When Monica Lewinsky went before Kenneth Starr’s grand jury in August 1998, the prosecutors did not ask her an obvious, important question: Had President Clinton urged or induced her to lie about their relationship? The prosecutors knew, because they had interviewed her for days, that if asked she would answer no—and they did not want on the record an answer inconsistent with their planned charges that the President had obstructed justice.
But when the prosecutors finished their examination of Lewinsky, a grand juror asked her whether she wanted to add anything. Yes, she said: “I would just like to say that no one ever asked me to lie, and I was never promised a job for my silence.” In the hundreds of pages he sent to the House of Representatives urging impeachment of the President, Starr did not find room to mention that statement.
It seems long ago and far away now, the impeachment crusade, though it is little more than a year since the Senate ended it. But these two books tell us why we should not forget. Kenneth Starr’s attempt to drive Clinton from office was the climax of years of effort by others to destroy him, not through ordinary political means but by dubious legal action and tales of wrongdoing larded with fantastic lies. People on the political right set out to unseat a president, and they almost succeeded. In his folly, Clinton played into their hands. But that does not alter the fact that this country came close to a coup d’état.
Was it, then, as Hillary Clinton said, a “vast right-wing conspiracy”? Not as conspiracy is defined in law, Jeffrey Toobin says, because the anti-Clinton efforts were not centrally coordinated. But in a broader sense, he concludes, Mrs. Clinton’s charge has
the unmistakable ring of truth. The Paula Jones and Whitewater investigations existed only because of the efforts of Clinton’s right-wing political enemies. People who hated the Clintons initiated these projects and sustained them through many years.
It is a sprawling story, with numberless characters, plots, and subplots. The two books, though they overlap, concentrate on different aspects. Joe Conason, editor-at-large at The New York Observer, and Gene Lyons, a columnist for The Arkansas Democrat-Gazette, dig into the origins of it all among the Clinton-haters in Arkansas and elsewhere. Toobin, a former federal prosecutor who is now a staff writer for The New Yorker, devotes himself to the unfolding of the two legal processes, Paula Jones’s civil suit against the President and Starr’s criminal investigations from Whitewater through Monica and impeachment. (Disclosure: Toobin was a student of mine at the Harvard Law School years ago.)
A Vast Conspiracy is a superb work of factual and legal analysis. Toobin brings clarity to complicated issues without sacrificing accuracy. He knows how to tell a story; few novels are as gripping. His judgments, legal and political, are acute.
The Conason-Lyons book told me much that I did not know about how non-events were promoted into supposed scandals by those determined to do in Bill Clinton. It is sometimes hard to follow, no doubt in part because the netherworld it explores is murky but also because the authors do not have Toobin’s talent for clarifying the obscure. Still, it is a necessary text for anyone interested in how the interwoven interests of the Clinton-haters, politicians, and the press led to impeachment.
Larry Nichols worked briefly for the state of Arkansas in 1988. Governor Clinton fired him after the Associated Press reported that Nichols had made 642 telephone calls from his state office to leaders and supporters of the Nicaraguan contras. He filed a $3 million libel suit against the governor, which got nowhere. During the 1992 presidential campaign he sold a story to The Star, the supermarket tabloid, charging Clinton with sexual straying. In 1994 he starred in an anti-Clinton video called Circle of Power, in which he told of “countless people who mysteriously died” after opposing Clinton. The video was distributed by the Reverend Jerry Falwell’s Liberty Alliance. It was followed by The Clinton Chronicles, a video that accused the President of having run drugs through an airport in Mena, Arkansas, and worse. Falwell played it and promoted it on his television program. Evangelical churches showed it during services. A right-wing organization that distributed it, Citizens for Honest Government, claimed sales of 150,000 at $40 a throw. Conason and Lyons describe how The Arkansas Democrat-Gazette, a staunchly Republican paper, examined the allegations in the video and found them to be absurd fabrications.
Jim Johnson, an arch-segregationist who founded the White Citizens Council in Arkansas, despised Clinton because Clinton had opposed him as a racist when Johnson ran for governor. Johnson counseled David Hale, the felon who was Clinton’s main accuser in Whitewater. He helped Floyd Brown, the man who promoted the Willie Horton television ad in the 1988 presidential campaign, when Brown went to Arkansas in 1992 to find dirt for a paperback, Slick Willie: Why America Cannot Trust Bill Clinton.
