The Breach

by Peter Baker

  Still, Ruff went on, the president did not know the Jones lawyers were going to subpoena Currie when he spoke with her. It was the best answer Ruff could give, but as the afternoon wore on, it appeared to many in the Senate chamber that the managers were having the better of the question format. For the first time, the two sides were engaging in what amounted to a direct, head-to-head debate, and some of the Democratic senators worried that the professorial style that had served Ruff so well in monologue did not match up as well against the more practiced political style of the House teams best presenters, Hutchinson, Jim Rogan, and Lindsey Graham.

  After a few questions, the Senate Republicans tried to help Hutchinson explain away his flub on Jordans flight to Amsterdam. While the White House makes much of the fact, Hatch and Senator John Ashcroft said in a joint question, wasnt it just a red herring since the presidents lawyer had been faxed a witness list with Lewinskys name on it six days earlier? Now it was Hutchinsons turn to explain himself. Yes, he said, it was true that with Jordan flying to Europe at the time, the judges order could not have triggered any action on the eleventh. There is no question about that. That is obvious from the facts, as it was obvious when I made my presentation. The meetings on the eleventh, with Vernon Jordan and Monica Lewinsky, were triggered by the witness list coming on the fifth. Then, like Ruff, he argued that in effect it was unimportant. Jordan himself had testified that the subpoena changed the circumstances, Hutchinson said. That meant the job search intensified as a result of Lewinsky being called as a witness.

  Democrats were quick to seize on this, hoping to keep the focus on Hutchinsons mistake. Bob Bauer, sitting to Daschles left, grabbed a beige card emblazoned with the Senate letterhead, scribbled out a question, and using one of his default senators, signed Barbara Boxers name to it. In light of the confession of Manager Hutchinson that Judge Wrights order had no bearing on the intensity of the job search, Rehnquist read aloud from the card, can you comment on the balance of his claim on the previous question?

  Confession? Hutchinson did not like that and jumped to his feet. Mr. Chief Justice, could I object to the form of the question? he asked somewhat playfully. That was not proper characterizing what I just stated.

  Rehnquist was momentarily flummoxed: I dont think managersI am not sure whether the managers . . . Then he looked down at the parliamentarian sitting in front of him. Can the managers object to a question? he asked as laughter erupted in the chamber.

  I withdraw my objection, Hutchinson said, having made his point.

  Very well, Rehnquist said. The parliamentarian says they can only object to an answer, not to a question. Then he added in a dry aside, Which is kind of an unusual thing, but . . .

  As senators laughed again, Daschle leaned over to Bauer. That was kind of rough, wasnt it? he asked quietly, meaning the phrasing of the question. Well, it wasnt supposed to be, Bauer whispered back. He had written concession, but his handwriting was so bad, Rehnquist read it as confession.

  Ruff was not about to surrender to the humor of the moment when he had a chance to keep the House team on the defensive. Whether we call it a confession or simply an acknowledgment, he said, Hutchinsons revised answer showed how the managers were trying to bob and weave and dodge around the facts here. Ruff mocked the managers line of argument. If there was ever a moving target, we have just seen it in motion: Well, it really wasnt December eleventh, because now we know it didnt happen on December eleventh, so lets go to December nineteenth, or maybe January eighth, and somewhere in there we are going to find the right answer. I suggest to you that that is reflective of both the difficulty we have had in coming to grips with these charges and, candidly, the difficulty that the House might have had figuring out what those charges really were.

  All this jousting over details, however, was doing nothing for the one senator whose opinion the White House cared about most. To Robert Byrd, it did not matter whether Jordan flew to Holland or whether Currie had been served with a subpoena. As he saw it, the president had undeniably done the things he was accused of doing. The only real issue was whether it was worth removing him from office. Up until this point, all the questions from Democratic senators had been served up with the aim of helping the White House lawyers make a point. Byrd, though, submitted a question that cut straight to the heart of the matter. In characteristic fashion, he quoted Federalist No. 65, where Alexander Hamilton wrote that impeachment stemmed from the misconduct of public men or, in other words, from the abuse or violation of some public trust.

