Not long before he died last
week, U.S. District Judge Henry Woods
agreed to talk to me about Kenneth Starr. Never one to mince words Woods
described Starr's tactics in persuading a partisan panel of the Eighth Circuit in
St. Louis to remove him from a bankruptcy fraud case against former Gov. Jim
Guy Tucker as "not only unethical, but unscrupulous."
Never in his lengthy legal career, Woods explained, had he seen a lawyer
case at trial, then launch a sneak attack on the judge's integrity on appeal by citing
"unfounded and scurrilous" accusations in newspaper and magazine articles written
by political foes. Not to mention political foes funded by a wack job billionaire
plotting to ruin the President of the United States.
True to his oath of office,
Woods did not tell me something I learned only by
reading the fine print of Independent Counsel Robert Ray's final report on the
Lewinsky matter: That the judges of the Eastern District of Arkansas had unanimously
petitioned the Eighth Circuit to investigate "alleged prosecutorial misconduct" by Starr's
office in connection with the American Spectator's vaunted "Arkansas Project" and
its efforts to interfere improperly with Woods' handling of the Tucker case.
(Judge George Howard recused.) They asked to have grand jury testimony from
the Justice Department's own probe of the Arkansas Project made available
to the investigation.
Assigned the case by lot,
Woods had quashed the Tucker indictment on the
common sense grounds that it was totally unrelated to the Clintons or to Madison
Guaranty S & L, hence outside the independent counsel's jurisdiction. During our
interview, he showed me several scholarly law review articles agreeing with his decision.
Starr, however, got his ideological brethren on the Eighth Circuit not only to reverse
Woods, but to remove him from the case due to an "appearance of conflict" caused by
inaccurate articles the OIC submitted--including discredited canards by segregationist
demagogue "Justice Jim" Johnson.
Woods had, of course, earned
Justice Jim's enmity by throwing out the infamous
"Johnson Amendment" to the Arkansas constitution requiring the state to defy federal laws
requiring racial integration. Johnson also appeared in the notorious "Clinton Chronicles"
videos accusing President Clinton of cocaine smuggling. Evidence at the Tucker-McDougal
trial showed him to be in constant contact with the OIC's star witness David Hale.
Yet Judge Woods was given no chance to respond.
A more cunning and cynical
attack on an independent judiciary is hard to imagine.
Regardless of Tucker's guilt or innocence--and the case is STILL hanging fire due to the
OIC's seeming inability to prove that Jim Guy owes any back taxes due to his supposed
fraud--the Eighth Circuit's decision set three terrible precedents: It gave an independent
counsel unlimited power to target any citizen for any expedient reason; it invited losing
prosecutors to shop for friendlier judges on the basis of "issues" never raised at trial;
and it used as "evidence" grotesquely inaccurate hearsay it made no effort to assess.
Exactly as it did in the
Tucker case, the decision would allow a rich crackpot like
Richard Mellon-Scaife to ally himself with a common criminal like David Hale, buy the
services of "journalists" like Justice Jim and others in the Arkansas Project, and smear
judges who got in their way. It's heartening to see that for all their personal and political
differences, all the judges in the Eastern District of Arkansas responded appropriately to
the attack on their colleague. A greater tribute to this courageous jurist's honor and integrity
would be hard to imagine.
Alas, it's equally disheartening
to learn via the "Ray Report" that Judge John F. Nangle,
appointed to preside over the judges' complaint, not only dismissed it out of hand and refused
to release the "Arkansas Project" grand jury evidence, but also ordered the record sealed, thus
preventing its existence from becoming known until now--and then only by way of the OIC's
characteristically mealy-mouthed and self-serving version. The law says a judge "SHALL" refer
misconduct charges to a special counsel. But Nangle essentially ruled that the Little Rock judges
had to prove their case before it could be investigated, then denied them the means to do so.
Is it even necessary to mention that Judge Nangle was named Missouri's "Republican of the Year"
not long before ascending to the bench?
It's interesting to speculate
what the legal and political consequences might have been had
all this become public knowledge when it was all taking place between 1994 and 1999. At the
very least, Jim Guy Tucker might still be Governor of Arkansas, and Starr's prosecutors even
more disgraced than they are. But the lesson for Democrats on the Senate Judiciary Committee,
however, couldn't be clearer: Confirm no Bush administration nominees with a history of
substituting party loyalty and ideology for facts and law.