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The Not Very Grand Inquisitor

Communication from the Office of the Independent Counsel, Kenneth W. Starr: Appendices to the Referral to the United States House of Representatives pursuant to Title 28, United States Code, å¤595(c), Parts 1 and 2

Submitted by the Office of the Independent Counsel
US Government Printing Office, 3,183 pp.

At 12:45 PM last January 16, Monica Lewinsky waited in the food court of the Ritz-Carlton Hotel in Crystal City, Virginia, for her friend and Pentagon colleague Linda Tripp. “She was late,” a distraught Lewinsky later testified to a federal grand jury. “I saw her come down the escalator. And as I—as I walked toward her, she kind of motioned behind her and Agent [redacted] and Agent [redacted] presented themselves to me and—“

A juror: “Do you want to take a minute?”

Lewinsky: “And flashed their badges at me. They told me that I was under some kind of investigation, something [that] had to do with the Paula Jones case.” Lewinsky told the FBI she would not speak to them without a lawyer. The agents said her lawyer could not help her. In her grand jury testimony, she began to cry and then continued her tale: The agents led her to a room in the hotel and one of Independent Counsel Kenneth Starr’s deputies, Michael Emmick, invoked the name of Attorney General Janet Reno as authorizing his investigation. Emmick and the two FBI agents threatened her with prison.

They told me…they knew that I had signed a false affidavit,” Lewinsky told the jurors, “that…they had me on tape saying I had committed perjury,…that I could go to jail for twenty-seven years, they were going to charge me with perjury and obstruction of justice and subornation of perjury and witness tampering and something else.” Although Lewinsky was free to go, she feared she would be arrested if she tried to leave the room. When she asked to call her mother, Marcia Lewis, another of Starr’s deputies, Jackie Bennett, said, “You’re twenty-four, you’re smart, you’re old enough, you don’t need to call your mommy.”

And so then they told me I should know that they were planning to prosecute my mom for the things that I had said that she had done,” Lewinsky told the jurors, and she began to weep again. In all, Starr’s deputies and FBI agents kept Lewinsky in the hotel room, with breaks for meals and, incongruously, a window-shopping tour, for eleven hours, trying to recruit her to wear a recording device and make an immunity deal without the advice of a lawyer.

If the Starr group’s behavior does not rise to Gestapo tactics, it recalls that rascally police detachment on the island of Grenada that, until it changed its name to Volunteers for the Defense of Fundamental Human Liberties, was called the Night Ambush Squad. It is hard to believe that Starr thought he had a serious criminal case against Lewinsky, who had been carrying on an illicit sexual affair with President Clinton from November 1995 until March 1997. Rather, Starr was, by Lewinsky’s account, terrorizing her so that he could bring perjury and obstruction of justice charges against Clinton for concealing their sexual relationship from the lawyers representing Paula Jones in her sexual harassment suit against him.

Lewinsky’s harrowing story of how she was jumped in the Ritz-Carlton comes to us thanks to the courage of the anonymous federal grand jurors—many of them middle-aged black women, according to witnesses—who have listened to Starr’s most recent effort to bring down President Clinton for concealing a series of sexual trysts with Lewinsky. This most serious threat to the President is far afield from Starr’s original inquiry, Whitewater, and it poses a far greater threat to the President than Whitewater ever did. But while press coverage over the past nine months has concentrated on the President’s misdeeds, the most recent documents released by Starr and the Congress unveil his intrusive investigative techniques, his zeal, and his single-minded pursuit of the President at all costs. Public reaction to Starr’s conduct, including the airing of Clinton’s videotaped grand jury interrogation by Starr’s prosecutors, has to some extent turned the tide in favor of the President. As soon as the videotape was broadcast, his poll ratings rose by six to eight points.

According to the transcript contained in Part 1 of the separately published appendix to his 454-page report to Congress, even the grand jurors had misgivings about Starr’s techniques. One of the jurors initiated the inquiry into the January 16 confrontation of Lewinsky: “I guess the other thing that we wanted to ask you a little bit about is when you were first approached by Mr. Emmick and his colleagues at the OIC [Office of the Independent Counsel].” Emmick tried to deflect this line of questioning. There were many hours of activity, he said. A juror asked when Lewinsky first learned that Linda Tripp had been secretly recording their conversations. Emmick again tried to halt the proceedings. “This was a long day,” he said. But the jurors rebelled.

A juror: We want to know about that day.

A juror: That day.

A juror: The first question.

A juror: Yes.

A juror: We really want to know about that day.

Mr. Emmick: All right.

And with that, the tables turned. Starr joins Lewinsky and Clinton on the hot seat. Whereas Starr’s Referral to the House of Representatives is the equivalent of an indictment—accusatory, one-sided, damning—the appendix to his report is far more ambiguous and perhaps more damaging to Starr than to the President. The appendix poses the question: Which is more outrageous to us—Clinton’s sexual relationship with a twenty-one-year-old intern or Starr’s use of the law to hound an elected President from office?

