Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P41 potx

death in 1921. White’s legacy includes his contribution to antitrust JURISPRUDENCE,which long shaped how the Court viewed the area of law concerned with unfair business competition. Born on November 3, 1845, in Lafourche Parish, Louisiana, White was the son of wealthy sugar farmers. He was the son of Edward Douglass White, Sr., a former governor of Louisiana, and grandson of Dr. James White, a U.S. representative, physician, and judge. On his mother’s side, he was the grandson of U.S. Marshal Tench Ringgold, and related to the famous Lee family of Virginia. Educated in Jesuit schools during his youth, he later attended Georgetown Col lege. From 1861 to 1863 he fought in the U.S. CIVIL WAR on the side of the CONFEDERACY and was captured and imprisoned by Union forces. Private legal study followed the war, and after being admitted to the Louisiana bar in 1868, he established a private practice. The origin of White’s political and judicial careers reflected the spoils systems of late nineteenth century politics. In the 1870s White served as a lieutenant to Louisiana Governor Francis T. Nicholls. Nicholls appointed him to the state supreme court in 1878, a post which lasted only until the governor’s electoral defeat in 1880. But after the governor battled back into office in 1888, he appointed White to a newly vacant seat in the U.S. Senate. Serving in office from 1891 to 1894, Senator White understood how to serve the system that had created him: he used the position almost entirely to advance the interests of his state’s sugar growers. In 1894 President GROVER CLEVELAND nomi- nated White to the U.S. Supreme Court. For several weeks White, who still had the state’s sugar interests on his mind, could not be persuaded to leave the Senate. He remained there to ensure passage of the Wilson-Gorman Tariff Act, a protectionist bill that served the interests of domestic sugar producers. A year later, White eagerly voted to uphold his favorite provisions of the Wilson-Gorman Tariff Ac t, but a majority of justices struck down those provisions in POLLOCK V. FARMER’S LOAN AND TRUST CO ., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 (1895). White’s major contribution came in the area of ANTITRUST LAW. In the late nineteenth century, the issue of regulating busines s competition was a paramount issue before lawmakers and the courts. Congress passed the SHERMAN ANTI-TRUST Edward Douglass White. LIBRARY OF CONGRESS Edward Douglass White 1845–1921 ▼▼ ▼▼ 18501850 19251925 19001900 18751875 ❖ ❖ ◆ 1845 Born, Lafourche Parish, La. 1868 Admitted to La. bar 1914–18 World War I 1861–65 U.S. Civil War ◆◆ 1874–79 Served in La. State Senate 1891–94 Served in U.S. Senate 1921 Died, Washington, D.C. 1861 Graduated from Georgetown College (later Georgetown University 1879–80 Sat on the Louisiana Supreme Court 1895 Wrote dissent in Pollock v. Farmers' Loan & Trust Co. 1894–1910 Served as associate justice of the U.S. Supreme Court 1911 Wrote majority opinion in Standard Oil Co. of New Jersey v. United States, which introduced the "rule of reason" ◆ 1910–21 Served as chief justice of the U.S. Supreme Court THE ONLY PURPOSE WHICH AN ELABORATE DISSENT CAN ACCOMPLISH , IF ANY, IS TO WEAKEN THE EFFECT OF THE OPINION OF THE MAJORITY , AND THUS ENGENDER WANT OF CONFIDENCE IN THE CONCLUSIONS OF COURTS OF LAST RESORT . —EDWARD DOUGLASS WHITE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 388 WHITE, EDWARD DOUGLASS ACT in 1890 (15 U.S.C.A. § 1 et seq.) in order to combat the unfair constraint of trade that was rampant in the nation ’s biggest markets. Section 1 of the Sherman Act prohibits every contract, combination, or CONSPIRACY to restrain trade. White found this provision contrary to his probusiness sentiments. He argued for reading the act objectively: constraints upon trade should be declared illegal only when they are unreasonable. In 1911, a year after his elevation to chief justice, White persuad ed a majority of the Court to accept his view. It was contained in his most important opinion as a justice, Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911). This landmark decision affected the course of anti-trust jurisprudence by introducing the so-called rule of reason. According to White, the Sherman Act only prohibits unreasonable restr aints of trade that hurt the “public interest.” White’s application of the rule of reason gave the Supreme Court more power to interpret the Sherman Act, and the approach dominated its decisions for the next two decades. Much like the earlier phases of his career, White’s tenure as chief justice was marked by his changing constitutional views, and his strong belief in judicial power. He died on May 19, 1921 in Washington, D.C. FURTHER READINGS Pratt, Walter F., Jr. 1999. