The Breach

by Peter Baker

  Relief swept through the room. It was not, however, to be the end of Barrs bad day. That night, Hustlers Larry Flynt announced on Geraldo Riveras CNBC television show that he had turned up evidence of hypocrisy by Barrduring a divorce proceeding, the Georgia congressman had refused to answer questions about whether he had cheated with a woman who later became his third wife. Flynt had a news conference in Los Angeles later that night and also provided an affidavit from Barrs ex-wife alleging that the vocally antiabortion Republican had paid her to have an abortion in 1983 after they already had two children, even driving her to the clinic himself. Flynt had paid the ex-wife for the allegations and Barr denied ever encouraging anyone to have an abortion.

  While Hyde was giving Barr the task of responding to any White House motions, the presidents team was deciding not to file any. Although the lawyers had drafted a motion to dismiss the case, Daschle and other Senate Democrats warned the White House not to submit it. Having bought into a process on a 1000 vote, the Democratic senators felt some obligation to hear the case, at least the opening arguments, before voting to get rid of it. All of the other motions considered by the White House teamthe lameduck argument, the bundling argument, the vagueness argumentlikewise appeared more costly than beneficial. They would lose those and only give the Republicans ammunition to claim that the president was still trying to weasel his way out through fancy lawyering. Better at this stage, they decided, to let the process play itself out. Besides, the lame-duck argument might have been mooted because the newly elected House had ratified the appointment of the managers.

  Asa Hutchinson spent the day shuttling from one meeting to another. In the morning, he and a couple other managers met with Republican senators Arlen Specter, Jon Kyl, and Jeff Sessions to talk about witnesses. Specter had been talking with Lott on the subject and volunteered to play intermediary with the House team, but could not get any Democrats to join him. He asked Joe Lieberman, who begged off, saying Daschle would not let him participate, and he asked Chuck Ruff, who said if the Senate Democrats were not involved, then he would not come either. Specter advised the managers to discard any expert witnesses and focus on the conflicts in the facts that needed to be resolved. The tenor and the tonethats whats important, he told Hutchinson and the others.

  The managers, however, were still focused on witnesses who would expand their case, not pare it back. Along with Lindsey Graham, Hutchinson also met that day with Kathleen Willey in Jim Rogans office to gauge whether she might be called to testify. Willey seemed like a strong witness to Hutchinson, believable in her account of her meeting with the president. But the further her tale went, the more disjointed and conspiratorial it became, Hutchinson thought. Moreover, the original case against Clinton regarding Lewinsky relied so heavily in the beginning on Linda Tripp, yet Tripps testimony contradicted Willeys about whether the encounter with the president was welcome or not. So Tripp was attacking Willeys veracity; Willey was attacking Tripps. It was all too circuitous. After a bit, Hutchinson excused himself and left the room.

  Lott met with a dozen other Republican senators in his hideaway the next morning, Tuesday, January 12, to prepare for the beginning of opening arguments. They talked about how the camera in the chamber would work, whether to open final deliberations, and what to do about all the senators who seemed to have prejudged the case. They were also worried about the annual State of the Union speech. Clinton was scheduled to address a joint session of Congress a week from then, and it seemed unthinkable to have a president go through with such a ritual at the same time he was on trial for high crimes and misdemeanors. But it was not clear what to do about itif they disinvited him, Clinton would just make that an issue against them and simply give his speech from the Oval Office.

  Arlen Specter said they should go ahead with business as usual and do what they would normally do. Jeff Sessions argued that they should not let Clinton address them in person but make him submit it in writing, as presidents did before Woodrow Wilson first journeyed down Pennsylvania Avenue to deliver his report orally. Don Nickles said they should let Clinton do whatever he wanted, but the senator added that did not mean he would have to show up to listen.

  Specter, meantime, wanted Clinton to come up to Capitol Hill in a different contextas a witness in the trial. We should call the president, he said. We have the power to do that.

