After the Tall Timber

by Renata Adler

  (The witness begins crying.)

  A JUROR: So if I understand it, you first met the agents, Agents [blank] and [blank], at around 1:00 and it wasn’t until about 11 p.m. that you had an opportunity to talk to a lawyer?

  THE WITNESS: Yes.

  Ms. Immergut now makes a small attempt to redeem the reputation of her colleagues:

  Q: Although you were allowed to—the thing with Frank Carter was that they were afraid he would tell Vernon Jordan? Is that what they expressed to you?

  A: Right. And I had—I had—I think that someone said that Frank was a civil attorney and so that he really couldn’t help me anyway. So I asked him if at least I could call and ask him for a recommendation for a criminal attorney and they didn’t think that was a good idea . . . .

  A JUROR: Sounds as though they were actively discouraging you from talking to an attorney.

  THE WITNESS: Yes.

  Ms. Immergut tries again, with what is in no sense a question:

  Q: Well, from Frank Carter.

  A: From Frank Carter, who was my only attorney at that point.

  MS. IMMERGUT: Right. Right.

  THE WITNESS: So I could have called any other attorney but—

  A JUROR: You didn’t have another attorney.

  THE WITNESS: I didn’t have another attorney and this was my attorney for this case, so, I mean, this was—

  A JUROR: And this is the attorney who had helped you with the affidavit.

  THE WITNESS: Yes. And that—the affidavit—well, the affidavit wasn’t even filed yet. It was Fed Ex’d out on that day.

  This is an altogether remarkable revelation. For all the prosecutors’ talk of “time constraint . . . time constraint” and pressure brought by a squad of no fewer than three prosecutors and two agents of the FBI on Ms. Lewinsky to “make a decision,” the entire apparatus of the Independent Counsel’s office, with prosecutors and FBI agents, its four-year, $40 million investigation, was now focused on this young woman—when her affidavit had not yet even been filed. It was Friday. The following Monday was Martin Luther King Day, a federal holiday. For all they knew, in spite of anything she had said to Ms. Tripp on any tape—and, as it turned out, she had lied to Ms. Tripp on several matters crucial to the case—Ms. Lewinsky might have changed her mind and filed a truthful affidavit. So at that point, Ms. Lewinsky, contrary to what the prosecutors were telling her and had told the U.S. attorney general and the court, had committed no crime. They had no right whatsoever to detain, let alone mislead her. They wanted her affidavit to arrive, and they wanted it to be false.

  On Thursday, right after their taping, the Special Prosecutor’s office had applied on an “emergency basis” to the attorney general, Janet Reno, and to the three-judge appellate court panel to extend the prosecutors’ jurisdiction to the Jones case and to Ms. Lewinsky. All they had, at this point, was the suggestion—by Ms. Tripp, on Ms. Tripp’s tapes—that Vernon Jordan might have asked Ms. Lewinsky to lie on her Paula Jones affidavit in exchange for a job. It is hard to see how, without deceiving Ms. Reno or the judges, the Special Prosecutor could justify his claim. Ms. Tripp, not the President, had come up with the idea of enlisting Mr. Jordan in the job hunt. Ms. Lewinsky had in fact signed her affidavit before she was offered a job (at Revlon) she found acceptable.

  It is hard in any case to see how the possibility that someone will commit perjury can constitute an “emergency.” The lie, after all, remains in the record. It will last and be detected in due course. A border crossing with drugs, or a conspiracy to murder might require emergency jurisdiction in that the evidence may vanish, or irreversible damage may be done. But it is the height of absurdity to claim an emergency in the loss of an opportunity to catch someone in a lie that has not yet occurred. What seems obvious is that the prosecutors were all too aware that the Tripp tapes really proved no crime. Their hope had to be that wiring Ms. Lewinsky, in conversation with Vernon Jordan and the President himself, might provide evidence of something else—a real obstruction of justice, say, or, better yet, evidence of some Whitewater- or Hubbell-related crime. Ms. Lewinsky refused to be wired.

  A JUROR: During this time in the hotel with them, did you feel threatened?

  THE WITNESS: Yes.

  A JUROR: Did you feel that they had set a trap?

