The Breach

by Peter Baker

  Rogan wrapped up the day with a review of the perjury count against the president, using the now working televisions to show the senators a blizzard of video clips of Clintons statements under oath and to the public, including his finger-wagging I did not have sexual relations with that woman declaration on national television. Perhaps most powerful was the juxtaposition of key moments in the presidents Jones lawsuit deposition and his later attempts before the grand jury to explain that earlier testimony. Rogan showed Clinton seemingly watching intently during the Jones session as his attorney declared there is absolutely no sex of any kind, in any manner, shape, or form between the president and Lewinsky. Then Rogan played Clintons explanation before the grand jury seven months later that he was not really paying attention when his attorney said that, and besides, It depends on what the meaning of the word is is. In case the senators did not fully appreciate it, Rogan played the two clips again. Either Clinton was not paying attention when the attorney said it, or he was paying such close attention that he picked out the use of the present tense and relied on the literal meaning of the word is to justify the veracity of the statement.

  Now, I am a former prosecutor, Rogan added, and that is like the murderer who says, I have an ironclad alibi. I wasnt at the crime scene; I was home with my mother eating apple pie. But if I was there, it is a clear case of self-defense.

  By the time the managers wrapped up at 7 P.M. that day, the mood at the trial had dramatically changed. For all of the saturation coverage of the Lewinsky scandal over the previous twelve months, most of the senators had never focused on the details and were only now hearing for the first time how all the evidence added up. For many of them, it was a shock, especially for Democrats, who in their own minds had instinctively dismissed the case as weak. Listening to Hutchinson outline the sequence of events, building his case for obstruction brick by brick, the senators were struck by the power of the evidence. Senators milling around the Democratic cloakroom afterward were morose and grim-faced. Senator Russ Feingold, the Wisconsin Democrat, walked out of the chamber thinking, There may actually be a case here. Fellow Democratic senator Dick Durbin of Illinois thought to himself that he might actually have to vote for conviction.

  Daschle was worried. If momentum built, he could have trouble holding his caucus together. Daschle had prepared for this moment by recruiting a crew of Democratic lawyers to help puncture holes in the prosecution case, and now they swung into action, poring through the days presentations to find weaknesses to identify in a memo to be distributed the next morning to every Democratic senator. The team was led by Bob Bauer, Daschles long-time lawyer, who had advised Dick Gephardt through the House proceedings, and included two of Abbe Lowells investigators from the House Judiciary Committee, Kevin Simpson and Steven Reich. Lowell himself would have been too controversial to enlist, Daschles advisers decided, because he had made himself into such a high-profile advocate by the end of the committee hearings. As it was, bringing Simpson and Reich over had prompted retaliation by the Judiciary Republicans. Annoyed that the two Democratic lawyers were still being paid from House funds while working on the Senate side, Jon Dudas, the deputy committee counsel, kicked Simpson and Reich out of their offices, changed the locks, and threatened to file an ethics complaint.

  Sensitive to the dispute and leery of having it appear that the Democratic leadership was pressuring senators, Bauer and his team decided they would list no authorship on the memos they would begin producing daily to rebut the House managers. The first of these blind memos, as they were called, was titled Factual Inaccuracies in House Managers Presentation (Day One), and its five pages took issue with various assertions made by Sensenbrenner and Hutchinson on the floor that Thursday.

  But a piece of paper could not alter the impressions held by many senators. In the Republican cloakroom, the conservatives were heartened and some of the early skeptics were reevaluating their initial assessments. Senator Ted Stevens, the cranky Old Bull who had told the managers just a week earlier they had no chance, gushed to reporters that Hutchinson had done a tremendous job of connecting the dots. Susan Collins used almost identical language in her diary that night: The star of the day . . . is Asa Hutchinson. . . . His tour-de-force makes a powerful case for the obstruction of justice charge. . . . I learn much that is new as Asa connected the dots on the road map.

