The Breach

by Peter Baker

  Bobby Scott argued that they should be calling their own witnesses. Several other hard-liners in the room agreed. They needed to explore the origins of this conspiracy against the president, subpoena people like Linda Tripp, Lucianne Goldberg, Starrs deputies, and some of those conservative lawyers who helped set up this whole sting. History would not look kindly if they were not thorough, Scott insisted.

  People are going to look back at this and say we made a mistake, Scott said. Theyre going to look back at this as the way to conduct impeachments.

  We want them to look back at this as the way not to conduct impeachments, shot back Julian Epstein, the chief counsel. The last thing they wanted were television cameras showing the public a deliberate and thoughtful process, he added. Their goal was to make it look more political.

  The firebrands on the committee also expressed their discontent with Lowell, Gephardts handpicked man, and agitated again to replace him with a better-known lawyer or simply to let the White House lawyers crossexamine Starr by themselves. Lowell had been scrapping for weeks with some of the more aggressive Democratic committee members. A fight over his attempts to negotiate deposition rules with the Republicans had led to shouting. An aide to Congresswoman Zoe Lofgren had left a voice-mail message for Lowell threatening to have him fired. Exasperated as the barbs flew his way in Gephardts office, Lowell finally protested. He had a background as a real trial attorney, he pointed out. He could handle this. Give me a chance to do my job.

  With the election over, Washington powerbroker Lloyd Cutler thought there was now a mandate to end the impeachment drive and resumed his efforts to negotiate a deal. While he had worked with Gephardts lawyer before the election, Cutler was focusing much of his attention on finding a sympathetic Republican who might influence the congressional leadership, someone like Howard Baker, the former Senate majority leader made famous during Watergate; Kenneth M. Duberstein, the last Reagan White House chief of staff; or Bob Michel, the former House minority leader.

  Cutler was not getting very far, though. He and Baker saw each other often, but the former senator made clear he was not interested in helping. In fact, his wife, Nancy Kassebaum Baker, another Republican former senator, thought Clinton should resign, and while Baker did not share that view, he did see plenty of merit for an impeachment investigation. In his mind, Clinton was guilty of criminal offensesindeed, more patently guilty of technical violations of the law than even Nixonand by Bakers reading of the Constitution those crimes were impeachable. The Clinton camp tried a more direct approach to Baker through Guy Smith, a White House aide from Tennessee who had home-state connections to the senator. But when Smith called up, Baker said tersely that he had no advice. Bakers friends were appalled at the nakedness of the appeal.

  With the other Washington wise men not providing much help, Cutler decided to call Hyde directly. Cutler and Hyde had known and liked each other for years. Cutler had once represented the longtime Illinois congressman in fil ing a friend-of-the-court brief opposing term limits. When Cutler phoned, Hyde knew he was hearing in effect from the White House. That was fine with Hyde. For all of his stout talk with his troops about duty, privately he was prepared to deal. He did not think the House would impeach Clinton. Charlie, dont worry about it, he told Democratic congressman Charles Schumer in the Members Dining Room around the same time he was hearing from Cutler. The committee will report out the articles, but theyll die on the House floor. Given that expectation, if there was an honorable way out, Hyde was ready to take it. On Tuesday, November 10, the day after his postelection pep talk to committee Republicans, Hyde met privately with Cutler in his office to talk about censure. Maintaining his political cover, Cutler noted he was not there as Clintons official lawyer and then went through the precedents that seemed to allow censure. He wanted to submit a memo on the constitutional issues. Hyde was receptive but noncommittal. It would be up to the leadership to decide whether censure could be introduced on the House floor, he said.

  Still basking in the glow of the campaign triumph and Gingrichs self-destruction, Clinton was no longer so sure he even had to accept being reprimanded by Congress and considered censure-plusthe notion of paying some financial penalty on top of whatever resolution lawmakers passedoff the table entirely. The consensus around the White House was that the Republicans would have to find a way to make it all go away, and soon. Impeachment was now their albatross, not his.