  That was actually a matter of some debate. Constitutional scholars remained divided over whether the Congress had the authority to summon the president to testify before it; some felt it would violate the separation-of-powers doctrine. Andrew Johnson was not compelled to appear in person at his impeachment trial. Gerald Ford while president testified before a congressional committee examining his decision to pardon Nixon, but he appeared voluntarily. The only thing that could force Clinton to come would be the pressure of public opinion, and there was no sign of that.

  Indeed, in case the Republican senators needed a reminder of where the public stood on their current endeavor, they got a sharp wake-up call during their conference meeting on this Tuesday. Linda DiVall, a longtime Republican pollster, delivered a presentation of her findings and analysis from the 1998 midterm elections, and the trends were not promising. Republicans had lost the moderate vote decisively, and those voters who focused on issues such as education, health care, the economy, and Social Security broke for the Democrats, DiVall told the senators. The Republicans, it was clear, needed an agenda and this trial was not it.

  Make no mistake, DiVall said. Impeachment politics are driving down the perceptions of the party.

  The same day, a financial officer at a Washington law firm cut a check for $850,000, slipped it into an overnight envelope, and officially put an end to Jones v. Clinton. Most painful to the president was that he was actually forced to use personal money for some of the payment. His fund-raiser, Terry McAuliffe, and other advisers had told him he would not have to pay a dime of the settlement, only to discover that they could not tap into his legal defense fund because its bylaws permitted payments only for attorney fees and legal expenses. Bob Bennett, Clintons lawyer in the Jones case, succeeded in convincing one of the presidents insurers, Chubb Group Insurance, to fork over $475,000 but failed to persuade the other one, State Farm, to contribute. As a result, the final $375,000 was withdrawn from a blind trust that contained the first familys assetsmoney that had been made by the first lady when she was a lawyer in Arkansas. The irony was lost on no one. Hillary Clinton had to pay for Bill Clintons problems with women financially as well as emotionally.

  CHAPTER THIRTEEN

  There may actuallybe a case here

  Be easy on us, Asa Hutchinson requested. Were a little rusty. Dont worry, William Rehnquist replied. I havent practiced law in thirty years, so well all be a little rusty.

  On the dreary and drizzly winter day that the trial was to begin in earnest, Thursday, January 14, the House managers and the White House lawyers were summoned to meet with the chief justice. Neither side realized the other would be there. They gathered around 12:45 P.M. in the Presidents Room just behind the Senate chamber, where the chief justice and his clerks had set up shop for the duration of the trial. A stiff-backed chair had been brought in for the chief justice, and his clerks carted over piles of papers from the court to work on during breaks. With colorful floor tile, gilded mirrors, and fresco paintings by Italian artist Constantino Brumidi, the room was officially set aside for the president to use, and from 1861 to 1933 chief executives often came to sign legislation here at the end of congressional sessions. While here in March 1865, Abraham Lincoln learned that Confederate general Robert E. Lee had asked to meet with Union general Ulysses S. Grant, a prelude to the surrender of the South. A century later, Lyndon B. Johnson signed the Voting Rights Act of 1965 here, a rare moment in modern times when the room was put to its original use. Bill Clinton had stopped by after his inauguration in 1993 and used it as a holding room prior to State of the Union addresses, but otherwise had little interest in fo
rays to congressional territory, a diffidence that had now come back to haunt him.

  Greg Craig had been excited at the news that Rehnquist wanted to see the White House lawyers. Any attorney would relish the opportunity to confer with the nations top jurist. Who knew what morsel of wisdom he might offer at the outset of this most extraordinary trial? However, when Craig arrived in a procession led by Chuck Ruff in his wheelchair, defense lawyers found themselves at the end of a long line of House managers already waiting to be admitted. One by one, the prosecutors and defenders were brought before the chief justice, whose black robe with the gold braids was slightly askew. Rehnquist made eye contact with each one and greeted them ever so properly. Yes, how do you do, Mr. Manager Hyde? Yes, how do you do, Mr. Manager Hutchinson? The same took place with the presidents team. Yes, how do you do, White House Counsel Ruff? Yes, how do you do, Counsel Craig?