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: Univ. of South Carolina Press. Reeves, William D. 1999. Paths to Distinction: Dr. James White, Governor E. D. White, and Chief Justice Edward Douglass White of Louisiana. Thibodaux, La.: Friends of the Edward Douglass White Historic Site. WHITE PRIMARY A legal device once employed by some Southern states to prevent African Americans from exercis- ing their right to vote in a meaningful way. In the 1920s Southern states began using the white primary as a way of limiting the ability of African Americans to play a part in the political process. The white primary was an effective device because of the virtual one-party political system in the South that existed until the late 1960s. In all but a few areas nomination by the DEMOCRATIC PARTY was tantamount to election, with Republicans often not bothering to run in the general elections. In order to keep African Americans out of the political process, the Democratic party in many states adopted a rule excluding them from party membership. The state legislatures worked in concert with the party, closing the primaries to everyone except party members. The Supreme Court had ruled in 1921, in Newberry v. Unit ed States, 256 U.S. 232, 41 S. Ct. 469, 65 L. Ed. 913, that political parties were private organizations and not part of the government election apparatus. Therefore, by means of the white primary device, African Americans were disenfranchised without official STATE ACTION that would have triggered JUDICIAL REVIEW under the Fourteenth Amendment’s Equal Protection Clause. Beginning in the late 1920s the Supreme Court reviewed a series of cases involving the white primary. In Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927), the Court ruled that the state could not formally endorse the white primary, but in Grovey v. Townsend, 295 U.S. 45, 55 S. Ct. 622, 79 L. Ed. 1292 (1935), it upheld a Texas white primary that was based solely on a resolution adopted by the state Democratic party. In United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941), the Court ruled that the federal government could regulate party primaries to prevent voter FRAUD.In recognizing that primaries were part of a state’s electoral scheme, it overruled the Newberry precedent and weakened the Grovey v. Townsend holding. Finally, in Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944), the Court overruled the Grovey decision and struck down the white primary as a violation of the Fifteenth Amendment’s prohibition against voting discrimination based on race. Following Smith v. Allwright, Texas Demo- crats established a private association from which African Americans were excluded. The members of the association held “preprimary” elections to select candidates for the Democratic primaries. The Supreme Court declared in Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953), that the preprimary device was unconstitutional, as it made the primary and general elections “perfunctory ratifiers” of the decisions made during the preprimary process. CROSS REFERENCES Civil Rights; Civil Rights Movement; Elections; Voting. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITE PRIMARY 389 WHITE SUPREMACY GROUPS Organizations that believe the Caucasian race is superior to all other races and therefore seek either to separate the races in the United States or to remove all non-Caucasians from the nation. White supremacy is an umbrella label applied to the beliefs of a number of groups of activists in the United States. Although the beliefs of the various groups differ in some ways, they share a desire to preserve what they call the “genetic purity” of the Caucasian race. Among the better-known white supremacist organizations are the KU KLUX KLAN, the Aryan Nations and its offshoot the Order, the White Patriot Party, and the White American Resis- tance movem ent. These groups also are anti- semitic, as they classify Jews as non-Caucasian. Some members of white supremacy groups have committed violent acts against nonwhites and those whites who are opposed to their beliefs. The Ku Klux Klan has been the most enduring white supremacy group. It was established after the Civil War and became a white underground resistance group to RECON- STRUCTION in the South. Klan members used violence and intimidation against newly enfran- chised African Americans as a way of restoring white supremacy in the states of the former CONFEDERACY. Dressed in white robes and sheets to disguise themselves, Klan members burned property and whipped, assaulted, and some- times murdered African Americans and their white supporters in nighttime raids. These violent acts led Congress to pass the Force Act in 1870 and the KU KLUX KLAN ACT in 1871, measures that authorized the president to suspend the writ of HABEAS CORPUS, suppress disturbances by force, and impose heavy penal- ties upon terrorist organizations. By the end of the 1870s, the Klan had virtually disappeared. The Klan reemerged in 1915, adding new enemies to its list. The revitalized organization drew upon anti-immigrant, anti-Catholic, anti- semitic, and anti-Communist prejudices, be- lieving that the ethnic character of U.S. society was changing and that white Protestants were losing their dominant positio n. The reinvigo- rated Klan extended its reach outside the South and into the Midwest, drawing most of its members from small towns. By the late 1920s, Klan membership exceeded four million na- tionally. Klan members participated in marches, parades, and nighttime cross burnings. Klan membership dropped dramatically, however, during the Great Depression of the 1930s, and the national organization was virtually dis- banded in 1944. The CIVIL RIGHTS MOVEMENT of the 1960s ignited interest in the Klan in the South. Klan members terrorized CIVIL RIGHTS workers, with many instances of bombings , beatings, and shootings. The Klan was ultimately unsuccessful in preventing the expansion of civil rights for African Americans, and membership declined again. However, there was a resurgence of Klan activity in the late 1970s and early 1980s, with most