The Breach

by Peter Baker

  In New York to deliver a twenty-four-minute speech on terrorism to the United Nations, Clinton did not watch his own August performance. He sat in a holding room waiting to be introduced to the General Assembly, with the television turned off. Sosnik and McCurry had accompanied him, but as much as they wanted to flip on the TV to see how it was progressing, they resisted until the president left the room. Sosnik soon called down to the White House to see how it was being received and was told that people were offended by the release. It seemed to be spinning the presidents way.

  Clinton was welcomed with several standing ovations by the foreign leaders gathered in the U.N. chamber. Like Vaclav Havel, they did not understand what the fuss was about and wanted to show support for the embattled leader. As he left the building, Clinton got an update from Sosnik on how the grand jury tape was playing.

  Well, I think a lot of people are still waiting for all these outbursts, Sosnik reported with a smile.

  Clinton related what an ambassador from a Latin American country had told him in the chamber: We have coups in our country too, but theyre with guns.

  Look, youre either on offense or youre on defense. The press only gets that one side is wrong and the other is right.

  Newt Gingrich was lecturing Henry Hyde on how to handle the impeachment situation. Nuance did not sell, Gingrich said. It was Wednesday, September 23, two days after the grand jury tape had been released, and the two Republicans were about to head into another meeting with their Democratic counterparts to discuss what sort of inquiry, if any, the House should begin. Public opinion had hardened in Clintons favor since the release of the tape, and now, unlike their initial encounter in the Dinosaur Room, Gingrich was ready to play hardball.

  As they sat down with the Democrats in Gingrichs office, however, it was clear that Dick Gephardt was playing offense too. The session got off to a testy start as he complained about being shut out on the redactions. Hyde, on defense, shot back that the Democrats had not been excluded. The two sides had disagreed on only about 2 percent of the redactions, he said, exaggerating the point for effect. He also expressed irritation at the press for characterizing him as nothing more than the subcommittee chairman for the Speaker. Gingrich tried to turn the tables and challenged Gephardt to state what he would do. The minority leader, keeping the initiative, came back immediately with a proposal he had prepared with advisers before the meeting. Any inquiry should be modeled on Watergate rules and be limited to thirty days, he said. The ulterior motive was simple: the Democrats could say they wanted to look into the issue but also wanted to close it down quickly, appealing to broader public sentiment.

  The plan was a joke and the Democrats knew it, Gingrich said. There were too many things to look into. The president had been protecting his confidant Bruce Lindsey from testifying because he was the key to the case, Gingrich said. They had an obligation to wait to see if the Supreme Court would uphold Clintons claim of executive privilege to prevent Lindsey from testifying. They might also want to look into Whitewater and the allegations of hush money paid to former associate attorney general Webster Hubbell, the Clinton-Gore campaigns fund-raising excesses from 1996, and even the controversial transfers of sensitive satellite technology to China.

  It could go on eight to nine months if you let it be opened up to anything else, Gephardt protested.

  During Watergate, Peter W. Rodino Jr., the Democratic chairman of the Judiciary Committee, had followed leads wherever they went, Gingrich responded. So would they.

  Gone were the bipartisan platitudes of the Dinosaur Room meeting two weeks earlier. Unlike that session just prior to the delivery of the Starr report, Gingrich and Gephardt split up after their session for separate meetings with the media. Asked by reporters about the possibility of censure or some other form of plea bargain by the president, Gingrich brusquely dismissed the notion, saying it simply puts the cart before the horse. Gephardt was just as happy to be rebuffed. It would give him more evidence to make the case that the Republicans were being partisan. Every split vote played into a strategy that Democrats had been employing for months, even before Clintons grand jury sessionpainting him as the victim, not the villain.

  Were going to win by losing, Gephardt told Abbe Lowell as they left Gingrichs office.

  While Gephardt was trying to find a way to make impeachment go away in thirty days, Clinton was swallowing his pride to try to make the underlying case that had spawned it go away just as quickly. Clintons attorney, Bob Bennett, called up Paula Joness lawyers on the same Wednesday and offered to pay $500,000 to settle the suit, half of their $1 million demand from earlier in the month. It was an extraordinary move, but Clinton and his advisers calculated that, to clear the decks for any deal with the House, they needed to eliminate the threat of the Jones suit being restored by an appeals court. Prominent congressional Republicans had been demanding that the president admit that he lied under oath before they would consider a deal short of impeachment, but he could hardly concede anything close to that as long as the suit remained active. Bennett believed that the Eighth U.S. Circuit Court of Appeals, which had not looked sympathetically on Clintons side earlier in the case, might well overrule the lower court and reinstate the lawsuit in light of the subsequent revelations of misconduct by the defendant. It was time to end the suit if they could.

  Joness lawyers welcomed the counteroffer without committing one way or the other. They would take it back to their client for consultations, they said.

