The Breach

by Peter Baker

  The last part of Gephardts plan, though, was the most complicatedand the most cumbersome. Clinton worried about making a deal without guaranteeing that Starr would finally go away. In an effort to force Clinton and Starr to reach their own agreement, Gephardts resolution would urge the two sides to resolve any issues related to the Lewinsky matter by the time the president delivered his next State of the Union address in January. Within thirty days of that deadline, Starr would have to report the status of any negotiations, and if no deal had been struck, Congress would vote on whether it believed the investigation should proceed. If Congress voted no and Starr went forward anyway, lawmakers would then vote on whether to terminate funding for the independent counsels office. This is, in other words, a Congressionally mediated plea bargaining arrangement designed to put pressure on Starr, but also to allow for a vote on his investigation, Bauer wrote in a cover letter that accompanied the plan when he faxed the completed version to Gephardts office on Thursday, October 1.

  Gephardt liked the thrust of the plan. At least there was something to work with. A copy was faxed to Cutler for his review.

  Even if Gephardt and Clinton could work out a mutually acceptable deal, though, there was still the matter of the Republicans. As part of The Campaign, Tom DeLay had vowed to do everything he could to kill censure and maintained a steady drumbeat of correspondence to GOP congressmen lobbying against it. On Thursday, September 24, the day after Bauer and Cutler met for lunch at the Metropolitan Club, DeLay sent a Dear Colleague letter to fellow Republicans citing statements by a pair of law professors criticizing the concept of censure. Even constitutional scholars agree: censure is not within our powers, DeLay wrote. A week later, on Thursday, October 1, just as Bauer was faxing his completed plan to Gephardts office, DeLay sent the GOP conference another such missive, this time reproducing an op-ed piece in the Wall Street Journal and adding a note: Any talk of censure or censure-plus should be stopped.

  Censure was not the only angle Gephardt was pursuing. Even if he could find a resolution to sell to Republicans, he would first have to deal with the more immediate question of whether the House should open a formal impeachment inquiry. Given Starrs report and the eagerness of many Republicans to go after Clinton, Gephardt had little doubt that an investigation would be opened, so the trick was deciding what the Democrats should do about it and then trying to herd his rambunctious caucus onto the same path.

  Gephardt convened a meeting of Judiciary Committee Democrats in his office on Tuesday, September 29, to develop a unified strategy. The dilemma was dicey and the timing treacherous. In Gephardts mind, the Democrats could not simply oppose the opening of an impeachment inquiry; with just a month before the election, the perception that Democrats were covering up for a president from their own party would become the singular issue in the campaign. But neither could they go along with the Republicans in simply agreeing to launch an inquiry, even if it was justified; not only would that legitimize the investigation, but it would divide the Democratic caucus right down the middle and still leave many of Gephardts members vulnerable at the polls. Any Democrat who voted against the inquiry would have a harder time explaining why, if his own party leaders supported it, while those who voted for it risked alienating their political base at a moment when they needed that base the most.

  The answer, then, was to draft a Democratic version of an inquiry resolution that would give his members political coverone that would make it look as if the Democrats were taking the matter seriously but would restrict the process in such a way that the Republicans would be sure to reject it. If Gephardt could get a party-line vote out of it, he would make Republican partisanship the issue. Win by losing.

  First, Gephardt would have to navigate the treacherous currents within his own party. The White House and a sizable share of his troops in the House, particularly the Congressional Black Caucus, wanted no inquiry whatsoever, believing it unwarranted and a surrender to right-wing forces that had been out to get Clinton. Another group within Gephardts caucus thought the full-blown investigation sought by the Republicans was merited and opposed any limits on it. The politics of the election played a significant role in where members stood. Those with marginal districts, areas with lots of suburbs and moderate Republican voters or conservative Southern communities where Clinton was anathema to begin with, were pushing for an inquiry. Those from urban areas, particularly districts with heavy concentrations of black voters or union members, key elements of the partys core constituency, were more likely to resist. Putting together an alternative that would stitch together those factions would be tricky.

