Almost immediately, Bennett, the president, Cutler, and Hillary decided to try to delay all proceedings in the suit past the 1996 presidential election by filing motions to prevent Jones and her attorneys from seeking additional information through discovery in depositions; and, as coincidentally a matter of genuine constitutional principle, they filed a motion asserting that the president was immune from civil damage suits during his time in office. Such a motion was filed in Federal District Court in Little Rock on June 27. After the inauguration of Bill’s successor, Jones would be free to file her lawsuit, the motion argued.
FISKE CAME TO the White House on June 12, to question Bill and Hillary. Reluctantly, Kendall had acceded to the special counsel’s insistence that they be examined under oath.
Whatever else the Whitewater investigations might have been, they were certainly an assault on a married couple by four agencies of the federal government: the Treasury Department’s Resolution Trust Corporation, the FBI, the Justice Department, and the Office of the Special Prosecutor (and both houses of Congress ready to conduct additional hearings).
During Watergate, Richard Nixon, who declared famously, “I am not a crook,” was never questioned by a special prosecutor or a grand jury, even though he was a constitutional criminal, and the cover-up had been about concealing his constitutional offenses. If there was anything that Bill Clinton was not it was a constitutional criminal, or a president who would deliberately accede to constitutional criminality. Nor would his wife. Her reverence of the Constitution was unshakable. But the Clinton presidency was being eclipsed (as they saw it) by the petty past—especially by his wife’s handling of the family finances, and their private life. She stood accused of being a crook, and he, increasingly, of being a degenerate.
Each of them, after twenty years of marriage, knew better. Whatever the failings of the other, there was a deep understanding of the goodness of each. To see his wife portrayed as a crook and a harridan outraged and hurt Bill, even more than to see himself depicted as a degenerate. He, at least, knew the truth of his own sexual excesses, and, whatever the pathology, he didn’t consider it anybody’s damn business but his own and Hillary’s. Her view was no different: whatever had happened in their marriage was between them, not subject to the salacious excesses of the political process; she had spent years trying to keep their difficulties from affecting his enormous talent, good heart, and humane and brilliant politics, and, not incidentally, her own. For her sake and that of their marriage, she chose not to look too closely at the specific facts of her husband’s libidinous inclinations. She had managed relative success at all those tasks in Arkansas, but in Washington all her ingenuity and craft had failed her. It was a terrible irony that the man she had depended on to protect her as Bill could not, Vince Foster, had, in committing suicide, opened up a Pandora’s box that seemed to have no bottom. Now she had only hired guns like David Kendall and Bob Barnett and a slew of lawyers and spinmeisters to protect them and their marriage.
Fiske’s questioning of the Clintons at the White House was a courtesy—a respectful gesture to the office of the presidency. In lieu of a traditional appearance before a grand jury, he would take Bill’s and Hillary’s testimony and then have it read to the grand jurors who were considering evidence under his auspices. This was serious business. Say the wrong thing with intent to deceive, and you could be indicted for perjury or obstruction of justice. At least that was true of Hillary. The Nixon precedent held that a sitting president could not be indicted, though Nixon had been named an unindicted co-conspirator in the Watergate cover-up. Impeachment was the only legal sanction for a president who had violated the law, or abused the Constitution.
Fiske’s intent—as explained to Kendall, Cutler, and the Clintons—was to question Hillary and Bill about Vince’s suicide, about the disposition and handling of documents, files, and papers in his office; and the monitoring of Treasury’s RTC referrals to the Justice Department. Fiske had another grand jury at work in Little Rock, with twenty-five FBI agents assisting his legal staff, handling the Arkansas end of the Whitewater investigation. Fiske wanted to wrap up the “presidential” end of the investigation, in Washington, so that Congress, if it chose, could proceed with its own inquiries. He also wanted to make his own personal judgment about the Clintons, to get a feel for who the Clintons were, some notion of their intent, and how it fueled whatever actions they had taken.
Bill answered each question put to him, some of which were repeated when, as frequently occurred, he said he wasn’t sure of the answer or that he couldn’t recall something. Both he and Hillary of course were lawyers themselves, and Kendall and Cutler had formally prepared and rehearsed them for their depositions as potentially vulnerable parties. They were advised to answer Fiske’s inquiries as concisely, clearly, and convincingly as possible, without extraneous verbiage. Bill, particularly, was a master of excess verbiage, which usually served him well, and he was true to form. His answers tended to meander, though not in a detrimental manner. He hadn’t realized how depressed Vince Foster had been, he said. He’d instructed Nussbaum and the lawyers to cooperate fully with investigators and turn over whatever papers from Vince’s office they were entitled to; but that was about the extent of his own knowledge. He said he really knew nothing about how the RTC referrals had been monitored by the White House or Altman and other Treasury officials. He came across to Fiske as gregarious, likable, and sometimes genuinely bewildered by the investigations his administration was trying to deal with.
