of Law and the author of "The Death of American Virtue: Clinton vs. Starr," an exhaustive study of the investigation. 

"Painting the whole thing as a witch hunt would have been much harder" if Fiske had not been replaced, said Gormley. And, he believes, Fiske would likely not have expanded the probe, as Starr did, to include Clinton's relationship with Monica Lewinsky. "Fiske was a lawyer's lawyer," said Gormley. "He was the consummate principled prosecutor."