At 3,000-odd pages, the appendix is the published version of a couple of shoeboxes full of old letters, grand jury testimony, telephone records, song lyrics, deposition transcripts, newspaper clippings, presidential schedules, photographs, and handwritten notes, all jumbled together and often repeated three or four times. Yet within this assemblage of miscellany there are moments of the greatest drama, majestic conflict, base treachery, and romantic love, and of the seamiest pornography.

Starr put his best face forward in his Referral; in the appendix you go backstage to see his bullying tactics, his fixation on trivialities like President Clinton’s neckties, his interrogators’ obsession with sexual details, his legal arguments that White House attorneys and Secret Service agents have no privilege against testifying before his grand jury, and that perjury, even in an affidavit in a dismissed civil suit, is punishable by prison or, in this case, impeachment. In the appendix, too, we see that Lewinsky told the prosecutors that the President never asked her to lie, an assertion that Starr famously fudged by inserting the word “explicitly” when he cited her testimony in his Referral. And in the appendix we find out what happened to Starr’s suspicions that the White House may have suborned perjury by preparing “talking points” for Linda Tripp: Lewinsky says she wrote them herself. If this is true, hundreds of hours of TV speculation have been for nothing.

In his legal briefs, courtroom arguments, and exchanges of letters with opposing lawyers, Starr makes it clear that he plays under no known rules. First, he effectively answers to no one. Theoretically, the President or the Attorney General can fire him; politically, they cannot. He is not bound by federal guidelines on conflict of interest because he is an outside employee and therefore can represent, say, tobacco and defense companies in their disputes with the federal government. He is not barred from using hearsay testimony or obliged to follow federal rules of evidence because he is gathering evidence for the Congress, which also needs not follow standard rules of evidence.

In approaching Lewinsky, he did not follow, and apparently does not feel bound by, the American Bar Association rules against directly approaching someone who is known to have an attorney; Starr’s argument is that he feared Lewinsky’s original lawyer, Francis Carter, might have informed Presidential crony Vernon Jordan about his investigation. Nor does Starr feel bound by the federal rules of grand jury secrecy because, as he explained to Steven Brill of the magazine Brill’s Content, he believes he has a right to correct misinformation about his investigation. He can further claim that it was the Congress, not he, that dumped the transcripts of his grand jury hearings and depositions onto the public record in violation of the usual rules about grand jury secrecy. Given this disregard of the rules that most of us, especially non-lawyers like myself, believe protect us from arbitrary government, it is chilling that Starr, in his courtroom presentations against the President, is formally known as “the United States.”

It is equally chilling to see Lewinsky stripped naked in these pages. Starr and his deputies probed literally into the deepest recesses of her mind and body. She says in testimony that Clinton inserted a cigar into her vagina. She says she loved him. We know that she wore thong bikini panties to attract the President, that she allowed him to lift her breasts out of her brassiere and kiss them. We know the half-kneeling position she was in when she said Clinton stained her dress with his semen. We can read her e-mail, recounting her casual sexual conquests and her worries about her weight.

Her second attorney, the much-mocked William Ginsburg, fought with Starr over what he called “an egregious invasion of her right to privacy and the requirement that she expose to you and to everyone working with you the most personal details of everything and anything that she did in a consensual sexual act.” But Lewinsky dropped Ginsburg, and her final set of attorneys, Plato Cacheris and Jacob Stein, sat in utter silence, according to the transcripts, as Starr’s lawyers led her through a series of sexual questions that are as merciless and detailed as a German pornographic film, photographed at f:64 so that each pubic hair is in vivid focus.

Lewinsky’s intimate secrets were made public, the Republican leaders said piously, so that American citizens could make up their minds about impeaching the president. When polls showed that citizens were overwhelmingly opposed to impeachment, the Republican leaders changed tack and just as piously said that as statesmen they are obliged not to follow opinion polls. They have given us more information than we wanted so that we can form an opinion they will ignore.

Given the amount of sexual detail Starr furnished the Congress, it is amusing to hear Clinton’s opponents solemnly insist that this case is not about sex but about perjury. Starr cites several precedents to show that perjury is a criminal offense even if committed in connection with a civil suit like Paula Jones’s sexual harassment complaint against Clinton. Failure to recall events can be perjury, he says. Inconsistent statements can be perjury. He is not bound, he says, by the usual guideline against setting perjury traps, i.e., not to put a target under oath in the hope that he will commit perjury. Quoting from previous decisions, Starr argues,

When testimony is elicited before a grand jury that is “attempting to obtain useful information in furtherance of its investigation” or “conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction,” the perjury-trap defense cannot succeed.

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