The Breach

by Peter Baker

  Ten hours later, at 3:18 P.M., she stood at the lectern and made her argument, never stopping to sip the water that would help her raw throat for fear of throwing off the careful timing of her presentation. The case, she argued, should be dismissed because it did not rise to the level of high crimes envisioned by the framers and because the facts did not add up to the prosecu tion theory. Impeachment was never meant to be just another weapon in the arsenal of partisanship. By definition, a partisan split like that which accompanied these articles from the House of Representatives creates doubt that makes plain a constitutional error of the course that we are on. She reminded the senators of Grahams statement that reasonable people could disagree. We suggest to you that there can be no removal when even the prosecutor agrees that such reasonable doubts exist. If reasonable people can disagree, we suggest to you that reasonable senators should dismiss.

  Recognizing that senators did not want to let Clinton entirely off the hook, she added, Punishment will be found elsewhere. Judgment will be found elsewhere. Legacies will be written elsewhere. None of that will be dismissed. None of that can ever be dismissed.

  She finished with six minutes to spare, but had succeeded in irritating a few of the managers. Graham used his rebuttal time to explain that he only meant that he would not question the integrity of senators who voted against conviction, not that he had any doubts about the case. I have told you the best I can that there is no doubt these are high crimes, in my opinion, he said. I have lost no sleep worrying about the fact that Bill Clinton may have to be removed from office because of his conduct. I have lost tons of sleep thinking he may get away with what he did. But the question was: Could you disagree with Lindsey Graham and be a good American, in essence? Absolutely.

  With the arguments done, the senators would have a crack at the case for the first time as they began debating the motion to dismiss among themselves. According to long-established precedent, the Senate would deliberate behind closed doors. Harkin and his fellow Democrat Paul Wellstone wanted to conduct their discussions in public, but needed two-thirds of the Senate to suspend the rules. They did not even have a simple majority. In the first split roll call of the trial, the Senate voted 4357 against the Harkin-Wellstone plan to keep the doors open.

  At 5:50 P.M., Sergeant at Arms Jim Ziglar and his staff cleared the galleries, turned off the television cameras, and closed the doors to the public. For the next four hours, the senators talked with each other about their assessments of the case and their thoughts on how to proceed. Without the normal floodlights and the sound system used to televise their proceedings, let alone an audience, the session proved a little surreal. In the dimmed room, they gathered closer to the front so they could hear. Most spoke off-the-cuff, without prepared remarks. They addressed each other by first names rather than as the gentleman from Nebraska or the gentlelady from California. The discussion struck many in the room as unusually high-minded for a group of politicians, while they struggled with what consti tuted an impeachable offense. But as the evening wore on, it was clear they had no consensus. For all of the desire to keep the trial bipartisan, they were heading inexorably toward the much feared clash between the two parties.

  The women of America will be watching to see how we treat Monica Lewinsky, declared Senator Patty Murray.

  Some twelve hours after the Senate adjourned for the night, most of them were back at the Capitol for their morning party caucus meetings on Tuesday, January 26. At the Democratic meeting, the main topic was witnesses. The managers were to produce their proposed witness list later this day, and several female senators decided to make their stand against bringing Lewinsky to the floor. Murray led the charge. The senator from Washington State reminded her colleagues that she was part of the Year of the Woman class that had come to Washington in the 1992 election fueled in part by a backlash against the handling of Anita Hill and her allegations of sexual harassment during the Clarence Thomas hearings. What had alienated many women then was how the all-male Senate Judiciary Committee had dealt with Hill. No matter how gingerly they thought they would handle Lewinsky, Murray warned, it would look the same once again.

  Dont you understand what this is going to look like? This is going to be ninety white men leering at her as shes being asked about her sex life.

  At that point, Senator Chris Dodd piped up. Why is everyone looking at Kennedy? he asked with a mischievous grin.

