McDougal Trial’s Fight to the Finish

Jurors will begin deliberations today in the Susan McDougal contempt trial, after a daylong slugfest Wednesday between opposing attorneys who traded often-bitter accusations of lying and Nazi-like tactics during closing arguments.

Prosecutors for independent counsel Kenneth W. Starr, summing up their case for nearly four hours, portrayed McDougal as a scheming and publicity-hungry woman intent on thwarting the Whitewater investigation by refusing to cooperate with a federal grand jury.

“She craved the spotlight. She enjoyed the attention,” said associate independent counsel Julie Myers, recounting more than two dozen media interviews that McDougal has granted. “That was probably her real reason for not testifying . . . , not those fake excuses.”

Mark Geragos, McDougal’s attorney, countered by focusing virtually his entire closing argument on Starr’s office, his target for much of the five-week trial. He compared the prosecutors’ tactics to those of a totalitarian regime, a “banana republic” and the Third Reich.

Prosecutor Mark Barrett said that he was particularly galled by the Nazi comparison, calling it “over the top.”

But Geragos made no apologies for his emotional appeal. “They’ve terrorized my client. I know it’s not great form to get that personal, but she’s been through something [traumatic].”

McDougal, who spent 18 months imprisoned on civil contempt charges, is being tried for criminal contempt and obstruction of justice because of her refusal to answer even the most basic questions before a Whitewater grand jury on two occasions, first in 1996 and again last year. McDougal has said she feared Starr’s office was so obsessed with damaging President Clinton that she would be prosecuted for perjury if she did not say what prosecutors wanted to hear.

The grand jury was investigating a wide range of financial issues in Arkansas growing out of the Whitewater controversy, including whether the Clintons received improper benefits in the 1980s from their business dealings with McDougal and her ex-husband, the late James B. McDougal, who operated a savings and loan that later failed. The Clintons and McDougals were partners in an Ozark real estate development called Whitewater.

Myers repeatedly stressed in her closing argument that McDougal withheld information that would have been critical to the grand jury in sorting through Whitewater evidence.

“She was key. She was central to the grand jury’s investigation,” Myers said. “She had information, without a doubt.”

Not only did McDougal refuse through her silence to aid in the investigation, she actively impeded it through evasive tactics, such as faking her handwriting on samples for investigators and giving misleading and “lame excuses” about why she would not cooperate, Myers charged.

Ironically, the testimony that McDougal ultimately gave last month during this trial pointed to Clinton’s innocence in his dealings with the McDougals, Myers noted. To withhold such exonerating evidence was both selfish and “absolutely reprehensible,” prosecutors charged.

“The system can’t work if people are allowed to stymie it because they don’t like the prosecutor,” Myers said.

A 1996 court order compelling McDougal to testify under a grant of immunity “didn’t say you don’t have to testify if you don’t feel like it,” Myers said. “It’s not Burger King. The defendant was not entitled to have it her way.”

But Geragos mocked the prosecutor’s arguments, particularly the assertion that Starr’s office was willing to pursue evidence that could exonerate the Clintons.

“Don’t you just want to gag?” he said. “Don’t you just want to say: ‘How stupid do they think I am?’ ”

Prosecutors did not mention Starr by name and said repeatedly that the government is not on trial. But Geragos sought to display a poster-sized photo of Starr just a few feet from the jury box. U.S. District Judge George Howard Jr. quickly directed him to take it down.

But that did not stop Geragos from repeatedly lambasting Starr’s “out of control” prosecutors for tactics of harassment allegedly used against McDougal and other potential witnesses. He told jurors that they are the last check on government “tyranny.”

Although he never expressly urged consideration of jury nullification, in which jurors reach a decision based on their philosophical views rather than the law, Geragos did tell jurors to do what is morally right. “There comes a certain point where things have gone awry when people just have to stand up and say, ‘Enough is enough,’ ” Geragos said.

He told jurors that they should find McDougal not guilty under the law because she had an “innocent reason” for refusing to cooperate--namely, that she wanted to tell the truth.

But prosecutors said that explanation strains credulity. Laryngitis is an “innocent reason” for not answering a grand jury’s questions, Barrett said, not a desire to impede its investigation.

Jurors will begin deliberating McDougal’s fate this morning after hearing 24 jury instructions from the judge about contempt and obstruction.

McDougal’s case was dealt a potentially severe setback earlier this week when Howard settled on a fairly narrow reading of the instructions, disregarding many of the points McDougal sought to include. For instance, jurors will be told that the government is not required to show that McDougal had a “bad purpose or evil motive” to be found guilty of contempt, only that she willfully violated a specific court order.