  At the White House, where aides were practically cheering after listening to Sensenbrenners droning presentationIs that the best they could do? they crowed to one anotherthe mood had turned somber by the time Hutchinson was through. As the presidents advisers assessed it, Hutchinson came across as reasonable and thorough. Their whole strategy was premised on the notion that the managers would overplay their hand and the White House would be able to use it against them. But Hutchinson had demolished that in a single smooth afternoon performance.

  To the lawyers for the president, Hutchinsons performance was too smooth. From where they were sitting on the floor, they kept hearing him make what they thought were factual slipups. And one in particular stood out: Hutchinson suggested that Vernon Jordan stepped up his job search for Lewinsky on December 11, 1997, after the judge in the Jones case issued her order allowing Clintons relationships with other women to be explored. What Chuck Ruff, Greg Craig, and the other White House lawyers knew was that Jordan had already left the country by the time the judges order was handed down that day. He was somewhere over the Atlantic on his way to Amsterdam, so her order could not have had the influence that Hutchinson suggested. As the Clinton lawyers discussed that flub, they decided to keep it to themselves for now. It would be far more powerful to wait and use Hutchinsons mistake against him when it came time for them to present their defense next week.

  Still, Hutchinson was the man of the hour. While conviction remained unlikely, strategists on both sides now felt that if anyone had a chance of altering the odds, it would be the personable prosecutor from Clintons own home state. That evening, as the senators digested what they had heard, Hutchinson headed over to nearby Union Station for dinner with Peter Jennings. How much life had changed for this low-profile politician who had lost his first four races for public office before finally winning an election and now, barely two years into Congress, was supping with the anchor of ABC World News Tonightat the broadcasters request, no less. Jennings was already at B. Smiths restaurant when Hutchinson arrived for their 8:30 P.M. appointment. Linda Douglass, the ABC reporter who covered Congress, was a little late, and as she arrived, she saw none other than Betty Currie walking in. Douglas invited her over to the table to meet Jennings and Hutchinson.

  Introduced to Hutchinson, Currie said lightly, I see my name came up a lot.

  The other big sensation of the day was Jim Rogan, the forty-one-year-old manager from southern California who, despite his bare majority in the election the previous fall, had developed into one of the presidents fiercest critics. In his debut on the Senate floor that afternoon, Rogan had impressed many of the senators as he passionately denounced Clintons conduct. Rogan was a political scrapper, perhaps the unlikeliest of prosecutors. A former Democrat who had emerged from the same sort of hardscrabble childhood as the president, Rogan credited Clinton with inspiring him to go to law school two decades earlier. They would recognize each others story lineboth were born to broken homes and suffered from alcoholic stepfathers, all the while quietly dreaming of growing up to become president of the United States. On the night Clinton was elected in 1992, a friend turned to Rogan and said, That guys story is your story. And yet perhaps it was the similarity of their backgrounds that led Rogan to take an unforgiving attitude toward Clintons misconduct. Tough times, he believed, were no justification for shameful behavior.

  Rogan was born to an unmarried cocktail waitress and raised by his chain-smoking longshoreman grandfather until he died, then by his grandmother until she died, and finally by a great-aunt until she died. Reunited with his welfare-dependent mother at age twelve, Rogan had led a Jekyll-and-Hyde
adolescenceone minute a troublemaker who smoked pot, skipped class, and got thrown out of school, and the next an underage political junkie who idolized Democrats and grew obsessed with collecting campaign buttons and photos. Without ever finishing high school, he enrolled in a community college and managed to earn his way into the University of California at Berkeley and UCLA School of Law, financing his education by working the bar at a club so tough he packed a handgun while serving drinks. His decision to study law was reinforced after attending a midterm Democratic convention in Memphis in December 1978, when Rogan met a young politician who caught his fancy. With dark, shaggy hair that covered his ears, Bill Clinton did not look all that much older than Rogan, but he was now governor-elect of Arkansas. Rogan introduced himself to the rising Democratic star, who asked if he was interested in politics. Rogan said yes, he might want to run someday. Well, Clinton told him, law school was a good background for politicsand a good fallback if politics did not work out.