  The room erupted in laughter, breaking the tension for a moment. But Murray had struck a chord. One by one, other women got up and echoed her passionate statement, including Barbara Boxer and Dianne Feinstein. They simply could not let Lewinsky be called to testify in the well of the Senate.

  Little did they know that at least some of the managers were still itching to interview Lewinsky again in advance of any actual testimony. McCollum, who had pushed the House team into the first encounter at the Mayflower, now wanted to do it again. But this time, Hyde would not go along. Any more interviews would only exacerbate the criticism they had already absorbed.

  Chuck Ruff was miffed at Asa Hutchinson for showing him up on a point of fact over the weekend the same way Ruff had undercut the Arkansas Republican a few days before. The whole White House strategy turned on showing the Senate that the House team was twisting the facts, an approach that would not work if it became a two-way street. Ruff had not realized that the Paula Jones lawyers had ever put Betty Currie on a supplementary witness list or had issued a subpoena in her name. But as he studied the issue, Ruff realized that no one on his side had ever seen the witness list or subpoena. It was still under seal in the courthouse in Arkansas. That must mean that Hutchinson had obtained it improperly.

  Ruff had confronted Hutchinson about the matter privately, only to be brushed off. Indeed, Hutchinson had referred to the subpoena as recently as the day before in his argument against the motion to dismiss, even though Currie had not received it at the time of her conversation with the president and therefore was not a witness at that point. Now Ruff decided to turn Hutchinson in. At 9:34 A.M., Ruff faxed him a letter threatening to tell Rehnquist that the managers had violated a court-ordered seal unless the House prosecutors could prove they had not. Ruff gave Hutchinson until 10:30 A.M., less than an hour away, to respond. In light of your continuing, inaccurate characterizations of Ms. Curries role, Ruff wrote, they would have to use the same documents to rebut the managers assertions and so we intend to advise the Chief Justice of our concerns about their status so that we do not compound your violation by using them improperly in our argument. Hutchinson read the letter and decided to ignore it. Let them go to the chief justice, he thought. But just in case, he told an aide to ask the judge in the Jones case to retroactively unseal the documents.

  The ten-thirty deadline came and went with no action by Ruff. Advised that the chief justice did not want to get involved in such matters, Ruff decided not to lodge a formal complaint, but to hold on to the issue in case he needed it to embarrass the managers on the floor. As the deadline passed, Hutchinson and the other managers gathered in their conference room in the Rayburn Building to make their final decisions on witnesses. By this point, the trial team had settled on threeMonica Lewinsky, Vernon Jordan, and Sidney Blumenthal. In addition, they would ask the Senate to invite Clinton to testify voluntarily. The papers had been drawn up and were ready to go. All the managers had to do was sign off on the decision. But they were still unhappy about the deal they were being forced to live with. Chris Cannon, the outspoken manager from Utah, could not believe they were simply going to swallow this.

  The question is whether we go forward with a mock trial, he said.

  Lindsey Graham was in a like frame of mind. Id like to take Chriss idea and turn it into a motion, he said. They should vote on whether to even participate in what some of them considered a farce.

  But Hyde would have none of it. He was not happy about what was happening either, but it would be ridiculous to throw a temper tantrum. Much as they hated it, th
ey had to live within the rules and at least finish their duties with as much dignity as they could. As Cannon and Graham agitated, Hyde ignored them and tried to move the discussion to the list of proposed witnesses.

  I think we ought to vote on the motion, Cannon persisted.

  Id like to decide which witnesses were going to have, Hyde responded, rebuffing him.

  Hyde led the group through the list. The decision on the first witness was unanimous. Despite Hydes trepidation, everyone agreed by now that they had to call Lewinsky. The decision to force her to attend an interview had effectively closed the question, and besides, the managers who had met her felt somewhat optimistic that she might be cooperative. The second choice was not as easy. Jordan was pivotal to the case. He had obtained the job for Lewinsky at the presidents behest and simultaneously set her up with an attorney to draft her false affidavit. But Bob Barr made a passionate plea not to call Jordan.

