by Peter Baker
For Starr, though, this was a chance to exonerate himself. After being vilified by the White House and its allies for months, after watching his dreams of a seat on the Supreme Court disappear, after seeing himself caricatured as the Inspector Javert of the 1990s, the fifty-two-year-old former judge could finally present his case in person, refuting the idea that he was a constitutional monster. He was dispassionate to the point of monotony, using words like thus and therefore and indeed.
We go to court and not on the talk-show circuit, Starr said, trying to sound principled rather than defensive. And our record shows that there is a bright line between the law and politics, between courts and polls. It leaves the polls to the politicians and the spin doctors. We are officers of the court who live in the world of law. We have presented our cases in court, and with very rare exception, we have won. He added later, I am not a man of politics, of public relations, or of pollswhich I suppose is patently obvious by now.
What was obvious to the Democrats was that Starr was trying to recast himself as a reasoned prosecutor on the trail of an errant president. Their job was not to let him. Abbe Lowell handled the bulk of the attack for the Democratic side in a sharp-edged hour of questioning about Starrs previous contacts with the Jones lawyers, his failure to report possible conflicts to Attorney General Janet Reno when he asked permission to investigate the Lewinsky matter, and his tactics in forcing the young former intern to cooperate. Like most of the Democratic members who would follow him, Lowell barely bothered to ask about the evidence against the president or challenge its veracity, but focused almost exclusively on Starrs conduct.
The independent counsel had gone through videotaped practice sessions for weeks preparing for such a confrontation, and he kept his cool. I must take gentle issue, Starr said in response to one accusatory question. I utterly disagree, with all respect, with your premise, he said to another. He filibustered through answers so long that he controlled the rhythm of the back-and-forth. Lowell, who got bogged down early in a series of questions comparing Starr with Watergate special prosecutor Leon Jaworski, tried several times to interrupt, fearing his time would run out.
Unlike Lowell, each committee member was restricted to five minutes to question Starr, with the interrogation flipping back and forth from Republican to Democrat. As a result, the members could barely get a line of inquiry going before being cut off. Before the session, the Democrats had tried to prepare by coming up with a sequence of questions and assigning different topics to different members in hopes of creating a coherent interrogation, but that flopped. The committees notoriously independent-minded Democrats had no desire to act in concert. Some of the Democrats, including Bobby Scott, Chuck Schumer, and Marty Meehan, effectively just gave five-minute speeches without really asking Starr anything. The Republicans, for their part, lobbed softballs, giving Starr a chance to steady himself between each Democratic volley.
The real marquee matchup did not come until the evening. This was the moment David Kendall had waited for. After four years of dueling with Starr, the former civil rights attorney had a crack at turning the microscope around and examining the prosecutor. There had been some debate at the White House whether this was really a good idea. Perhaps Kendall had too much invested personally, and given his widely panned talk-show appearance after the Starr report had come out, a number of Clinton advisers were convinced he should not be the public face for the president. Kendall had a fingernails-on-chalkboard effect on congressional Republicans, and a fair number of Democrats as well. Greg Craig wanted the job of tackling Starr and quietly lobbied for the assignment, but he was no match for Kendall in the only circle of power in the White House that mattered on this issuethe triumvirate of Bill Clinton, Hillary Clinton, and Bruce Lindsey. To them, Kendall was the ultimate loyalist, a fierce, take-no-prisoners street fighter who would give their enemies the pounding they deserved, someone I could count on and trust implicitly, as the first lady had put it in a magazine interview a few months earlier. Besides, no one else, least of all Craig, knew the record as intimately as Kendall.
The showdown began in prime time at 8:35 P.M., more than ten hours after Starr had first taken his seat at the witness table. Everyone in the room was exhausted, it seemed, except Kendall, who had been a bundle of nervous energy all day, like a boxer before the big match. Oh, Im ready, he kept telling colleagues. Cant we get more time? I want more time. I need more time.