As one reads about the efforts of these and other low-life characters to find the silver bullet that would eliminate Clinton, it is tempting to dismiss them as clowns. But they never stopped plotting, and they found something that gave them power: rich sponsors.
Richard Mellon Scaife gave millions to The American Spectator, a far-right journal, for what it called its Arkansas Project, an effort to find wrongdoing in President Clinton’s past. Conason and Lyons reckon that Scaife’s tax-exempt foundations paid more than $1 million to men who investigated the Mena airport tale and tried to prove that there was dirty work in the suicide of Vincent Foster.
Peter W. Smith, a Chicago investment banker, spent at least $40,000 in 1992 trying to prove, and promote, a story that Clinton had fathered a child by a black prostitute. In that connection, fatefully, he met Cliff Jackson.
Jackson ranks as the number one Clinton-hater. The two had once been friends, or seemed to be. They were at Oxford at the same time: country boys from Arkansas. Afterward they corresponded; Clinton wrote Jackson about his efforts to escape the Vietnam draft. Then, as Clinton rose in politics, Jackson turned bitterly against him. “Jackson was clearly obsessed,” Toobin says—“and his resentments often involved the subject of sex.”
In 1992 Jackson went to New Hampshire to campaign against Clinton in the primary. No one paid any attention. But when he had the idea of serving as a press source for anti-Clinton stories, he scored. Saying he had spent “sleepless nights” before doing so, he told reporters about Clinton and the draft.
In 1993 state troopers who had guarded Governor Clinton wanted to do a book charging him with debauchery. Jackson represented them. (One of the troopers, Ronnie Anderson, swore in an affidavit that at that early date Jackson told them he “wanted to see President Clinton impeached” and would “do anything to bring him down.”) Jackson asked Peter Smith to recommend a writer for the troopers’ book. Smith suggested David Brock, who had delighted the right with a book savaging Anita Hill. Smith paid Brock $5,000 for expenses as he began investigating the troopers’ story. Afterward Smith paid the troopers thousands of dollars: “on humanitarian grounds,” he explained.
The result was not a book but Brock’s Troopergate article for The American Spectator, entitled “His Cheatin’ Heart.” Brock later regretted writing it, and published an apology to the President. But the article showed no signs of a sensitive conscience. Its object was humiliation. Brock quoted the troopers on sexual behavior by Governor and Mrs. Clinton. Arkansas reporters investigated some of the claimed incidents and found that they could not have happened. For example, nothing could be seen on a TV monitor where the troopers said they had seen sex. The national press never caught up with the lies.
The significance of Brock’s article was, of course, in its mention of “Paula” as a woman with whom Governor Clinton had had a sexual encounter. Paula Jones called a Little Rock lawyer who in turn called Cliff Jackson. On February 11, 1994, Jackson produced Jones along with his troopers at a press conference in Washington. The setting was the annual Conservative Political Action Conference. The press conference went badly, but immediately afterward Jackson got Jones together with a Washington Post reporter he knew, Michael Isikoff.
Toobin says that Isikoff “helped to invent an entire new field in American journalism—sexual investigative reporting.” When A Vast Conspiracy was published, Isikoff denounced what was said about him. I agree with Toobin. In any event, Isikoff had the inside track on the Paula Jones story and rode it for all it was worth.
If Paula Jones sued the President originally to get redress for her wounded sensibilities, as she said, her motive changed. Her own lawyers, Gilbert Davis and Joseph Cammarata, told her so when she turned down a settlement they negotiated with the President’s lawyers in 1997. They wrote her: “Your focus has changed from proving you are a good person to proving Clinton is a bad person. That was never your objective in filing suit.” By then Jones had a right-wing adviser, Susan Carpenter-McMillan, who was talking about a book with a big advance. Davis and Cammarata were replaced by a Texas conservative, Donovan Campbell Jr., who had made his name defending the state’s anti-sodomy law. Campbell began by serving this interrogatory, among others, on the President:
Please state the name, address and telephone number of each and every individual (other than Hillary Rodham Clinton) with whom you had sexual relations when you held any of the following positions: a. Attorney General of the State of Arkansas; b. Governor of the State of Arkansas; c. President of the United States.