  Putting aside the specific legal questions concerning perjury and obstruction of justice, Byrd asked, how does the president defend against the charge that, by giving false and misleading statements under oath, such misconduct abused or violated some public trust?

  Ruff once again took the microphone. Even if Clinton did commit perjury and obstruction of justice, he said, it did not threaten the country. That was what the framers intended when they drafted the impeachment clause. If we have not convinced you on the facts, I hope we will convince you that the framers would have asked: Is our system so endangered that we must not only turn the president over to the same rule of law that any other citizen would be put under, after he leaves office, but must we cut short his term and overturn the will of the nation? And in our view, in the worst-case scenario you can find, the answer to that question must still be no.

  Byrd stared intently as Ruff spoke, his face betraying not a hint of reac tion. He was inscrutable even to the fellow Democrats who thought they knew what he planned to do. To some of the Republicans listening, it sounded as if Byrd was truly skeptical of the White House argument, and they did not think Ruff responded persuasively. Was it possible they could win Byrds vote? And if they did, would it provide political cover for other undecided Democrats to vote guilty as well? Even if Clinton was acquitted, winning a few Democrats might vindicate their effort as a legitimate prosecution, not just a partisan exercise.

  At the House teams table, spirits were high. Finally after three days of sitting through White House arguments, the managers were taking the battle to the other side and, in their minds at least, regaining some momentum. Jim Rogan added some fire to their presentations with spirited answers to the next few questions. The Californian ridiculed the White House position that Clinton was evasive, misleading, and incomplete but did not actually lie under oath. If anybody wants a lesson in legal schizophrenia, please read the presidents trial brief, Rogan said. A few minutes later, Rogan came back to that point again. That begs the question: What kind of oath did the president take in the civil deposition? Did he take an oath, did he raise his hand and swear to tell the truth, the evasive truth, and nothing but the evasive truth?

  If the managers harbored hopes that they had made inroads with Byrd, though, they soon learned better. Just after 3 P.M., barely two hours into the question-and-answer session, a piece of paper was pushed across their table on the Senate floor. The managers stared at it one after the other, their eyes widening. It was a news release headlined, Statement by U.S. Senator Robert C. Byrda Call for Dismissal of the Charges and End of the Trial. In the statement, the West Virginia senator said he would introduce a motion to dismiss the case at the beginning of the next week.

  I plan to make this motion not because I believe that the President did no wrong, Byrd said in the statement. In fact, I think he has caused his family, his friends, and this nation great pain. I believe that he has weakened the already fragile public trust that has been placed in his care. But I am convinced that the necessary two-thirds for conviction are not there and that they are not likely to develop. I have also become convinced that lengthening this trial will only prolong and deepen the divisive, bitter, and polarizing effect that this sorry affair has visited upon our nation. Rankled by the media-saturated atmosphere surrounding what he saw as a sacred duty, Byrd scoffed that calling witnesses would only foster more of the same hallway press conferences and battle of press releases that are contributing to the div
ision of our parties and our nation.

  The statement electrified the Senate chamber, even though it went unmentioned in the formal proceedings, which were continuing as Rehnquist read questions aloud and the lawyers and managers stepped forward to answer. The press gallery buzzed as the news release was passed out. Lawrence Stein, the chief White House lobbyist on Capitol Hill, passed a note to Lanny Breuer, sitting at the lawyers table on the floor, explaining what had happened. Breuer passed it along to the other lawyers. Dont smile, dont gloat, the note said. Its over.

  Indeed, it was over, and everyone in the chamber knew it. A Democratic motion to dismiss had been inevitable, but virtually no one had anticipated that Byrd would be the sponsor. In their private party conferences, Senator Bob Torricelli, the sharply partisan New Jersey Democrat, had been pushing for that distinction, only to be put off by Daschle and other party leaders, who wanted someone with more credibility than a prominent Clinton defender. No one could be a more powerful patron of the Democratic bid to end the trial than Byrd, who was known to despise Clinton, to abhor what he had done, and to be virtually immune to the peer pressures of party politics. If Byrd, the constitutional scholar and fiercely independent soul of the Senate, had concluded that the charges could not be sustained, it meant that the Democratic caucus would hold. It meant that other Democrats who might have entertained the thought of turning against the president would not have Byrd for cover. It meant that at most there might be one or two Democrats defecting, nowhere near the twelve needed for conviction.

