Obsessed with the Hunt : Only the Word 'Water' Makes These Two Scandals Similar

Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988

The Whitewater scandal is a crisis for the Clinton presidency--and the country. In his first year in office, despite some well-publicized missteps, Bill Clinton got more major legislation through Congress than any President since Franklin D. Roosevelt. In his second year, the President and Hillary Rodham Clinton succeeded in placing health care on the national agenda, changing the question from whether all Americans deserved decent health care to how to provide it.

Now, however, the President has no choice but to try to face down an angry press corps, the First Lady has lowered her profile almost out of view and health-care reform is on the endangered list. The reason is a "scandal" that even the President's most ardent critics acknowledge is likely much ado about not much. To quote one attacker, Sen. Alfonse M. D'Amato (R-N.Y.), there may be "little if anything" at the core of Whitewater. "I never said I expected any substantial wrongdoing or any at all."

Many Americans believe the President and Hillary Clinton must be hiding something important about Whitewater. That belief is understandable, given the misjudgments and poor handling of the issue to date by the President's advisers. But hundreds of reporters working thousands of hours have found no smoking guns, no criminal violations, no abuse of power, nothing that would justify the crisis that Whitewater has become. That is both the irony and the tragedy of the so-called Whitewater scandal.

In 1978, President and Mrs. Clinton invested money in a real-estate partnership with James B. McDougal, who later headed Madison Guaranty Savings and Loan, an S&L; that ultimately failed at taxpayer expense. Hillary Clinton, as an attorney in private practice, represented Madison before regulators appointed by her husband, the governor. Later, her law firm represented the government in a suit against Madison Guaranty's auditors.

There have been allegations that Madison funds may have found their way into Whitewater, or even into the 1984 Clinton gubernatorial campaign. There have also been allegations the Clintons may owe taxes because their Whitewater losses were overstated. None of these allegations have been substantiated--notwithstanding the work of hundreds of reporters. Even if they were, there has been no allegation that Clinton or his wife were themselves involved, or even aware, of any misappropriation of funds or that they intended to evade taxes.

Rep. James A. Leach of Iowa, ranking Republican on the House Banking Committee, has charged that federal regulators in Kansas City blocked further investigations into Madison. But, as he himself has admitted, there is no proof that any Clinton appointees were involved in this--and the President has specifically denied they were. There are also some who have argued that Hillary Clinton's representation of Madison, or her firm's later representation of the federal government, raises ethical questions, and that the close relationships among Arkansas business leaders, lawyers and politicians give rise at least to an appearance of a conflict of interest.

Arkansas pays its governor less than California pays its prison guards. Its speaker of the house was, for most of his tenure, on the payroll of a poultry company that is one of the state's largest employers. For those who value ethics in politics, there is much to criticize in the way business is routinely done in many of the smaller--and larger--state capitols around the country. George Bush tried to make Arkansas an issue in the election. Americans chose Clinton, notwithstanding the attacks.

The issues involving the Whitewater investment and Hillary Clinton's law firm--the subject of the special counsel's probe--should not be enough to put a presidency in crisis. They do not involve abuse of presidential power. They do not involve criminal wrongdoing. They are not "high crimes" that would, under any circumstances, support impeachment. Unlike Watergate, unlike Iran-Contra, even if the President's harshest critics are justified, no claim has been raised of abuse of power or criminal wrongdoing by a sitting President.

There should be no cloud over this presidency--at least as a matter of law. Indeed, it is hard to imagine what the President or Hillary Clinton could even be hiding with respect to these transactions that would be more damaging than damage they've already suffered to date.

Those who recognize that Whitewater itself is neither big enough nor important enough to paralyze a presidency--and a country--argue it is the "cover-up" of Whitewater, like the cover-up called Watergate, that raises questions about White House integrity. But there is simply no parallel between President Richard M. Nixon's efforts to use the CIA to thwart the investigation of the FBI, and Deputy Treasury Secretary Roger C. Altman's meetings with White House staffers on Whitewater, or former White House Counsel Bernard W. Nussbaum's efforts to limit disclosure of White House counsel Vincent W. Foster Jr.'s files.

The Altman meetings, which helped ignite the feeding frenzy that is the greatest scandal here, certainly created an appearance of conflict of interest, that the White House should always seek to avoid. But the substance of these meetings, unlike Watergate, had nothing to do with using one agency against another to protect the President.

Altman has repeatedly stated that he did no more than brief White House officials on the procedural rules relating to the statute of limitations on the Madison probe, and seek their advice as to whether he should recuse himself from any decisions dealing with Madison--as he ultimately did.

No one has challenged Altman's version, nor his integrity. Indeed, the ethics officer at Treasury approved the Altman meeting--precisely because no confidential information was being disclosed, no decision-making being shared, no influence being sought. Altman may have made an error in judgment in having the meetings--but it is a far cry from the abuse of presidential power at the core of Watergate.

As for Nussbaum, his sins were political rather than legal, and he has paid dearly for them. The bottom line, however, is that the files have been disclosed, the Foster death is being excruciatingly re-investigated, and it remains the case--New York tabloid wars notwithstanding--that there is no basis for believing it was anything other than a tragic suicide.

It is the job of the media to investigate allegations of wrongdoing by public officials--particularly the most powerful leaders in our country. It is the job of the opposition party to police the ethics of the majority. But there is a difference between doing your job and just doing in a presidency for the rating points, or for the partisan advantage.

For much of the last two months, the public has been smart enough to recognize that health care and the economy are far more important to America than the way business was done in Little Rock a decade or two ago. But the constant drumbeat is hard to ignore. Whitewater is taking its toll.

If Special Counsel Robert B. Fiske Jr.'s investigation provides the basis for more serious charges against the Clintons, then they will be forced, as they should be, to face the consequences. But until and unless more serious charges are substantiated, Clinton ought to be free to pursue his substantive agenda. If the GOP and the press, and White House aides who have created more damage than they have controlled, succeed in creating enough smoke to engulf the Clinton presidency, then all Americans will lose.*

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