by Peter Baker
Because a president is not a king, he or she must abide by the same laws as the rest of us, Battalino told the committee.
But one Republican witness backfired on the Judiciary majority. Former congressman Charles E. Wiggins, who was Richard Nixons most able GOP defender on the same committee a quarter-century earlier and now served as a senior federal appeals court judge, testified that while Clinton certainly committed impeachable offenses, the House should not impeach him anyway because the misconduct was not of the gravity to remove him from office. Instead, he suggested a million-dollar fine and censure.
Undaunted, the committee went ahead and endorsed Schipperss interest in expanding the investigation into campaign finance, voting 2015 to issue subpoenas for the disputed documents as well as for Starrs files on former Democratic fund-raiser John Huang and to Freeh and LaBella for their testimony. The committees lawyers then went over to the courthouse to renew their case before Judge Johnson. Furious that once again the Republicans had not bothered to consult them, the committee Democrats authorized Abbe Lowell to file papers arguing against releasing the documents. A brief was drafted that would seek to intervene on behalf of the Democrats, but Tom Mooney, the Republican staff chief, heard about it and got Lowell on the telephone. A staff member could not go to court and work against a decision made by the full committee, even if some of the members did not like it.
Abbe, I dont want to hear that you stood up in court and opposed this committees position, Mooney warned.
Lowell backed off. As it was, when the two sides arrived in her courtroom, the judge had already made up her mind and did not bother to solicit any oral arguments; she simply reversed her previous decision and agreed to let the House have limited access to the memos. Each side could send a single staff member to read the memos, but no copies could be made and no notes taken.
Johnson disclosed her decision publicly the next day, Wednesday, December 2, and two committee lawyers went over right away to review the documents. Schippers went for the Republicans, but Lowell could not go himself because he had represented a minor character involved in the investigation. Instead, he sent one of his investigators, Kevin Simpson, who had worked for the Senate Democrats during the campaign finance probe in 1997. Even that decision, though, stirred up more internal animosity among the Democrats. Julian Epstein, the partys committee chief counsel, was angry that Simpson was picked without consulting him.
The memos suggested there was evidence of abuses and that the president and some of his close advisers engaged in a pattern of conduct worthy of investigation. LaBella offered a stinging critique of the gamesmanship and legal contortions of Justice Department officials resisting the appointment of a special prosecutor and urged a probe of the entire landscape of campaign finance. But the memos did not contain enough to accuse the president of specific criminal violations without more information.
As they left the courthouse, Simpson turned to Schippers. See anything that jazzes you?
Nah, Schippers responded.
In fact, Schippers thought the memos offered tantalizing leads. He reported back to Hyde: interesting stuff, but it would require a lot more time and resources than they had at the moment to see where it would lead.
That was enough for Hyde. In the last couple of days, he had come under withering fire from Democrats for reopening the much investigated campaign finance scandal. And so during a conference call with fellow committee Republicans the next morning, Thursday, December 3, Hyde announced they would not address fund-raising allegations during the inquiry. After just forty-eight hours, the depositions of Freeh and LaBella were canceled and the subpoena to Starr for the Huang documents was withdrawn. Schippers was furious. He could not believe Hyde would just abruptly call it quits like that on such an important area. The chairman did not even bother to tell him first.
Greg Craig continued to search for another way out but was not finding any avenues. At 5 P.M. on Tuesday, December 1, after the Judiciary Committee completed its hearing on perjury, he went over to the Longworth House Office Building and met with Lindsey Graham, the Republican who had struggled most publicly with the issue. Craig had agreed to come talk with Graham in response to a November 21 letter from the congressman to David Kendall seeking a meeting with the presidents legal team, but the White House special counsel was a little wary. Craig feared that it was all a setup, that Graham intended to use the meeting to grandstand later to the media, depicting himself as a reasonable Republican who had tried to get the recalcitrant White House to see the error of its ways, only to be rebuffed. Yet Craig decided there was no way to turn down the invitation. Besides, Graham had already indicated that he would likely vote against an article of impeachment generated by the presidents testimony in the civil case, and Craig hoped that perhaps Graham could bring along a few more Republicans such as Mary Bono, Ed Pease of Indiana, and Bill Jenkins of Tennessee to defeat at least that one charge.
For all of his trepidation, when Craig sat down on Grahams couch, he was pleasantly surprised at how well they got along. It was not a setup after all. The two men launched into a rather engaging, professional discussion about the evidence, just two litigating lawyers talking about where the strengths and weaknesses of the case were. Graham repeated his doubts about the civil perjury charge, while Craig conceded that the presidents coaching of Betty Currie bothered him too. They talked about what it would take to end the crisis. Graham insisted that the president would have to make a full admission in exchange for being censured and not impeached. Craig mentioned that any deal would have to include an end to Starrs probe.