  THE WITNESS: I—I—I did and I had—I didn’t understand . . . why they had to trap me into coming there . . . . I mean this had all been a set-up and that’s why I mean that was just so frightening. It was so incredibly frightening . . . . They told me if I partially cooperate, they’ll talk to the judge . . . .

  A JUROR: So you didn’t know what would happen if you left.

  THE WITNESS: No.

  It is all very well to say that Ms. Lewinsky is being overly dramatic; that she survived; that she did not collaborate in the prosecutors’ efforts to make her, like Ms. Tripp, their agent; and that she suffered no adverse consequences. But it is not true.

  Quite apart from her eleven-hour ordeal, the interrogation was not without adverse consequences for Ms. Lewinsky. That night, when her mother, Marcia Lewis, arrived by train from New York, one of the prosecutors took Ms. Lewis aside and conferred with her alone. Later, in a phone call, made at Ms. Lewis’s insistence, with Ms. Lewinsky’s father, in California, the prosecutor said that the matter was “time sensitive.” It may be that any family, under these conditions—in which the prosecutors made so clear their aversion to their daughter’s attorney—would have thought it wise to fire that attorney. It may be that Ms. Lewinsky’s parents thought things would go better for their daughter with another lawyer. Certainly the prosecutors in their time alone with Ms. Lewinsky’s mother had ample opportunity to tell her so. And, in fact, that night the Lewinskys decided to fire Francis Carter and hired William Ginsburg—a California attorney specializing in cases of medical malpractice. Whatever else might be said about Mr. Ginsburg, he was not likely to strike fear into the hearts of the prosecutors or to be in any way connected with Vernon Jordan. He was not an expert in constitutional or criminal law, and he did not move to have the case against Ms. Lewinsky thrown out on grounds of prosecutorial abuses. If Ms. Lewinsky had had a constitutional lawyer, the case against her would have been thrown out.

  Later, the Lewinskys may have thought that, to avoid further, long and expensive litigation, they needed Beltway attorneys more acceptable still to the forces arrayed against them. Plato Cacheris and Jacob Stein, respected though they are, are also not without political affiliation. (Cacheris’s most famous client, at the time of Watergate, was former attorney general John Mitchell. Stein had been the attorney for Kenneth Parkinson, a Watergate defendant acquitted in the case before Judge Sirica.) Ms. Lewinsky would almost certainly have been better off with her original attorney, Francis Carter.

  To return to the case. The President’s deposition in the Jones case was scheduled for the following day. Paula Jones’ attorneys had made it clear to Ms. Tripp that whatever information she had would be useless to them after that date. Having failed to wire Ms. Lewinsky, Kenneth Starr is eager to supply the Jones attorneys with information to formulate questions for which the President will be unprepared, and on which it is virtually impossible for the President, or any other person, to be entirely truthful, not just for the obvious reasons—discretion, family, a reluctance to injure—but because such a line of inquiry never ends. The many people—journalists, government officials—who have expressed their belief that the whole matter would have gone away if only the President had, from the outset, “looked people in the eye and told the truth” seem not to have considered where that sort of testimony would lead. Even in Mr. Starr’s documents, the counsel presses on and on, to elicit testimony about “masturbating,” for example—which could have no possible relevance in the case. There is the threat of perjury lurking behind every such expression of the prosecutor’s salacious appetite. In fact, the volumes the Special Counsel has submitted to Congress show precisely how detailed, ugly, preposterous
, ultimately endless, and unconscionable such questions are.

  Since the chronology does not support Mr. Starr, the volumes contain no chronology. Since so much of the “evidence” is irrelevant, or contrived, or contradicted, or suspect in other ways, the Report simply buries it in disorganization and sheer mass.

  Taking but one example, there are the famous Linda Tripp tapes. Generally no date or context is given when they are cited in the communication. There are two separate lists of them, neither of which prefaces the transcripts. They give the following order: Tape 18, Tape 19, Tape 1, Tape 2, Tape 13, Tape 3, Tape 8, Tape 7, Tape 15, Tape 11, Tape 16, Tape 26, Tape 16, Tape 9, Tape 5, Tape 23, Tape 6, Tape 17, Tape 27, Tape 10, Tape 12, Tape 14, Tape 20, Tape 21, Tape 24, Tape 25, Tape 28.

