Let's make a deal! Whitewater: The McDougal case is the latest example of prosecutors' ability to make defendants change their minds.

September 22, 1996|By James M. Kramon

IMAGINE YOU'RE James McDougal and you've been convicted on 18 fraud and conspiracy counts that could result in a maximum 84-year prison term and a $4.5 million fine. Would you cooperate with prosecutors in return for the promise of a more lenient sentence?

Well, McDougal weighed the possibilities and decided to cooperate with Kenneth W. Starr, the independent counsel who is investigating Whitewater. Starr is seeking evidence of possible criminal conduct by the president and his wife, Hillary Rodham Clinton.

Meanwhile, McDougal's ex-wife, Susan, decided not to cooperate with prosecutors and was jailed for contempt of court for refusing to testify before a grand jury. Susan McDougal refuses to answer questions about then-Gov. Bill Clinton's involvement in an illegally obtained $300,00 loan she received. David Hale, an Arkansas banker, has testified -- as part of a plea bargain deal -- that Clinton twice pressured him to approve the loan.

On Monday, during an interview on NBC's "Today" show, Susan McDougal repeated her claim that Starr was on a Republican political witch hunt aimed at destroying a Democratic president.

"I become stronger in my conviction every day that I sit here," Susan McDougal said from a detention center in Conway, Ark.

On May 28, former Arkansas Gov. Jim Guy Tucker, Susan McDougal, and James McDougal were convicted on charges stemming from Whitewater. Tucker, who has chronic liver disease, received a probationary sentence. Susan McDougal received a two-year jail term.

Throughout the trial, and in other public statements, James McDougal denied that the Clintons were involved in Whitewater. But my experience as a federal prosecutor taught me that convicted defendants facing steep jail sentences have a way of changing their minds.

The process prosecutors use to get the cooperation of defendants is worthy of scrutiny. Faced with substantial jail time, nearly everyone decides to cooperate. White-collar crimes are not whodunits. The "who" is a given in white-collar cases; the "it" is the matter in question.

In a murder case, for example, the body is the evidence, and prosectutors spend most of their time trying to nail the killer. In white collar cases, proving the the existence of a crime consumes most of a prosecutor's time and the case turns on the alleged perpetrator's knowledge and intent, which are always subjective and susceptible to different interpretations.

Usually, the cooperation process begins when the prosecutor tells the defense attorney that if the convicted defendant can provide certain information, the prosecutor will recommend that the defendant's sentence be limited.

Frequently in this process, questions are raised regarding the information a particular cooperating defendant is capable of providing. The process by which possible information is explored is known as a "proffer," and it often begins with the defense attorney's telling the prosecutor what the defendant will state regarding a particular matter.

In this case, the cooperation bargain may be the simple understanding that McDougal will tell the prosecutors everything he knows about President Clinton, and the prosecutors, if they are satisfied that he has been thoroughly truthful, will make an agreed-upon recommendation on his behalf.

The prosecutors' judgment as to whether McDougal has fully cooperated will, for all intents and purposes, be determinative.

Now that McDougal is cooperating, he's probably meeting with prosecutors and answering a wide range of questions about Whitewater. Questions would be asked about Bill Clinton's knowledge of particular things at particular times and whether he took action in light of that knowledge. The prosecutors would endeavor to show that Bill Clinton possessed maximum knowledge of particular matters and intended consequences that were not lawful in light of that knowledge.

If McDougal resists the conclusions the prosecutors wish to reach, they probably would express their dissatisfaction with his truthfulness. McDougal and his attorneys would protest, but in the end he would probably wind up agreeing with the prosecutors' conclusions. The prospect of years in prison has a way of making recollections flexible. Cooperation bargains pose the potential for uncovering truth but also for distortion of the truth.

The discussions between McDougal and the prosecutors would probably go something like this:

Q: Mr. McDougal, did President Clinton use his influence to cause the bank to loan you money?

A: No.

Q: Is it not true that President Clinton wanted you to receive the loan?

A: I don't know.

Q: Well, you were friends and business associates, right?

A: To an extent.

Q: So if for the sake of argument the loan could be made to you, that would have been agreeable to President Clinton?

A: I suppose so.

Q: OK, let's finish for today and meet again next Thursday.

[At this point, McDougal has denied the conclusion the prosecutors wish him to affirm, that President Clinton caused the loan to be made.]

Next session:

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