  To do so, the Democrats turned to Rick Boucher, a low-key, moderate member of the Judiciary Committee from the Fighting Ninth district in far southwest Virginia, where voters were about as conservative as they came while still voting for Democrats. Boucher was a smart, thoughtful, and thoroughly inoffensive eight-term congressman who worked well with others and was the only Southern, white, Protestant male on the Democratic side of the committee. The rest of the panel showcased the diversity of the partyfive African-Americans, four Jews, six Northeasternersand tended to be significantly more liberal. To reach out to the conservative Blue Dogs, Julian Epstein, the committees chief Democratic counsel, figured they would need an ambassador who spoke their language, and so he approached Boucher early to recruit him for the role. The problem was that several of the other members saw themselves as the future stars in the history books and were pressing to introduce the alternative inquiry resolution themselves. Congresswoman Zoe Lofgren of California and Congressman Bobby Scott of Virginia had already written their own versions. To smooth over the egos, Gephardt had Boucher work with the most vocal hard-liners as part of a drafting committee that had been meeting every day by the time they all gathered in their leaders office that TuesdayLofgren, Scott, Maxine Waters of California, Jerrold Nadler of New York, William D. Delahunt of Massachusetts, and Sheila Jackson Lee of Texas.

  In this group of lawyers who loved to talk, the discussion quickly bogged down in circuitous debates about small points: Should there be whereas clauses? Should they set a standard of proof that should be met before proceeding further? Should they even call their proposal an inquiry? Should there be deadlines and, if so, when? Scott pushed to create a series of internal deadlines within the inquiry structure so that certain things had to happen by certain dates, rather than merely setting out a single target end date.

  In the end, Boucher and Epstein came up with a two-stage inquirythe committee would first set a standard for what would constitute an impeachable offense before moving on to consider the specific facts in the Clinton investigation. Under any circumstance, the inquiry would conclude by November 25 with a House vote on whether to impeach, throw out the case, or apply some alternative sanction.

  Henry Hyde was working on his own blueprint for how to proceed. The simplest and safest course was to do what his predecessor Peter Rodino did in Watergate, and so Hyde crafted an inquiry proposal that was adapted nearly word for word from the one used in 1974 to investigate Richard Nixon. There would be no limits on the subject areas that could be explored or the time that could be expended. Both Hyde and Conyers would have subpoena power, although the full committee could overrule either. Clintons lawyers would be allowed to attend all hearings, respond to evidence gathered by the panel, cross-examine witnesses, make objections about the relevance of evidence, and submit exculpatory material.

  Hyde unveiled his plan the next day, Wednesday, September 30, but if he thought he would satisfy the Democrats by acceding to their repeated demands for Rodino-style rules, he quickly learned otherwise. The White House and its congressional allies immediately decried the plan as a wideopen fishing expedition. The trick for Democrats at this point was to keep the focus on procedures and make the issue about fairness, as outlined in Bob Bauers memo to Gephardt some six months earlier. While Hyde put the finishing touches on his plan, Asa Hutchinson ran into Bobby Scott on the House floor.
I hope you dont give us a fair process, he told Hutchinson, because if you do, I might have to vote to impeach the SOB.

  On the same day that Hyde was producing his inquiry plan, Clintons lawyer in the Paula Jones case, Bob Bennett, visited the White House to persuade the president to ratchet up the settlement proposal. Clinton was not an easy sell; he had been infuriated when he saw Joness attorneys on the Sunday television talk shows over the weekend asserting that any payment of money would be tantamount to an admission of guilt. But he put aside his pique and signed off on increasing the offer to $700,000exactly the amount Jones had demanded in her original lawsuit in May 1994.