Craig knew how hard it would be to put together such a package and did not hold out any strong hopes. Still, he had to be somewhat encouraged by Grahams assessment of the political prospects for any articles of impeachment once they passed out of the committee. It looks like youve got the votes to beat this in the House, Graham offered.
Craig heard a different assessment just two days later. At ten-thirty on the morning of Thursday, December 3, he went to see Vin Weber, the former Republican congressman and close adviser to Newt Gingrich. While Gingrich had disappeared from the landscape, he was still technically serving as Speaker until Bob Livingston was formally installed in January and might yet play a role when the time came. Even if he did not, Weber understood the dynamics of the current ruling class in the House better than most.
As they sat in Webers downtown office, where the ex-politician had carved out a lucrative lobbying trade in the nations capital representing Microsoft and other corporate powerhouses, Craig asked about the motivations of the Republicans. The process seemed dangerously close to spinning out of control, Craig said. What could they do?
Weber did not like what was going on in the House either; it was not good for the country. But he was at a loss on what to suggest. If Gingrich were still in charge, Weber said, he could offer ways of getting into the Speakers head. But larger forces were now at work, and Gingrich no longer had control over them. Weber had chewed over the problem with other so-called wise men around townpeople such as Lloyd Cutler, Ken Duberstein, and Bob Michelbut nobody could figure out how to get through to the people on Capitol Hill. The advice of the wise men went unheeded.
I wish I could tell you something, Weber told Craig. Its not that I dont want to be helpful. But Im not sure how you could stop this.
CHAPTER EIGHT
Somebody in this roomrat-fucked the president last night
The young lawyer sat down at his desk and punched the password into the computer: RODINO. Admitted into the secure electronic vault of the House Judiciary Committee, he pulled up the file named simply Articles. Mitch Glazier, a thirty-two-year-old graduate of Vanderbilt Law School who, for the last three years, had been toiling at the committee on the intricacies of intellectual property law, federal rules of civil procedure, and Title 28, now found himself assigned by Henry Hyde to draft the first charges to be lodged against a president since Peter Rodinos three articles of impeach
ment against Richard Nixon some twenty-four years earlier. As with so much else throughout the fall of 1998, Hyde was trying to pattern his efforts after those of his predecessor during Watergate. With that mandate in mind, Glazier had been locked alone in his basement office in the Rayburn Building until midnight for days on end, surviving on pepperoni pizza while he studied the Rodino articles and tried to shape a new generation of impeachment counts around their model.
Replicating the Watergate articles seemed to be the only real choice. There was little other precedent to follow. When Andrew Johnson was impeached in 1868, the House passed a resolution containing just a single sentence: Resolved, That Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors in office. Only after the House voted were more specifics drawn up in the form of eleven articlesnine of them generated by a single action, Johnsons firing of Secretary of War Edwin Stanton, while a tenth accused the president of defaming Congress by making critical speeches, and an eleventh was essentially a potpourri recasting the previous charges. None of that was much help to Glazier. The three articles passed by Rodinos committee were somewhat more detailed, though still hardly as specific as a prosecutors indictment or the impeachment articles generally filed against federal judges. One article alleged obstruction of justice stemming from the Watergate burglary and listed nine examples. Another accused Nixon of abuse of power for using the FBI, CIA, and IRS to violate the constitutional rights of his enemies. The third charged that he had assumed to himself the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives by defying committee subpoenas seeking evidence. Each Rodino article used the same language at the start and the finish, including two final paragraphs:
In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.
Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.
Glazier was struck by some of the surface similaritieshow Nixon was accused of lying to the public, defying Congress during the impeachment inquiry and so on. As he sat down to put together articles against Clinton, Glazier adopted the Rodino formatthe same three-paragraph introduction, the same wording at the start of each article accusing Clinton of violating his oath to faithfully execute the office of President of the United States, and the same two paragraphs at the end asserting that his misconduct warrants impeachment and trial, and removal from office. The Democrats could hardly complain if the Republicans lifted the framework they themselves had first constructed, Glazier reasoned. What did not occur to him or Hyde was that by so consciously mimicking the Watergate format, they were implicitly raising the bar for the substance of the charges as welllying under oath and covering up an affair might pale in comparison to paying hush money and using the CIA to thwart an FBI investigation of political espionage.
With the shell of the articles on his computer screen, Glazier turned to the trickier question of how to fill the blank spaces in the middlewhat to actually accuse Clinton of and how to package the charges. Everyone had his or her own idea. Congressman Bob Barr, a Georgia firebrand who campaigned for impeachment even before the Lewinsky scandal, drafted a version piling everything into a single article. Others suggested as many as ten articles, la Andrew Johnson. Working with Hydes inspiration, Glazier came up with two articles, one on perjury and the other on obstruction of justice. Like the Nixon articles, Glazier did not use the word perjury but instead said that Clinton purposely made or caused to be made false or misleading statements under oatha pivotal distinction. Under federal law, proving perjury is harder than simply showing that a witness or defendant lied under oath; the lie has to be material, or important, to the case at hand. The Rodino com mittee had been careful not to say that specific crimes had been committed; it was not the job of the House to fit elements of a criminal statute.