groups located in southern towns and cities. Since 1981 the SOUTHERN POVERTY LAW CENTER , located in Montgomery, Alabama, has monitored Klan activity through an effort called “Klanwatch.” It issues a quarterly report that identifies Klan leaders, locations, and activities. Neo-Nazi groups, which base their beliefs on Adolf Hitler’s Nazi ideology, have been active since the 1960s. The American Nazi Party conducted many demonstrations du ring the 1960s and 1970s. In the 1980s and 1990s, other groups arose that espouse similar racist and anti-semitic beliefs, most prominently the group Aryan Nations, also known as the Church of Jesus Christ Christian. The religion of the Aryan Nations is the Christian Kingdom Identity Movement, whose adherents believe that white Europeans are the chosen people of the Bible, that Jews are the offspring of Satan, and that all others are fit only for SLAVERY. The rise of VANDALISM and violent crimes by persons associated with white supremacy groups led states to enact HATE CRIME statutes. Members of the National Socialist Movement gather in Madison, Wisconsin, to hold an event in support of anti- immigration policies. White supremacists use the freedom of speech to express their views. DARREN HAUCK/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 390 WHITE SUPREMACY GROUPS These laws provide additional penalties if a jury finds that a defendant intentionally selected a victim based on race, religion, color, national origin, or sexual orientation. In addition, federal civil rights statut es that derive from the original 1870s anti-Klan laws have been used to prosecute members of white supremacy groups for their ideologically based criminal acts. In the 1990s white supremacy groups became linked to right-wing MILITIA organiza- tions. These militia groups, while espousing anti-government violence, often share a belief in white supremacy. The bombing of the Murrah Federal Building in Oklahoma City in 1995 by Timothy McVeigh, with the help of Terry Nichols, was motivated in part by white supremacist ideology. McVeigh was an avid reader of The Turner Diaries , a 1978 novel by William Luther Pierce that described a violent revolution in the United States that led to the extermination of Jews and non-white s. Many white supremacists maintain low profiles, seeking to champion their beliefs through support of their racist organizations. Others, however, have come to use the Internet as a recruiting tool and communication link to others who share their beliefs. The Southern Poverty Law Center’s Intelligence Project tracks white supremacist groups and hate crimes in the U.S. It has also filed civil lawsuits that have resulted in damages awards against 40 individuals and nine major white supremacist organizations. However, in 2008 the organization identified 926 U.S. hate groups, an increase of 50 percent since 2000. The election of BARACK OBAMA,the nation’s first African American president, has also fueled white supremacist rhetoric. FURTHER READINGS Gallaher, Carolyn. 2003. On the Fault Line: Race, Class, and the American Patriot Movement. Lanham, Md.: Row- man & Littlefield. Swain, Carol M. 2002. The New White Nationalism in America: Its Challenge to Integration. New York: Cam- bridge Univ. Press. Zeskind, Leonard. 2009. Blood and Politics: The History of the White Nationalist Movement from the Margins to the Mainstream. New York: Farrar, Straus, and Giroux. CROSS REFERENCES Jim Crow Laws; Second Amendment; Militia; Terrorism. WHITEACRE A fictitious designation used by legal writers to describe a parcel of land. Whiteacre is frequently used with Blackacre, another fictitious designation, in order to distinguish one piece of land from another. v WHITEMAN, MARJORIE MILLACE Marjorie Millace Whiteman was a scholar and expert in INTERNATIONAL LAW who served in the U.S. STATE DEPARTMENT from 1929 to 1970. She participated in the drafting of the United Nations Charter and the 1948 UNIVERSAL DECLA- RATION OF HUMAN RIGHTS , and as a scholar published a fifteen-volume Digest of Interna- tional Law between 1963 and 1972. Whiteman was born on November 30, 1898, in Liberty Center, Ohio. She graduated from Ohio Wesleyan University in 1920 and received LL.B. and J.S.D. degrees from Yale Law School in 1927 and 1928, respectively. At Yale, Whit eman studied with Edwin M. Borchard, a leading international law scholar. After law school ▼▼ ▼▼ Marjorie Millace Whiteman 1898–1986 19001900 19501950 19751975 20002000 19251925 ❖ ❖ 1986 Died, Liberty Center, Ohio ◆◆ ◆◆◆ 1898 Born, Liberty Center Ohio 1920 Graduated from Ohio Wesleyan University 1929 Joined the State Department as a special assistant to the legal advisor 1945 Helped draft the United Nations Charter 1948 Helped draft Universal Declaration of Human Rights and the Organization of American States Charter 1949 Named first assistant legal advisor for American republic affairs 1965–70 Served as counselor for international law in the Office of Legal Advisor 1963–72 Digest of International Law published 1914–18 World War I 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITEMAN, MARJORIE MILLACE 391 Whiteman served as a research associate with the Columbia University Research Commission on Latin America. She joined the State Depart- ment in 1929 as special assistant to the department’s legal advisor Green H. Hack- worth, a position she held until Hackworth’s election to the INTERNATIONAL COURT OF JUSTICE in 1946. In the State Department