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James Madison would cheer 

Federal Judge Henry Woods will not get many cheers for throwing out one of the indictments against Gov. Jim Guy Tucker, Tucker's lawyer and a former business associate, but he followed the finest of American traditions.

Constitutionalists from Madison forward worried about using the criminal courts for personal and political ends, about congressional interference in criminal matters and about giving too much latitude to zealous prosecutors. This indictment comes about as close to being a classic case of personal and unfettered prosecution as you can get. Woods dismissed the indictment because it clearly was outside the jurisdiction of Kenneth Starr, the Whitewater special prosecutor. The official charge to Starr was to prosecute people for crimes connected with or arising from Bill Clinton's, Hillary Clinton's and Jim McDougal's dealing with Whitewater Development Corp., Madison Guaranty Savings and Loan and Capital Management Services, the small business lending company run by David Hale.

Tucker's purchase of some cable television properties, the subject of the indictment, had nothing to do with either the Clintons, McDougal or the three companies. Starr acknowledged that, but said that while he was investigating Madison Guaranty someone had told him about the cable TV deal so he put FBI sleuths on it. That is enough of a connection to Whitewater, he said.

Judge Woods finding that the special prosecutor was not authorized to investigate Tucker's cable television business a decade ago was not so telling about the case as a speech he cited. The remarks were by Robert H. Jackson to a conference of federal prosecutors in 1940. Jackson knew something about prosecution. He became the U.S. prosecutor for the Nazi War Crimes Trials in 1945 and a justice of the United States Supreme Court.

Jackson said the job of prosecutors was to prosecute where the crimes were most flagrant and the proof the clearest. A prosecutor can choose the people he wants to go after, he noted. It is in this realm--in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. Then the crime becomes being unpopular, holding contrary political views or being personally obnoxious to the prosecutor, Jackson said.

That describes the Tucker case as well as anything. Tucker became the target of federal prosecution in April 1992. George Bush's Treasury Department sent examiners to Kansas City to dig into the files of the defunct Madison Guaranty for evidence of misconduct by Bill and Hillary Clinton.The examiners drew a blank on the Clintons, but in tracking Madison loans they ran across the name of Tucker, who was the acting governor in the absence of the campaigning Clinton. His indictment before the election might embarrass Clinton. Treasury officials referred the Tucker loans to the Republican prosecutor in Little Rock a few weeks before the election in 1992. He found nothing to prosecute. The case was revived in 1993 and Republicans demanded a special prosecutor after the Clinton administration went after David Hale for crooked loan dealings and he retaliated by saying Clinton and Tucker made him do it.

Tucker became the man and the search began for a crime. FBI agents and Starr's lawyers ranged far beyond the Whitewater order into old campaigns of Tucker and Clinton and Tucker's businesses while he was a private citizen.

The special prosecutor is a branch of the Senate Republicans, which, as an Arkansas Law Review article surmised, puts the probe pretty close to the hated and unconstitutional bill of attainder, in which a person's liberties are taken away by legislative mandate.

As if to underscore the point, Sen. Lauch Faircloth, R.-N.C., who had arranged Starr's appointment and rewarded the judge who did it by hiring his wife, set out to intimidate Woods and the chief judge of the 8th Circuit Court of Appeals, which will hear the case next, by ordering up their personal financial reports as if they will be the next targets.

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