Hillary said she was so shocked and grief-stricken when Vince committed suicide that she couldn’t remember much of what she had done in the immediate aftermath of his death, except to cry and await the arrival of Webb and Bill. There must have been dozens of calls during the trauma. Who had phoned whom, and when, was a blur. As for the document search of Vince’s office, she had been in Little Rock and remained removed from the process—or at least she couldn’t remember the specifics of who said what to whom, except to see that Vince’s family got whatever personal effects he had in the office. Fiske found her personable, at ease, and well spoken in a way that was neither particularly forthcoming nor suggested being surreptitious. What she knew about the RTC contacts was what the lawyers had told her, which was only that the referrals to the Justice Department had been made and that they were confident it would all come out okay, because there had been nothing untoward in any of her dealings.
Kendall and Cutler were relatively pleased with the way the afternoon went, and formed the impression that Fiske was getting ready to complete the Washington phase of his investigation. There was nothing that had been said by Hillary or Bill, or implied in Fiske’s questions or demeanor, that suggested big problems.
On the last day of June, Fiske issued two reports. The first found that Vince Foster had, in fact, committed suicide and that his death was not an attempt to conceal facts related to Whitewater. With regard to the Madison Guaranty matter, Fiske wrote in his second report: “After a review of all the evidence, we have concluded that the evidence is insufficient to establish that anyone within the White House or the Department of Treasury acted with the intent to corruptly influence an RTC investigation.”
A third investigation, which would determine whether anyone should be charged with obstruction of justice related to the removal of files from Foster’s office, was not yet complete. Fiske said in a statement that it would be completed within ten days.
White House officials praised the report as vindication of Hillary’s and Bill’s conduct. Republicans furiously criticized Fiske and accused him of not being truly independent. Representative Jim Leach, the ranking Republican on the House Banking Committee, said the findings were “essentially those expected from this extremely narrow aspect of the probe.” Leach was one of the few House Republicans who carried influence with Democratic members, due to his reputation as an old-school “moderate.”
That same day, Bill very reluctantly signed the reauthorization of
the Independent Counsel Act, fulfilling a promise he had made during the campaign, when he and Hillary had made the malfeasance and misfeasance of their predecessors in the White House such a front-and-center issue. The White House issued a statement in Bill’s name that described the concept of an independent counsel as “a foundational stone for the trust between government and our citizens. It ensures that no matter what party controls the Congress or the executive branch, an independent nonpartisan process will be in place to guarantee the integrity of public officials and ensure that no one is above the law. This is a good bill that I signed into law today.” He didn’t believe it.
But with some rare good luck, it was hoped, Fiske would—logically—be appointed to the new position and wrap up his investigation expeditiously. Perhaps there really was light at the end of the tunnel. The Clintons’ enemies, however, did not intend to go gentle into the night.
BILL CLINTON’S first eighteen months as president had hardly been what he’d wanted, or prepared for. He believed his economic advisers had narrowed his options to the point where he couldn’t pursue even his most basic goals; his own staff was so ill-equipped that they didn’t know how to help him function; the Democrats in Congress weren’t allowing him to effectively exercise the constitutional and political powers of the presidency because they were too weak to stand up to the Republican opposition; the journalistic impressionism practiced by reporters was undercutting everything he was trying to do. Add all of this together and, it was clear to him, this was an unprecedented season in the modern presidency, an investigatory witch hunt by Congress, the press, and the judiciary. The president felt it was in the country’s interest—not just his own and Hillary’s—to bring the wretched excess to an end. He felt Fiske’s report, and the suggestion that he would finish his investigation without bringing any high-level indictments, was the first step to terminating this spell of witchery.
When Bill had signed the legislation reactivating the Office of the Independent Counsel, he had asked Leon Panetta, the budget director and a former congressman whose legislative expertise was without peer in the administration, whether there was any way to resist its enactment. Panetta said no, that there was no alternative to keeping his campaign pledge, especially in the midst of an investigation.
Hillary had vehemently argued against the reauthorization—unless the act was amended to provide for grandfathering Fiske’s appointment. This would guarantee continuation of his supervision of the investigation, with no possibility of his replacement by someone more partisan. Even before Fiske had issued his report, she had listened to the drums banging at the other end of Pennsylvania Avenue and had not mistaken their enemies’ intentions. The drumming became louder and more frenzied as consideration by Congress of health care, and the midterm elections, approached. Their opponents’ persistence in believing that Vince Foster had been murdered, perhaps on orders from Hillary and Bill, proved they were “really fucking crazy,” Hillary said. The fact that Fiske’s report had emphasized, like the FBI and the Park Police reports, that Vince had been depressed and committed suicide did nothing to dispel the conspiracy theories.
Hillary’s fears were so extreme that she believed Chief Justice William Rehnquist and others in the judiciary would manage to oust Fiske and replace him with a conservative idealogue. Some officials in the White House regarded her as paranoid. But she knew Rehnquist’s history, from her work on the Watergate investigation, and she did not believe that Rehnquist’s elevation to chief justice had changed his character or his politics.
