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The Spin on Whitewater: Deciding on What Matters

June 02, 1996|Susan Estrich | Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988

There were two Whitewater stories last week. One was the story of a process that worked because the participants were able to put politics aside. The other was the story of a process that is failing because politics is all that matters.

The Arkansas story is about the best America, about the jury system working. The defense in Little Rock, Ark., had a problem. The evidence of guilt was substantial, and the jury was conscientiously taking notes. They decided on a high-risk strategy--a familiar tactic to those of us who live in Los Angeles. If you can't beat 'em, change the question. How about a trial about something else? They called only two witnesses. One was the president of the United States. Unfortunately, he didn't know much about the transactions at issue. About all he could say was that the government's chief witness had lied in making other charges that weren't at issue in this case. Mark Fuhrman's a bad guy.

That doesn't stop a good defense lawyer. He stands up and tells the jury that this case is a choice between a convicted liar and the president of the United States. It's worth a shot.

But the jury doesn't buy it. Three cheers for the jury. They spend a few minutes talking about the president at the beginning of the deliberations, conclude he had nothing particular to offer about the transactions at issue, and go back to the documentary evidence. They remember what the case is about. "The president's credibility was never an issue," said the jury forewoman.

But didn't the jury consider the political implications, Ted Koppell asked the jury foreperson, Sandra Wood. "Did anyone ever raise what all of us on the outside are thinking and talking about, and going to be talking about, namely the issue of the political impact of the Whitewater case?"

"No," Wood answered. Not consider the political impact? Not see this as an opportunity to send a message to the president? "We left all of the politics outside of the deliberations. We were charged with a pretty complex charge, and so we focused all of our energy and pretty much just had tunnel vision."

The other story is of tunnel vision of a different sort. There is only politics. It is all spin. Since the White House would have played acquittals as a victory, convictions are a defeat. Live by the spin, die by the spin. The defense strategy, discredited by the members of the jury who were smart enough, this time, not to let a guilty man go free in order to send a political message, becomes the Republican spin.

So New York Times columnist William Safire can write, after the verdicts and after interviews with jurors to the contrary, that "the defense attorney could not have presented the choice to the jury more plainly: Are you to take the word of David Hale, an admitted crook, or will you believe the sworn testimony of the president of United States? The answer was in the ringing verdict of guilt."

The tragedy of Whitewater is that we have taken a system that was created to take issues of ethics outside of politics and so thoroughly infused it with partisan politicizing that it has rightly lost its credibility with the public.

If you're a Democrat, the jury forewoman is telling the truth, Whitewater is a witch hunt, but the attack on the speaker of the House is fair game. If you're a Republican, you quote the juror who's not sure about the president, claim the convictions prove Whitewater isn't political and attack the attacks on the speaker as a witch hunt.

It was not so long ago that congressional-ethics inquiries were above politics. Now, when the committees meet, everybody has a party script. Meanwhile, politicians of both parties continue to accept millions of dollars from special interests whom they regulate directly, making the Little Rock crowd look like the little rascals, and it's completely legal.

The independent counsel turns out to be a lot less independent than the old Archibald Cox model. The first Whitewater independent counsel, Robert B. Fiske Jr., was too old-fashioned for a politicized ethics investigation: a widely respected Republican, nearing retirement, loads of integrity, unlikely to do anything to harm the presidency unless he really had the goods. He got replaced by the brilliant and ambitious Kenneth W. Starr, a leading member of the GOP Supreme Court farm team. Prosecutors in the federal system have more power than judges, more power, some would say, than God. Starr wields that power as his own boss, in an investigation that is effectively free of the usual Justice Department rules. And while he wields it, he turns out to have continuing financial relationships with leading corporate interests who oppose this administration. No blinders for him.

And the press, the supposed guardian of truth, loses its perspective altogether inside the political game they thrive on. They call the balls and strikes and announce political winners and losers, standing, as Koppell described it, in the middle of the spinners.

There are two schools of thought on why the public seems so disinterested in Whitewater. One school holds that it is public ignorance at work: The people can't understand complicated transactions. Sen. Alfonse M. D'Amato (R-N.Y.) summed it up best: When asked what connection the Little Rock convictions had to the events his committee was investigating, he went on at length about how terrific it was that regular folks could actually follow something as complicated as the transactions here.

I count myself in a second school. I think the public understands Whitewater, as exactly what it was, if you put politics aside. A small-town, small-time effort to get rich quick. Courthouse politics. A mark against Bill Clinton and Hillary Rodham Clinton--they should have said no, and disclosed everything right away--but an even bigger mark against the press and politicians who have turned ethics into just another political game.*

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