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Whitewater's Sam Dash
Sees No Major Scandal


He Says No Evidence Backs Claim That Clinton Was a Conspirator

By Joe Conason (with reporting by Murray Waas)
Reprinted with permission from The New York Observer.


Samuel Dash, the renowned counsel to the Senate Watergate Committee, who now serves as ethics adviser to the Whitewater Independent Counsel, doesn't think there's much to the Whitewater affair, particularly as regards Bill and Hillary Clinton, and that it may not have even merited the naming of an independent counsel. In a telephone interview with The Observer the other day he said: "There is no relationship between Whitewater and any of the major scandals in our time that have required the appointment of an independent counsel. I don't believe this is a major scandal, involving a President, that would call for an independent counsel."

Indeed, Mr. Dash bristles when historical comparisons are drawn. "The only relationship between Whitewater and Watergate," he said drily, "is the word 'water.' I said that on Nightline before I was appointed as ethics counsel to Ken Starr, and I haven't changed my opinion."

But Mr. Dash was quick to add that he maintains full confidence in the integrity and fairness of Mr. Starr, a partisan Republican who has come under increasing criticism lately for alleged conflicts of interest involving his private law practice. He also emphasized his view that Mr. Starr's fraud prosecutions of James and Susan McDougal, the Clintons' Whitewater partners, and Gov. Jim Guy Tucker of Arkansas, currently on trial in Little Rock, are legitimate.

Even there, however, he has reservations. "There may have been fraud in the Tucker-McDougal case," he said, "but if Bill Clinton was not President, would anybody have looked into it? No. This is the same kind of criminal conduct that took place with regard to many savings and loans."

Mr. Dash considers it regrettable that the President's name has come up in trial testimony by David Hale, a corrupt former judge who has alleged that Mr. Clinton pressured him to make a Federally backed loan to the McDougals. "They have no evidence that he's a conspirator." He noted that it was the defense that subpoenaed Mr. Clinton in its attempt to impeach the credibility of Mr. Hale, the chief prosecution witness. Therefore, "The prosecutor's hands were tied," and they were required to ask questions about Mr. Clinton.

Calling the testimony about the alleged pressure by the President "hearsay" that ordinarily would be inadmissible, Mr. Dash remarked, "None of what was said by Hale about any conversations he had with the President has any relevance to the charges against Tucker and McDougal. It was done to impeach Hale on an irrelevant issue."

The opinions of Mr. Dash, a professor at Georgetown University Law Center, are significant not only because he is deeply involved in the Whitewater case and is a recognized expert on legal ethics, criminal investigation and white-collar and political prosecution. His views are salient, too, because he is constantly invoked by Clinton critics as a "liberal Democrat" whose presence at Mr. Starr's side somehow validates Whitewater as a genuine scandal, and guarantees the probity of the independent counsel.

Certainly, as Mr. Dash agrees, he has tried to do the latter. He acknowledges that the independent counsel engaged him in a "Faustian bargain" to defuse early doubts about Mr. Starr's partisanship. "No independent counsel has ever brought in somebody like me. Ken calls me his warden. He's sacrificed a lot of independence by doing this, because he knows that if they do something that I think is wrong, I'll quit. I don't believe that Ken Starr took this case as part of a political conspiracy by the Republicans against the Clintons. If I did believe that, I wouldn't be here."

Yet Mr. Dash frankly admits that recent stories about Mr. Starr's continuing partnership at Kirkland & Ellis and the potential conflicts it causes in his public role have taken a toll on both of them. Indeed, the 71-year-old lawyer said, friends have told him they are worried that Mr. Starr's problems -- the subject of a critical New York Times editorial on March 31 -- may eventually injure his own reputation. The Arkansas Times reported on March 29 that Mr. Dash is being paid $3,200 per week for his services to the independent counsel, implicitly raising doubts about the law professor's motives.

Saying that stories about Mr. Starr's law practice have raised "legitimate questions," Mr. Dash nevertheless insisted that the independent counsel has committed no ethical or legal violations, and that no amount of money would induce Mr. Dash to compromise his principles (an assertion not even Mr. Starr's harshest critics have disputed).

"I agree that what's happened over this recent period has affected [Mr. Starr], and I have to be in a position to deal with that," Mr. Dash said. "Somehow it looks now like I'm fronting for him, and I'm not. That's the part I'm not very comfortable with. I'm here to advise him on professional ethical rules. I don't set myself up as his ultimate moral judge." In the independent counsel's place, Mr. Dash would not have taken on the kind of private cases that Mr. Starr has litigated. But he maintains that the appearance of a conflict of interest is wholly different from an actual conflict.

"My own view is that he may deserve to be criticized for having some very bad judgment, but that he hasn't done anything ethically or legally wrong," Mr. Dash said. "I have been telling him recently that he cannot ignore the issues that have been raised by responsible papers -- such as the lawsuit against Kirkland & Ellis by the Resolution Trust Corporation, one of the agencies he is investigating, and Mr. Starr's representation of tobacco interests in a recent Federal appeal. (Ironically, Mr. Dash is serving as an expert witness on ethics for the antismoking plaintiffs' counsel in the same case.) "His response is that he understands [the criticism], and that after the tobacco case he has no other major legal responsibilities outside the independent counsel's office."

Given his continuing doubts about Whitewater, one may wonder why Mr. Dash chose to accept Mr. Starr's invitation in 1994 to advise the independent counsel. He reviews every prosecution and most of the important evidence gathered by Mr. Starr's staff. He is performing this sometimes onerous work, he said, to insure the impartiality of the independent counsel and to guard against the political misuse of the office. Although he has high praise for the professionalism of the staff Mr. Starr has chosen, most of them from U.S. Attorneys' offices around the country, Mr. Dash has few illusions about the tactics they might have employed in his absence. Such excesses might have been tolerated by Mr. Starr, he noted, because of the independent counsel's own lack of prosecutorial experience.

"If I weren't there," said Mr. Dash, hypothetically, "and I wouldn't have had the opportunity to rein them in and set limits, who knows what abuses may have occurred?" He cited an occasion when he prevailed upon Mr. Starr to correct a false report that Governor Tucker had sought a plea bargain immediately after his indictment. Mr. Starr, he said, had wanted to make no comment on the story, thereby leaving the impression that it was accurate. "I said to him, 'You owe it to that defendant and the public to tell the truth.' "

How long Mr. Dash will continue to serve the independent counsel is an open question. At several points, he took pains to say that his tenure could end at a moment's notice if his advice on ethical conduct and fairness is not followed. That warning, with its power enhanced by Mr. Starr's diminishing reputation, could be what ensures that Whitewater ultimately concludes as the trivial matter it is.


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