by Renata Adler
There can be no doubt that Mr. Bakaly and his colleagues at the Office of the Independent Counsel “do not habitually correct published misinformation.” Their enterprise consists so precisely in generating misinformation, in such confusing and lurid volume—before the grand jury, the House Judiciary Committee, the courts, the attorney general, and the press—that by the time the truth emerges about any particular matter the news will simply have moved on. The strategy has so far served the Independent Counsel very well. As recently as this morning (February 10, 1999), The New York Times is still reporting, for example, that Linda Tripp “found her way to the Office of the Independent Counsel through a group of private lawyers,” and that the Independent Counsel “first learned about the Lewinsky matter” on or about January 8, 1998—“four days before Linda R. Tripp contacted Mr. Starr’s office.” Ms. Tripp had testified that she contacted the OIC on January 12, 1998, and that her intermediary with Mr. Starr’s office, as with Paula Jones’s attorneys, was Lucianne Goldberg. Mr. Bakaly now repeats Ms. Tripp’s claim that Ms. Goldberg was responsible for the (in his words) “decision to start taping” as well.
I don’t know about Ms. Tripp’s “decision to start taping,” or what time Mr. Bakaly means by (in his other carefully chosen phrase) “at that time,” but attempts to cast Ms. Goldberg as all-purpose motivator, intermediary, nexus, do not hold up. The fact, as I pointed out in my piece, was that, by January 1998, Ms. Tripp did not need intermediaries—Ms. Goldberg or any “group of private lawyers”—to contact the Office of the Independent Counsel, or to initiate taping for the OIC. By 1998, she had been Mr. Starr’s witness, and before that Robert Fiske’s, in various investigations, for almost four years.
Throughout the long volumes of the Referral, there is every evidence of a determination to conceal, and even falsify what the Office of the Independent Counsel actually knows about Linda Tripp. Nowhere in the Referral’s FBI reports, for example—which set forth, in considerable detail, both Ms. Tripp’s own history and her intended testimony before the grand jury—is there any mention whatever of the fact that she has been interviewed at least once before, on April 12, 1994, on behalf of the Independent Counsel, by the FBI. In my piece, I mentioned the FBI’s report of that April 12, 1994, interview—which I found, not in the Starr Referral but in documents that accompanied transcripts of the D’Amato hearings on Whitewater. Ms. Tripp was an enthusiastic witness. Her most sympathetic interlocutor was Lauch Faircloth, her fellow conspiracy theorist and one of two senators—the other was Jesse Helms—most directly responsible for the appointment of Kenneth Starr as Independent Counsel.
It is inconceivable that the FBI report of this interview is not in the files both of the FBI and of the OIC. In the whole Starr Referral, however, there is no mention of any such prior report, interview, or file. The almost inescapable inference is either that the Referral’s 1998 FBI reports were laundered to expunge any mention of the 1994 interview, or the FBI agents interviewing Ms. Tripp were instructed to omit any reference to it. An investigation of what became of these files, and why they were concealed from the grand jury, the House, and the Senate is surely overdue.
Similarly, when Ms. Tripp testified that, until January 12, 1998, she had “never even thought about the Independent Counsel in my wildest dreams,” and that she needed Ms. Goldberg to contact the OIC, the grand jury was being actively misled. It was the obligation of the prosecutor immediately to disclose to the grand jury that this testimony, as he knew, if not from his own memory, then from his files, was false.
As for Ms. Tripp’s tapes—which occupy literally thousands of pages of the Referral, but on which Mr. Bakaly now says the Referral “places no great reliance”—it is now clear that more than half of them exhibit doctoring (it is not clear by whom), which the OIC chooses to characterize as “duplication.” And it is quite untrue that any discrepancy in the sequence is, as Mr. Bakaly claims, “noted in an appendix to our Referral.” The pages that Mr. Bakaly cites are simply lists, without any comment whatsoever on the sequence: They are an instance of the lack of integrity, and not a notation of it. It is, in any event, not the “tape,” but the conversation that is out of sequence: An earlier conversation appears between two later ones—a metaphysical impossibility. The very extent of the deception in defense of the tapes, together with the rapidity with which the OIC granted Ms. Tripp immunity for them, make it clear whom Ms. Tripp was working for. Could the prosecutors in a single evening really have reviewed the contents of all those tapes, appraised their reliability, and phrased questions for Ms. Tripp to pose during an interview (at the Ritz-Carlton, with Ms. Lewinsky) the following day? Surely only Ms. Tripp’s prior work for the OIC can explain the speed and degree to which they understood and trusted her account, and the alacrity with which (without any legal authority) they wired her.