Whiteman became a specialist in international organizations. In 1945 she helped draft the United Nations Charter and the 1948 Universal Declaration of Human Rights. She served as legal counsel to ELEANOR ROOSEVELT when Roosevelt represented the United States on the United Nations Commission on Human Rights. Whiteman had a strong interest in, and knowledge of, inter-American affairs. She played a major role in many Pan-American conferences and proposed the idea of consulta- tion for the inter-American system. In 1948 she took part in the conference at Bogotá, Colom- bia, which drafted the charter of the Organiza- tion of American States. When the State Department was reorga- nized in 1949, Whiteman was named the first assistant legal advisor for American republ ic affairs, which involved relationships with Cen tral and South America. In 1965 Whiteman became the firs t counselor for international law in the Office of Legal Advisor (an office in the State Depa rtment that advises the SECRETARY OF STATE on all matters of international law arising in the conduct of U.S. foreign rela- tions), a position she held un til her retirement in 1970. Despite her activities in the State Depart- ment, Whiteman found time for scholarly work in international law. She was a major contribu- tor to Hackworth’s eight-volume Digest of International Law (1937–1943), and established herself as a world expert with the publica tion of her Digest of International Law. Whiteman died on July 6, 1986, in Liberty Center, Ohio. FURTHER READINGS Leich, Marian Nash. 1986. “Marjorie M. Whiteman (1898– 1986).” American Journal of International Law 80. “Marjorie M. Whiteman.” 2005. Ohio History Central. Available online at http://www.ohiohistorycentral.org/ entry.php?rec=409&nm=Marjorie-M-Whiteman; website home page: http://www.ohiohistorycentral.org (accessed September 7, 2009). Whiteman, Marjorie M. 1963. Marjorie Whiteman’s Digest of International Law. Washington, D.C.: Government Printing Office. CROSS REFERENCE United Nations. WHITEWATER Whitewater is the name given to the scandal involving President BILL CLINTON, First Lady HILLARY RODHAM CLINTON, members of the Clinton administration, and private individuals and public officials in Arkansas. Though the alleged wrongdoing took place before Clinton was elected president in 1992, investigations by an INDEPENDENT COUNSEL continued into Clinton’s second term of office. As with President RICHARD M . NIXON’s WATERGATE scandal, the focus of the independent counsel’s investigation shifted from the underlying event to the question of whether the president and members of his administration participated in a cover-up. The role of Hillary Clinton in these events also became a target of investigators. As in Watergate, the Whitewater scandal quickly became politicized. Democrats accused Republicans in Congress as well as the Republican independent counsel of conducting a political witch hunt. The Whitewater scandal involved a failed resort development on the White River in the Ozark Mountain region of Arkansas. In 1978 Bill Clinton, then Arkansas attorney general, and his wife Hillary Clinton joine d a partner- ship with James and Susan McDougal to form Whitewater Development Corporation, a real estate development firm that built vacation homes near the White River. Although the development failed financially, and neither Bill nor Hillary profited from the venture, members of the natio nal media began investigating the venture more closely once Bill Clinton an- nounced he was running for president of the United States. After it was discovered that the Whitewater development implicated the Clin- tons in a series of dealings that were question- able at best and corrupt or criminal at worst, the media’s investigation quickly escalated into a political scandal that only reached a conclusion as Clinton’s term in office neared an end. The Whitewater Developement Bill Clinton had known Arkansas businessman and political figure Jim McDougal since 1968 and had made a previous small REAL ESTATE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 392 WHITEWATER investment with him in 1977. Bill and his wife Hillary Clinton were seeking ways of supple- menting his salary of $26,500 as Arkansas Attorney General and hers of $24,500 as a Rose Law Firm associate. In Spring 1978 McDougal approached Bill and Hillary with new proposal: to join with him and his wife Susan to buy 230 acres of undeveloped land along the south bank of the White River near Flippin, Arkansas, in the Ozark Mountains. The goal was to subdivide the site into lots for vacation homes, intended for the many people coming south from Chicago and Detroit who were interested in low property taxes, fishing, rafting, and moun- tain scenery. The plan was to hold the property for a few years and then sell the lots at a profit. The four borrowed $203,000 to buy land, and subsequently transferred ownership of the land to the newly created Whitewater Develop- ment Corporation, in which all four partici- pants had equal shares; Susan McDougal chose the name Whitewater Estates; their sales pitch was, “One weekend here and you’ll never want to live anywhere else.” The business was incorporated on June 18, 1979. Whitewater and the Clinton Governorship In 1978 Clinton was elected governor of Arkansas but lost his re-ele ction bid two years later. Jim McDougal bought the Madison Bank and Trust in 1980 and in 1982 purchased a small savings and loan company and