[
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."