  The managers knew that too, and Hyde could barely disguise his frustration. At every turn they had been accused of unfairness, and now here they were, not allowed to present their full case, and they were being told the trial was over before it had really begun. As the questioning continued on the floor, Hyde took advantage of a friendly inquiry from Senate Republicans to give voice to his disillusionment, sounding as if he were acknowledging defeat and offering a valedictory for their failed campaign: We tried to be fair because we understand you need a two-thirds vote to remove the president. We needed Democratic support. So far we had none. That is okay. Let the process play itself out. But we were fair. His voice tinged with contempt, Hyde told the senators, By dismissing the articles of impeachment before you have a complete trial, you are sending a terrible message to the people of the country. You are saying, I guess, perjury is okay, if it is about sex. Obstruction is okay, even though it is an effort to deny a citizen her right to a fair trial.

  With a melodramatic flourish, Hyde played the wounded victim. I know, oh, do I know, what an annoyance we are in the bosom of this great body. But we are a constitutional annoyance and I remind you of that fact.

  Unbeknownst to the senators, the White House lawyers, and even most of the managers, the House team was at that very moment opening up another front just a few hundred yards away. At the federal courthouse in the shadow of the Capitol, chief U.S. district judge Norma Holloway Johnson convened an emergency hearing to decide whether Monica Lewinsky should have to talk with the managers.

  Bill McCollum, the intense manager from Florida, had been pressing colleagues for days to start preparing witnesses in case they were allowed to call them during the trial. A longtime member of the naval reserves judge advocate general corps, McCollum argued that any lawyer trying a case would talk with his witnesses before calling them to the stand; the first rule of prosecution is never ask a question to which you do not know the answer. They needed to see how Lewinsky would answer their questions, to see how cooperative she might be, to help make sure she related events in a helpful way, and to warn her that if she did not, they would have to assail her credibility. How else were they supposed to prepare unless they sat down with her?

  Hyde and some of the other managers were wary. Although they were the prosecutors, they were on Senate turf now. What would a meeting really accomplish? McCollum kept pushing the point, urging David Schippers to get in touch with the witnesses and even calling Lewinskys lawyers himself. The former interns legal team had no interest in helping and said so. In fact, her lawyers said, the House team had no authority to talk with her outside of Starrs jurisdiction because she had an immunity agreement. So McCollum and Schippers, oblivious to the possible political fallout, turned to Starrs office for help. Within forty-eight hours they found themselves in Johnsons courtroom at five-thirty on a Friday afternoon. Lewinskys two lead attorneys, Plato Cacheris and Jacob A. Stein, had been called away from a black-tie dinner at the downtown Mayflower Hotel and rushed over to the courthouse in their tuxedos. Starr deputy Bob Bittman asked where they had been, and Cacheris decided to yank his chain. The White House, he said, tongue planted firmly in cheek as he watched a look of alarm momentarily cross Bittmans face.

  Im so sorry to interfere with this black-tie affair, Johnson said when she saw the two lawyers walk into the courtroom.

  Your Honor, we always dress like this for Friday emergency hearings, replied Stein, who had cultivated a reputation as one of Washingtons nattiest dressers.

  The issue at hand was whether Lewinskys immunity agreement with Starrs office required her to submit to an interview with the House managers. The agreement, which she had signed the previous July as part of her deal to avoid prosecution, stated that she agreed to testify truthfully in a variety of possible proceedings, including any congressional hearings, and that she would make herself available for any interviews upon reasonable request.

  At the timethat is, in Julythat this was signed, it was absolutely contemplated that there may be some sort of proceeding in Congress, Bittman told the judge.