  It does not take a high level of acuity to see that there is something anomalous about this list. It could be just a result of the order of transcription that Tapes 1 and 2 follow 18 and 19, and so on.

  Ms. Tripp testifies at length, however, that she had only one tape recorder and that she did not label tapes by date. As soon as each tape was full, or even before it was full, Ms. Tripp says, she put it in a Spode china bowl at some distance from her tape recorder; she was so anxious not to erase or alter anything that she used tapes one after another, never more than once, and often did not even risk turning a tape over to side B.

  There seems no plausible explanation, then, for the fact that Tape 16 is said to hold the conversations of November 8, 11, 13, 14, and 16, while Tape 26 contains conversations of November 11. November 11 falls inescapably between November 8 and November 13. Ms. Tripp would have had to remove Tape 16 after she had recorded the conversations of November 8 and 11, used Tape 26 to record more conversations on November 11, and then put in Tape 16 again to record November 13, 14, and 16—not quite the process she describes.

  An FBI report, moreover, states that the taping was sometimes affected by “Tripp’s cats” having “activated the pause button.” Riveting as some of the recorded conversations are, it seems hard to justify a great reliance on them.

  In the 1960s, J. Edgar Hoover and his FBI clandestinely made tapes of Martin Luther King Jr. engaged in various sexual acts in hotel bedrooms. The Bureau sent copies of those tapes to several public officials and members of the press, and to Dr. King himself, in order to humiliate him and either drive him to suicide or hound him into retirement. Judge Starr and his staff, in their failure to make a legal case, have resorted in the end to the same strategy. One difference is that their target is the President. Another is that in the 1960s public officials and the press refused to disseminate such tapes. In the late 1990s the press welcomes, broadcasts, and dwells upon them. The House rushes to publish them, with the congressional imprimatur, and to use them as the basis for an impeachment inquiry.

  Even in his worst excesses, Senator Joseph McCarthy made at least the claim of constitutional issues: the alleged infiltration and subversion of the American government by a foreign power. In the Nixonian crisis of Watergate, the issue was also constitutional: abuse of power by the President in his official capacity. In 1974 the House Judiciary Committee specifically rejected as an impeachable offense Nixon’s cheating (and thereby lying under oath about it), in his private capacity, on his income taxes.

  It is not often remarked that the Constitution protects not against the crimes of people against one another but against abuses by the state itself against its citizens. On January 16, 1998—and before and after—Kenneth Starr and his staff became precisely the governmental agents the Constitution guards against.

  There is no question that the President was also very much at fault here: failures of judgment, failures of honor, failures of taste. It may be that each of us knows a Monica Lewinsky. Not every temperament finds it easy to escape from her. But Ms. Lewinsky, even if she turns out to have endearing qualities, is an extreme example. In his political life, the President has evidently found it easy to rebuff, even leave, people when he feels he needs to. Somehow, even when Ms. Lewinsky was at her worst—months after he had terminated any physical relations with her, when she would page Ms. Currie late into the night, with threats and abuse, when she would appear at the White House gate and “scream” until somebody (usually Ms. Currie) came and brought her in—he could not seem to say, or enforce, a decisive no. He seemed to have the same difficulty with the special prosecutor and the grand jury. To have a White House, moreover, that cannot control its interns, pantry stewards, guards—cannot control even access to the President’s person and his time—is a security risk and an administrative disaster. It seems, on the basis of these volumes, that the President is not only very nearly friendless but that there is something decidedly less than first-rate about the people with whom he surrounds himself. And, in spite of his intelligence, his interest in history, and concern with his “legacy,” there is also something fundamentally wrong with his conception of what the presidency is.

