President is ordered to testify Clinton subpoenaed as witness in trial of Whitewater partners

'An extraordinary turn'

President expected to comply, likely by satellite or tape

February 06, 1996|By Carl M. Cannon and Lyle Denniston | Carl M. Cannon and Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- In a startling ruling that puts the White House ever closer to the core of the Whitewater scandal, President Clinton was ordered by a federal judge yesterday to testify in the criminal trial of Susan and James McDougal, the Clintons' former partners in the Whitewater Development Corp.

The president's attorneys indicated last night that the president would comply with the subpoena rather than try to have it quashed, and that he would most likely testify by satellite or on videotape.

"The president's intention is to cooperate in an appropriate fashion," said David E. Kendall, a personal attorney for the president and his wife, Hillary Rodham Clinton.

The McDougals want the president's testimony to counter a key prosecution witness, David Hale, who is expected to swear that Mr. Clinton pressured him to make a fraudulent $300,000 loan to the McDougals. Mr. Clinton has denied doing so.

White House officials stressed last night that Mr. Clinton would appear only as a witness, not as a defendant or a target. But the risk is that he would be thrust into the midst of a scandal that Republicans have seized on to attack his character.

The president three times has answered questions under oath for the Whitewater special prosecutor, Kenneth W. Starr, and Mrs. Clinton did so last month before a grand jury. But those sessions were in secret. This time, Mr. Clinton could find himself facing hostile cross-examination by Mr. Starr or one of his deputies under the glare of the public eye -- in an election year.

"This is an extraordinary turn of events," said Sen. Alfonse M. D'Amato, the Republican chairman of the Senate Whitewater Committee. "And [it] underscores once again the need to get all the facts."

Mr. Clinton's involvement in the case was requested by Bobby McDaniel, an Arkansas lawyer for Mrs. McDougal. "There is no one who can refute the testimony of David Hale except President Clinton," Mr. McDaniel said in Little Rock.

Mr. McDaniel, in asking for a subpoena for the president, relied partly on a decision in January by a federal appeals court that Mr. Clinton had no immunity to questioning in the the Paula Corbin Jones civil lawsuit accusing him of making unwanted sexual advances.

The McDougal case before U.S. District Court Judge George Howard Jr. is set to come to trial March 4. Mrs. McDougal and her husband are charged in a 21-count indictment brought by the Whitewater grand jury.

The indictment alleges that Mr. and Mrs. McDougal -- and Gov. Jim Guy Tucker of Arkansas -- benefited from $3 million in fraudulent loans, many of which were made by the McDougals' now-defunct thrift, Madison Guaranty Savings & Loan.

One of the transactions in question was the $300,000 Small Business Administration loan arranged by Mr. Hale. Mr. Clinton and his aides and lawyers have responded that Mr. Hale is lying. The last time the president responded to this question, he termed Mr. Hale's assertions "a bunch of bull."

Asked whether the president's attorneys were worried that Mr. Starr might have corroborating evidence from Mr. Hale, one White House official replied: "The president made his position on David Hale clear long ago. I don't think he'll be changing his position now."

Last month, Mrs. Clinton was subpoenaed to testify before the Whitewater grand jury in Washington to answer questions about legal billing records that turned up in the White House more than a year after Mr. Starr first subpoenaed them.

Those records pertain to legal work Mrs. Clinton did while she was a Little Rock attorney -- services on behalf of Madison Guaranty. It was the first time a first lady had ever been compelled to testify.

The historical debate

In entering the McDougal case as a witness, Mr. Clinton takes his place in a long-standing historical debate over whether presidents ought to be required to testify.

It has been the law for nearly two centuries -- since 1807 -- that presidents may be subpoenaed to give testimony. But such court commands so far have never forced a president to sit in a courtroom and submit to lawyers' questioning with the public looking on.

Two of the most famous presidential subpoenas involved demands for turnover of documents by Thomas Jefferson, the nation's third president, and Richard M. Nixon, in 1974.

Jefferson was ordered to hand over documents for use in the treason trial of Aaron Burr. That case led to the first Supreme Court ruling allowing such subpoenas.

Jefferson gave in, and handed over the papers -- thus averting a constitutional showdown of whether courts could order the president to obey a subpoena.

Mr. Nixon's White House tape recordings were demanded for use in the Watergate prosecution, after the Supreme Court had ruled that those items could be subpoenaed. But he, too, surrendered the recordings without forcing a test of judicial enforcement of the subpoena.

Presidents James Monroe and Ulysses S. Grant also received court orders to appear in criminal trials, but neither testified in open court. Monroe replied to written questions, and Grant gave a deposition.

In modern times, President Gerald R. Ford was ordered to testify in the criminal trial of Lynette "Squeaky" Fromme on charges of attempting to assassinate him. He did testify in an oral statement outside of court.

Even more recently, Oliver L. North tried to subpoena former President Ronald Reagan to testify at Mr. North's trial for the Iran-contra scandal, but a federal judge refused to enforce it and later wiped out the subpoena because there was not enough proof that his testimony was actually needed.

At the later Iran-contra trial of John M. Poindexter, however, a judge allowed questioning of Mr. Reagan, but only on a videotape that was shown to the jury during the trial.

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