There can really be no doubt, either, that on the night of January 16, 1998, when the OIC was trying to coerce Monica Lewinsky to cooperate in secret taping, the prosecutors were aware—contrary to the statements in Mr. Bakaly’s letter and to sworn testimony, before the House Judiciary Committee, by Kenneth Starr—that Ms. Tripp was going to meet Paula Jones’s attorneys that very night. In fact, as Ms. Tripp testified before the grand jury, the terms of her agreement with Jones’s attorneys required her to brief them “before the President’s deposition,” which was, of course, the following day. Aside from the certainty that Ms. Tripp, who was by this time incontestably their agent, would have told them, the whole alleged basis of her conversations with them was that she was about to be a witness in the Jones case. Moreover (a fact concealed by the prosecutors even in their representations to the court of Judge Norma Holloway Johnson), throughout most of the hours on January 16, 1998, when prosecutors Jackie Bennett, Michael Emmick, Bruce Udolf, and Stephen Binhak and FBI Special Agents Steven Irons, Patrick Fallon, and “other OIC attorneys and agents present at various times, mostly in an adjoining room” were detaining Ms. Lewinsky in one room of the Ritz-Carlton—one wonders how many prosecutors and FBI agents are required to detain an enemy spy, or a serial killer—Linda Tripp was waiting in another room of the same hotel. When Ms. Lewinsky declined to be wired, and it was clear the OIC would not be able to enlist her in one plan, Ms. Tripp needed to meet her deadline in setting up the President in another. Ms. Tripp left for her pivotal briefing of the Jones attorneys. Far from having “no inkling” where Ms. Tripp was going, the OIC sent one of their agents to drive her there.
The press, including the Times, has brought out some of the other extensive, manifestly illegal, contacts between the OIC and the Jones people, by way of partners in Mr. Starr’s law firm and of Mr. Starr himself. There is at least one further clue, in the very basis of the interrogation of Ms. Lewinsky, to the degree of collaboration between the Jones attorneys and the OIC. In fact, the incident cannot even accurately be called an “interrogation.” There is no evidence that the prosecutors and agents ever asked her anything. It was, rather, a protected exercise in threats, bullying, coercion, and intimidation, based not on inquiry but on what the prosecutors told Ms. Lewinsky they already knew. And the question is, How could they possibly have known it?
Ms. Lewinsky’s affidavit had been signed, and mailed, but would not arrive until three days later at the court. Ms. Lewinsky, it must be remembered, had actually lied to Ms. Tripp—to the effect that she was taking Ms. Tripp’s advice, and that she had not signed a false affidavit in the Jones case, and would not sign such an affidavit, until the President, through Vernon Jordan, had found her a satisfactory job. Ms. Tripp, in other words, did not know that the false affidavit was already signed. How, then, did the prosecutors know—not just that it was false but that Ms. Lewinsky had signed it? The answer is this: Francis Carter, Ms. Lewinsky’s attorney, had, five days earlier, informed the Jones attorneys, as a courtesy, of the contents of the affidavit. The Jones people told the OIC.
Finally, there is simply no question that, in this eleven-hour detention of M
onica Lewinsky, OIC personnel were in flagrant violation of statutory and professional constraints on prosecutorial misconduct and of Ms. Lewinsky’s constitutional rights. It is simply untrue that a federal court “summarily rejected” (Mr. Bakaly’s phrase) any such claim, or that the court was ever presented a full and honest account of what occurred that night. The issue before Judge Johnson was whether to quash the OIC subpoenas not of Monica Lewinsky but of Francis Carter. Judge Johnson accepted the OIC accounts of what they actually did. Nonetheless, she wrote: “The Court expresses its concern that” the OIC “may have acted improperly.” “This Court’s supervisory power to control prosecutorial misconduct before grand juries,” she also wrote, “is quite limited. However, the Court is extremely disturbed” that the prosecutors might have disrupted Ms. Lewinsky’s relationship with her attorney, Mr. Carter. And that she would “consider referring this matter to the Department of Justice Office of Professional Responsibility for investigation.”