renamed it Madison Guaranty. In 1982, Clinton was again elected governor of Arkansas, this time holding the position for ten years. By 1984 Madison Guaranty Savings and Loan was in financial trouble, with federal regulators questioning its lending practices and its financial stability. Under Arkansas law, the state’s SECURITIES commission could have closed Madison Guaranty. However, in January 1985, Clinton appointed Beverly B. Schaffer to head the commission. She approved two stock-sale plans to raise money to keep Madison Guaranty solvent. Madison had retained the Rose Law Firm of Little Rock to help it secure approval of its stock-sale applications. Hillary Clinton worked as an attorney at Rose and was also a partner of McDougal in the Whitewater devel- opment. In addi tion, McDougal held a fund- raising event for Governor Clinton in 1985 to help pay off a Clinton campaign debt. Investigators later determined that some of the money was improperly withdrawn from depositor funds. Despite the stock sales, the bank failed to raise enough capital, and by 1986, the Resolu- tion Trust Corporation (RTC), the federal agency responsible for handling savings and loan failures, took over the bankrupt thrift. McDougal was charged with bank FRAUD. Four years later, McDougal was acquitted of the charge, based on an INSANITY DEFENSE. Mean- while, the Whitewater development proved a financial disappointment, providing the Clintons with losses rather than profits. The Clintons sold their interest in the Whitewater corporation before Bill Clinton was sworn in as president in 1993. The Whitewater scandal is grounded in these events of the 1970s and 1980s. It appeared that McDougal had been helped by his business partner Hillary Clinton, the wife of the gover- nor. Governor Bill Clinton had appointed the state securities commissioner who allowed the failing thrift institution to stay open. By the time Bill Clinton was running for president in 1992, the national news media was investi- gating whether favors had been granted and conflicts of interest had been overlooked in apparent disregard for Arkansas state law. Whitewater and Clinton’s First Term in the White House The news media and members of Congress pursued Whitewater during the first months of Clinton’s presidency. The July 1993 SUICIDE of Deputy White House Counsel Vincent Foster heightened interest in Whitewater, as Foster had several links to it. Foster had worked at the Rose Law Firm with Hillary Clinton, had handled the sale of the Clintons’ interest in Whitewater, and had talked to an attorney who had previously prepared a report for the Clintons on the investment just hours before his suicide. Finally, after Foster’s death, White House staff removed Whitewater files from Foster’s office. Critics suspected that the removal of files was part of a White House cover-up, while others speculated that Foster had been murdered to prevent the disclosure of damaging information. In October 1993, the RTC asked the JUSTICE DEPARTMENT to investigate whether Madison’s funds had been illegally siphoned into the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITEWATER 393 Whitewater corporation and whether Madison had illegally given money in 1985 to pay off Clinton’s campaign debt. Though President Clinton steadfastly denied any wrongdoing by himself or the first lady, Attorney General JANET RENO came under intense pressure to appoint an independent counsel. At first she refused, noting that the independent counsel law had expired in 1992 (5 U.S.C.A. § 1211). Any counsel appointed by her would appear to be politically tainted. Nevertheless, in January 1994, Reno appointed Robert B. Fiske Jr., a former U.S. attorney and Wall Street lawyer, to serve as special prosecutor to investigate the Clintons’ involvement in Whitewater and any potential links between Foster’s suicide and his intimate knowledge of the Whitewater scandal. Fiske surprised the Clinton administration in March 1994 by serving subpoenas on White House and TREASURY DEPARTMENT officials. The investigation had shifted from one solely concerned with past deeds in Arkansas to one that included current official behavior. Fiske discovered that senior Treasury Department officials, who oversee the work of the RTC, had discussed the Madiso n Guaranty probe with White House counsel Bernard Nussbau m and other aides. This appeared improper, as it is highly unusual for regulatory agencies to discuss their probes with the parties they are investigat- ing. As a result, the Treasury Department officials resigned. Despite this embarrassment, the Clinton administration was pleased with Fiske’s first report, issued in June 1994. He concluded that Foster’s suicide had nothing to do with Whitewater and that the Treasury Department and White House meetings had not been illegal. Fiske’s report recommended that no criminal charges be filed and generally supported the administration’s position on Whitewater. During the summer of 1995, Senate and House committees held hearings on Whitewater. The hearings were mostly concerned with the propriety of the Treasury-White House meetings. The committee reports that followed cleared administration officials of any wrongdoing. The course of the special counsel’s investi- gation changed dramatically in August 1994. In July, Congress had passed the Independent Counsel Act (28 U.S.C.A. §§ 591-599), which meant that a three-judge panel of the U.S. Court of Appeals had to appoint an