Clinton declined to answer, saying—accurately—that the question was designed “solely to harass, embarrass and humiliate the President.” But Campbell hired private investigators to look into all the Clinton womanizing rumors, and he went on until the President had to answer under oath at his deposition. The Jones lawsuit had become an instrument of the anti-Clinton forces.
Behind the scenes Paula Jones had other counsel: the elves, as they half-jokingly called themselves. Early on, Cliff Jackson asked Peter W. Smith, the Chicago investment banker, to find a lawyer for Jones. Smith found Richard Porter, who had just joined the firm of Kirkland & Ellis after working on the staff of Vice President Dan Quayle. Porter in turn called Jerome Marcus of Philadelphia, who had been a classmate at the University of Chicago Law School. They later recruited George T. Conway 3d of New York.
All the elves helped with the Jones lawsuit on condition that their role remain secret. They were not experts in the subject matter of the case, sexual harassment. Their agenda, Toobin says, was “to damage Bill Clinton’s presidency.” They “used this lawsuit like a kind of after-the-fact election, to use briefs, subpoenas, and interrogations to undo in secret what the voters had done.” Marcus made his feelings public, though not the role he and his fellow elves had played, when he wrote a commentary for the Washington Times in December 1998. Urging the impeachment of President Clinton, he said: “The cancer is deadly. It, and its cause, must be removed.” He identified himself as “a lawyer in Philadelphia.”
The elves wrote the Supreme Court brief for Jones when the justices considered whether Clinton was entitled to have the case postponed until after his term of office. Gilbert Davis, who argued the case, tried his arguments out first in a moot court presided over by two distinguished conservatives, Theodore Olson and former judge Robert Bork. Under other circumstances both were strong supporters of presidential power. Olson, himself investigated by an independent counsel, had resisted on the ground that the independent counsel statute was an unconstitutional incursion on the executive. (The Supreme Court rejected his argument in Morrison v. Olson.) His and Bork’s strong beliefs were overridden by the desire to destroy Bill Clinton.
The Jones lawyers prevailed in the Supreme Court. The case could go ahead, the Court said, because it was “highly unlikely to occupy any substantial amount of [the President’s] time”—a conclusion, Toobin comments, that showed the justices’ “disengagement from the ways of the real world.” And so Paula Jones’s lawsuit proceeded inexorably toward her lawyers’ encounter with the President.
Meanwhile, there was Whitewater. That dreary real estate development was first brought to national attention in a story by Jeff Gerth on page one of The New York Times on March 8, 1992. Conason and Lyons fault the story; Times editors vigorously defend it. Gerth did not in fact charge the Clintons with doing anything unlawful, and Whitewater got little national attention until Vincent W. Foster Jr., deputy White House counsel and Hillary Clinton’s former law partner, committed suicide on July 20, 1993. Then, with Cliff Jackson stoking it, a press frenzy developed. There were scarcely any new facts, but the impression was that with so much smoke, there had to be fire. “With an almost comic circularity of reasoning,” Toobin observes, “the very existence of the inquiries about Whitewater was seen as proof that they were justified.”
Republicans pressed for an independent counsel to investigate Whitewater. Over the objections of the White House counsel, Bernard Nussbaum, who foresaw an endless hunt for something else if the investigators could find nothing wrong in Whitewater, Clinton, on January 12, 1994, asked Attorney General Janet Reno to appoint such a counsel. The statute had expired, so she did so on her own, choosing the eminent Republican lawyer Robert B. Fiske of New York.
Fiske took a leave from his law firm, moved to Little Rock, hired a staff of experienced prosecutors, and told them he wanted their assignment completed quickly, with no wandering into other matters. After just six months he issued a report rejecting claims by right-wing extremists that Vincent Foster had been murdered rather than committed suicide. Fiske considered hiring an outside lawyer to handle appeals: Kenneth Starr. When they talked, Starr did not tell him that the three judges who appointed independent counsels under the recently reenacted statute were considering him for the Whitewater job. On August 5 the court replaced Fiske with Starr.
It took Kenneth Starr and his staff three more years of investigation to come to the same conclusion about Vincent Foster’s suicide that Fiske and two congressional committees had reached. It was an example, Toobin says, of the incompetence of the Starr operation. It began with experienced, respected lawyers as deputies, but in time they all left. Those who remained were generally, in Toobin’s words, “the unemployable and the obsessed.”