  Hes a friend of the president, Barr said. Hes not going to help us. Hes going to hurt us. Jordan made a living manipulating Washington, Barr said. To put somebody as smart as Jordan in a deposition where he would be in control would be inviting disaster. Better to call Betty Currie, who was not trained as an attorney and would be far less likely to hurt them on the stand, he said.

  Hutchinson wanted to call Currie too, but if the choice came down to her or Jordan, he preferred to question the presidents friend. Jordan was critical. They had to have him to establish the link between Clinton and the efforts to find Lewinsky a job. Bryant said all witnesses could hurt them, but Curries testimony was already as good as it was going to get. The facts involving her conversations with Clinton were not in dispute; the only disagreement was whether the president knew at that point she might be a witness. As for the gifts, the managers preferred Lewinskys version of events to Curries. So, Bryant said, if Currie was called and went south on the managers, she could hurt them on the strongest elements of their case, whereas Jordan would at worst hurt them on the part of the case that was toughest to prove alreadythe link between the job and the affidavit. Other managers worried that calling Currie would only make them look like thirteen angry white men beating up on a sympathetic, middle-aged, churchgoing African-American woman. They remembered all too well the pictures of a frightened Currie shielding herself from the media mob at her first grand jury appearance a year ago. Jordan, at least, could take care of himself. So while other managers harbored some of the same concerns as Barr, they voted 121 to call Jordan.

  Having expended his capital in getting Jordan on the list, Hutchinson did not feel he could now push for Currie as well, so he acquiesced as Graham and Rogan insisted on making Blumenthal their third and final witness. For one thing, the sometimes acerbic Blumenthal would not be nearly as likable a witness as the other two. For another, they said, Blumenthal could show the sinister nature of Clintons attempts to cover up his affair with Lewinsky by testifying about how the president depicted her as a stalker. It was important to emphasize the venality involved in the presidents actions; it was not just a matter of trying to avoid embarrassing himself or his family. The team agreed and Blumenthal was approved.

  Hyde started to move on, but the dissidents were not ready to give up. Barr and Cannon proposed that they name a fourth witness, Dick Morris, the presidents former consultant. They knew Morriss own sexual escapades would detract from his credibility, but they argued he would be a powerful witness because of his deep knowledge of the president. Morris had spoken with David Schipperss investigators and made clear he would happily testify against his former client.

  Hell, said Barr, we need a witness who wants to be a witness.

  Some of the other managers agreed that Morris had said some interesting things in their interviewstales of secret police and intimidation of women who might have come forwardbut they were afraid he was too interesting. Morris scared some of them. If they were to call him, they would be lambasted. Besides, what did he have direct knowledge of, anyway?

  They went around the table until there were six votes for Morris, including Rogan and Graham. The vote ended at that point because it was clear seven would be against. Hyde was never forced to state a vote.

  In the middle of all this, the managers received a note from Senator Arlen Specter saying he wanted to meet with some of them to talk about witnesses. Hyde dispatched Graham and a couple other managers. They found Specter in his hideaway with Republican senator Jon Kyl of Arizona. With the motion for three witnesses now committed to writing and less than an hour until it had to be filed with the Senate, the two senators suddenly told the puzzled managers they could have a couple more.

  We think five is the maximum, Specter said.

  While flabbergasted, the managers knew it was too late. Look, Senator, said one of their aides, Paul McNulty, we have to have a motion filed in your body in an hour. We dont really have a lot of flexibility.

  Dont worry about that, Specter said. We can work around that.

  No, the managers said. They had made their decision. It was done. Specter and Kyl seemed relieved.

  The trial resumed at noon. The managers presented their proposal for three witnesses and an invitation to the president to testify. Given the task of arguing against the House request, David Kendall slashed away with no mercy. He displayed chart after chart showing quotes from Hyde and the other managers about why they needed no witnesses during the Judiciary Committee hearings because the record compiled by Starr was complete enough. Why should it suddenly be different in the Senate? Kendalls dagger was so sharp that when he started a sentence by saying, Now, I dont want to be uncharitable to the House managers, senators on both sides of the aisle burst out laughing.