  The agreement has been overtaken by many events, Stein argued in response. Now that Starrs office had referred the case to the House for impeachment, its job was done and only the Senate could subpoena witnesses for an impeachment trial, he said. The OIC wants to help the managers by ushering in Ms. Lewinsky to a private meeting, without any of the representatives of the president being there. That is a very partisan state of affairs. And the statute doesnt give them this right. Once they gave the material to the House, their role was over in this.

  Johnson sounded dubious that Starr was somehow done legally just because he had made a referral to the House. You know, Im still handling OIC stuff, she said. And maybe if I dont have to do that, Id like to know what authority youre going to suggest for it.

  Bittman took the cue and reinforced the point: We are still in business, despite what many people would like, but we are. And were still involved. And we still are involved very actively in some of the very matters that are going on in the Congress.

  After a half hour, Johnson had heard all she needed. Time was short; the managers wanted to talk with Lewinsky over the weekend, before turning in their witness list to the Senate on Monday. Johnson said she would let them know her decision in the next day or so, but she tipped her hand by instructing Lewinskys lawyers to have their client get on a plane in Los Angeles just in case.

  Tell her to come on back East.

  CHAPTER FIFTEEN

  This is going to beninety white men leering at her

  As Asa Hutchinson got into the car the morning of Saturday, January 23, his aide Chris Battle thrust the newspaper at him. Starr Tries to Force Lewinsky Interview, said the front-page headline in the Washington Post, House Managers Want to Talk to Her.

  Did you know about this? Battle asked.

  Hutchinson could not believe it. As he read the story, he grew more and more aggravated. What was this all about? A Post reporter had caught him by telephone the night before after the days floor session ended to ask him about it, but Hutchinson did not know what she was talking about and, rather than admit that, simply offered a vague comment saying it was proper to try to prepare witnesses. He did not focus on it until the headline was staring him in the face. What a nightmare, he thought. The last thing they should be doing was getting in bed with Starr. How had this happened? Hutchinson knew the staff had been trying to make contact with Lewinskys a
ttorneys to see if she might be willing to be interviewed, just as he had done with Vernon Jordans lawyer. But no one had told him they planned to recruit Starr and seek a court order forcing her to sit with them against her will. Now it was in all the newspapers and on every television broadcast.

  Im on the evidence team! he complained to one of the committee lawyers as soon as he arrived at the Capitol for the second day of the question-and-answer period. Im interviewing the witnesses! How can we be going to court with the independent counsel without me knowing about it?

  The lawyer said it was a long story. Henry Hyde had agreed to sign a letter asking Starrs office to help convince Lewinsky to cooperate but had not been told that the standoff had escalated into a court fight. David Schippers had taken it upon himself. The frustration for Hutchinson was overwhelming. The Starr intervention, coupled with Robert Byrds announcement, had totally eclipsed his rebuttal on the Betty Currie subpoena. Hutchinson felt they had blown the White House out of the water with that, showing that the presidents lawyers were every bit as fast and loose with the facts as they accused the prosecutors of being. This was a huge win and should have been a huge story. But instead, Starr and Byrd dominated the news coverage, and the Lewinsky hearing was sure to factor into the days floor session as the senators took another crack at questioning the lawyers from both sides.

  Hutchinson was right. The news of Starrs reemergence in the case threw the trial into an uproar. When the Democrats heard that the independent counsel had gone to court on the managers behalf, they were stunned by the audacityand overjoyed at the tactical opportunity. The managers had just given Democrats every excuse to turn attention back to their favorite issue and link the House team to its new allyto make Starr the fourteenth manager, as Tom Daschle put it. As long as they could focus discussion on the enormously unpopular prosecutor, they could shift scrutiny away from the presidents conduct. Best yet, this appeared to be a blatant intrusion into the Senates rightful role in running the trial, the kind of presumption that might offend Republicans as well as Democrats. Democratic lawyers Bob Bauer, Kevin Simpson, and Steven Reich happily scrapped their plans for day two of the question-and-answer session and drafted a slew of questions about the new alliance between Starr and the managers.