W. Hickman Ewing Jr. was the deputy in charge of Starr’s Little Rock office. He hired private investigators to look into a subject that seemed remote from Whitewater but that obsessed Ewing and others on the Starr staff: the sex life of Bill and Hillary Clinton. The investigators questioned Arkansas women mentioned in local rumors about Clinton, and questioned state troopers. It was a scandalous abuse of power by a prosecutor, one for which a regular United States attorney would surely have been called to account by the Justice Department. But given the politics of Whitewater, Starr was essentially untouchable.
Ewing prosecuted two Arkansas bankers, Herby Branscum Jr. and Robert M. Hill, on charges that they had concealed or misused funds related to Clinton’s campaign for governor in 1990. He had Bruce Lindsey, deputy White House counsel and personal friend of the President, named as an unindicted co-conspirator—apparently in the belief that Lindsey knew sexual secrets and could be turned against the Clintons. In pursuit of those prosecutions, Ewing & Co. called in Branscum’s seventy-six-year-old mother, who was ill, for questioning. They also tried to serve a subpoena on Hill’s teenage son at his school, but the school principal threw the agents out. The jury in Branscum’s and Hill’s trial deadlocked, and they were not retried. Branscum said he spent $500,000 in his defense.
Another example of the ethical nicety of the Starr mission was its treatment of Sarah Hawkins, a black single mother who had once worked for James McDougal, the Clintons’ partner in Whitewater and now their accuser. Starr’s staff threatened her with eighty felony counts, but she refused to plead guilty and be their witness. After a year she was notified that she was no longer a target. But when she was subpoenaed by Susan McDougal, who was being prosecuted by Starr, the Starr office told Hawkins that she was again a criminal suspect. A Starr deputy, Ray Jahn, told her lawyer that it would be wise for her to invoke the Fifth Amendment and refuse to testify on Susan McDougal’s behalf. Hawkins did as he suggested. So threats deprived a defendant of a witness.
Behavior like that explains why Kenneth Starr and his assistants were so widely despised in Arkansas, even by people who were not supporters of Bill Clinton. Many in the state were also angry at the national press and broadcasters for, as they saw it, failing to report on Starr’s abusive tactics and failing to cover some developments favorable to the President. During the years of Whitewater, Gene Lyons criticized the national press in numerous articles, and the Conason- Lyons book sometimes presses the theme so hard that it seems to be unloading frustrations about bad reporting. Still, some of the examples they give are troubling.
L. Jean Lewis was an investigator for the Resolution Trust Corporation, the agency set up to deal with failed savings and loan institutions. After Jeff Gerth’s Whitewater story in 1992, she moved James McDougal’s Madison Guaranty to the top of her list, above far larger failures. Then she filed a criminal referral with the United States attorney in Little Rock, naming the McDougals as felony suspects and Governor and Mrs. Clinton as possible beneficiaries, through Whitewater, of corruption at Madison Guaranty.
Lewis, who described herself as a conservative Republican, claimed that her referral was blocked by higher-ups after Clinton became president. That became a main theme of the press stories and editorial comment on Whitewater. I have reread some of those stories, and they make Jean Lewis sound a bit like Saint Joan. But the one time Starr’s office tried to prove in court that the Clintons benefited from finagling by McDougal, the prosecutor abandoned the effort after his witness, an FBI agent, mentioned no such link. The New York Times story on that testimony inexplicably reported the contrary. The RTC had the San Francisco law firm of Pillsbury, Madison & Sutro do an independent study of the Whitewater charges. Its report corroborated what Clinton had said about Whitewater and found that the real estate investment had been looted by McDougal. The Wall Street Journal published a substantial news story on the Pillsbury findings in June 1995, headed “Clintons Are Vindicated in New Report….” The Times did not mention those findings until six months later.
The leading book on Whitewater was Blood Sport (1996), by James B. Stewart. Conason and Lyons point to numerous embarrassing factual mistakes in it. Stewart made a further, and inexcusable, mistake while promoting the book. He told Ted Koppel on Nightline that Hillary Clinton had committed what he called a “crime”: submitting “a false loan document.” The asserted falsity was her failure to answer all the questions on a form. But Stewart had not looked at the other side of the form, where Mrs. Clinton had supplied all the answers he so direly accused her of omitting.