  Rogan would not see Clinton in person again until inauguration day, 1997, when the Californian was entering Congress. In the interim, he had converted to a conservative Republican after serving as a deputy district attorney in Los Angeles putting away gang murderers, rapists, child molesters, and drug dealers. He had developed a flair for theater in the courtroom, often to powerful effect. During closing arguments in the trial of a drunken driver, Rogan had never said a word but instead lined up ten glasses on the rail of the jury box and poured ten cans of beer into them until he had demonstrated just how much the defendant had consumed. Then he held up four fingers to represent the four victims and snapped his fingers to symbolize their lives being snuffed out. The jury convicted within forty-five minutes. Rogans crime-fighting exploits were noticed. In 1990, the governor of California appointed him a local judge, the youngest in the state at the time, and after a few years he got himself elected to the State Assembly. In 1996, he won a seat in Congress, prevailing in a district where Hollywood influence might normally ensure a more liberal representative. When he arrived in Washington, he wrote a note of praise to Clinton for giving defeated challenger Bob Dole a Presidential Medal of Freedom following the election and told the president he had never forgotten meeting him at the 1978 convention. A week or so later, a White House courier arrived at Rogans office with a handwritten response from Clinton reminiscing about that day.

  But as a politician, Rogan had by then developed a deep distrust of Clintonhe had become convinced the president would not keep his word, would tell people one thing and do another, would claim credit for actions that were not really his. During the 1996 election, he grew to see Clinton as a demagogue for accusing Republicans of wanting to destroy Social Security and Medicare, a charge his own Democratic opponent in California parroted. And now embroiled in the impeachment trial, Rogan marveled at Clintons ability to say something blatantly untrue and yet appear so sincere. As a prosecutor, he had seen this trait in some defendants so convinced of their own lies that they could pass polygraph tests. As a child of a broken home, he had seen it in a close relative who would look him straight in the eye and lie without blinking.

  For all of his courtroom experience, the impeachment trial was like none that Rogan or anyone else had ever prosecuted. Special rules were needed. At Lotts request, Susan Collins issued a nine-point tip sheet on decorum during the proceedingsalways stand when Rehnquist enters the room, address him as Mr. Chief Justice, and never walk between him and the lawyers. Yet while dignity reigned on the floor, the corridors in the Capitol quickly took on an almost carnival-like atmosphere. Whenever the trial recessed for a break, House managers, senators, and to a lesser extent, White House lawyers rushed to the media stakeout to face the battery of television cameras and microphones. One after the other, members of the jury offered running commentary on what they were hearing inside, while prosecutors tried to amplify their case and defense lawyers labored to rebut it. The proceeding had become such an international spectacle that Capitol Police instituted unusual security precautions in case of a terrorist attack. Perhaps most disconcerting to the few lawmakers who noticed them were the black duffel bags surreptitiously deposited at strategic points near the Senate chamber. Inside were dozens of gas masks. Just in case.

  It was something of a madhouse behind the chamber as well. The House team had established a headquarters in the Marble Room, where senators normally relax, read, or even sleep during the tedium of floor sessions. Everything in the room except for the furniture and the blue carpet was made out of marble. It quickly took on the frenetic hustle-bustle of a hospital emergency room, with lawyers and lawmakers coming and going, televisions blaring from the side, computers and tables set everywhere, and reams of documents scattered throughout. Lindsey Graham could often be found pacing up and down the room, mumbling to himself as he tried out lines for his presentation. Every so often he would grab a staff member. Let me try this out on you, he would say, then offer some pithy zinger. You like that? You like that?