independent counsel for Whitewater. Attorney General Reno sought to have Fiske appointed, but the three- judge panel refused, citing a possible CONFLICT OF INTEREST because he had been appointed by Reno, a member of the Clinton administration. Instead, the panel appointed KENNETH W. STARR,a GEORGE H.W. BUSH administration solicitor gen- eral, a former federal appeals court judge, and a conservative Republican. Starr reopened all aspects of the investigation and reissued a SUBPOENA for the Rose Law Firm billing records of Hillary Clinton. The first lady informed Starr that the records could not be located. In April 1995, Starr interviewed the Clintons privately. In January 1996 Hillary Clinton’s billing records were found on a table in the White House residence book room after two years of searching. An aide claimed she had found them in August 1995 but did not realize their significance until coming across them again. The discovery of the records was met with skepticism, with Starr subpoenaing Hillary Clinton in a criminal probe to determine whether the records had been intentionally withheld. The first lady testified before a GRAND JURY about the billing records. Meanwhile, a Senate Special Whitewater Committee, chaired by New York Sena tor Alfonse D’Amato, conducted hearings in the last half of 1995, examining Whitewater and Foster’s suicide, and the actions of White House staff. In June 1996, the committee divided along party lines in making its final report. Republi- can senators concluded that White House officials had abused their power by trying to monitor and derail investigations of the Clin- tons and that Hillary Clinton may have obstructed justice by concealing the Rose Law Firm billing records. Democratic senators dis- sented, finding no evidence to support the Republican allegations. In April 1996 President Clinton testified on videotape in two Arkansas criminal trials brought by Starr’s prosecution team that concerned bank fraud. In the first trial, James and Susan McDougal and Arkansas governor Jim Guy Tucker were convicted of fraud and CONSPIRACY in connection with questionable loans made through Madison Guaranty. In the second case, bankers Herby Branscom Jr. and Robert Hill were acquitted of illegally using bank funds to reimburse themselves for GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 394 WHITEWATER political contributions, including contributions to Clinton’s gubernatorial and presidential campaigns. Whitewater and Clinton’s Second Term in the White House In November 1996, Clinton was elected to his second term in the White House. Meanwhile, Starr continued to investigate Hillary Clinton’s role in the Rose Law Firm’s work for Madiso n Guaranty and the missing billing records. She had stated several times she had done little work on Madison, but at least one associate in the firm disputed her accounts. In 1997 Starr subpoenaed the notes of government attorneys who had met with the first lady prior to her grand jury testimony. The White House refused to comply with the subpoena, arguing that disclosure would violate the confidentiality of the attorney-client relationship. Starr took the matter to court and won approval to enforce the subpoena from the U.S. Court of Appeals for the Eighth Circuit. In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307 (1996). The appeals court agreed with Starr, ruling that the govern- ment attorneys were not the first lady’s private counsel, but rather administration officials. Therefore, there was no attorney-client rela- tionship, and the notes were ordered surren- dered. When the Supreme Court refused to hear an appeal from the Clinton Administration on this issue, the notes were given to Starr. In 1997 Democrats and the Clinton admin- istration escalated their criticisms of Starr and his investigation, arguing that Starr’s conserva- tive Republican affiliation had tainted the objectivity of the probe. Starr’s credibility was hurt by his announcement in February 1997 that he would leave his position to become dean of the Pepperdine College Law School and the head of a new PUBLIC POLICY school. The new school was funded by a conservative Republican with ties to persons who had asserted a White House conspiracy concerning the death of Foster and subsequent events. Starr, who was criticized for leaving an unfinished investiga- tion, reversed his decision, announcing he would not take the Pepperdine positions until the probe concluded. Even Republican Senator D’Amato was critical of this reversal, concluding that Starr’s indecision about staying hurt his credibility. In June, news reports circulated claiming that Starr’s team had been questioning Arkansas state troopers about whether President Clinton had engaged in extramarital affairs while governor. Questions arose as to whether the original investigation had gotten too far off track. That same month, the GENERAL ACCOUNT- ING OFFICE reported that, as of March 1997, Starr had spent more than $25 million on his investigations. Media coverage of Whitewater waned after a July 1997 Starr office report concluded that Vincent Foster’s death was definitely a suicide. PUBLIC INTEREST in scandal revived in 1998, but not the way anyone had planned. Pentagon employee Linda Tripp approached Starr with allegations that President Clinton had had an affair with White House intern Monica Lewinsky. Tripp also alleged that Clinton had told Lewinsky to deny the affair if questioned by lawyers for