  In seeking to resolve the case once and for all, the Clinton team also hoped to forestall any new allegations. Chuck Ruff and the others never knew where the next explosive accusation might come from, and the Jones case always seemed to threaten some new disclosure. Buried deep inside the appendices Starr sent the House was the hint of one such time bomb: Jane Doe No. 5. That was the designation used by Joness lawyers for Juanita Broaddrick, a nursing home operator from tiny Van Buren, Arkansas, who had met Clinton some twenty years earlier when he was the state attorney general attending a conference in Little Rock. She told a few friends at the time that a meeting in her hotel room had turned into a horrifying rape by the future governor. When contacted by the Jones team, Broaddrick denied the story under oath. All of this had been mentioned in court documents filed during the Jones case earlier in the year, although it got little attention in the media because of its lurid and unsubstantiated nature. But a little-noticed aside in the just-released Starr documents revealed that Broaddrick had since recanted her denial in an interview with the Office of the Independent Counsel. After mentioning her sworn statement in the Jones case, the report added parenthetically: On April 8, 1998, however, Jane Doe No. 5 stated to OIC investigators that this affidavit was false. Beyond that, there was no elaboration.

  Ruff was concerned. He had heard murmurings about Jane Doe No. 5 and the cryptic reference. On the same day Gingrich and Gephardt met, Ruff called Abbe Lowell. What was out there? Ruff asked.

  Lowell tried to reassure him. The Republicans were not pushing it, he said. Lowell did not think the committee planned to release the Starr investigation interview with Broaddrick. They were probably okay.

  Ruff hung up the phone, still worried. They would have to make sure they were fully prepared in any case. The problem with these situations was that while Ruff often found a defense he could raise, he would never get to the bottom of what had really happened between Clinton and these women behind closed doors.

  Ruff was not the only one still afraid of the emergence of other women. So were Democrats in Congress. The next day, Thursday, September 24, Tom Daschle invited Lowell to the regular luncheon of Democratic senators to brief them on impeachment. The senators were curious about what the evidence actually showed as opposed to how it was portrayed by Starr. Bob Torricelli and Carl Levin of Michigan were particularly intense about Starrs handling of the matter. Joe Lieberman asked about the precedent of impeachment starting in one Congress and continuing into the next after an election. Dianne Fe
instein wanted the inquiry to focus on perjury, calling that the only issue of real significance. Richard J. Durbin of Illinois asked what was the difference between crimes and impeachable offenses.

  But the real question on many of their minds came toward the end, when Ted Kennedy, himself famous for a lifetime of womanizing, complained that Clinton was still a moving target. Are there any other shoes to drop? Kennedy asked. What he wanted to know without saying so explicitly was whether there were other women out there. No one really knew the answer.

  The meeting ended on a fractious note. Robert Byrd, the imperious senator from West Virginia, became irritated that they were even discussing the case. Why were they having these meetings and talking about evidence when they could become jurors? Byrd demanded. Daschle replied that they were not prejudging anything, only trying to keep up to speed, given that they might have little time to evaluate information if charges were sent by the House. Byrd was not assuaged.

  By the time the House Judiciary Committee met in executive session again at 10:20 A.M. the next day, Friday, September 25, to consider the final round of documents to release, the Republicans had learned their lesson. This time, they made sure to offer even the redactions everyone agreed on as separate motions to get the recorded unanimous votes. One of the items to be withheld by mutual accord was the FBI interview of Juanita Broaddrick. With no serious rifts over redactions, the Democrats offered a series of other motions designed to generate party-line votes, such as proposals to let Clintons team have an advance look at the documents before they became public. When the eight-hour closed session finally ended, however, thirteen of the twenty-five roll call votes were unanimous and another virtually so. Republicans emerged spinning the day as a model of bipartisanship.

  CHAPTER FIVE

  How can you beso goddamn stupid?

  Bob Bauer wanted to meet somewhere discreet, somewhere out of the way where no one would know them. Lloyd N. Cutler suggested lunch at the Metropolitan Club. An exclusive 135-year-old establishment whose membership rolls had included at least a half dozen presidents, the Metropolitan Club with its kelly-green card room, private squash court, barbershop, and fifteen-thousand-volume library had long been a refuge for Washingtons power elite, an island of stability and respecter of precedence in the disturbing sea that washes around it, as the legendary presidential adviser Clark Clifford once put it. Located two blocks from the White House, it was not exactly out of the way. As Bauer and his host made their way across the dining room on Wednesday, September 23, Cutler seemed to stop at virtually every other table to shake someones hand. So much for secret negotiations.

  But the real sponsors of this days lunch had built in an extra layer of protection to guard their identities. They had sent Bauer and Cutler in their stead, proxies to discuss how to resolve the constitutional crisis gripping the capital. Bauer represented Dick Gephardt, who wanted to explore the possibility of securing a deal in which Congress would censure the president for his misconduct and end the impeachment proceedings. Cutler in effect represented President Clinton, who was equally eager for censure as a way out of his dilemma but could not say so publicly for fear that his ready acceptance would kill its chances with congressional conservatives intent on punishing him.