After a blizzard of affidavits from the prosecutors and FBI agents that there had been no misconduct on their part (and without having received sworn testimony to the contrary, given, at risk of their immunity, by Ms. Lewinsky and her mother), Judge Johnson withdrew her threat of sanctions. None of the allegations was “summarily rejected.” Subsequent testimony by Ms. Lewinsky and her mother made it absolutely clear that the prosecutors were in violation not just of the law but of Justice Department guidelines—by which the Office of the Independent Counsel is, in its authorizing statute, bound.
One has only to read the OIC’s own affidavits, In Re Sealed Case, before Judge Johnson, about what they did on the night of January 16, 1998. One constitutional standard for such detentions is whether a “reasonable man” would have known that he was free to leave. There were more than seven men, some, according to their affidavits, alternately in the room and “standing in the doorway,” while Ms. Lewinsky was alternately sobbing “hysterically” and staring “off into space.” They point out that they gave her permission to go to the bathroom and shut the door. They say that Ms. Lewinsky’s mother “thanked” them for giving Ms. Lewinsky “permission” (their word) to call her mother. They deceived her for hours with dire descriptions of what they said her legal situation was. Why did there need to be so many of them, if, as Ken Starr told the Judiciary Committee, they did not intend to “overbear”—another constitutional standard—“the will”? No reasonable person would have felt free to leave. Transcripts of the prosecutors’ own affidavits are chilling. In time, this conduct of the OIC will enter history and the law as precisely the conduct, on the part of public officials, that the Constitution was designed to protect citizens against.
February 1999
A COURT OF NO APPEAL
IN JANUARY of this year, Simon & Schuster published my book Gone: The Last Days of The New Yorker. I had been at The New Yorker since 1963—with an absence of about fourteen months, during which I was Bosley Crowther’s successor as the film critic of The New York Times. Though I had written for other publications, I thought I knew the magazine pretty well. The New Yorker, I wrote, is dead. I did not expect everyone to agree or to welcome my account of what happened to the magazine. Perhaps not surprisingly, the colleagues whom I had loved and admired through the years tended to share my views. Those of whom I thought less highly, and whom I portrayed less admiringly, did not.
Throughout the book, I referred to matters in the outside world, politics, travels, issues, assignments taken and not taken, discussions with William Shawn, the great editor, who, over that period of more than thirty years, naturally grew old, declined, and lost control of his magazine. A young editor whom I met in January said he thought I had treated The New Yorker as though it were the proverbial canary in a mineshaft. Its death meant something about the capacity of any living creative enterprise to survive within the culture. The thought had not crossed my mind. It has crossed my mind now.
On November 11, 1999, when my book was still in galleys, Charles McGrath, the editor of The New York Times Book Review, wrote to Simon & Schuster. Mr. McGrath had for many years been an editor at The New Yorker. I had described his tenure there in less than admiring terms. I had also raised questions about what seemed to me an inherent conflict of interest in his having assigned to himself, when he became editor of the Book Review, the review of another book in which he figured. “The other day,” Mr. McGrath now wrote, “I received the galleys of Renata Adler’s forthcoming book,” and “as is my custom, I read through it prior to assigning it for review.” He described as a “complete fabrication” an account of a lunch at which he had speculated to his cousin Laura (“who is not my cousin but, rather, my cousin-in-law”) that he was, at that very moment, being designated successor to the editorship of the magazine. The lunch had, in fact, been described to me by several people. My account of it was harmless; it certainly had no legal implications. (Mr. McGrath’s letter had ended with “cc:” to an attorney.) But I had also written that “no one, at least no writer in his right mind, wants to antagonize the Book Review.” I thought, what the hell. I wasn’t at the lunch. I had written, several times, about my distrust of journalism that relies, in quite this way, on “sources.” So I replaced the passage with an account of a conversation in which Mr. McGrath spoke directly to me. I framed his letter, and hung it on my wall, as a little distillation of what I thought an editor of a major publication ought never to do.