Glazier took his two proposed articles to Hyde for his review, which to the young lawyer felt like presenting a brief to an appellate court judge. Hyde took his red pen and scribbled his thoughts on how the articles should be drafted, but in general liked the direction. Over the next few days he invited other Republican members to his office to read the draft, but in the interests of maintaining secrecy would not let them take copies. As they read it over, several members insisted on taking the allegation that Clinton had inappropriately asserted executive privilege and making it into a separate article alleging abuse of power; that would draw the historical link with Nixon, they thought. So Glazier broke it out and created an Article III focusing on the misuse of the privilege and the misuse of the office of White House counsel in asserting it. In this draft article, Glazier also charged Clinton with deceiving the American people concerning his improper and reprehensible relationship with Lewinsky, interfering with an agency of the United States (meaning Starrs office), and jeopardizing Joness ability to exercise her access to justice.
Hyde gave copies of the draft articles to one committee Republican he wanted to play a central role in the writing, Congressman Charles Canady, a Yale-trained lawyer who had made a specialty out of constitutional issues and led the November subcommittee hearing on standards of impeachment. On Wednesday, December 2, Canady sat down with the latest copy and played editor, marking up the draft to suggest both substantive and stylistic changes. Wherever Lewinskys name appeared in the articles, he crossed it out and substituted the phrase a certain subordinate employee to make it sound more serious and at the same time emphasize her status as an intern. In Article II, where Glazier had included among the examples of wrongdoing Clintons months-long refusal to appear before a grand jury before finally succumbing, Canady drew seven lines through the text indicating that should be dropped. And at the end of each article, where it said Clinton warrants impeachment and trial and removal from office, Canady added the phrase and is thereby disqualified from holding and enjoying any office of honor, trust or profit under the United States pursuant to Article I, Section 3 of the United States Constitution. No one had bothered to try to bar Nixon from running for office again, but Canady figured it was a precaution that ought to be taken against a president who once dubbed himself the Comeback Kid.
Over the next few days, the Republicans were divided over how specific to be in the articles and drafted alternate versionsone with general descriptions of what Clinton had lied about and the other with more details. As of 3 P.M. on Thursday, December 3, the long version listed nine false statements from his Jones deposition and six from his grand jury testimony. By this point, the draft also included a couple of new allegationsin Article I, it brought in Kathleen Willey and accused Clinton of lying about his conduct with her, while in Article III, it charged that the president had failed to respond truthfully and fully, under oath to the eighty-one questions submitted by the committee the month before. But the Republicans still could not come to consensus. On Saturday, December 5, they put together another rough draft shrinking the resolution back to two articles, getting rid of the Willey and executive privilege provisions, and including the answers to the eighty-one questions in a catchall perjury article. By 1 P.M. the next day, Sunday, December 6, they were back at three articles againincluding a short version and a long version.
With the start of a new and critical week, the issue was coming down to the wire. The White House, after equivocating on whether to call witnesses, had decided to accept Hydes offer to present a two-day defense to the committee and would start on Tuesday, December 8. Hyde was trying to keep control over the situation. As if the Democrats and the White House were not enough of a handful, he also had a restless bunch of Republican members. And then there was his handpicked chief investigator, increasingly seen by even some of the committee Republicans as a rogue operator undermining the case by chasing unrelated Clinton scandals. David Schippers had been trying t
o develop more of the myriad allegations that swirled around Clinton, only to be frustrated by the lack of time. With just a few days before the articles were to be considered, Schippers went to Hyde with a plan to introduce new evidence. He would use his final presentation before the committee to call several powerful witnesses who could tell the panel, and the country, just what sort of man Bill Clinton really wasKathleen Willey, Juanita Broaddrick, and Dolly Kyle Browning. Broaddrick had balked at the notion of going public with her twenty-year-old rape allegation, but Schippers told Hyde that he was sure she would come forward if the chairman asked her to. Her corroborating witnesses were powerful, and even though Broaddrick alleged no obstruction, her account could prove Clinton lied during his Jones deposition when he denied ever harassing any woman, Schippers said. Browning, in particular, was raring to go and had flown to Washington to testify. Schippers believed his investigators had turned up solid proof that Clinton had lied under oath about his conversation with Browning at a high school reunion a few years back.
Henry, shes here. You dont have to subpoena her, Schippers said. Shes going to blow this son of a bitch sky-high.
Hyde put his foot down. He had given Schippers plenty of rope to conduct the investigation, but now it was over. Schipperss presentation to the committee was supposed to be a final summation, not an examination of witnesses. Hyde said he would never let the Democrats get away with doing this. Besides, he said, calling in Clintons former paramours would turn the process into a three-ring circus. If they were to call these witnesses now, Hyde told Schippers, the White House would say they were being unfair to the president.