Starr Teachers

Think independent counsels use dirty tricks? Check out the Justice Department's regular prosecutors.

Harvey Silverglate from the May 1999 issue

(Page 2 of 4)

The government did not get what it bargained for, however. Behind the backs of his handlers, Collatos made the mistake of trying to gain money as well as liberty from his new role. He sought a secret meeting with Anzalone, at which Collatos threatened to repeat at Anzalone's upcoming trial what he admitted would be false incriminating testimony, unless Anzalone paid him $200,000. Unbeknownst to Collatos, Anzalone had wisely notified his lawyers in advance. We arranged for the conversation to be monitored by two witnesses hiding under a trap door below the restaurant table where Collatos and Anzalone met. (We were unable to surreptitiously record the meeting, because in Massachusetts such taping is lawful only when done by government agents.) Informed of Collatos' secret threats to lie if not paid, Anzalone's jury acquitted him.

The government, unhappy with the surprise defense witnesses who emerged from the restaurant cellar, initially threatened the witnesses and us with prosecution for obstruction of justice and the ancient but little-known crime of "misprision of a felony." (The latter offense is committed when a citizen witnesses a felony and fails to report it to the government, although the courts generally have required a bit more active obstruction than merely withholding information.) When the prosecutors came to their senses (after their superiors in Washington became aware of the widely reported disaster), they dropped these charges and instead indicted Collatos once more--this time for his perjury in the Anzalone trial. He was convicted and sentenced to two years.

The government finally gave up trying to turn Collatos into a government witness against Anzalone. Collatos, alas, had attained a degree of criminality and unreliability, springing from an apparent inability to tell the truth, that at long last disqualified him from meeting the very low threshold of probity and credibility that one needs to be a valued and rewarded government witness. Having no hopes of applying pressure on Anzalone to compose and sing a song of mayoral corruption, the feds gave up their pursuit of him and hence of Mayor White.

This sort of scenario is commonplace in federal prosecutions, so it was natural for Kenneth Starr and his deputies to swing "cooperation" deals with the likes of convicted former Arkansas judge David Hale and admitted felon and former Clinton business partner James McDougal (who died last year). It did not matter that neither of them implicated Clinton in the Whitewater swindle of McDougal's federally insured Madison Guaranty Savings and Loan Association until after being convicted of a felony and sentenced to prison.

Nor did it make a difference that McDougal's estranged wife, Susan, was loudly proclaiming her refusal either to accept Starr's offers or to accede to his threats seeking her testimony. She claimed she knew nothing criminal that Clinton had done, that her husband was an inveterate liar willing to sell his soul in exchange for Starr's leniency, and that she would (as she did) go to prison for contempt rather than play the role that Starr had designated for her. When imprisonment for "civil contempt" failed to loosen her tongue, Starr's office took advantage of an unfortunate legal loophole that allows uncooperative witnesses to be punished a second time, notwithstanding the constitutional protection against double jeopardy. This time he had her indicted for criminal contempt, and she is now awaiting trial.

Atarr's effort to bludgeon former Associate Attorney General Webster Hubbell into testifying against the Clintons also seems unlikely to elicit the truth. Early in Starr's investigation, Hubbell pleaded guilty to charges of stealing from the Rose Law Firm in Little Rock, a theft that victimized Hillary Clinton, then his law partner, and the firm's clients. That guilty plea makes the Clintons look more like Hubbell's victims than his criminal accomplices. It also makes it plain that, when it was in his interest to do so, Hubbell acted dishonestly. Notwithstanding Hubbell's demonstrated lack of probity, Starr wants him to become his witness against the Clintons in the Whitewater investigation and is attempting to destroy Hubbell if he keeps refusing.

To be sure, Starr's suspicion that Hubbell's recalcitrance has been bought through a scheme to obstruct justice is understandable. But Starr's overreaching tactics may well stymie the investigation. While imprisoned for his thefts from the Rose Law Firm, Hubbell received consulting fees from an offshore source of Clinton campaign funds, the Riady family, and from Revlon (the same company that offered a job to Monica Lewinsky on Vernon Jordan's recommendation). Hubbell also received a sizable advance from a book publisher in exchange for a promised manuscript. Starr subpoenaed Hubbell's financial records showing what he did with the proceeds of these deals, and Hubbell validly invoked the Fifth Amendment, claiming that the records might tend to incriminate him. In response, Starr granted Hubbell immunity from any prosecution which might be aided, directly or indirectly, by the records.