Hillary would have found a ready ally in Bernie Nussbaum had he still been counsel to the president. Like Hillary, Nussbaum had no doubts about the viciousness and perseverance of their enemies, and he had no reverence for Rehnquist. But when Nussbaum had come to Hillary and asked her to intervene with Bill to stop his own forced resignation, she had let him be cut loose. She knew he had done nothing unethical, she told him, but the press wouldn’t be satisfied until he was gone. Nussbaum had been almost disbelieving of his shabby treatment by the president and, even more so, his former protégée, Hillary. Everybody seemed expendable to them, he had concluded, even those who defended them most vigorously.
She had expressed her unalloyed anxiety about renewal of the Independent Counsel Act to Lloyd Cutler. Hillary regarded him as a wise owl in the Washington forest, but she thought he had spent perhaps too much time in the trees to tangle with the likes of what they were up against. She told him her explicit concern that “the Republicans and their allies in the judiciary, led by [the] Chief Justice” would screw them. This was especially likely now that Fiske’s report had been released. Hadn’t Cutler been paying attention to the fury of Republicans in Congress and conservative commentators who were fulminating about the so-called Fiske cover-up? They had dredged up Fiske’s membership, seven years earlier, on an American Bar Association committee that had opposed the nomination of Judge Robert Bork to the Supreme Court. They saw Fiske as a pawn in the culture wars. Senator Lauch Faircloth of North Carolina had already called for him to be relieved of his duties and replaced once the new Independent Counsel law took effect.
Cutler dismissed Hillary’s concerns. More courtly than confrontational in his approach to lawyering and to being counsel to the president, he expected the same from his colleagues at the bar and on the bench, including the Supreme Court. He told Hillary he would “eat his hat” if he was wrong and Fiske was replaced.
Under the terms of the law signed by Bill on June 30, the independent counsel was to be chosen by a three-judge panel—known as the “Special Division”—appointed by the chief justice. Rehnquist named Judge David Sentelle of North Carolina, a Republican protégé of his state’s ultraconservative U.S. senators, Jesse Helms and Faircloth, to head the Special Division, whose other members were Judges John D. Butzner of Richmond and Peter Fay of Miami.
The day after Clinton signed the law, Reno asked Sentelle and his two colleagues to appoint Fiske as an independent counsel under the newly reauthorized Independent Counsel Act so he could continue his investigation. Republicans, led by Faircloth, intensified the attack. Faircloth said Fiske was too close to former officials in Clinton’s administration, including Nussbaum. He said the three-judge panel should “appoint a new, truly independent counsel.” He added: “Given both the appearance of lack of independence…and the relationship between Mr. Fiske and the Clinton administration, Mr. Fiske should not be appointed. His appointment as independent counsel would guarantee that the current cloud of doubt and suspicion hanging over his appointment would remain.”
On August 5, the panel announced that Kenneth Starr, a former U.S. Court of Appeals judge who left the bench to become U.S. solicitor general in the Bush administration, would replace Fiske. “It is not our intent to impugn the integrity of the attorney general’s appointee but rather to reflect the intent of the act that the actor [sic] be protected against perceptions of conflict,” the judges wrote in a four-page order. Bill and Hillary were distraught. Others in the White House were outraged. It would likely mean months and months more of prying into their private lives. Clinton was suspicious of Starr immediately; he wondered why the Democrats hadn’t fought off the appointment. Hadn’t anybody looked at his record? There had hardly been a peep.
A strategy meeting was convened in Panetta’s office. Cutler said Starr’s reputation was not that of an ideological jurist—he had written a landmark libel decision in favor of the Washington Post and freedom of the press, and he had been a reasonably decent solicitor general in the Bush administration. Yes, he was a staunch conservative, a Republican, but that didn’t make him less respectful of the legal precepts of fairness. Meanwhile, Hillary despaired, especially when Cutler confirmed that Starr would probably reexamine everything Fiske had done in his investigation, including Vince’s work and suicide, and the disposition of the files in his office. She and James Carville favored a campaign to attack the nomination of Starr as partisan and unjudicial, then to get St
arr to refuse the position if sufficient wrath could be aroused among Democrats in Congress and even in the press. Bill thought they were right, but he worried that a campaign obviously inspired by the White House could, as Cutler warned, backfire if Starr took the job and came after them. Kendall was horrified at the prospects of a Starr appointment.
Perhaps the most portentous piece of information had appeared in the Washington Post on August 12. It reported that Judge Sentelle had joined two senators from his home state, Helms and Faircloth, for lunch in the Senate dining room a month earlier. No senators had been more savage in expressing their enmity to the Clintons and their politics, or about Whitewater. All three men denied that the subject of Whitewater or replacing Fiske was under discussion; their dissembling was regarded as laughable even by many Republicans on the Hill: Helms said they had talked of “Western wear, old friends, and prostate problems.” There was additional cause for demoralization and objection to Starr’s appointment: his law firm, Kirkland & Ellis, had filed a brief in support of Paula Jones’s argument that the president wasn’t immune from a civil lawsuit. This alone should have been cause for Starr to recuse himself.
It was decided that Bob Bennett would appear on the Sunday-morning television news shows to attack the sacking of Fiske and subsequent choice of Starr. But when no groundswell of support for Bennett’s position materialized, Lloyd Cutler disavowed any opposition by Bennett or the White House. Bennett was speaking for himself, said Cutler, not for the president or first lady.
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