  Despite the warning signs at the Judiciary subcommittee hearing, Clinton and his staff invited several dozen allies to the White House the day after Cutler met with Hyde, Wednesday, November 11, for a Veterans Day party to thank them for all they had done on his behalf. It was not billed as a victory celebration, but it had that feeling. Among those who showed up for the happy-hour reception were the regulars from the daily 11 A.M. strategy conference calls that the White House had instituted, Democratic lawyers and lobbyists such as Peter J. Kadzik, Lanny J. Davis, Anne Wexler, Richard BenVeniste, Jim Hamilton, Mike Berman, and Kiki Moore. Over warm fruit punch and stale pretzels, they mingled in John Podestas office and on the adjoining patio, relishing stories from election night and confidently predicting the demise of impeachment. The public was sick of the scandal, and the opinion polls had translated to real victories at the ballot box. While the assembled operatives were generally careful enough not to say it too explicitly, the dominant feeling was that they were out of the woods. Halfway through, the president joined them, still dressed in golfing clothes from a holiday outing on the links. He was in good spirits as he worked the crowd.

  Things were moving Clintons way on other fronts as well. Within forty-eight hours of the Veterans Day celebration, he managed to reach a long- elusive deal with Paula Jones. The breakthrough came when Joness attorneys, themselves fed up with their clients stubborn refusal to make concessions, told her they would quit the case. That persuaded her to drop her flirtation with the mercurial Abe Hirschfeld and his $1 million pixie dust, clearing the way for Clintons lawyer, Bob Bennett, to resume serious negotiations. On Thursday, November 12, he spoke to the president three times about the status of their talks, interrupting Clintons consultations with national security advisers about whether to attack Iraq for its intransigence in U.N. arms inspections. Clinton gave the go-ahead to settle for $850,000. The next day, Friday, November 13, Joness new attorney, William N. McMillan III, the husband of her friend Susan Carpenter-McMillan, signed a four-page agreement authorizing the dismissal of her appeal in return for the money.

  Just like that, the case that had turned Clintons life upside downnot to mention the nations politicsfinally ended. After four and a half years of scorched-earth legal warfare that had led to the examination of every corner of the presidents shadow world and, ultimately, to the prospect of impeachment and removal from office, Jones v. Clinton was over. Clinton had managed to get out of it without admitting or apologizing for anything, but the steep cost of the settlement$150,000 more than Jones had originally sought in 1994led many to consider it an implicit confession of guilt. And the real cost of the suit, to Clinton, to the presidency, and to the country, was immeasurable.

  On the same day the suit was settled, Clinton agreed to consider ways to make the impeachment threat go away as well. Having gotten nowhere with his censure deal before the election, Gephardt decided to renew his efforts, and this time he dispensed with Lloyd Cutler and the other middlemen. To figure out what the president might be willing to accept in terms of censure, Gephardt requested a private meeting between the two men, a session kept secret by sneaking the minority leader into the White House out of the view of the watchful press corps, distracted by the Jones settlement. One thing made clear by the session was that Clinton was not interested in parting with his pension for five years, as Gephardt had proposed a month earlier. They would have to find some other, more reasonable formula.

  For all of the bravado of his fellow Republicans, Asa Hutchinson was not at all sure where things were headed, nor where they should go.
The evidence against Clinton seemed compelling, but was it enough? Had the president committed such an egregious offense that he deserved to be shown the door? David Schipperss presentation of the facts before the election had been convincing, and Hutchinson thought that if the presidents lawyers did not refute them it would be hard not to support articles of impeachment. In effect, the burden of proof had shifted in his mind from the accusers to the defense. But as an experienced lawyer, he was struggling to keep an open mind.

