As Newday's Glenn Thrush noted in a May 31 article, a forthcoming book by former New York Times investigative reporter Jeff Gerth and Times reporter Don Van Natta Jr. includes numerous citations of conversations with officials in the former Office of Independent Counsel (OIC) that investigated alleged misdeeds relating to Bill and Hillary Clinton's Whitewater land investments, including former independent counsel Kenneth Starr. Thrush cited St. John's University law school professor John Barrett, who said Starr's comments to the authors -- including that he “could have 'dumped on' Hillary Clinton for her dealings with Vince Foster but chose not to”-- “go against prosecutors' unwritten code to 'button their lip' if a probe doesn't result in a prosecution.”

A Media Matters for America review of Her Way: The Hopes and Ambitions of Hillary Rodham Clinton (Little, Brown & Co., June 2007) identified at least 33 citations of conversations with OIC officials, at least seven of which refer to an interview with Starr. Some of these notes refer to interviews with OIC officials in 1997 and 1998, recalling serious legal questions raised by alleged leaks from the OIC's office in the late 1990's. Given that three prosecutors decided against filing charges against Hillary Clinton, the high number of citations by Gerth and Van Natta of former OIC officials gives rise to questions about the authors' overreliance on sources who concluded they were unable to prove their allegations in a court of law.

Vincent Foster

Several independent investigations have determined that the July 1993 death of deputy White House counsel and Clinton friend Vincent Foster was a suicide and that the Clintons were not involved in a cover-up related to his death. Yet Her Way presented a new opportunity for OIC officials to suggest that Hillary Clinton was culpable in some way.

• A footnote in Her Way on Foster's death states that “in the summer of 1997,” a briefcase that “contained records improperly taken from the Rose Law Firm offices” was discovered “in the attic of Foster's Little Rock home.” Foster, like Hillary Clinton, was a former partner at the Rose Law Firm. Citing an "[a]uthor interview with former OIC lawyer in 2006," the footnote continues: “The documents, discovered a few weeks after [Starr's] report on Foster's death was completed, tied Foster's concerns more closely to Hillary and therefore would likely have altered Starr's analysis of Foster's difficulties, one OIC lawyer said later.” (Emphasis added.) [Page 372]

• Page 128 of Her Way asserts: “Starr now says his report on Foster's death could have been much more critical of Hillary-related issues that consumed Foster before his death. 'I could have dumped on her,' Starr says. But because Foster's involvement in the Madison and Whitewater matters was still under investigation, Starr said that his 1977 [sic] report was 'not an appropriate forum' to discuss Foster's involvement in those events.” (Emphasis added.)

Whitewater

The book spends significant time discussing Hillary Clinton's years at the Rose Law Firm and the controversy surrounding the firm's representation of Madison Guaranty, a savings and loan headed by one-time Bill Clinton acquaintance James McDougal. As PBS' Frontline reported, “At the heart of the controversial transactions commonly known as Whitewater lies a real estate deal called Castle Grande.” As PBS reported, “The Castle Grande deal, like other transactions at the S&L [savings and loan], was essentially a sham deal -- a 'pyramid scheme' intended to enrich institution insiders and bolster the institution's stated net worth.” Gerth was the first national reporter to write about Whitewater, in 1992. His source was McDougal, whose wife later testified that he was “offered a financial incentive” by Clinton foe Sheffield Nelson to talk to Gerth. The McDougals and others were eventually convicted of various federal crimes relating to the Castle Grande land deal.

Much of the Whitewater investigation focused on Hillary Clinton's role as a partner at the Rose Law Firm, including her representation of Madison Guaranty and the hours she billed as part of her work on Madison's cases. Despite an investigation spanning years and costing tens of millions of dollars, Clinton was never charged with a crime. Robert Ray, the third Republican counsel assigned to investigate the Clintons, announced on September 20, 2000, that he had closed the six-year Whitewater investigation after concluding that “the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President or Mrs. Clinton knowingly participated in any criminal conduct involving Madison Guaranty, C.M.S., or Whitewater Development or knew of such conduct. The evidence relating to their testimony and conduct, in connection with this investigation and other investigations involving the same entities, was also, in the judgment of this office, insufficient to prove to a jury beyond a reasonable doubt that either of them committed any criminal offense, including perjury or obstruction of justice.”