Kendall was determined to confront Starr from a position of strength. As he sat down at the table to cross-examine the independent counsel, Kendall noticed that the chair seemed too low, so he quickly reached under the table, grabbed his briefcase and sat on top of it to get a better angle on his nemesis. Let me begin, he said, reading from his prepared text, with the simple but powerful truth that nothing in this overkill of investigation amounts to a justification for the impeachment of the president of the United States. Then Kendall addressed the witness.
Mr. Starr, good evening.
Good evening, Starr replied. How are you, David?
Im very well, Ken.
Laughter rippled through the hearing room at the pleasantries and psuedo-friendly use of first names by the longtime adversaries.
From the beginning, Kendall elicited an admission that shocked some in the roomnot only had Starr not attended any of Lewinskys grand jury sessions or FBI interviews, he had never so much as met his star witness. Nor, it turned out, had he participated in or watched the questioning of any of the major figures in the case, such as Betty Currie or Vernon Jordan. To drive home another point, Kendall asked Starr to confirm that he had cleared the president in the Whitewater, FBI files, and travel office scandals. But Kendall was not about to make the same mistake other Democrats had made, and he promptly cut off Starr when he began a laborious explanation of why he had not reported those conclusions earlier.
Mr. Starr, Kendall interrupted, I have only thirty minutes. If I could, I think youve adequately answered my question. Turning to another point of attack, Kendall then asked Starr if his office had investigated the adoption of a Romanian child by Julie Hiatt Steele, a onetime friend of Kathleen Willey who had disputed her story of a sexual advance by the president.
For the first time all day, Starr took umbrage. Mr. Kendall, he said sternly, jabbing his finger for emphasis, my investigators work very hard and diligently to find relevant evidence. I believe that the questionsand Ive conducted no specific investigationand youve just spent a good deal of time establishing that I dont go with my FBI agents on every single interview
Kendall tried to interrupt.
May I finish? Starr cut back in. You asked the question. By now, it was no longer David and Ken. The serene smile on Starrs face had vanished, replaced by an unhappy scowl. There is an enormous amount of misinformation and false information that is being bandied about with respect to that particular witness and the circumstances of questioning.
Kendall and Starr interrupted each other a few more times before the presidents lawyer moved to one of his favorite topics, the allegations that prosecutors had violated grand jury secrecy rules by leaking information about the investigation to the media. Mr. Starr, in fact, there has been no case remotely similar to this in terms of the massive leaking from the prosecutors office, and I think we know that.
Kendall had gotten under Starrs skin again. I totally disagree with that. Thats an accusation and its an unfair accusation. I completely reject it.
As the two bickered, the clock expired. Hyde used the opportunity to needle the presidents lawyer for ignoring the case against his client. Mr. Kendall, your time is up. You may want to get into the facts. Hyde offered another fifteen minutes, Kendall asked for sixty, and they compromised on thirty.
Kendall continued grilling Starr on his media relations policy, but the prosecutor tried to turn the accusation back at the White House, implying that the leaks had really come from defense lawyers who had learned about grand jury testimony through cooperation among witnesses a
ttorneys. Starr noted that the DNA test results from Lewinskys dress never leaked to the press: Those were never in the public domain, because you did not have a witness in your joint defense arrangements who you could debrief and tell you.
Kendall returned to Lewinsky and asked about her first confrontation with Starrs agents at the Virginia hotel. One of the reasons your agents held Ms. Lewinsky
I have to interrupt. That premise is false.
I was not meaning to be offensive. Let me rephrase it.
That is false and you know it to be false.
Well, Ill rephrase the question.
She was not held.
Her own psychological state will speak for itself, Kendall said. As to how she felt, its in the record in her testimony.
You said she was held, Starr shot back. You didnt say how she felt. You said she was held, and I think thats unfair to our investigators.
