Whitewater Hearings Lack Star Witness

As the current round of Senate Whitewater hearings opened last week, the cavernous hearing room seemed haunted by memories of John W. Dean III and Lt. Col. Oliver L. North.

In the summer of 1973, Dean had ignited the smoldering Watergate scandal by detailing in Senate hearings how President Richard Nixon had conspired with others to cover up illegal acts.

Likewise, North’s testimony before the Iran-Contra panel in the summer of 1987 had inflamed suspicions that he had carried out a rogue foreign policy with the express approval of President Ronald Reagan.

But if Senate Republicans expected these hearings to rekindle the fading ember of the Whitewater scandal, they forgot a central ingredient of those earlier proceedings: a star witness.

So far, Chairman Alfonse M. D’Amato (R-N.Y.) and other Republicans who once referred to Whitewater in the same breath with Watergate and Iran-Contra have failed to find a witness capable of placing blame for improper conduct on President Clinton or First Lady Hillary Rodham Clinton.

To the contrary, these hearings seem to have yielded a plausible scapegoat in the person of former White House Counsel Bernard Nussbaum. Instead of pointing a finger at the President, Nussbaum, now a New York attorney in private practice, is being blamed for whatever mistakes were made inside the Clinton White House.

Ever since the hearings began last week into allegations that White House officials conspired to cover-up the circumstances surrounding the suicide of presidential aide Vincent Foster, Clinton Administration officials and Democrats on the panel have succeeded in portraying Nussbaum’s unusually aggressive personality as the source of virtually every problem.

As Sen. Paul Simon (D-Ill.) observed: “It’s fairly clear that Bernie Nussbaum is developing into something of a heavy in this situation.”

The closest thing the Republicans have to a star witness is former Deputy Atty. Gen. Philip B. Heymann, who is expected to testify next week that the White House interfered with the law enforcement investigation of Foster’s death. But Heymann, too, will place the blame on Nussbaum, not on the President.

As Heymann is expected to recount in his upcoming testimony, he warned Nussbaum on July 22, 1993, that the White House counsel was making “a terrible mistake” by refusing to permit Justice Department officials to look at the papers that Foster left in his office when he committed suicide two days earlier.

Nussbaum, on the other hand, is expected to say that he had an obligation to protect the materials in the office because Foster’s papers were protected by the principle of executive privilege, which provides for the privacy of communications between the President and his advisers.

Moreover, like Adm. John M. Poindexter, Reagan’s national security adviser who personally took responsibility for Iran-Contra, Nussbaum is likely to say that he made these decisions entirely on his own, without consulting Clinton or the individual considered his biggest backer at the White House, Hillary Rodham Clinton.

In 1987, it was Poindexter’s testimony, taking all responsibility for the errant behavior of Col. North, that prevented the Iran-Contra scandal from consuming the Reagan presidency.

Judging from their statements at the outset of the hearings, Republicans also are hoping to show that Nussbaum prevented Justice Department officials from looking at Foster’s papers because he was afraid they would see something that might embarrass the President--presumably dealing with the Clintons’ controversial investment in the Ozarks land deal known as Whitewater.

“In the course of these hearings,” said Sen. Lauch Faircloth (R-N.C.), “I think it will become obvious that not only was Mr. Foster concerned about Whitewater, but so were several other senior White House officials, including White House Counsel Bernard Nussbaum and Hillary Clinton’s chief of staff and longtime friend, Maggie Williams.”

In an effort to prove this charge, the committee will ask Nussbaum to explain why, on July 22, 1993--the same day he was denying the Justice Department access to Foster’s office--he gave Williams a box of documents from Foster’s office which she then gave to David E. Kendall, the President’s personal attorney. The box included Foster’s file on Whitewater.

Here again, however, the committee apparently has found no witness, such as John Dean, who will state from inside knowledge that these actions were motivated by a desire to cover up embarrassing elements of the Whitewater investment. Nussbaum is expected to deny any connection between his actions and Whitewater.

Nevertheless, the clash between Nussbaum and Heymann ought to provide a remarkably vivid picture of political intrigue inside the Clinton Administration. Heymann, now a professor at Harvard Law School, resigned last year, on grounds that he and Atty. Gen. Janet Reno lacked the “chemistry” to work together effectively.

Later, he complained that communications between the White House and Justice Department had to be funneled through former Associate Atty. Gen. Webster L. Hubbell, who has been sentenced to 21 months in federal prison for tax fraud and defrauding his former law firm.

“A disaster” is how Cynthia M. Monaco, Heymann’s special assistant, described the July 22 conversation between Heymann and Nussbaum concerning the Justice Department’s desire to search Foster’s office, according to sources familiar with her handwritten notes of the meeting. According to Heymann’s own notes of the meeting, which were made six months after the event as he prepared to leave the Justice Department, Nussbaum told him brusquely: “We’ll do it my way.”

The White House-Justice Department confrontation began when David Margolis, a senior Justice Department official, went to the White House on July 22 to participate in a search of Foster’s office along with officials of the Secret Service and the U.S. Park Police, who had found the body two days earlier in a Virginia park.

Although Margolis went there thinking that Nussbaum had agreed to allow law enforcement officials to search the office, sources say, he came away without getting to inspect any of Foster’s papers. Nussbaum is expected to testify that there was no such agreement.

When Margolis returned to the Justice Department that day, according to these sources, he was furious and complained bitterly that he and the Park Police detectives had been treated by Nussbaum “like decorations.”

“He talked about nothing else,” a former official said.

It is not known whether Margolis, who recently underwent successful heart bypass surgery, will be called to testify at the hearings.

But Republican unhappiness over their ability to come up with a “smoking gun” apparently prompted the selective leaking of a list of strongly worded, sarcastic questions that Margolis sent to Heymann on Aug. 7, 1993, challenging White House actions after Foster’s death.

The memo was genuine, but it actually was a list of “moot court” questions that officials often compile to prepare for answering questions from reporters. Indeed, the document written by Margolis was entitled: “Vince Foster Moot Court Media Questions,” but the title page apparently was not included when the questions originally were leaked, making it appear as if they were Margolis’ own views.

Among other things, Margolis asked in his memo how the Justice Department could explain its failure to find Foster’s torn-up suicide note at the bottom of his briefcase. The shredded note was found by a White House staffer a few days after the Justice Department was turned away from Foster’s office.

When the hearings resume Tuesday, the witnesses will include former White House aide David Watkins, Treasury Chief of Staff Sylvia M. Mathews and White House aide Mark D. Gearan.