Yet in Her Way, Gerth and Van Natta report the persistent claims and insinuations by former OIC officials -- who seem unwilling years later to let these matters go -- of criminal or unethical conduct on Hillary Clinton's part:

• Regarding missing records that detailed the number of hours Hillary Clinton billed Madison, the book states on Pages 160 and 161: “Despite Hillary's professed lack of knowledge, Starr's suspicions deepened because, among other things, his investigation had found three workers inside the White House who had seen Hillary carrying a cardboard box, possibly containing billing records, on the third floor of the residence in July 1995.” Again, the claim is attributed to a 2006 “author interview with former OIC officials.” The missing billing records were eventually recovered, and as Gerth and Van Natta note in Her Way, the independent counsel “never charged anyone in connection with the tardy production of the legal documents.” [Page 160]

• On Page 163 of the book, the authors, again relying on an OIC “official,” assert: “When the independent counsel gathered evidence that Hillary had billed another client for work she did not do, it lent credence to the possibility that her Madison bills were inflated. 'It is possible that Mrs. Clinton increased the amount of the (Madison) invoice without doing any additional work,' prosecutors concluded. 'There is evidence that she did that in an unrelated matter Rose handled.' ” The accompanying footnote on the Madison billing issue cites an "[a]uthor interview with OIC official in 1997." The authors also write on Page 163 that "[t]his evidence, gathered in secret by the grand jury, was never made public," raising questions about the propriety of the OIC official's reported discussion of this matter in 1997 with one of the authors.

• The next paragraph on Page 163 claims that “some of the hawks in Starr's office” thought the " 'billing records put her in the middle of bank fraud.' " The accompanying footnote says the quote came from an "[a]uthor interview with former OIC official in 2006." From Pages 163-164:

To some of the hawks in Starr's office, “the billing records put her in the middle of bank fraud” or “suspicious transactions,” so Castle Grande was “the key to everything.” And yet, the question of what her billing records really demonstrated -- evidence of fraud, of overbilling, of sloppy billing, or nothing of significance -- was impossible to answer because investigators for both Starr and [special counsel Robert] Fiske never found Hillary's time sheets for 1985 and 1986, the years she worked for Madison, a former investigator explained. Hillary's secretary had removed her time sheets from storage in 1992, as press questions about her work swirled around Bill Clinton's first presidential campaign, and they had vanished. The possibility that Hillary had padded her bills became nothing more than a footnote for Starr's inquiry -- literally.

It is unclear which billing records the authors are referring to when they claim that “the question of what her billing records really demonstrated ... was impossible to answer because investigators for both Starr and Fiske never found Hillary's time sheets for 1985 and 1986.” Clinton's missing timesheets from the same period were recovered in 1996, a year and a half after the records were first subpoenaed. In discussing the billing records in his official statement on the Whitewater investigation, Ray did not mention that the OIC had not received any of the records the office had sought.

• Citing "[a]uthor interviews with former OIC officials and a former member of the Clintons' legal defense team in 2006" and "[a]uthor interview with OIC official in 1997," [Page 379] Her Way charges that "[b]y 1997, the idea that Hillary did not do all the work she had billed for came to be quietly embraced by several aides to Starr's and even some members of Hillary's legal team. 'Hillary wanted fee credits so she padded the bill,' including, 'specifically Castle Grande,' one of Starr's investigators explained at the time. 'But Hillary also can't acknowledge that she didn't do the work' because it would undermine her public image as a top-notch corporate lawyer." [Page 163]