Finally, Kendalls time ran out. If nothing else, he had succeeded in rattling the unflappable Ken Starr. Whether his relentless questioning on issues other than the case against the president had had much impact was another question. It was clear it had not influenced the committee Republicans. For the next thirty minutes, David Schippers did what he could to help Judge Starr, as he called him deferentially, leading him through a friendly disquisition intended not to elicit information but to rebut criticism. Schippers noted that the Democrats had excoriated him for not attending witness interviews. But you did have experienced, highly experienced professional agents and prosecutors present at each and every one of those occasions, did you not?
I did.
And you relied upon the integrity, the honesty, and the decency of those agents and investigators, did you not?
I did, and very proudly so.
Schippers left no doubt where he stood. At one point he asked Starr, You have a completely unblemished career for your entire life as a lawyer and youre looked upon in the profession as a man of honor, integrity, and decency. Is that right? And Schippers concluded with a testimonial to the prosecutor. Ive been an attorney for almost forty years. I want to say Im proud to be in the same room with you and your staff.
Starrs aides in the audience rose to their feet and began applauding. And then so did the Republican members of the committee, including Hyde, while the Democrats remained glued to their chairsa graphic illustration of the partisan divide that had swallowed up the Judiciary Committee. Not only had that months elections not curbed the GOP appetite for impeachment, what middle ground there might have been had all but disappeared. Congressmen do not ordinarily applaud witnesses, particularly along party lines. But the Republicans were overwhelmed by the moment, impressed by Starrs marathon performance after more than twelve grueling hours in the hot seat, and for the first time since the election disaster felt revitalized about their case. Lindsey Graham, who had not thought much of Starr up to this point, came away with newfound respect for the special prosecutor. But Asa Hutchinson, who remained in his seat during the ovation, silently fretted that this was a bad move for lawmakers charged with taking an impartial look at the evidence. By cheering Starr on, he felt, they were playing into the hands of Democrats who wanted to make out the House Republicans as nothing more than the handmaidens for a reckless prosecutor.
The confrontation over Starr was not the end of this long day, however. At 11:25 P.M., after kicking out the reporters and cameras, the committee convened in executive session to debate whether to approve its first four subpoe nas. The Republican investigators wanted to force testimony by Bruce Lindsey, the longtime Clinton friend and aide; Bob Bennett, the presidents attorney in the Jones case; Nathan Landow, the Democratic fund-raiser from Maryland; and Daniel Gecker, the Richmond-based attorney for Kathleen Willey. Lindsey, widely thought of as the chief fixer and keeper of secrets in the Clinton White House, had never testified about the Lewinsky matter, thanks to the long fights over executive privilege. Republican investigators wanted to ask Bennett about the origin of Lewinskys false affidavit, but they also were interested in talking to him, Landow, and Gecker about the Willey case. Starr had just sent the committee more evidence related to Willeys situation, and the panels GOP investigators hoped to pursue it to construct a broader case against the president than simply his actions regarding Lewinsky. Willey had suggested in court papers that Landow had tried to discourage her from testifying about her encounter with the president, and committee investigators were interested in reports that Bennett had encouraged Gecker to employ a friend of his as counsel for Willey, actions they thought might add up to a pattern of obstruction in the Jones case.
But the committee Democrats were alarmed at the prospect of forcing lawyers to testify and began complaining as soon as the doors were shut. Without the attorney-client privilege, you really dont have the right to an attorney, Barney Frank said. An attorney who is not in any way protected from disclosing everything you tell him or her is not much of an attorney. I think it would be a very grave error for the committee to proceed.
The Republicans had history on their side. Congress had traditionally not recognized common-law privileges such as attorney-client confidentiality, but only those privileges contained in the Constitution, such as the Fifth Amendment right to refuse to provide self-incriminating testimony. I dont think that anybody who has evidence of whether or not the president committed an impeachable offense, whether that be an attorney or anybody else, should be allowed to not give this committee testimony, said Congressman F. James Sensenbrenner Jr. of Wisconsin.