  More ominously, though, Kendall also delivered a warning to the Senate. If it approved witnesses for the prosecutionany at all, even just threeit would let the genie out of the bottle and the White House would be obliged to ask for an open-ended discovery process that, as he described it, sounded as if it could last months. We are not at all afraid of what the witnesses would say. Indeed, we know what they are going to say because it is all right there in the volumes before you. Then pointing accusatorily at the managers, Kendall added, Lets be clear about one thingany delay in the process necessary for us to have fair discovery is on their heads.

  The managers were stung by Kendalls razor-edged performance. Hyde got up and said, It is disturbing, it is annoying, it is irritating, when Clintons team complained they were cut off from evidence during the House proceedings. I pleaded with them to produce witnesses, made the subpoenas available to them. They have a positive allergy to fact witnesses. While they called academics, you would get eye strain looking for a fact witness. Hyde explained that he considered the House hearings to be akin to a grand jury process that did not need witnesses given all the prior testimony, but the Senate was conducting a trial, and trials typically featured live testimony. All they had asked for, Hyde added, was a pitiful three.

  Im glad those people werent at Valley Forge or the Alamo.

  Hyde was grousing as he headed into a managers meeting at eleven-thirty the next morning, Wednesday, January 27, ninety minutes before the senators were scheduled to vote. He was growing more discouraged with each passing day. He had not been anxious to take on this role of the presidents chief prosecutor, but he knew it would become his defining legacy, like it or not. And now his fellow Republicans in the Senate were twisting the knife in his back while simultaneously offering gauze and sympathy. Usually a gentleman of equanimity, Hyde gave up trying to disguise his sense of grievance at the Senate Republicans. Hyde knew very well what the outcome of the vote would be and he used the meeting with his fellow managers to hand out assignments for the depositionsBryant would interview Lewinsky, Hutchinson would question Jordan, and Rogan would take on Blumenthal. Unlike in the floor sessions, Hyde could have used David Schippers, but by that time the crusading chief investigator had grown so disgusted with the trial that he had all but withdrawn from active participatio
n.

  Over in the Senate chamber, the juror-judges knew which way the wind was blowing as well. Yet as they gathered on the floor for the session, which started at 1:07 P.M., the mood was sober amid anticipation for the moment of decision. Lott had spent much of the morning still searching for a way out, without success. He floated a plan to bring the trial to a conclusion by February 6 as long as the White House would agree to forgo any discovery, but Democrats were not willing to tie the presidents hands before hearing from the managers witnesses. And so the senators met on the floor for the partisan split Lott had tried so hard for so long to avert.

  Rehnquist instructed the clerk to read the roll on Byrds motion to dismiss the case.

  Mr. Abraham, the clerk intoned solemnly.

  At his desk on the far side of the chamber, Republican Spencer Abraham of Michigan stood up. Nay, he called out.

  Mr. Abraham votes nay, the clerk repeated, then called for the next vote. Mr. Akaka.

  Aye, answered Democrat Daniel Akaka of Hawaii.

  Mr. Akaka votes aye.

  The pattern continued through the roster alphabetically. One after another, a name was called, a senator rose at his or her desk, and a verdict was rendered. Some, such as Dick Durbin, Charles Grassley, and Jesse Helms, did not wait for their name to be called to standthey moved to their feet as soon as the clerk got close. They stood rigidly formal, the men buttoning their coats for the moment of the vote, only to unbutton them the moment they were done and sit down again. Some announced their decision in a soft, even sad voice, such as Ted Kennedy, Barbara Boxer, and even Byrd. Others, such as Fred Thompson and Fritz Hollings, boomed out their answers in full senatorial baritone. The votes depended on the side of the roomfrom Rehnquists right came ayes and from his left came nays.