A number of people in the press predicted that Mrs. Clinton would be indicted for this or that. But not even the Starr team could find a reason to prosecute her. What they did instead was to call her before a Washington grand jury and make her walk through the mob at the courthouse. As Toobin says, “The grand jury appearance itself was really the only form of punishment they could inflict.”
Kenneth Starr found no prosecutable wrongdoing by either the President or Mrs. Clinton in Whitewater. But he did not disclose that crucial judgment until months after he made it. He mentioned it offhandedly when he testified before the House Judiciary Committee to urge impeachment.
Linda Tripp began taping her conversations with Monica Lewinsky in September 1997 at the suggestion of Lucianne Goldberg, the right-wing literary agent. Tripp tried to justify her perfidy, when it came to light, by saying that Lewinsky had asked her to lie under oath and that she was “protecting herself.” That was a preposterous falsehood, Toobin points out; when she started taping, she had not been subpoenaed to testify about anything. She taped to get material that would injure a president whom she and Goldberg hated.
In November, Tripp grew impatient. She had told Michael Isikoff about Lewinsky, but he had written nothing for Newsweek. She decided to pass the Lewinsky story on to Paula Jones’s lawyers. She called Lucianne Goldberg, who tapped into her conservative network and was told to telephone Peter Smith, the Chicago investment banker. He in turn suggested that she call Richard Porter, the elf whom he had brought into the Paula Jones case. Goldberg telephoned Porter on October 18. Porter told a fellow elf, George Conway, who told Jones’s above-the-surface lawyer, Donovan Campbell.
“There was an unmistakable sense of giddy delight,” Toobin says, as Clinton’s enemies got the word about Lewinsky. “Virtually all of these people—including Smith, Porter, Conway, Goldberg, Tripp, and Isikoff—had been hoping for years to catch Clinton in an adulterous affair…. The President’s conduct wasn’t illegal, wasn’t harassment, wasn’t relevant in any way to his public duties; it was just a story about sex. But that was what they really wanted….”
In that same month, November, Paul Rosenzweig, a law school classmate of elves Porter and Marcus, went to work for Kenneth Starr. On January 8, 1998, Rosenzweig joined Porter, Marcus, and Conway for dinner at a French restaurant in Philadelphia. The elves told Rosenzweig about Lewinsky.
The next day Rosenzweig told Starr’s deputy, Jackie Bennett Jr. It was a Friday, and Starr was away until Monday, January 12. That morning he gave the go-ahead to get Linda Tripp as a witness. Rosenzweig got in touch with Marcus, who told Lucianne Goldberg. Late that evening she reached Tripp and told her to telephone Jackie Bennett. He was in the office, waiting for her call.
The two lines of legal attack on the President, the Jones civil lawsuit and the Whitewater criminal investigation, were now joined. But Starr wanted formal approval from the Justice Department and the appointing court to expand his jurisdiction again. On Thursday, January 15, Jackie Bennett met with the deputy attorney general, Eric Holder. “We’ve had no contacts with the plaintiff’s [Jones’s] attorneys,” Bennett assured him. Falsely. Bennett knew that Paul Rosenzweig of the Starr office had learned about Tripp and Lewinsky from three lawyers who were working for Jones. Moreover, before becoming independent counsel, Starr himself had consulted half a dozen times with Jones’s previous lawyer, Gilbert Davis, when Starr was thinking of filing an amicus brief on her behalf in the Supreme Court. (Starr also appeared on the MacNeil/Lehrer NewsHour in 1994 to argue that Jones had a right to press her suit.) If Holder and Attorney General Janet Reno had known of those connections, they would surely have referred the Lewinsky matter to a different independent counsel, if any; but they were not told.
Speed and secrecy were essential to Starr if he was to trap the President. Clinton was due to be questioned by Jones’s lawyers just two days later, Saturday, January 17, and they would ask him about Lewinsky.
On Friday, Tripp led Monica Lewinsky into the trap at the Ritz-Carlton Hotel in Pentagon City. FBI agents and three Starr deputies took her to Room 1012. Over many hours they tried to turn her into a witness against the President. She asked immediately to call her lawyer, Francis D. Carter, who had prepared her affidavit in the Jones case. They used everything but physical force to keep her from making that call, among other things telling her that Carter was of no use because he was a civil rather than a criminal lawyer. That was a lie; he was an experienced criminal lawyer who had headed the Washington public defender service for six years. They told her she could go to prison for twenty-seven years for filing a false affidavit. They offered to give her immunity if she would cooperate, by among other things talking with Vernon Jordan and possibly the President while wearing a wire.