  As part of that effort, Hutchinson asked two of the Democratic committee investigators, Kevin Simpson and Steven Reich, for their assessments of the case, and he agreed to go to breakfast with Abbe Lowell. They met at 8 A.M. on Monday, November 16, at La Colline, a haven for lobbyists on the Senate side of Capitol Hill. Lowell thought Hutchinson was persuadable, and that if he came out against impeachment, it would make it easier for other Republicans to follow. As the food arrived, Lowell pressed his point, walking Hutchinson through his analysis of the grand jury testimony and the constitutional theory. It was a lawyer-to-lawyer discussion of the substance that both found bracing.

  Lowell argued that the presidents deceptions about Lewinsky during the Jones case were immaterial.

  I would think it is material if it forestalls her from finding other evidence, Hutchinson responded.

  But theres no other evidence to find, Lowell parried.

  They went back and forth about whether the president endorsed the truthfulness of his Jones deposition during his grand jury testimony. Hutchinson thought he did; Lowell maintained he did not. They debated whether Clinton could have been witness-tampering if Betty Currie insisted that she felt no pressure. Hutchinson thought he could; Lowell argued he could not.

  As it always did, the conversation circled back to what to do about all this. Lowell pushed Hutchinson to consider censure. If youre positive the president has done this terrible stuff, then how is it better for you to have a divided vote in the committee and a divided vote in the House and lose in the Senate than to have three hundred and fifty people come together for a bipartisan censure in the House? If youre trying to send a message, why isnt that the message youre trying to send?

  Censure may be the way this ends, Hutchinson replied. But it cant be the way it begins.

  The next day, Tuesday, November 17, the Judiciary Committee released the tapes that had started it all, Linda Tripps surreptitious recordings of her phone conversations with Monica Lewinskyin all, thirty-seven tapes containing about twenty-two hours of talking. For the first time since the scandal had erupted ten months earlier, the nation finally heard Lewinskys voice, albeit disembodied, and cable television networks spent much of the day playing the choicest snippets.

  While news coverage focused on the gossipy chitchat between the two womenand Tripps patent manipulation of the younger womanGephardt was quietly working on a censure plan. Following his meeting with Clinton, Gephardt recognized that financial sanctions were off the table, so he wanted to start drafting an official resolution of reprimand that would satisfy fellow Democrats and could be presented as an alternative to any articles of impeachment. Congressman Rick Boucher was again tapped to handle this tricky assignment. With his moderate mien and his deep Southern voice, the Virginia Democrat had proven to be an effective public face for the party during the October debate over the inquiry. And once again, the Democrats were badly divided over how to proceed. Some wanted censure only if it truly hurt the president; others were against it on principle or out of loyalty to Clinton. And many Democratic committee members were intent on attaching their names publicly as author of the effort to secure their places in history. Determined to keep the team together, Gephardt invited three other Democratic congressmen to his 5 P.M. meeting with Boucher that TuesdayBill Delahunt, who had been working with some Republicans through their breakfast club; Sheila Jackson Lee, who was among the fiercest of the presidents defenders; and Paul McHale, the first congressional Democrat publicly to call on Clinton to resign.

  To unite the caucus behind a single censure motion would require the support of the four divergent members whom Gephardt had gathered in his office. After some initial discussion, Gephardt seemed satisfied that there was a chance of success and asked the four to begin working on language. Boucher and the others retired to the conference room. Boucher had brought with him a draft censure resolution he had cobbled together with Congressman Howard Berman. Delahunt had his own draft. But McHale complained that both were too weak and let Clinton off the hook for his reprehensible conduct.

  In the interests of keeping McHale at the table, Boucher backed off: Fine, lets start over.

  Why dont I go back to the office and see if I can synthesize these ideas? suggested Julian Epstein, the Democratic committee chief counsel. Epstein knew that the key to preserving party harmony on this was to remember the lessons from the inquiry debatekeep it short, clear, and simple. Over the next few hours, he crafted a version that met those criteria and brought it back to Boucher. It would conclude that Clintons affair with Lewinsky was wrong, that he had lied about it, and that he had impeded the discovery of the truth. Boucher liked it. But that would not be the end of the process; a lot of other committee Democrats felt they too should be part of the drafting and complained at being excluded from the meeting in Gephardts office.

