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McDougal Trial Raises Questions of Contempt

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  • Coverage of the McDougal Trial

  • Clinton Accused Special Report

  • By Edward Walsh
    Washington Post Staff Writer
    Monday, March 22, 1999; Page A3

    Susan McDougal has spent 18 months in prison, but not for the crime she was convicted of in 1996. A key figure in independent counsel Kenneth W. Starr's long investigation of President Clinton, McDougal was imprisoned for an act of defiance--refusing to testify before the grand jury investigating Clinton's role in a failed real estate deal.

    Now, after serving time for civil contempt, she is back in a Little Rock courtroom facing criminal charges stemming from that same determined resistance, a prosecution that could send her to prison yet again. McDougal's tangled saga has its roots in one of the most powerful tools the government can employ in any criminal investigation: the power to compel testimony from witnesses and punish those who refuse to cooperate.

    The McDougal case illustrates what can happen when a stubbornly recalcitrant witness collides with a determined prosecutor and raises fundamental questions about the use of this prosecutorial power. On the one hand, when is enough enough? On the other, how can a criminal justice system based on the need to obtain truthful testimony survive if witnesses like McDougal are permitted to flout the rules?

    To Starr's critics, McDougal presents another example of the lack of proportion they say has been a hallmark of the entire Starr investigation. Opponents also contend that McDougal's treatment by Starr's office stems in part from intrinsic flaws in the independent counsel law, which they say invites overreaching in the use of prosecutorial power as the independent counsel pursues only a single target, in this case the president.

    But to Starr's defenders, McDougal's defiance of a grand jury cannot be allowed to stand. These are judgment calls, the defenders say, and Starr and his Little Rock prosecutors are in the best position to decide whether McDougal's potential testimony justifies their attempt to imprison her again.

    In his opening statement, prosecutor Mark Barrett said McDougal's intransigence has prevented investigators from determining whether the president lied under oath about his business dealings. In the absence of her testimony, Barrett told jurors, "The other two people who might know about these events reside in the White House."

    McDougal and her late former husband, James B. McDougal, were partners with Bill and Hillary Rodham Clinton in Whitewater Development Corp., the failed Arkansas real estate venture that was the original focus of Starr's investigation. The McDougals were also owners of Madison Guaranty Savings & Loan, which subsequently collapsed at a cost to taxpayers of more than $60 million.

    In May 1996, the McDougals and then-Arkansas Gov. Jim Guy Tucker (D) were convicted of fraud and other charges involving bad loans by Madison. Susan McDougal was to have begun serving her two-year sentence on Sept. 30, 1996. But before that sentence began, she was imprisoned on a civil contempt-of-court citation for refusing--despite a grant of immunity from prosecution--to answer a grand jury's questions about the Clintons and Whitewater.

    Under federal law, a recalcitrant witness can be held for the life of a grand jury's term to a maximum of 18 months. McDougal served the maximum and then began serving the two-year sentence for fraud. She was released in June when a judge, citing her medical condition, resentenced her to time served plus probation. The contempt charges she is now facing do not carry a fixed term.

    According to legal experts, it is unusual for a defiant witness to serve the full 18 months set out in federal law for refusing to talk to a grand jury.

    State laws governing contempt vary and can result in longer imprisonment. In one celebrated Washington case, plastic surgeon Elizabeth Morgan spent 25 months in jail rather than obey a D.C. Superior Court judge's order to disclose the whereabouts of her daughter during a bitter custody dispute with her former husband. Morgan was freed when Congress enacted a law setting a one-year limit on incarceration for civil contempt in the District.

    In another high-profile local case, Karen K. Johnson, a D.C. government employee who was convicted of sale and possession of cocaine, served eight months in prison for refusing to testify before a federal grand jury investigating then-Mayor Marion Barry. She was released in April 1985, when the term of the grand jury expired.

    What did not happen to either Morgan or Johnson is what Starr's office is now trying to do to McDougal. Last year, a federal grand jury indicted her on two counts of criminal contempt of court and one count of obstruction of justice for her continuing refusal to testify. Unlike civil contempt, criminal contempt has no maximum prison term but a maximum fine of $250,000.

    Imprisonment for civil contempt is designed to coerce witnesses to testify, and they can go free the moment they decide to cooperate. By contrast, the purpose of criminal contempt charges is purely to punish those who defy the system. But one reason civil contempt is rarely followed by a criminal contempt charge is that "everybody understands if you throw someone in the slammer for 18 months, it may be coercive but it is also punitive," said defense lawyer Lawrence Barcella, a former federal prosecutor.

    A review of recent federal court rulings on criminal contempt shows that the government pursues such prosecutions on rare occasions but generally reserves them for cases involving drug trafficking, murder and organized crime.

    There are also cases in which, like McDougal's, witnesses were charged with criminal contempt even after serving a term for civil contempt.

    A 1998 federal appeals court ruling in Massachusetts involved a defendant who refused to testify in an organized crime case and was imprisoned for civil contempt for 17 months, when the grand jury's term expired. He was then charged with criminal contempt, convicted and sentenced to another 15 months behind bars.

    The appeals court rejected his argument that the constitutional prohibition against double jeopardy barred him from being prosecuted for criminal contempt after serving the civil term.

    No one disputes Starr's authority to bring these charges. But many question his judgment in continuing to pursue McDougal in a case that, on the surface, does not appear to warrant such extreme measures. Her lawyer, Mark J. Geragos, has accused Starr of trying to bully McDougal and said the two criminal contempt charges are "nothing more than piling on."

    "Sooner or later, enough is enough," said Columbia University law professor Gerard E. Lynch, a former federal prosecutor. "This is an awfully long way to go to get someone to talk in a case that is not about violence, not about national security and is very old."

    "I was surprised she was indicted," said George Washington University law professor Stephen Saltzburg, a former Justice Department official. "There's no legal limit on this, but it looks a lot like overkill. It's not a murder case. It's not as though there is a kidnap victim out there we hope to find."

    Barcella said Starr's pursuit of McDougal illustrates how an independent counsel's narrow focus can affect the decisions he makes. "All of this is more likely to happen with independent counsels because they are a one-trick pony," he said. "Regular prosecutors have hundreds of cases. They deal with them and move on. If you have only one case, you lose perspective."

    Starr's defenders say McDougal's potential importance as a witness, the significance of the possible crime Starr is pursuing and the need to send a message to future witnesses all justify prosecuting McDougal.

    "No prosecutor worth his or her salt will ignore this type of contempt," said former U.S. attorney Joseph E. diGenova. "The reason is a prosecutor has a duty to the system. You cannot have the public perceive that a person is being able to defy the system."

    St. John's University law school professor John Q. Barrett also cautioned against passing judgment on Starr's treatment of McDougal. "Potentially, it's a real estate deal that connects up with obstruction of justice and false testimony," he said. "Yes, there is not a life in the balance, but it is not only a 20-year-old real estate deal. . . . There is a crime out there and there are laws to prosecute it."

    The ultimate judgment on Starr's handling of the McDougal case will be rendered by the jury hearing the case in Little Rock, and some observers say jurors may be reluctant to convict her. "There is no doubt she's guilty," Saltzburg said. "It looks like an open-and-shut case. But it wouldn't shock me to have the jury turn around and nullify the law. . . . They don't have to like her to say enough is enough."

    © Copyright 1999 The Washington Post Company

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