  The separation of powers, for example, requires the President to insist that the only court before which he will appear is the House in a matter of impeachment. Even the lowliest suspect in a criminal proceeding is not required to appear before a grand jury or submit to a sworn (let alone a videotaped) deposition. The President, as is so often remarked, is not above the law. In this case, he behaved as though he were below it. The very fact that he consented to testify diminished the powers of his office. Let the Independent Counsel come in waving stained dresses as he liked, he has no authority whatever to summon the President, let alone to take an example of his DNA. The House would look pretty silly deliberating over stains on dresses. In a proceeding of this constitutional order, the President cannot prevail with charm, semantics, or persuasion. To any court other than the House in an impeachment inquiry, he must say, as he should have said to Ms. Lewinsky, simply: No.

  The grand jurors, in spite of the evident reluctance of the prosecutors, had been able to elicit testimony—to name but one example—from Linda Tripp which the House needs to examine. In reply to the crucial question of why she taped, she answers, at first, relatively calmly, because she was “afraid,” because she needed “protection” against the enormous forces that were trying to “destroy her,” to push her, in spite of her integrity, into a “felony” and a “perjury trap.” A few questions more and she is talking about “the high level of drug use that was rampant in the White House when I was there,” which may extend to the President himself, and testifying that there was a “list of forty bodies or something that were associated with the Clinton administration. At that time, I didn’t know what that meant. I have since come to see such a list.” Surely a list of forty bodies is something that—unlike the rest of the groundless and inadmissible trash he elicited elsewhere—would have been well within the jurisdiction of the Independent Counsel. The House needs to evaluate for itself the testimony of such a witness, along with the wisdom and good faith of an Independent Counsel who would reduce that testimony nearly to the size of a microdot, and not publish it earlier than page 4,277 of the fifth volume of his text.

  The more closely one looks, then, at this huge mass of unsorted, often irrelevant and repellent matter, the clearer it becomes that the intent is to confuse, obscure, and intimidate. The facts the prosecutors were hoping to find—a bribe or other financial inducement to a witness to commit perjury, or at least to remain silent about some underlying crime—did not exist. In the case of Ms. Lewinsky, there was no obstruction of justice. In fact, there was no underlying crime. So they tried to create one. They thought they needed perjury from the President, so they set out to make sure he would commit it. They sent their agent Ms. Tripp to brief lawyers in a civil case with the sort of damaging information that would make it virtually impossible for the President to answer truthfully. Even with untruthful answers (which were peculiarly clumsy and inept), they had no crime—still less, a constitutional high crime or misdemeanor. So they just amassed their sludge and hurled it at the President, and hoped to prevail through emba
rrassment and disgust.

  In one respect, the strategy seems to derive not just from Mr. Starr’s staff of lawyers schooled in the prosecution of organized crime but also from Mr. Starr’s own experience in the field of antitrust litigation. In the 1970s, it became common for huge corporations in antitrust cases simply to overwhelm the opposition with a huge amount of material, in the discovery phase of the trial, in hopes that the opposition could not find its case. The sheer mass of Mr. Starr’s volumes goes even further. It nearly conceals that he unleashed not just the legal mechanism entrusted to him but also a process that violates the ethical and legal norms of the society, on the basis of the—unconvincing, often even internally inconsistent—testimony of one embittered and compromised informant, and one unusually persistent, and demonstrably unreliable, woman of twenty-four.

  Mr. Starr likes to dwell, with the press, on his reading of the Bible. There is in the Bible, after all, just one commandment that squarely meets the case as it now stands. It has to do with False Witness, and the false witness in question is not perjury. It is False Witness against Thy Neighbor, and these documents, this compendium of partially false and almost entirely scurrilous testimony, with its accompanying report, is a case of false witness so egregious as to set a standard for the millennium.

  Vanity Fair

  December 1998

  ADDENDUM

  On December 30, 1998, Charles Bakaly of the Office of the Independent Counsel wrote a letter to Vanity Fair, saying that “While we do not habitually correct published misinformation,” he must dispute virtually every factual statement in my piece. On the very day the issue of Vanity Fair that contained Mr. Bakaly’s letter was published—by apparent coincidence—Mr. Bakaly, having improperly “leaked” information to the press, left the OIC. Mr. Bakaly admitted the leak. He was subsequently found innocent of any legal wrongdoing in the matter. In spite of Mr. Bakaly’s own admission that he was their source, the Times continued to protect his “anonymity.” The following piece, in any event, was my answer to Mr. Bakaly’s letter.