Whitewater as Substance: Not Much Worth Covering Up So Far

March 10, 1994|By TRB

WASHINGTON — Washington. -- Pardon me for asking, but what exactly was wrong with those three meetings between Treasury and White House officials over Whitewater?

President Clinton has conceded that "it would be better if the meetings . . . had not occurred," which is beyond dispute. The White House also seems to have decided, wisely, that there is nothing to be gained by even trying to defend the meetings' propriety.

But the question remains whether there was anything actually improper about them, and the answer is far from obvious.

To be sure, the Whitewater saga stinks in many ways. And it's conceivable that conversations took place in these meetings that were illegal or unethical, though there is no evidence that they did.

But the mere fact of these meetings pushed the Whitewater story through some invisible media barrier into Watergate territory. Why?

It is not good enough to say that the meetings were wrong because they created "an appearance of impropriety." That is a familiar ethical cop-out. How things appear, after all, is largely determined by the press coverage itself.

To say that something may be portrayed as ethically wrong because it appears to be wrong is circular reasoning. The job of journalists is to bring appearances in line with reality, not to bring reality in line with appearances.

A small box in the New York Times March 6 -- the only serious effort I've seen to explain what was actually wrong with the meetings -- cites two regulations of the Resolution Trust Corporation (the bank regulatory agency of which Deputy Treasury Secretary Roger Altman was acting head).

"One requires that federal employees work on matters in which the government has an official interest." As a general principle, that is unobjectionable. But as a case against these meetings,

it's a joke. We surely are not having this enormous fuss over the possibility that Treasury officials were distracted from their other duties for an hour or two.

The second apposite regulation, according to the Times, "requires that officials act with complete impartiality. If, for instance, it is standard practice for regulators not to inform people when cases are referred for criminal inquiry, then it may have been improper for Treasury officials to have briefed officials representing the Clintons."

Here we get to the heart of the matter. Did Mr. Clinton, by dint of these meetings, get some kind of unfair special treatment?

All these meetings were between government officials. The Clintonites claim -- and there is no evidence to contradict them -- that the purpose of the meetings was to help in the performance of official functions: dealing with press inquiries, and so on.

There are all sorts of legitimate reasons the White House might need to be aware of the status of criminal investigations. For example, the Justice Department apparently reviews the guest lists for presidential social functions and alerts the White House if one of the guests is about to be indicted. Perhaps that is improper, but no one has ever raised a fuss about it.

The difference about these Whitewater meetings, of course, is that they involved matters in which Bill and Hillary Clinton, as private individuals, are entangled.

Was President Clinton, by dint of his official position, gaining access to information about the status of an investigation that Private Citizen Clinton would never have been entitled to?

In fact, the notion that officials of federal agencies never meet with lawyers for potential subjects of their investigations, or tell them the status of such investigations, is simply mistaken.

I spoke with several lawyers who have worked on both sides of federal criminal investigations in the financial area. I put to them the circumstances of the most controversial Whitewater meeting, the Sept. 28 briefing of White House counsel Bernard W. Nussbaum by Treasury general counsel Jean Hanson.

Would it be unthinkable for a lawyer for a federal agency to meet with the lawyer for a private individual, and to inform the private lawyer that the matter he was concerned about had been referred to the Justice Department for criminal proceedings and that his client was identified as a "potential beneficiary" but not an investigative target?

They all agreed that, far from unthinkable, such situations arise all the time. The document itself called a "criminal referral" -- officially transferring the case from the agency to the Justice Department -- is confidential. But investigators and prosecutors might have any number of reasons to hold a meeting and report the status of the case.

It might be to start the process of settlement, or to hear the other side informally, or just to let someone know he's off the hook. Whatever. But there is certainly no rule against such meetings.

Watergate comparisons are everywhere.

The Wall Street Journal refers to "a series of meetings that recall President Nixon's widely condemned meddling into the workings of independent agencies." Oh, please.

Just one small corner of Watergate involved the president himself trying to use the Federal Communications Commission to silence his media critics. (Watergate tapes, Nixon to John Dean: "The [Washington] Post is going to have damnable, damnable problems out of this one. They have a television station.")

Now that's what I call a cover-up.

TRB is a column of The New Republic, written by Michael Kinsley.

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