Sarbanes: Where's the proof? Whitewater panel's top Democrat sees no smoking gun yet

DAY AFTER DAY, Paul S. Sarbanes watches Republicans lob rhetorical depth charges into the frothy brew of self-dealing, straw purchases and missing documents known as Whitewater.

Sitting in Room 216 of the Hart Senate Office Building, the Maryland Democrat listens to testimony with fingertips steepled before his sharply focused eyes. Occasionally, he strolls behind the raised committee members' table with the grace of the Princeton basketball player he used to be -- until he hears something that quickly draws him back to his seat.


Mr. Sarbanes is ranking minority member of the U.S. Senate's special Whitewater investigating committee. Some have called him President Clinton's prime defender, but the senator demurs, describing himself instead as guardian of the record, protector of the process and an objective judge of the facts.

"I started with a premise that was open to finding a little, a bit more or some very bad stuff. I went into the process open to going down that path if the facts took us down that path," he said during a recent interview.


A judicious man, Mr. Sarbanes is aware that his role brings substantial risk. If the hearings uncover some incontrovertible evidence of corruption he could look like a defender of the indefensible.

Originally, Whitewater investigators were concentrating on Bill and Hillary Clinton's involvement with a failed Arkansas real estate deal. But the investigation has widened to include possible obstruction of justice and other questionable acts.

So far, the Whitewater committee has spent $1.4 million, federal savings and loan investigators paid about $4 million for a study and the tab for special prosecutors now exceeds $30 million -- without scoring a direct hit on the Clintons.

Last month, Hillary Clinton appeared before a federal grand jury to explain how billing records from her old law firm turned up at the White House two years after they were subpoenaed.

The president three times has answered questions under oath for a special prosecutor. And last week, a federal judge ordered him to testify in the criminal trial of Susan and James McDougal, the Clintons' former partners in the Whitewater deal.

The McDougals want the president's testimony to counter a keyprosecution witness, David Hale, who is expected to swear that Mr. Clinton pressured him to make a fraudulent $300,000 loan to the McDougals. Mr. Clinton has denied doing so.

To the delight of the Republicans, the Clintons' continual association with shady financial dealings and the possible obstruction of justice has raised new character questions that will surely provide political ammunition for Mr. Clinton's Republican opponent in this year's presidential campaign.

Meanwhile, Mr. Sarbanes has been increasingly critical of thetone and conduct of the hearings as directed by the Republican majority.


"I've had to counter what I think are invalid conclusions that were being drawn on the other side," he said. "We're getting these assertions: 'Aha! Here's a smoking gun!' Then you have the hearing and it turns out there's no smoking gun. There's a perfectly innocuous explanation for what occurred.

"You've got a lot of guys down there [in the hearing room] making wild allegations. Someone in the media gets ahold of them and they write a big story. So you get a big story that [one of the Clintons' associates] has alleged such and such about the president -- but was there anything to it or not?

"The explanation never catches up with the allegation," he said.

The story of David Hale, one of the Whitewater principals, may be instructive, he suggested. Mr. Hale "is in a lot of trouble for a lot of reasons," Mr. Sarbanes observed. To minimize his exposure to fines and jail, Mr. Hale may have launched a splashy allegation -- to be of use to the prosecution and thereby getting a reduced sentence.

Questions from Republican members of the Whitewater panel proceed from the assumption that Mr. Clinton and his wife "must" have known of questionable activities within their partners' S&L; -- and may have acted to protect them when federal regulators intervened.

Where is their proof? Mr. Sarbanes asked.


"It's always possible as long as you're continuing an inquiry that we'll find something, but I haven't seen it yet," he said. "I don't think there should be a whitewash, but I don't think there should be a witch hunt either."

Mr. Sarbanes said Mrs. Clinton may feel he should be waging a more vigorous defense of her, a report he finds somewhat pleasing. He remains eager to be seen as a defender of the process.

"We have the task of assuring that a fair hearing should be conducted," he said, adding: "I think that's a responsibility that every member of the committee should be carrying and if it's not being carried, then it's doubly important that I assert that position."

All parties, he said, would be well advised to rely on the process. He said his opponents are missing that point, and he accused them of a "conclusionary agenda," an Alice in Wonderland approach: Sentence first, trial afterward.

It's likely to get worse, he predicted.

With presidential campaigning fully upon the nation, the appearance of costly hearings driven by politics will be difficult to avoid.


Now that Congress has adjourned, Mr. Sarbanes wants thecommittee hearings intensified so that they can conclude by the Feb. 29 deadline set by the Senate.

But recent events work against his goal.

Mr. Clinton's subpoena and the discovery of long-lost billing documents may whet the public's appetite for Whitewater and embolden the GOP probers.

Committee Chairman Alphonse M. D'Amato, Republican of New York, wants another $600,000 and permission to go beyond the Feb. 29 deadline.

Not necessary, Mr. Sarbanes insisted.

"We think we ought to be following an intense schedule here to try to complete our work within time frame and within budget. Right now, we're sort of spinning our wheels," he said. Purposely, he suggests.


Mr. D'Amato is the chief fundraiser for Sen. Robert Dole's presidential campaign. But the committee chairman has dismissed critics who say it is unethical for him to head an investigation aimed at a Democratic president.

Senator Sarbanes suggests allowing the independent specialprosecutor to complete the inquiry.

"He has investigatory powers that far exceed anything else around. He's got many lawyers and agents working for him. He's got a full investigatory apparatus," Mr. Sarbanes said.

That approach would seem to be most appropriate in terms of the mysterious billing papers found in the White House, he suggested.

To those who say these lost papers parallel the famous 18.5- minute gap in tapes made in the Nixon White House during Watergate, Mr. Sarbanes said: "The difference is that these billing papers actually provided information." The Watergate tape was erased, eliminating information.

Lost or found, documents help to sustain the hearings, Mr. Sarbanes said. Mr. D'Amato argues that the White House refused todeliver records the committee needed to proceed. But Mr. Sarbanes says the committee's request was so broad it could not have been easily satisfied:


"They wanted all communications between people in the White House and 50 named people outside the White House over an 18-month period on any subject whatever. Now there's a request for the White House e-mail. That's been delayed because the Bush administration put in a system that made it impossible to retrieve e-mail."

Without diminishing the importance of the Senate's investigation, Mr. Sarbanes agrees that pressing issues remain relatively unexamined while Whitewater rambles into what he fears will be an open-ended future.

"We've had 45 days of hearings and when the Republicans wanted to cut Medicare they had one day of hearings, so there's obviously a disproportion in terms of not addressing other issues before the country."

Though the public may not yet be tuned into Whitewater the way it was to the O. J. Simpson trial, the proceedings are developing a devoted following.

During a recent session, one of the spectators may have been speaking for that group of Americans when she whispered her support for Mr. D'Amato, more money to continue the investigation and as much time as the committee needs.

"I'd like to know the truth," said Sally A. Bixler, a 42-year-old bank official from Imperial Beach, Calif. In town with her husband for a convention, Ms. Bixler, a Republican, spent a recent morning in person at the hearings she's been following closely from home.


The Clintons had to know what a smarmy operation their friends were running, she said.

"It's naive not to believe that. Little Rock is a small town. And even if there was no help from Clinton when he was governor, this whole thing gives the impression he did."

Mr. Sarbanes says different viewers inevitably will come away from the record with different conclusions. His purpose, he said, is to make sure the record is fairly compiled and complete.

C. Fraser Smith is a reporter for The Sun.