Toobin gives all that a pass, saying that those are the sorts of things prosecutors do. I disagree. Even if we put aside the lies and other pressures, Starr’s people flatly violated a Justice Department rule codified in 28 Code of Federal Regulations section 77.8. It says that a government attorney may not discuss immunity “with a represented person” without “the consent of the attorney representing such person.” A federal court in Washington, powerless to do anything about the Ritz-Carlton performance after the fact, nevertheless expressed its “concern” that the Starr lawyers “may have acted improperly in conducting immunity negotiations with Ms. Lewinsky without the presence of her counsel.”
The consequences of keeping Lewinsky from her lawyer were great—and intended. Had she reached Frank Carter, he would have realized that the affidavit was dubious and kept it from being filed in the federal court in Little Rock. (He sent it by Federal Express that day.) More important, he would have told the lawyers to whom he had sent a copy of the affidavit, including President Clinton’s lawyer. The President was to be deposed by Paula Jones’s lawyers the next day. If he had known what was happening to Lewinsky, he would have had to tell the truth about his relationship with her. And the country would have been spared the year of Kenneth Starr and congressional Republicans pursuing President Clinton because he lied about sex.
Most Americans would just as soon forget that year. But one thing should not be forgotten. That is the abuses committed by Starr and his people.
Catherine Allday Davis was a friend of Monica Lewinsky’s, one of a number whom Lewinsky told about her entanglement with the President. Davis was living in Japan, and they corresponded by e-mail. Starr subpoenaed her and her computer—and printed out the e-mails. Davis pleaded with the prosecutors to respect the privacy of her messages, which included remarks about her husband; but they paid no attention. Starr included the e-mails in an appendix to his report to the House. I regard that action as particularly noxious, not because it was earthshaking but the opposite, because it was so petty: a gratuitous, irrelevant piece of cruelty.
Starr also printed out from Monica Lewinsky’s computer, and included in his filing to the House, some letters and bits of writing she had drafted to send to the President but never sent. He had a worse indignity in mind for Lewinsky, who was obliged to answer all his questions under her immunity agreement. After she testified before the grand jury, the prosecutors told her they needed to question her further, in a deposition, about how and when she had performed oral sex on the President, and other intimate details. And Starr, the prosecutors said, wanted the deposition videotaped. Why? For someone’s private delectation or to show the world? Lewinsky, devastated, objected to the videotape; and the deposition took place without cameras. No fair-minded person can read the transcript of that deposition and not conclude, as Toobin does, that it was “a disgrace—to the prosecutors themselves, to Starr, to Lewinsky, and, indeed, to the criminal process.”
When President Clinton testified before the grand jury by closed-circuit television, Starr did succeed in having the session videotaped. When the President’s lawyer, David Kendall, asked why that was going to be done, the Starr deputy in charge, Robert J. Bittman, said: “Someone on the grand jury might be absent that day.” It was a feeble falsehood. Grand jurors miss sessions all the time, and that has no legal effect on the process. The real reason was obvious: to have the videotape played to the country in due course.
Falsities were two-a-penny in the Starr operation. When Steven Brill dissected Starr’s methods in Brill’s Content, mentioning among other things the prosecutors’ attempt to have Monica wear a wire for them, Starr wrote a letter to the magazine saying, “This Office never asked Ms. Lewinsky to agree to wire herself for a conversation with Mr. Jordan or the President.” Toobin suggests that Starr wrote that because he was ignorant of what his deputies had done: a numbing insight into his failure to control an extraordinarily sensitive investigation. Under questioning in the House Judiciary Committee, Starr disclosed that he had not himself interviewed any of his witnesses.
Starr had never been a prosecutor. When asked critical questions about what his office had done, he said repeatedly that he relied on his staff of “career prosecutors.” But in fact there were few respected lawyers with prosecutorial experience left when the office got to the Lewinsky challenge. That was made clear, devastatingly, when the prosecutors dealt with the first crucial step in their effort to drive Clinton from office: arranging immunity for Lewinsky in exchange for her testimony.
