In email probe, echoes of another time prosecutors weighed charging Hillary Clinton with a crime
Over the course of 16 hours, prosecutors and FBI agents agonized over whether to charge Hillary Clinton with a crime. In the end, after weighing every ounce of evidence, examining piles of documents and gaming out whether a jury would ever convict her, the group made its wrenching decision: no charges.
Nearly 20 years before FBI Director James B. Comey declared that “no reasonable prosecutor” would bring a criminal case against Clinton over her use of a private email server while secretary of state, Clinton narrowly escaped a similar legal peril amid
the Whitewater investigation that engulfed much of her husband’s time as president.
While history remembers
the 1990s probe led by independent counsel Kenneth W. Starr for its pursuit of President Bill Clinton over the possibility he had lied under oath about his relationship with intern Monica Lewinsky, internal documents from the inquiry show how close prosecutors came to filing charges at that time against Hillary Clinton. They even drew up a draft indictment for Clinton, which has never been made public.
As in the email controversy of today, Clinton’s honesty was a central question facing investigators in 1998 as they weighed whether what they saw as shifting stories from Clinton amounted to an attempt to cover up misconduct. Like the events of today, Clinton was interviewed for hours by authorities. Unlike the email inquiry, in which Comey said Clinton’s status as a presidential candidate had no effect on the decision not to charge her, documents from the 1990s show how prosecutors weighed whether Clinton’s political popularity would make her more difficult to convict.
At issue then was legal work Clinton had performed in the 1980s while an attorney at Little Rock’s Rose Law Firm on behalf of Madison Guaranty Savings and Loan, which was owned by a business partner of the Clintons who was later convicted of fraud in connection with bad loans made by the thrift. Clinton said that her legal work was minimal and that she was unaware of the wrongdoing at Madison Guaranty.
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The records of prosecutors’ 1998 deliberations were obtained by The Washington Post from the National Archives through a Freedom of Information Act request. The Archives declined to release copies of the draft indictment to The Post, saying that access to the document is “restricted.”
Judicial Watch, a conservative advocacy group, has sued the Archives, seeking release of the indictment draft.
The released records include a memo, written by Starr’s team, summarizing the evidence against Clinton. The prosecutors noted that she made numerous sworn statements between January 1994 and February 1996 that they thought “reflected and embodied materially inaccurate stories.”
“The question, generally, is not whether the statements are inaccurate, but whether they are willfully so,” the prosecutors continued.
The records show the prosecutors had doubts about whether potential jurors would be swayed by a largely circumstantial case, particularly given Clinton’s stature as first lady.
Prosecutor Paul Rosenzweig laid out the odds for various outcomes in a memo to colleagues. He predicted a 2 percent chance that a judge would toss the case, then continued: “18 percent = Acquittal; 70 percent = Hung Jury; 10 percent = Conviction.”
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In an interview, Rosenzweig said he had reflected on that 18-year-old decision while listening to Comey’s remarks last week. He said Comey’s decision was “very reminiscent” of the challenge that faced the Office of Independent Counsel team.
Rosenzweig said he had concluded in 1998 that seating a jury untainted by political bias was going to be so difficult as to make the chances for a conviction too low to proceed ethically with the case.
“This case was, for me, decided on factors external to guilt or innocence,” he said. “I think this case would have had a great chance of a sustained conviction if presented to 12 random people, about someone other than Mrs. Clinton. But that’s an impossible hypothetical.”
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The drama of the 1998 decision was laid out in the 2010 book “
The Death of American Virtue: Clinton vs. Starr,” a definitive account of the Clinton impeachment saga by law professor Ken Gormley, who interviewed nearly all of the key players. Hillary Clinton did not speak with him.
Gormley wrote that prosecutors and FBI agents met to consider the matter at 8 a.m. on Monday, April 27, 1998, in a session that lasted until nearly midnight. The prosecutor who had led a four-year investigation of Hillary Clinton’s activities with the Rose Law Firm spent hours laying out for his colleagues the case that she had had more involvement in work that had facilitated illicit activity for Madison Guaranty and a troubled real estate project called Castle Grande than she had acknowledged.
Prosecutors discussed one of the more dramatic moments of the Whitewater era: the unexpected discovery of billing records from Clinton’s time as an attorney in a storage room on the third floor of the White House residence .
The records had been missing for two years, and White House aides had said they could not be located, even after an exhaustive search, in response to a subpoena.
The records had been found in 1996 by Hillary Clinton’s executive assistant, on a table in a room adjacent to Clinton’s office. Clinton had told Barbara Walters in a televised interview that she was glad the records had surfaced, and she chalked their disappearance up to a White House crammed with millions of pages of disorganized documents. “You know, a month ago, people were jumping up and down because the billing records were lost and they thought somebody might have destroyed them. Now the records are found, and they’re jumping up and down,” Clinton said.
Starr’s team suspected that Clinton might have orchestrated the mysterious reappearance of the documents.
“There is a circumstantial case that the records were left on the table by Hillary Clinton,” the prosecutors wrote. The memo described how the lawyers had interviewed everyone else with access to the room where the records were found, then concluded: “She is the only individual in the White House who had a significant interest in them.”
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In her 2003 memoir “
Living History,” Clinton rejected the allegation that she had tried to hide the records. She wrote that she thought the documents had been lost until her assistant found them. “I certainly had no reason to conceal them and regretted that they had not been found earlier,” Clinton wrote.
Starr’s team also considered how Clinton probably would have had numerous advantages if a trial took place, as expected, in Arkansas or Washington, where jurors were likely to be supportive of the first lady.
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