  The next day, the settlement talks took an unexpected detour. A quirky New York real estate magnate named Abe Hirschfeld entered the picture on Thursday, October 1, making an unsolicited offer of $1 million if Jones would settle. Jones was immediately enthralledwith that much money, she could pay off her lawyers and still have plenty left over. And if she could get the $1 million from Hirschfeld as well as the $700,000 from the president, all the better. At the White House, however, Hirschfeld quickly became the skunk in the garden. The tycoon was an eccentric who fancied himself a political heavyweight even though he had lost his bids for public office. Then there was the problem of the 123 counts of state tax evasion filed against him. The president simply could not get involved with someone like that. Clinton was in enough trouble as it was.

  The president found himself stymied on another front as well. In recent days, he had become infatuated with a plan intended to undercut any impeachment inquiry before it got started. His allies could collect the signatures of thirty-four Democratic senators on a letter stating that they would vote against conviction based on the evidence presented by Starr, guaranteeing acquittal and making any further proceedings moot. Clinton grew excited about the idea during late-night phone calls with Senators Bob Torricelli and John Breaux of Louisiana. But when the presidents aides learned about it, they were aghast, recognizing that it would be seen as political gimmickry and expose Senate Democrats to charges of prejudging the case. Finally, Tom Daschle stepped in and put a halt to the plan, telling Clinton it would be improper and imprudent. Besides, Daschle and his aides were not at all confident they could get thirty-four signatures; making the effort and then failing to collect enough would be a political disaster.

  Further complicating the presidents problems was the impending departure of some of his key lieutenants. Mike McCurry, his witty and widely respected press secretary, would not be talking Clinton out of any more jams. McCurry had taken advantage of a lull in the Starr investigation during the summer before the grand jury session to announce that he would resign in mid-October when Congress was done; now he moved up his departure date to October 1, the same day Hirschfeld made his offer. The next day, Clintons senior adviser Rahm Emanuel, who had turned down an attractive job offer back in his hometown of Chicago early in the year rather than leave as the Lewinsky scandal was unfolding, announced that it was now time to go. Two days after that, Erskine Bowles told reporters that he planned to leave as soon as the budget negotiations were wrapped up later in the month.

  No one was quitting in protest, at least officially. But in effect, Bowles and McCurry really were. Both had the advantage of credibility when they said they were leaving for other reasons, since everyone knew they had wanted to go months before and had only stayed out of a reluctance to jump ship at a moment of crisis. Yet few other top aides were quite as disenchanted with Clinton. He had squandered everything they had tried to do. Bowles told colleagues that he was convinced Clinton would never have confessed had his DNA not been found on Lewinskys dress. Both Bowles and McCurry still liked the president on some level, supported his goals, and did not want to kick him when he was down. But the bottom line was they just could not work for him anymore.

  Emanuel was a different story. He was mad at the president too, mostly for being stupid, but he did not take the Lewinsky affair as personally. A blow job was just a blow job. It was hardly worth getting worked up about. And unlike Bowles, Emanuel was a street fighter who rarely shied away from a good scrap. Rahm-bo, as his friends called him, liked to shout at people and mix it up. But Emanuel had been there at the creation, one of the few aides still left from the early days in 1991 when they were trying to elect a little-known governor from Arkansas. After seven years, he was exhausted and ready to make some money for his growing family.

  For his part, Paul Begala had decided to stay. During a fishing vacation with his wife in Utah following the presidents August 17 admission, the disillusioned counselor had come close to quitting. Clinton had made a fool out of him. Before Begala had gone out to defend the president publicly in the early days of the scandal, he had made sure to check with the lawyers and was assured that Clintons denial included oral sex. No one made any of the semantical distinctions that Clinton would later raise before the grand jury. Now knowing the truth, Begala could not stand even to look at the president. Im a Catholic, he explained again and again to fellow White House aides. Had it not been for the impending impeachment drive, Begala would have bolted. But as Republicans moved to launch an inquiry, the anguished aide determined he had to stay for one last fight. Impeachment, he thought, was too extreme.