Paula Jones as part of her pending lawsuit against Clinton. Tripp produced audio- tapes of her secretly recorded conversations with Lewinsky, which corroborated her story. Starr received permission to expand the scope of his investigation, to determine whether Clinton had in fact asked Lewinsky to lie under oath. The Lewinsky scandal made headlines for much of 1998, culminating with the president’s IMPEACHMENT trial in the late fall. Starr had not forgotten Whitewater, how- ever. In February 1998, both James McDougal and former Arkansas governor Jim Guy Tucker agreed to cooperate with the Whitewater investigation. McDougal’s cooperation was par- ticularly welcome, but he died in March 1998. On April 23, 1998, prosecutors called Susan McDougal before a grand jury. Two years earlier, in September 1996, after her co nviction for fraud, she was granted IMMUNITY from additional charges in return for her testimony against President Clinton. She refused to cooperate, claiming that she did not trust Starr and his investigators. U.S. District Court Judge SUSAN WEBBER WRIGHT held McDougal in civil CONTEMPT and sentenced her to 18 months in prison. At her April 1998 appearance, she once again refused to answer ques tions. She said that she was convinced the Starr investigators were determined to convict President Clinton at any cost, and she added that she would only answer questions before the grand jury if Starr and his team resigned and were replaced with what she felt was truly independent counsel. On May 4, 1998, Starr indicted McDougal for criminal contempt and OBSTRUCTION OF JUSTICE. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITEWATER 395 The case was tried in a U.S. District Court in Little Rock. At trial, McDougal testified that Starr and his prosecutors had tried to pressure her into lying about having an affair with President Clinton. She claime d that she was threatened with an EMBEZZLEMENT charge and a possible INCOME TAX investigation unless she agreed to cooperate. After months of testimony, the federal grand jury acquitted McDougal on the contempt charge and deadlocked on two counts of obstruction of justice. The judge, George Howard Jr., declared a MISTRIAL on the dead- locked charges. In May 1999, Starr said that he would not seek to retry McDougal on those charges. In June 1999, Webster Hubbell, another Clinton friend and Whitewater partner, pled guilty to one of 15 charges against him. In return, the other charges were dropped and he received PROBATION. Hubbell made a point of insisting that Hillary Clinton had committed no crime associated with her Whitewater dealings. Meanwhile, Starr was going through his own legal difficulties. In February 1999, the White House had filed a criminal complaint against the Office of the Independent Counsel for leaking information to the news media. An article that appeared in the January 31, 1999, issue of The New York Times stated that Starr was considering whether to indict President Clinton for PERJURY and obstruction of justice. Moreover, Starr had decided that he had the authority to make the indictments. Starr’s spokesman, attorney Charles Bakaly III, told the press, “We will not discuss the plans of this office or the plans of the grand jury in any way.” The White House charged that Bakaly had actually discussed so much that he was in violation of Federal Rule of CRIMINAL PROCEDURE 6(e). That rule limits the amount of informa- tion attorneys may divulge about grand jury cases. Bakaly denied that Starr’s office had pro- vided any information to the Times. Starr, meanwhile, decided to conduct an internal investigation, assisted by the FEDERAL BUREAU OF INVESTIGATION . In March 1999, Starr forced Bakaly to resign, and the case was referred to the U.S. Justice Department for criminal investigation and possible prosecution. The district court issued a preliminary ruling in July that the newspaper article did appear to have information in it that violated Rule 6(e). The court ordered Bakaly and Starr’s office to show why they should not be held in civil contempt. Starr’s office countered on appeal that the district court had misinterpreted the rule. In September, a three-judge panel of the U.S. Court of Appeals agreed and over- turned the lower court. In re Sealed Case No. 99- 3091 (Office of Independent Counsel Contempt Proceeding). As for Bakaly, who still faced his own contempt charges, his case was brought before the U.S. District Court in July 2000. Prosecutors argued that Bakaly had lied about the informa- tion he had given to the newspaper, but the defense argued that he had merely provided standard information that gave away no confi- dential information. The judge,NormaHolloway Johnson, agreed with the defense, and Bakaly was acquitted on all counts on October 6, 2000. Aftermath The Whitewater investigation cost American taxpayers approximately $73 million but pro- duced only 14 convictions. Kenneth Starr’s successor as independent counsel, Robert Ray, released a report in September 2000 stating, “This office determined 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.” Ray nonetheless criticized the White House in a statement regarding the release of the report, saying that delays in the production of evidence and “unmeritorious litigation” by the president’s law yers severely impeded the investigation’s progress. Ray’s report effectively ended the Whitewater investigation. The length, expense, and results of the Whitewater investigation turned much of the public against the independent counsel mecha- nism. In particular, Democrats portrayed Whitewater as a political witch hunt. When the independent counsel law expired in 1999, even KENNETH STARR favored its demise. Indeed, no one ended up happy with the Whitewater investigation: Democrats felt persecuted as much as they felt vindicated. Republicans were frustrated that both Clintons were cleared of wrongdoing despite the enormous cost of the investigation. Ordinary Americans without par- tisan involvement found press coverage of Whitewater to be confusing at best. