Prosecutor Says He Drafted an Indictment of First Lady

The top prosecutor in independent counsel Kenneth W. Starr’s Arkansas office testified Thursday that he came to doubt the truthfulness of First Lady Hillary Rodham Clinton’s Whitewater statements several years ago and even drafted an indictment against her.

The disclosure, made grudgingly by prosecutor W. Hickman Ewing Jr. at the contempt trial of Whitewater figure Susan McDougal in Little Rock, Ark., shed new light on the Starr team’s aggressive but thus far fruitless attempt to press criminal charges against the Clintons in Arkansas.

And it threatened to complicate the first lady’s possible run for the U.S. Senate in New York by reviving interest in a scandal that has dogged the Clintons for five years.

Ewing did not say what charges were included or why prosecutors never formally presented the indictment, which apparently was drafted sometime in 1996. At the time, there was widespread speculation in Washington that Mrs. Clinton might be indicted because of her statements about investments that she held with McDougal and McDougal’s late husband, as well as legal work she did on the Castle Grande land development, which siphoned money from the McDougals’ savings and loan.

The mysterious discovery at the White House in 1996 of billing records belonging to the first lady, which had been subpoenaed by Starr but had vanished, further fueled rumors of a possible indictment. Starr’s team, however, had never acknowledged the possibility--before Thursday.

David E. Kendall, the Clintons’ personal attorney, was quick to ridicule Ewing’s testimony. “The mere fact that this prosecutor drafted a frivolous indictment himself has no significance whatsoever except as a possible violation of the Paperwork Reduction Act of 1995.”

The day’s events marked another unexpected twist in the trial of McDougal, a onetime business partner of the Clintons who is charged with contempt and obstruction of justice for refusing to cooperate with a grand jury looking into the Clintons’ role in the failed Whitewater real estate development in Arkansas before his election as president. She maintains that Starr’s office wanted her to lie to the grand jury.

On Thursday, Los Angeles defense attorney Mark Geragos adopted the unusual tactic of subpoenaing Ewing, Starr’s chief prosecutor in Arkansas, and calling him as his lead witness.

Geragos said in an interview that McDougal had learned from “a reliable source” that Starr’s office had drafted an indictment of Mrs. Clinton several years ago but never pursued it. Geragos said he wanted to question Ewing on the stand about the issue to show that “they went into this thing with the idea that they had a culprit and they were looking for a crime.”

Ewing sought to downplay the significance of the draft indictment, testifying that it is not unusual for a prosecutor to draft such a document to explore whether a case might be brought. “You’re always thinking about . . . what possible crime might it be,” he testified.

Indeed, Joseph E. diGenova, a former independent counsel, said in an interview that prosecutors often use draft indictments as a tool to explore legal theories or even to show to a criminal target to get a suspect to cooperate. But he stressed that such drafts are usually reserved for someone being “seriously considered” for prosecution.

Ewing testified that, after he drafted the indictment against Hillary Clinton, he showed it to several people in his office. He did not elaborate, except to say that “no charges were ever presented to the grand jury.”

Ewing said he was bothered by doubts about the Clintons’ credibility after several sworn statements they gave in connection with the Whitewater investigation in 1995.

On the question of Mrs. Clinton’s legal work, for instance, Ewing said: “I had a concern that the president and the first lady were perhaps not telling it like it was.”

Ewing was asked whether he had ever referred to the Clintons as liars.

“I don’t know if I ever used the L-word or not. But I certainly expressed internally that I had problems with some of their answers,” he said, according to an Associated Press account.

During one conversation with fellow Starr staff members, Ewing said, he graded the Clintons on their responses to questions, giving the president a ‘C’ and Hillary Clinton an ‘F.’

That statement came after the first lady had said, “I don’t recall,” about 50 times during a deposition in July 1995, Ewing testified.

Officials in Starr’s office said Thursday that they would just as soon have kept silent about the existence of the draft indictment.

Prosecutors in the McDougal trial objected repeatedly to Geragos’ questions about the issue, and Ewing said initially that he could not be certain if an indictment was drafted. Under questioning, he went into further detail.

“Obviously Mr. Ewing felt the answer was called for, but it was only given after the judge had twice overruled the objections of the government,” said Edward Page, a spokesman for Starr’s office. “We’re just saying that it’s irrelevant to the case.”

The disclosure of the draft document may factor into whether Hillary Clinton will decide to run for the Senate. “There’s nothing good that can come of this for her,” said Lee Miringoff, director of New York’s Marist College Poll, which shows Mrs. Clinton leading the prospective race. “The more it sounds like ‘here we go again with the Clintons,’ the less welcome her candidacy becomes.”

* NO BAR TO STARR PROBE: Judges say they have no power to halt a Justice Dept. probe of independent counsel. A18