  Whatever their motivations, the departures of McCurry, Bowles, and Emanuel stripped the president of some of his strongest assets at a critical juncture. And some of those left behind fumed at them for jumping ship. Doug Sosnik, who would take Emanuels title as senior adviser and had already become a constant companion to the president, did not blame McCurry because he had announced his plans three months earlier. But Sosnik was furious at Bowles and Emanuel for abandoning them at this danger point. Indeed, Sosnik generally stopped speaking to either one.

  As the Judiciary Committee approached its decision on whether to launch a formal impeachment inquiry, members on both sides grew increasingly nervous about their chief investigators. Neither of them had ever done anything like this before; they did not know Capitol Hill. How would they come across?

  At a 5 P.M. meeting of the Judiciary Republicans on Thursday, October 1, Hyde asked David Schippers to preview what he planned to tell the full committee the following Monday. Schippers, sitting in a wingback chair in the corner with a script in his lap, went over it in a low-key, matter-of-fact way that left several of the members alarmed. It did not sound clear or organized at all to them. At that point, the members were summoned to the House chamber for a vote and while milling around the floor they compared notes. If Schippers did that on Monday, they agreed, they were dead.

  Congressman Bill McCollum, a hard-charging senior member from Florida, called over to the committee offices. He got one of the lawyers, Paul McNulty, on the phone and shared the groups concern. Theres some really worried people here, he said. From the panic in McCollums voice, McNulty feared they were on the verge of a mutiny. He tracked down Tom Mooney shortly after 7 P.M. and the two of them found Schippers. The Republican members gathered again the next morning, Friday, October 2, before the full committee was to meet. This time Schippers gave a full-dress, forty-five-minute version of his presentation, with flair and passion, calming the nerves of the antsy congressmen.

  Like Schippers, Abbe Lowell was finding his ability questioned as the chief investigator for the Democrats. The day after Schippers reassured his members, Lowell came under fire from his own. At a meeting on Saturday, October 3, some of the Democratic members seemed shocked that Lowell would be handling their side of the presentation. Zoe Lofgren of California suggested that they hire Laurence Tribe, the famed Harvard constitutional law professor, to do it instead. Maxine Waters agreed. Dont take offense, she told Lowell. Youre smart. But you have to admit youre not very telegenic. Youre too pale, too pasty.

  By this time, of course, it was far too late to hire someone else, so the members would have to live with Lowell. Instead, they issued a flurry of sometimes-conflicting instructions: Dont draw conclusions. Dont say we need an in
quiry. Dont say the facts are unclear. Dont preempt us on constitutional standards. Dont go too long. Dont go too short.

  Lowell had had difficult clients before, but never sixteen at once.

  Just as one rich eccentric had inserted himself into the fray a few days earlier, another chose this moment to seek attention. Larry Flynt, the gaudy publisher of Hustler magazine, paid $85,000 to take out a full-page ad in the Washington Post on Sunday, October 4, offering $1 million for documentary evidence of illicit sexual relations with a member of Congress or high-ranking government official. While many congressmen laughed it off, others privately reacted with dread.

  Shortly before nine oclock the next morning, Monday, October 5, a standing-room-only crowd filed into Room 2141 in the Rayburn House Office Building, the same chamber where the Judiciary Committee had voted to impeach Richard Nixon in 1974. Hanging on the wall above the dais were two oil portraitson the left, Peter Rodino, the Democratic chairman from that era, and on the right, Henry Hyde, the Republican chairman now facing his own challenge twenty-four years later. The parallels and ironies were lost on no one as the panel began considering whether to open the first impeachment inquiry since Watergate.

  Hyde labored to strike an evenhanded tone as he opened the meeting, insisting the panels task was simply to follow its duty and examine the evidence. Let me be clear about thiswe are not here today to decide whether or not to impeach Mr. Clinton, he said. We are not here to pass judgment on anyone. We are here to ask and answer this one simple question: Based upon what we now know, do we have a duty to look further or to look away?