Yet in April 1998, hoping to crack Hubbell's resistance against becoming a Starr witness, the independent counsel indicted Hubbell and his wife for tax-related crimes in connection with Hubbell's receipt and disposition of the money from his various jailhouse deals. The appeals court reviewing the case has expressed doubt that Starr will be able to prove that the evidence he wants to use against Hubbell comes from sources untainted by the information in Hubbell's immunized records. Starr's case against Hubbell may suffer a fate similar to Independent Counsel Lawrence Walsh's case against Oliver North, in which he failed to obtain a conviction because he could not show that his evidence was untainted by the colonel's immunized congressional testimony.

By charging Hubbell's wife, Starr has copied the Justice Department's common tactic of exerting pressure on potential witnesses by indicting people close to them. His prosecutors reportedly used the same tactic with Monica Lewinsky, threatening to charge her mother with obstruction of justice. In our practice, we have seen federal prosecutors take this approach several times, with prominent clients such as Michael Milken (who pleaded guilty in exchange for dismissal of charges against his brother) as well as less famous people. Despite the threat to his wife, Hubbell, like Susan McDougal, continues to insist that he has no incriminating information about the Clintons.

When a witness testifies in a way that might exculpate the target, prosecutors can be vengeful. Julie Hiatt Steele insisted that Kathleen Willey, who accused the president of groping her, had asked her to lie and that her earlier statements supporting Willey's story were false. As a result, Steele has been indicted for obstructing justice and making false statements to a federal agent. (Unbeknownst to many citizens, it is a felony to lie to any federal official, under oath or not, and typically it is the official's version of what was said that prosecutors credit.) Steele, a single mother of an 8-year-old, could face years in prison. She understands that, like Lewinsky, Hale, and Jim McDougal, she will receive immunity only if she will change her story and tell the "truth" as the prosecutors see it.

It is unclear, of course, whether Susan McDougal, Webster Hubbell, and Julie Hiatt Steele, or James McDougal and David Hale, have told the truth. What is clear is that the techniques used by prosecutors to influence witnesses cast doubt on the government's ability to uncover the facts.

In the warped vision of federal prosecutors, only their brand of witness tampering is compatible with proving the truth and assuring that justice is done. Under existing law, only prosecutors have unfettered power to decide what testimony is worth buying and how much the public should pay for it in the form of immunity, money, and liberty. Only prosecutors have the power to threaten and actually prosecute witnesses who insist that the facts do not conform with the government's version of the truth. When prosecutors have so much power to influence evidence through rewards and intimidation, the danger they pose to truth and justice is clear.

This concern was at the heart of a remarkable ruling last year by a three-judge panel of the U.S. Court of Appeal for the 10th Circuit. The decision involved a federal law against bribing witnesses that begins, "Whoever...directly or indirectly, gives, offers, or promises anything of value..." (Emphasis added.) The judges concluded that the prohibition applies not only to bribes by private actors but also to enticements by agents of the government, including offers of leniency. "If justice is perverted when a criminal defendant seeks to buy testimony from a witness," they wrote, "it is no less perverted when the government does so." The decision caused an uproar among prosecutors, and in early January it was reversed upon rehearing by nine other judges on the court. These judges apparently had grown so inured to the government's witness tampering that they could not imagine how the criminal justice system could function without it.

Sometimes, despite all the pressure it can bring to bear, the government still cannot elicit testimony to back up a particular charge. If, after years of effort, the activities that prompted an investigation cannot be proven to be criminal, the overzealous prosecutor can imagine only one explanation: The target must have obstructed the investigation by tampering with witnesses and suborning or committing perjury. The scope of the inquiry then expands to cover the target's activities during the investigation.

Therein lies the answer to a frequently asked question: Why has Starr's investigation lasted more than four years and cost more than $40 million, with no end in sight? A federal investigation need not have a foreseeable end. Even if the suspected crimes that triggered the investigation can no longer be prosecuted because of the statute of limitations, new crimes of obstruction come into the prosecutor's sights, and the time clock begins to run all over again.