The New York Times subsequently published no fewer than eight, arguably nine, pieces about my book. The first four (on January 12, January 16, February 6, and February 13, 2000) appeared in four sections: Arts, Sunday Magazine, Sunday Letters, and Sunday Book Review. They were unfriendly, but, apart from their sheer quantity, not particularly striking. The Arts piece, by Dinitia Smith, did mention Mr. McGrath’s letter in approving terms (“The material to which he objected,” Ms. Smith wrote, “was removed”), but added that Mr. McGrath said “he had decided to distance himself from reviews about current New Yorker books.” What form that distancing would take, Ms. Smith did not say.
The next four pieces (April 3, April 5, April 6, and April 9, 2000) were dispersed among four more sections (Business/Media, Editorial, Op Ed, and Week in Review), treated as serious news, in other words, from Monday through Sunday of a solid week. It might have been, even as an episode of institutional carpet bombing, almost flattering. It seemed unlikely that the Times had ever devoted four, let alone eight, polemical articles to a single book before. There is perhaps an explanation and a story here for both waves of articles. Let me begin with the second wave.
In mid-February, Jack Sirica, a reporter at Newsday, wrote a letter to Simon & Schuster, calling attention to a sentence, at the end of a passage on page 125 of my book, in which I wrote about having been assigned, by Mr. Shawn, and deciding not to review, To Set the Record Straight, the autobiography (published in 1979, by Norton) of Judge John J. Sirica, Jack Sirica’s father. The sentence in question said I had found that “contrary to his reputation as a hero, Sirica was in fact a corrupt, incompetent, and dishonest figure, with a close connection to Senator Joseph McCarthy and clear ties to organized crime.” Jack Sirica challenged me to produce “any evidence whatsoever” that his father was a “corrupt, incompetent, and dishonest figure” or “had clear ties to organized crime.” He demanded that Simon & Schuster “issue a public, written retraction” and “remove the references” from all future editions of the book. He distributed his letter widely to his colleagues in the press. A reporter from the Associated Press called me and asked, in highly professional and neutral terms, whether I planned to document my remarks in any way. I said I did. The reporter asked when. I said soon. The reporter asked where. I said in any place that seemed appropriate.
Some days later, I had a call from Felicity Barringer, a media correspondent of The New York Times. Ms. Barringer, I knew, is married to Philip Taubman, a member of the Times editorial board and an assistant editor of the editorial page. From the outset the
conversation had nothing of the tenor of an “interview.” Ms. Barringer did not even pretend to any interest in Sirica, only in “ethics in book publishing.” Would I give her my “sources”? “Come on. Yes or no. Up or down?” Her deadline: forty-eight hours. No. Why would I not disclose my evidence, if any, to her? Because, as the AP had reported, I was writing a piece of my own. Why wait? I was not waiting; I was writing.
Had I no concern meanwhile, she asked several times, about what I had done to Judge Sirica’s reputation? I said I didn’t think most people relied for their information about Judge Sirica on a sentence in a book about The New Yorker. In fact, none of the reviews, in the Times or elsewhere, had so much as mentioned the passage. Before Jack Sirica’s letter, no one had apparently noticed it. “Well, that raises the old question, if a tree falls in the forest and no one is there to notice,” Ms. Barringer said. A think piece, evidently.
If I did not wish to “disclose” my “sources” to her in an interview, Ms. Barringer said, “Why don’t you post it on the Internet?” “You post a lot of your own pieces on the Internet, do you, Felicity?” It must be said that, although I was not, as far as I know, discourteous, I was not particularly deferential or awestruck, either. This was, it was true, the Times. It was also an unusually repetitive and mindless interrogation. The game, and its rituals, anyway, are fairly set. The reporter will write what she chooses—not infrequently regardless of what is said. It is one of the many reasons I have always preferred to work with documents, including depositions. They can be verified and checked. Ms. Barringer had a final question: Was my source G. Gordon Liddy? No.