  After the introductions, the advocates waited uncomfortably, the thirteen House managers lined up on one side of the room and the White House lawyers on the other. Craig figured Rehnquist was searching for just the right thing to say, given the gravity of their undertaking and his appreciation for history. Finally the chief justice looked up.

  Well, lets begin, Rehnquist said. Then, as if he were a referee at a boxing match, he added, Fight fair.

  To those in the room, of course, it had been anything but a fair fight to this point. Craig and the rest of the White House team believed they had been bulldozed in the House by a vindictive Republican majority out of pure hatred for President Clinton. With Tom DeLay leading the charge, the Republicans had disregarded history and precedent, dispensed with due process, and strong-armed reluctant moderates into a purely partisan impeachment. The Republicans were just as convinced that the White House had not fought fair. Rather than defend Clinton, the presidents partisans had pilloried anyone who dared criticize him, from Starr to Hyde to DeLay. Theirs was a fire-bombing strategy that observed no limits imposed by decency or decorum. So when they entered the Senate chamber shortly before 1 P.M. that afternoon, neither side was sure how things would work in this second phase. As David Kendall had told associates, it was as if all of them were in parachutes plunging through the night sky into the murky darkness below. The senators felt the same way. My heart is pounding not because of nervousness but rather because of the enormity of the task before me, Susan Collins wrote in her diary. Everyone seems to feel the same way. Tension and expectation fill the air.

  Having failed to convince the Senate sergeant at arms to let them switch places, the House managers took their seats around the black-topped table to Rehnquists right, just in front of the Democratic senators, and the White House lawyers sat at the table to the chief justices left, in front of the Republican senators. Craig, Kendall, and Ruff were joined at the defense table by Nicole Seligman, Cheryl Mills, Lanny Breuer, and, in a surprise, Bruce Lindsey. Although officially one of the presidents lawyers, Lindsey had remained largely invisible during the impeachment process and could theoretically be called as a witness during the Senate trial. The White House team had no intention of putting Lindsey at the lectern to address the Senate. He was there to help with strategyand to be the presidents eyes and ears.

  This first day was to be devoted to the prosecution. Hyde, who had originally agreed to let his number two on the committee, Jim Sensenbrenner, open their presentation, thought better of the idea and decided to speak first himself. He would not talk long, just eight or nine minutes, but it was important to frame the case properly from the start, and Sensenbrenner, a plodding, nasal-toned Midwesterner, was not the man to do that. Indeed, Sensenbrenner recognized he was no trial lawyer. Did I ever tell you about the time I handled an uncontested divorce case and lost? he asked fellow managers.

  Hyde lifted himself to his feet and shuffled the short distance from the prosecution table to the lectern. Approaching the well, he bowed his head slightly at Rehnquist: Mr. Chief Justice. Then Hyde turned to face the Senate and set his papers down. Members of the Senate, what you do over the next few weeks will forever affect the meaning of those two words I do. You are now stewards of the oath. Its significance in public service and our cherished system of justice will never be the same after this. Depending on what you decide, it will either be strengthened in its power to achieve justice or it will go the way of so much of our moral infrastructure and become a mere convention, full of sound and fury, signifying nothing.

  From the altitude of Hydes short opening, the Senate quickly became bogged down in Sensenbrenners monotonous hourlong summary of the case, which he had written a few days earlier while watching football on television. Although Sensenbrenner tried to dismiss the notion that theirs was a case about private wrongdoing rather than public misconduct, it quickly became clear that he had not captured the imagination of the Senate. On his notepad a few feet away, Asa Hutchinson scrawled, Good but 15 min intohes lost the Senate audience. Another fifteen minutes later, Hutchinson jotted down another note: Sen Stevens is asleep.

  Staying awake would become a premium for the senators, particularly the older ones. They had to sit at their desks and listen, for hours on end, without saying a word themselves. Under the rules, they had essentially no speaking role on the floor. Even during the question-and-answer period that would come later in the trial, they were required to submit inquiries in writing to the chief justice, who would read them aloud. On this day, as the arguments opened, all one hundred senators were on hand from start to finish, a far cry from their ordinary experience. Senators rarely spend much time on the floor unless they have a bill of their own to steer to passage. And they rarely leave the talking to anyone else.