Two members of the Starr team really were experienced prosecutors: Bruce L. Udolf and Michael Emmick. They negotiated with William Ginsburg, the lawyer who first represented Lewinsky in her dealings with Starr, about what she would say and how. On February 2 they reached agreement. Bob Bittman faxed the text to Ginsburg. It started, “This letter will confirm the agreement reached between Monica Lewinsky and the United States, represented by the Office of Independent Counsel….”
The next day Starr and his team discussed the agreement at a staff meeting. Jackie Bennett said it was “a sign of weakness.” Others agreed that it was not “tough” enough. They were irritated at William Ginsburg, who was going from one television station to another, blabbering. At the end of the meeting Starr decided to disavow the agreement—something not done by professional US attorneys. He replaced Udolf and Emmick with Robert Bittman, who had been a Maryland prosecutor dealing mostly with street crimes. “Perhaps no lawyer in American history,” Toobin says, “had been given an assignment for which he was less qualified.”
The immunity negotiations were nasty. At one point, Toobin writes, Jackie Bennett asked Ginsburg to accept a subpoena for Monica’s father, Dr. Bernard Lewinsky. Doctors, he said, often found themselves in trouble with the Internal Revenue Service. Ginsburg exploded and walked out. Bennett denies mentioning the IRS.
Some of the material in Toobin’s book was first unearthed by reporters coping with the story as it unfolded, and he might have given them credit. Jill Abramson and Don Van Natta Jr. of The New York Times, for example, disclosed the existence and activities of the elves in a really important scoop. And Van Natta reported at the time on the aborted immunity agreement of February 1998. On the latter, Toobin makes a convincing analytical point: the delay in reaching a final immunity agreement, he says, saved Bill Clinton’s presidency.
Starr finally signed off on an immunity agreement with Lewinsky on July 2, 1998, 176 days after the one he disavowed. The agreement was virtually the same. But during the 176 days the public had learned a good deal about Starr’s methods, and it did not like them: grilling Monica Lewinsky’s mother about her daughter’s sex life until she broke down, for example, and imprisoning Susan McDougal because she would not testify as he wished and moving her about in chains. If Starr had gone to the grand jury immediately after the February agreement, the public might have accepted his bona fides instead of seeing him for what he was, a zealot. The Democrats in Congress might have been afraid to stand by Clinton; they thought they were facing disaster in the fall elections.
Fortunately for the country, Starr and his assistants who ran the impeachment crusade were as inept as they were zealous. They thought their leaks would turn the country against the President and perhaps lead him to resign; to the contrary, most people were sickened by what they learned about Linda Tripp. The prosecutors thought the broadcast of Clinton’s grand jury testimony would surely turn the public against him, but people imagined themselves facing those questions and were sympathetic. And then, finally, Kenneth Starr filed a report to the House that concentrated repetitiously, obsessively, on sexual detail. The object was to humiliate the President, going so far as to include a passage saying that Lewinsky had seen him masturbating. But the public thought Starr had gone too far.
Perhaps most astonishing in all this was the fact that a former judge, a constitutional conservative, showed no respect for the most basic considerations of the separation of powers. The Constitution assigns to the House and the Senate the role of impeaching and removing a president; elected legislators are to take the political heat for what is a political process. For a prosecutor to intervene in that process is quite inconsistent with the constitutional scheme. That is why Leon Jaworski, when he was Watergate special prosecutor, sent to the House only a briefcase of material on President Nixon, neutrally presented, with no recommendations—and no leaks. Starr, by contrast, pressed the House to impeach Clinton, in his report and then in his testimony to the House Judiciary Committee. And during the Senate trial, he went to court to get an order forcing Lewinsky to testify there. What business was that of his?
Henry Hyde and his Republican colleagues on the Judiciary Committee let Starr do their job. Hyde had promised the President’s lawyers that he would be bipartisan, and they believed him. He seemed to be heading for a censure motion instead of impeachment. But then, after the November elections cost the Republicans five House seats, Hyde drove impeachment through the lame duck House on an utterly partisan basis. That did not help to make the process more credible.
Looking back at the long story of the effort to drive Bill Clinton from the White House, one is hard put to find any heroes. Clinton was certainly not one. He lied to his lawyers. He lied to the American public. He may have reasoned, consciously or unconsciously, that the political right was out to get him with questions about consensual sex that had nothing to do with the Jones charge of harassment—a charge that was dubious and that the judge eventually found to be worthless. If so, he was correct. But that cannot excuse the folly of the lies, or, for that matter, of his entanglement with Monica Lewinsky. His enemies wove the strands of the rope with which they hoped to hang him, Conason and Lyons say, but Clinton pulled the noose over his own head. He was saved by a public wiser than the attackers expected. Most Americans understood that what was involved here was lying about sex—which goes with the territory and is not a reason to remove a president.