  The main drama of the week, and perhaps the entire House inquiry, was to be the appearance of Kenneth Winston Starr before the Judiciary Committee. This was the moment everyone had been anticipating. When his report had first arrived on Capitol Hill, some committee Democrats had practically salivated at the idea of calling Starr to testify before them, only to change their minds just as quickly when the Republicans called their bluff and made him their only real witness. The Democrats had wanted to put Starr on trial, to call him to task for his excesses and change the subject from Clintons behavior, but in the interim they began to realize that the independent counsel was better as a mostly silent figure they could paint as a zealot. The real Starr was a skilled appellate attorney, a former solicitor general, and a former appeals court judge. He might not be so easy to rattle, and if he came across as smoothly as others did in such high-profile hearingsIran-contras Oliver L. North leapt to mindthen the dynamics of the case could suddenly reverse.

  For their part, the Republicans were no more interested in soliciting straight factual information from Starr than the Democrats. Their goal was to rehabilitate him and give him a chance to lay out his case against the president before a national television audience. In case their sympathies were not plain already, committee aides distributed talking points to Republican members for use in defending Starr publicly. A ten-page paper titled Positive Points About Independent Counsel Ken Starr began this way: Judge Starr is one of the countrys premier lawyers, and his record is unblemished. An accompanying sixty-four-page tome called Response to Recent Attacks on Judge Starrs Investigation concluded in the first paragraph that none of these attacks has any merit.

  From the moment Starr took his seat at the witness table facing the dais in Rayburns Room 2141 on Thursday, November 19, the hearing quickly degenerated into partisan bickering. No sooner had Hyde explained the rules of the day than Democrats started peppering him with complaints. Bill Delahunt, a former prosecutor, introduced a motion to give the presidents lawyer more time to interrogate the independent counsel, but Hyde dismissed it without giving Delahunt a chance to speak. When Hyde relented and gave him the floor, the Massachusetts Democrat refused to yield back to Hyde when he wanted to ask a question. Congressman Mel Watt raised a point of order.

  I dont yield for any points of order, Hyde said dismissively. In the ensuing squabble, Hyde lost his patience. You are disrupting the continuity of this meeting with these adversarial

  Were disrupting a railroad, it seems like, Mr. Chairman! Watt shot back. Thats what were disrupting here.

  The Democrats, knowing full well they would lose, pressed for a roll call vote on the issue of giving Clintons lawy
ers more time. Predictably, the motion failed on a straight party-line 2116 tally, giving the Democrats what they really wantedanother piece of evidence to argue that they were being steamrollered. Win by losing.

  John Conyers did not wait for Starr to utter his first word before attacking him as a federally paid sex policeman who had ignored his ethical obligations and allowed rogue attorneys and investigators to trap a young woman in a hotel room. Seated at the witness table alone in a classic Washington gray suit and red tie, Starr faced Conyers impassively, registering no sign of pique. When Conyers finished, Starr was asked to stand and take the oath, but his soft I do could barely be heard over the mass clicking noises that came from the battery of media cameras trained on him. Starr then launched into a two-hour-and-fifteen-minute opening statement that walked the committee through his litany of allegationsthis time with none of the graphic detail of his written report but a sharper focus on the issue of truth-telling.

  No one is entitled to lie under oath simply because he or she does not like the questions or because he believes the case is frivolous or that it is financially motivated or politically motivated, Starr said, refuting the presidents contentions during his grand jury appearance.

  But for the first time in public, the independent counsel exonerated Clinton in connection with other matters he had investigated, including the Whitewater financial dealings that had originally prompted the probe four years earlier, as well as the firing of the White House travel office workers in 1993, and the improper collection of FBI files that had become public in 1996. While Starr disclosed that he had drafted an impeachment referral stemming from Whitewater a year ago, he had ultimately rejected it because the evidence was too thin. The revelations came and went with little notice, an ironic anticlimax given the years investigators had spent rooting around those scandals.