How to Build a Case Using a Tainted Witness

Would you buy a used car if James B. McDougal said it was good? Would you convict the president if McDougal said he was guilty?

Whitewater Independent Counsel Kenneth W. Starr must soon decide whether to bring criminal charges against President Bill Clinton or Hillary Rodham Clinton for events arising out of their Whitewater land deal with McDougal and his former wife, Susan; for work Hillary Clinton did on a separate McDougal project called Castle Grande, or for possible cover-ups in the White House. In making that decision, Starr must evaluate whether the case he can construct against either Clinton is strong enough to bring and, if so, whether McDougal has a role.

Construction metaphors aptly describe what prosecutors and other trial lawyers do. They build cases, one witness at a time. They lay foundations to introduce evidence. They argue that the proof supports their claims. But Starr is not just any prosecutor, and this is not just any case. Starr must anticipate a defense demolition effort many times more potent than what O.J. Simpson’s “dream team” orchestrated. The case Starr builds must be as impregnable as Fort Knox.

As it now appears, accusations against the Clintons could rest mainly on three weak props. James McDougal is reportedly cooperating with Starr. But if he implicates the Clintons, he will thereby admit he lied under oath when, at his own trial, he exonerated both the president and himself. “Are you lying now or were you lying then, Mr. McDougal?” is among the first questions lawyers will ask.

Susan McDougal says she has no information that incriminates the Clintons. How can she know? Even seemingly harmless facts may prove incriminating in light of other information Starr has unearthed. A barking dog, otherwise unremarkable, can pinpoint the time of a murder. Susan’s silence, which has kept her in jail six months, suggests that she is protecting others. That’s the usual reason people don’t talk. Her claim that she is not telling Starr the truth because she does not trust him is simply not credible.

Even if Susan McDougal eventually cooperates, she and her former husband stand to gain from telling Starr what he asks, as Clinton defense lawyers will stress. Both face prison on their convictions for defrauding the government. Both could see this time reduced or erased should they cooperate. “Felons lying to escape jail” is the expected line of attack.

A third possible witness against the Clintons is David Hale, a former Arkansas judge now in prison following his guilty plea to defrauding the government. Hale has said (and Jim McDougal now reportedly confirms) that, as governor, Clinton knew that $50,000 in government money was illegally channeled to the Whitewater venture. Hale won leniency when he testified against the McDougals, so he might also seem vulnerable to a defense strategy that he’s lying to help himself.

But not so fast. There’s little more help the government can give Hale. More important, some jurors in the McDougals’ trial have said they believed Hale--though they would not have convicted on his testimony alone.

Even with evidence from Hale and McDougal, and even if Susan McDougal testifies, Starr still won’t have a case that will stand up against the Clintons. Starr must weigh one more truism about criminal trials: The stronger the defendant, the stronger must be the prosecution. Witness the collapse of the Simpson criminal case. Although the Clintons are not as wealthy as Simpson used to be, the nation’s best defense lawyers, eager to be at the center of what would truly be the trial of this (as well as the last and the next) century, will rush to offer their services on generous credit terms.

The Clintons have a second source of strength, even more powerful than top lawyers. Call it eminence. “There’s such a divinity doth hedge a king,” Claudius tells Gertrude in Hamlet, explaining why she should not fear Laertes when he storms the castle, hot to avenge his father’s death. At least as much “divinity doth hedge” the first family. No jury will convict either Clinton unless the case Starr erects is so tight that no speck of doubt can penetrate it. A case against the Clintons built on the McDougals and Hale would quickly turn to rubble.

Starr could force a trial even if he is not certain of victory. Trying the case, even to a loss, would help the Republicans, and Starr is a Republican. A trial of either Clinton would preoccupy and therefore weaken the president, and perhaps reveal embarrassing, if not ultimately criminal, information. But forcing a trial with less evidence than certainty would harm the country and be a grotesque violation of Starr’s professional responsibilities.

The president has implied that partisan motives are leading Starr to do just that. This may be an effort to reduce the impact of whatever case Starr does bring or to intimidate him against bringing one. But the charge is baseless. Though Starr has acted imprudently in remaining in active law practice while independent counsel, nothing he has done suggests he would compromise his ethical obligations.

Does that mean Starr must fold up his tent and go home? Not necessarily. Though Starr cannot rely on the McDougals and Hale alone, they can be part of his proof. For the rest, he needs to find the Whitewater equivalent of 30 pictures of the Clintons in Bruno Magli shoes. He needs the kind of evidence no principled juror can dismiss. What might that be?

Start with Jim McDougal. He is not entirely worthless as a witness. Starr just might be able to get a jury to accept the possibility that McDougal lied when he exonerated Clinton at his own trial, but is telling the truth if he now corroborates Hale. After all, one of the two stories must be true: Either Clinton did or did not approve diversion of government funds. Logically, if the first jury did not believe McDougal’s denial, the next should believe his admission. Starr’s team can make a plausible argument that while McDougal had reason to lie before--to avoid jail--he risks an even longer sentence if the judge decides he’s lying now.

If Starr’s team can resuscitate McDougal’s credibility to the point that calling him as a witness is not prosecutorial malpractice--probably the best they can hope for--they will then have to persuade the jury to believe him. That’s when the real heavy lifting occurs. Corroboration of McDougal’s story can come from other eyewitnesses or circumstantial events. Hale will presumably be one eyewitness. Will Susan join him? So far, it appears, she has refused to bargain, claiming to want something Starr cannot deliver--vindication through reversal of her conviction on appeal. She has even declared her unwillingness to accept a presidential pardon because it carries an implicit concession of guilt.

Even if Susan McDougal eventually agrees to testify--and Starr can keep her in jail a long time if she does not--the prosecution needs confirming evidence so persuasive that a jury will be compelled to believe the McDougals and Hale. Examples include money transfers, phone calls, letters and seemingly casual remarks. These items can appear innocuous by themselves, but if they buttress the testimony of the McDougals and Hale in enough places, what first appeared dubious can gradually become inescapable.

In the Simpson case, for example, the pictures of Simpson in Bruno Magli shoes had no importance until other evidence revealed a corresponding footprint at the crime scene. But what made the proof so compelling was Simpson’s denial that he had ever owned a pair of those shoes, followed soon after by the introduction of 30 photographs contradicting him.

That’s what Starr needs. The proof must be so cogent that no honest person, not even a Clinton loyalist, can say that Starr had a choice. A high standard? Yes, but with so much at risk, nothing less is acceptable.