  No one wanted his fingerprints on this one. When Gephardts office called the White House to suggest a meeting, John Podesta had instructed the minority leader to deal with Cutler, an eighty-year-old minence grise of the Washington establishment with long connections in the upper reaches of both parties. Having served both Jimmy Carter and Clinton as White House counsel, Cutler was now back at his private law firm and could play intermediary in the censure talks with full deniabilityif word spilled out, everyone could say Cutler was just a free agent and the White House was not bargaining, when in fact he was not and it was. Similarly, Gephardt did not want it known that he was trying to broker a deal, so he worked through his own private lawyer.

  Over lunch, Bauer laid out Gephardts thoughts for Cutler. What about some sort of financial penalty to accompany censure by Congress? What about Cutler trying to broker a deal with Ken Starr?

  Cutler listened politely, but did little to tip his hand. He made clear that he was not there as the presidents official attorney, and if he ever did talk with Starr on Clintons behalf, it would not be in his capacity as a lawyer. That said, the two attorneys discussed what sort of agreement Clinton and Starr could come to. Bauer said he had an associate who had scoured through the law books and found an obscure false-statements infraction that Clinton could theoretically acknowledge without actually pleading guilty to a crime. They discussed whether it would be constitutional for Congress to penalize the president in any way other than impeachment and removal. Finally, Cutler asked Bauer if he would put something in writing for him. Bauer agreed.

  The plan Bauer produced on Gephardts behalf was comprehensive but hardly simple. To satisfy the variety of often conflicting impulses generated by the long-running controversy, Bauer constructed an elaborate mechanism intended not only to sanction Clinton but to clean up the damage he had done to the institution of the presidency. And in keeping with the clandestine nature of the talks, Bauer came up with a little subterfuge of his own to disguise the real sponsor of the plan. When it came time to submit it to the House legal staff to be translated into formal legislative language, Bauer routed the plan through another congressmans office, a willing Vic Fazio of California, so that Gephardts name would not show up anywhere on the document in case it ever became public.

  Under the proposal, lawmakers would condemn Clinton by issuing a finding that the President engaged in misconduct unbecoming the stature and high responsibility of the office that the President holds. Citing the Starr report, the resolution concluded that Clinton engaged in an improper relationship with an individual in the employ of the President of the United States, gave her unusual and inappropriate assistance in finding a job, and failed in clear terms to encourage that individual to provide completely truthful and forthcoming testimony about her relationship with the President in a civil action in which the President was also a defendant. Rather than determine whether Clinton committed perjury or obstruction, the Gephardt plan would sidestep the legalities by asserting merely that Clinton failed to provide completely truthful and forthcoming testimony in the Paula Jones case, and in his subsequent appearance before the grand jury, relied instead on evasive and technical formulations in answering certain inquiries of the Independent Counsel.

  Beginning in January 1998 through August 17, 1998, it concluded, the conduct of the President of the United States in the civil deposition, before the grand jury and in numerous public statements made directly or, by his encouragement, by the Presidents aides (A) weakened the bond of trust with the American people essential to the discharge of the Presidents duties; (B) needlessly prolonged public concern over these matters, delaying and undermining the ability of the country to conduct other business; and (C) added substantially to the cost of the investigation of the Independent Counsel.

  As penalty for these actions, the proposal would strip Clinton of his government pension for five years after leaving office in January 2001. Under the payment scales then in effect, former presidents received $152,000 a year in pension, meaning Clinton would have to give up more than $750,000 over the five years. Left unaffected by the Gephardt plan would be other postpresidency benefits, including round-the-clock Secret Service protection and allotments for office space, staff, and expenses that ranged from $300,000 to $550,000 a year. Like any other financial sanctions envisioned as part of censure-plus, as the concept had been termed, Clinton would have to agree to abide by it voluntarily since Congress was prohibited by the Constitution from passing a bill of attainder punishing a single individual. But unlike other ideas floated in public, the notion of taking away his pension had the appeal of ensuring that the penalty would come directly from Clintons own pocket. A simple fine, many feared, could be paid out of the presidents legal expens
e fundor worse, out of personal savings and investments that had been generated almost entirely by Hillary Clinton, the familys main breadwinner during their years in Arkansas at a time when he made just $35,000 a year as governor. Only in recent days had it occurred to some Democrats that simply fining the president might make his wife pay for his misdeeds.

  But Gephardt did not want merely to hold the president responsible. He worried that in the cover-up, Clinton had done grievous damage to the office by misusing White House lawyers to mount a personal defense and by claiming privileges that were later rejected by the courts. If left unaddressed, Gephardt feared, future presidents would pay the price. Thus, his proposal would create a bipartisan Joint Committee for the Study of Presidential Privileges to settle on the proper boundaries of executive privilege and perhaps even formally establish a protective function privilege, a legal right to confidentiality that the Secret Service had invented in an unsuccessful bid to prevent agents who guarded the president from revealing what they saw or heard while in his presence. The resolution would also order the Office of Government Ethics to develop new standards for the presidents use of the White House Counsels Office to assure that Government resources are committed to official purposes only, and not the personal requirements, including personal defense, of the President.