Howard Berman shot back, Suppose for a second it is the ethics committee and a member of Congress is the target of an ethics committee investigation.
Sensenbrenner was unmoved. There is a significant legal difference between the two, he insisted.
Still, Hutchinson felt uneasy with what his fellow Republicans were trying to do. The investigators should be allowed to question the witnesses, and if any of them claimed attorney-client privilege, the matter ought to come back to the committee to decide whether to hold him in contempt, he suggested. If it is a frivolous claim, which there could be frivolous claims of attorney-client privilege, I would not abide by it. But if it was a legitimate claim of a conversation, Hutchinson said, trying to strike a middle ground, then I would want to say I would not be holding him in contempt for that.
Neither side persuaded the other, however. While the Lindsey deposition was approved by unanimous consent because he worked for the government and did not enjoy the same attorney-client privilege as private lawyers, the committee voted to subpoena Bennett and Gecker on straight party-line 2116 votes. A couple of Democrats joined the Republicans in voting 2314 for the Landow subpoena.
Breaking at 12:36 A.M., the worn-down committee members were famished. Steve Buyer, Lindsey Graham, and Mary Bono decided to get a late dinner. When Abbe Lowell walked up, they complimented him on his interrogation of Starr and invited him to join them. The three Republican committee members, the Democratic investigator, and a few aides piled into their cars and headed off into the darkness looking for late-night food, a rarity in the nations capital. They eventually settled into a booth at Georgetowns Au Pied de Cochon, where they ordered eggs, orange juice, and coffee.
With jackets off and ties loosened, they put aside the tension of the day and talked more like real people, commiserating about how little time they were spending with their families and agreeing how great it was to escape briefly from the pressure cooker on the Hill. Buyer said he felt like he had been on a submarine for six months and had finally hit port. Impressed by Lowells performance, the Republicans asked him about his background and teased him about how little money he must be making per hour compared with his private practice. Lowell, always anxious to press a point, tried to show the committee members how the evidence did not add up, but it was far too intense for two in the morning.
Stop being a lawyer, Bono admonished him.
Yet the Republicans around the table did not sound wedded to Starrs case. They tal
ked about censure as a serious option and casually tossed out possible language, although they worried that finding wording acceptable to both sides would be difficult. Lindsey Graham suggested he did not think lying at a civil deposition would be impeachable in the first place.
When Lowell got home around three in the morning, he was excited. Perhaps a line of communication had been opened. Maybe these guys could be reasoned with. Lowell later filled in Dick Gephardt with an optimistic report.
There are people we can talk to, Lowell said.
Gephardt remained dubious. Theyre not in control, he told Lowell. The power of the crazy right has them by the throat and theyre going to direct the way this goes.
***
Starrs marathon performance before the committee not only bolstered ambivalent Republicans, but also impressed the public. For the first time in his four years in office, Starr had been able to present himself at length to the American people without being filtered through the lens of White House characterizations. He did not come across as the maniacal zealot depicted by James Carville and company for all those years, but rather as a quiet, dignified, and mostly unruffled lawyer. Instant poll numbers showed high approval for Starr among those who tuned in.
Yet that was not enough to make much of a difference in larger public attitudes; while most of those interviewed by pollsters gave Starr high marks, it did not change their overall opposition to impeachment. Worse for Starr, whatever modest public redemption he had achieved was instantly trumped by a defection from within his own ranks. The day after the hearing, on Friday, November 20, Samuel Dash, the legendary Watergate investigator, quit as Starrs ethics adviser and claimed the independent counsel had crossed the line of objectivity by appearing as an advocate before the Judiciary Committee. Starr replied that he had had no choice but to accept the committees invitation, but the damage was done: all Democrats had to say was that Starrs own ethics adviser had resigned because the special prosecutor had abused his office. That spoke for itself.