  As the managers began laying out their case, Senators Bob Kerrey, Joe Biden, and Arlen Specter took laborious notes. Rick Santorum chewed gum. Senator Paul D. Wellstone of Minnesota got up several times to stretch an aching back. Tom Harkin, who had dismissed the case as a pile of dung on a weekend talk show, shook his head in disagreement at various points in the argument. But otherwise it was a solemn, serious group that seemed, for once, to be paying attention to what was unfolding in front of them.

  Another break from tradition was the presence of four large, flat-screen, high-definition television screens, two on each side of Rehnquist (plus a small one installed underneath his desk out of view of the senators). Never before had televisions appeared on the floor of the Senate, and Robert Byrd, the self-appointed guardian of custom in the chamber, had erupted in righteous indignation when he learned that the lawyers wanted to use them for their presentations. Told that the televisions were necessary to show the videotaped clips of the presidents testimony, Byrd eventually relented, but insisted on having them covered when they were not in use so as not to offend convention more than necessary.

  The problem with that solution became clear just after Sensenbrenner sat down and turned over the lectern to Ed Bryant, the manager from Tennessee, who started his presentation by showing Clinton taking the oath of office as president from Rehnquist. Or rather by trying to show Clinton taking the oath. While the image appeared on television sets across the country, no visual actually showed up on the screens inside the Senate chamber because the four machines had overheated while under Byrds coverings.

  The rest of the managers presentation went smoother. Bryant, Hutchinson, and Jim Rogan spent the afternoon introducing the senators to the details of the case with a series of charts and handouts. Hutchinson captivated the senators by spinning out the tale of obstruction day by day, and sometimes minute by minute, methodically recounting each meeting, each phone call, each court action, and how they all seemed to fit together into a pattern of illegal behavior. Hutchinson related how Clinton did little to help Monica Lewinsky find the job she so desperately wanted until after her name showed up on a witness list in the Paula Jones case on December 5, 1997. Just six days later, on December 11, the judge in the case agreed that the president could be questioned about his relationships with women who worked for the government
. That same day, December 11, Hutchinson pointed out, Clinton talked with Vernon Jordan about finding a job for Lewinsky in New York and suddenly the task became a high priority for the presidents friend.

  Lets look at the chain of events, Hutchinson told the senators. The witness list came in. The judges order came in. That triggered the president to action. And the president triggered Vernon Jordan into action. That chain reaction here is what moved the job search along.

  Only after getting Jordan on the case did the president feel comfortable enough to tell Lewinsky that she might be called as a witness to answer questions about their relationship, Hutchinson went on. And when Clinton did call her at two in the morning on December 17, he suggested she could avoid testifying if she swore out an affidavit. She could always say she was delivering papers to him or visiting Betty Currie, Clinton told her that night, recalling the cover stories they had used to try to avoid detection in the past. Hutchinson noted how Jordan had simultaneously found Lewinsky a lawyer to help her execute such an affidavit and then trolled New York corporate boardrooms until he found her a job at Revlon by intervening directly with the head of its holding company, Ron Perelman. Mission accomplished, Jordan reported back to Clinton after the Revlon job offer came through, a line Hutchinson had blown up into large letters at the top of each of his blue-and-yellow charts.

  Hutchinson likewise wove in the other episodes that led to the obstruction charge, how Clinton coached Currie as the Lewinsky story was first breaking, how presidential gifts that had been subpoenaed by the Jones lawyers came to be hidden under Curries bed at home, how Clinton lied to aides he knew were going to be summoned to testify before the grand jury to pass along his falsehoods. The seven pillars of this obstruction case were personally constructed by the president of the United States, Hutchinson concluded. It was done with the intent that the truth and evidence would be suppressed in a civil rights case pending against him. The goal was to win, and he was not going to let the judicial system stand in his way.