  By the second day of their opening arguments, however, it became clear that in the chaos of their headquarters, the thirteen managers were not consulting fully with each other about their presentations. On Friday, January 15, five managers offered four hours of arguments that began to sound numbingly familiar. Bill McCollum started out by summing up the evidence, followed by George Gekas, Steve Chabot, Chris Cannon, and Bob Barr discussing the legal issues of the case in what became a law school seminar on perjury and obstruction of justice. It got to the point where they were even using the same lines. Around the chamber, senators strained to remain engaged. Daschle stared off in the distance. Lott leafed idly through the books of evidence. Bob Torricelli and Chuck Schumer sat slumped in their chairs, their hands on their faces. Even most of the managers were not in the chamber as the arguments droned on. At the defense table, the lawyers exchanged furtive smiles and notes on yellow Post-it pads.

  Everyone woke up late in the afternoon, though, when they saw someone leap to his feet at the back of the chamber. Mr. Chief Justice, I object, called out Tom Harkin, the Iowa Democrat and staunch Clinton supporter. Bob Barr had been close to finishing the days final presentation when he addressed the senators as you, the distinguished jurors in this case. That term, jurors, had gotten under Harkins skin all week. They were not just ordinary jurors confined to ruling on guilt or innocence, he felt; they were senators empowered to take into account other factors such as the good of the nation. The last thing Daschle wanted was for Democrats to be lodging objections. Far better, he thought, to play it safe and avoid stirring the waters. At Daschles request, Harkin had agreed not to do anything on the floor without checking with him first, but then as Barr was going on, the senators pique got the better of him. In his seat a few rows away, Daschle moaned softly to himself.

  Harkin began reading a lengthy justification for his position, citing the Constitution, the Senate rules, and The Federalist papers. The Republicans were momentarily panicked. Sitting on the backbench, Eric Ueland, an aide to Senator Don Nickles, cried out to the GOP senators in a loud whisper, Regular order! Regular order! Another aide rushed up to chief legal counsel Tom Griffith and exclaimed, Harkins speaking! Stop him! Finally, Senator Judd Gregg, a New Hampshire Republican, rose to his feet to object to the length of the objection, putting an end to Harkins monologue.

  But Rehnquist sided with the Democrat on the crux of his complaint. The Senate is not simply a jury; it is a court in this case, the chief justice proclaimed. Therefore, counsel should refrain from referring to the senators as jurors.

  While Harkin and other Democrats gloated, Lott was exasperated. How could this have happened? They had lost the first ruling in the case. A few minutes later, when the session ended for the day, Lott summoned Griffith over to the well of the Senate and asked how Rehnquists ruling could be overruled. A transcript was shortly produced, and Griffith studied it along with Parliamentarian Bob Dove, Lotts lawyer Mike Wallace, and Rehnquist aide Jim Duff, among others, but they concl
uded that the chief justice had it right. Griffith took the determination to Lotts chief aide, Dave Hoppe, who agreed to drop the issue. But Lott and other Republicans continued to smolder.

  Harkin was the hero of the moment to the Democrats, but he was not done. During a break that same afternoon, he retreated to his hideaway office in the Capitol along with fellow liberal senator Paul Wellstone and fretted about the strength of the managers case. As I was looking down at the floor, Harkin told Wellstone, all the guys sitting on the House side, these are guys we know. Ive served with Hyde. Ive served with Sensenbrenner. We see them across the table when we deal in conference. I look at the White House side and we dont know any of these guys. We dont know Ruff, we dont know Craig, we dont know Kendall. . . . We need somebody who can really connect with senators. Like a former senator.

  Harkin picked up the telephone and called over to the White House. The only senior official he could find was Paul Begala, the presidential counselor. Sounds great, Begala said. Why dont you bounce it off Daschle?

  After the floor session ended, Harkin headed over to Daschles office, where Democratic senators were gathering each day after the trial to hash out what to do next. As the meeting was breaking up, Harkin huddled with Daschle and Harry Reid, the Democratic whip. They had been thinking the same thingDaschle had been wondering whether his predecessor, George Mitchell, would do it, while Reid had in mind the astronaut-turned-senator John H. Glenn of Ohio, who had recently retired. Harkin suggested Dale Bumpers, another just-retired Democratic senator and a powerful orator from Clintons home state of Arkansas. Daschle assigned Harkin to call all three to see if any would do it.