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 396 WHITEWATER FURTHER READINGS Bartley, Robert L., with Micah Morrison, et al. 1994. Whitewater: From the Editorial Pages of the Wall Street Journal. New York: Dow Jones & Company. Gross, Martin L. 1994. The Great Whitewater Fiasco. New York: Ballentine Books. Ray, Robert R. “Final Report of the Independent Counsel (In re Madison Guaranty Savings & Loan Association): In re Anthony Marceca.” Available online at icreport. access.gpo.gov/nussbaum.html (accessed January 29, 2010). Wald, Patricia M. 2000. “A Whitewater Legacy: Running the Rapids of Constitutional Law.” Record of the Association of the Bar of the City of New York 55 (January- February). Washington Post Whitewater archive. 1997. Available online at www. washingtonpost.com/wp-srv/politics/ special/whitewater/ whitewater. htm (accessed January 29, 2010). CROSS REFERENCES Clinton, Hillary Rodham; Clinton, William Jefferson; Impeachment; Starr, Kenneth Winston; Watergate. v WHITTAKER, CHARLES EVANS Charles Evans Whittaker served as an associate justice on the U.S. Supreme Court from 1957 to 1962. The Missouri-born Whittaker practiced law for 30 years before being appointed to the federal bench in 1954. He served on the U.S. District Court in Missouri until 1957, when President DWIGHT D. EISENHOWER nominated him for a position on the Supreme Court. His appointment and service have been the subjects of caustic commentary, for Whittaker was not cut out for the duties of the higher court: he served only five years before retiring in a state of physical exhaustion. Born on February 22, 1901, in Troy, Kansas, Whittaker was the son of farmers. As a teenager, he knew that he wanted to be a lawyer: the ambitious high school student enrolled in law school during his senior year. Graduating in 1923 from the University of Kansas City Law School, where he was recognized for his talents as an orator, he passed the state bar and immediately began practicing for the law firm of Watson, Gage, & Ess. He litigated cases for the same Missouri firm for three decades. Unlike countless other lawyers who used political careers to gain entry to the judiciary, Whittaker was plucked from relative obscurity. In fact, he generally avoided politics. He had a modest reputation in his home state for his work in corporate law and on the state bar, and this reputation attracted the attention of U.S. Attorney General HERBERT BROWNELL, who se- lected him for the U.S. District Court in Missouri. Whittaker presided as a judge on the court from 1954 to 1956. During this period, Whittaker displayed a lack of appreciation for certain constitutional rights. In 1955 he heard Davis v. University of Kansas City, 129 F. Supp. 716 (W.D. Mo. 1955), a lawsuit brought by a professor claiming he had been unfairly dismissed from the University of Kansas City for refusing to tell a Senate subcommittee whether or not he was a Communist. Such cases were typical in the COLD WAR era, as was Whittaker’s dismi ssal of the claim. But the judge’s outburst from the bench was not: he announced that the public should not tolerate teachers who belong to a “declared CONSPIRACY by a godless group to overthrow our government.” Although ostensi- bly recognizing the professor’s FIFTH AMENDMENT right not to incriminate himself, Whittaker, in effect, believed that he was bound to answer. In 1957 President Eisenhower appo inted Whittaker to the Supreme Court to replace the outgoing Justice STANLEY REED. Whittaker be- came the first judge from the Western District to be elevated to the Court. Generally, he voted Charles Evans Whittaker 1901–1973 ▼▼ ▼▼ 19001900 19751975 19501950 19251925 ❖ ❖ ◆ 1901 Born, Troy, Kans. 1961–73 Vietnam War 1914–18 World War I 1939–45 World War II 1950–53 Korean War 1924 Earned LL.B. from Kansas City Law School 1973 Died, Kansas City, Mo. 1954–56 Held judgeship on the U.S. District Court in Missouri 1957–62 Served as associate justice of the U.S. Supreme Court 1956–57 Served on the U.S. Circuit Court of Appeals PRIVATE-PROPERTY RIGHTS ARE THE SOIL IN WHICH OUR CONCEPT OF HUMAN RIGHTS GROWS AND MATURES .AS LONG AS PRIVATE - PROPERTY RIGHTS ARE SECURE , HUMAN RIGHTS WILL BE RESPECTED AND WILL ENDURE AND EVOLVE . —CHARLES EVANS WHITTAKER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITTAKER, CHARLES EVANS 397 . the Office of Legal Advisor 1963–72 Digest of International Law published 1914–18 World War I 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. AND THUS ENGENDER WANT OF CONFIDENCE IN THE CONCLUSIONS OF COURTS OF LAST RESORT . —EDWARD DOUGLASS WHITE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 388 WHITE, EDWARD DOUGLASS ACT in 1890 (15. international law in the Office of Legal Advisor (an office in the State Depa rtment that advises the SECRETARY OF STATE on all matters of international law arising in the conduct of U.S. foreign