The press, or much of it, can only look back on its performance with embarrassment. Russell Baker summed it up in one pungent sentence. “Hanging judges,” he said, “lurk behind every byline, every editorial, every TV reporter, every talking head.” Anonymous sources were used to convict the President and Mrs. Clinton by insinuation, in violation of the rules of decent journalism. And most of those unnamed accusers were in the office of Kenneth Starr.
Some reporters got too close to the independent counsel’s office. They paid, for leaks, the inevitable price of having to suspend their disbelief—because they knew that indicating any skepticism about Starr would cost them their sources. One of Lewinsky’s later lawyers, Nathan Speights, said he noticed that whenever he talked with Jackie Bennett, Starr’s deputy, he would soon get a call from Susan Schmidt of The Washington Post parroting what Bennett had just said. Other reporters got close to even more dubious sources. Conason and Lyons say that a tape has Bill Rempel of the Los Angeles Times discussing with one of the Arkansas Clinton-haters a rumored photograph of Clinton in bed with a woman. The Wall Street Journal’s editorial page was (and is) vociferously anti-Clinton, but I was still surprised to read that one of its editorial writers, John Fund, took part in a meeting of such Clinton-haters as Floyd Brown, the Willie Horton promoter, and Larry Nichols, the Arkansan star of a hate-Clinton video. George Will, the conservative columnist, writing on the Starr report in Newsweek, said: “Should this man, who is seen in Starr’s report masturbating in the West Wing after an episode with the intern, be seen for twenty-eight more months in the presidency?” He might have asked why that scene was in the report—why any prosecutor except one inflamed by zealotry would have published that immaterial detail.
Conason and Lyons say that a number of reporters crossed the line into advocacy, encouraging investigations of supposed Clinton wrongdoing. Starr himself lent curious weight to that charge. When a court looking into leaks asked him about his office’s communications with reporters, he invoked what he called an “informants’ privilege”—presumably meaning that some in the press had acted as his informants. Starr’s brief, when published, struck out the names of the alleged informants.
Broadcasters, especially, were ever so pious about Clinton and Lewinsky. How many, I wonder, would like to have their sex lives investigated and publicized? Some in the press raced to assume the worst and predict Clinton’s departure from the White House. A number of reporters and editors owe their readers or viewers apologies. I have not noticed many.
Even more troubling, in this history, is the role of the Clinton-haters. Just why Bill Clinton aroused such hatred—more than any other president since Franklin Roosevelt, I think—is a fit subject for exploration. But whatever the reasons, there is something profoundly disturbing about the way the haters were able to use the power of money and modern communications, in secret, to undo—nearly—our electoral process.
Toobin, trying unnecessarily to give his book a larger frame, suggests that what the elves and others did here merely continued a process of converting political issues into legal ones that was started by Thurgood Marshall and his colleagues when they sued over school segregation. It is a lame argument. Going to court to vindicate constitutional rights—openly, through the established legal process—is a far cry from plotting in secret to achieve a political overthrow by legal subterfuge. Nor did the civil rights movement have anything to do with that current phenomenon, the criminalization of politics.
The danger of misusing the criminal law for political ends is the lesson, finally, of Kenneth Starr. In his zeal, he did not hesitate to use a prosecutor’s great power—even greater in his case because it was accountable to virtually no one—to crush anyone who resisted him. Julie Hiatt Steele learned that as Susan McDougal and Sarah Hawkins had. Steele was a peripheral figure whom Starr wanted to support another sex charge against the President. When she would not, his agents investigated the legality of her adopted child, subpoenaed her tax returns and credit report, called her, her daughter, her brother, and her former lawyer before a grand jury—and then indicted her for, among other things, allegedly speaking falsely on Larry King Live. (The trial jury could not agree, and she was not retried.) The principal witness against Steele, Kathleen Willey, testifying under a grant of immunity, admitted that she had violated her immunity agreement by lying about a sexual affair. Starr, forgiving, immunized her again. After all, she had only lied about sex.
April 13, 2000