Contempt

by Ken Starr

  Unfortunately, in the minds of the public and even within our own ranks in Little Rock and D.C., it was the Starr investigation.

  I sensed immediately that I was stuck. If I left, the Tucker case would fall through, and as a matter of principle, I couldn’t let that happen. I was heartsick, but resigned myself to the situation. The Starrs would not be moving to Malibu after all.

  I called Davenport and explained the circumstances. The Pepperdine president wasn’t surprised by this turn of events. A minor firestorm had erupted in Washington. It was widely rumored that Republican heavies had put pressure on me not to leave. Untrue. I got not a single phone call or note saying, in effect, that I shouldn’t abandon ship. Yet I didn’t need any pressure to know that I couldn’t shirk my duty.

  To my great relief, Davenport was flexible. “We’ll postpone this one year,” he said. “You’ll start August 1, 1998. You need to be here by then to catch ‘the wave.’” A clever Malibu reference.

  It took only four days for me to announce my change of course. To my relief, Dawson withdrew his threat to go home if I headed off to Pepperdine. Before long, everything returned to a state of normalcy in our two offices. (The cruel irony was that Tucker would plead guilty in February 1998 instead of going to trial.)

  I was deeply disappointed but was resigned. I would still get my chance to go to Pepperdine later. And for now, though I was sorry to be stuck being the controversial Republican hit man, it was gratifying to know that my team wanted me to stay. Duty had called, and I would honor my commitments, even if it meant remaining in an unpleasant role. After all, it would only be another year.

  Little did I know that a storm was brewing beyond the horizon that had nothing to do with my office or role as independent counsel. But it would send another bizarre tornado in our direction and stir up a long nightmare for the Starr family.

  CHAPTER SEVENTEEN

  Paula Corbin Jones

  While the OIC had been pursuing the various Washington leads, the Clintons had been fighting an unrelated Supreme Court battle called Paula Corbin Jones v. William Jefferson Clinton and Danny Ferguson, filed in the Eastern District of Arkansas in May 1994, before I was appointed independent counsel.

  Jones, an Arkansas state government employee, had alleged in federal court that she had been subjected to a particularly repugnant form of sexual harassment by Governor Bill Clinton in 1991, and when she rebuffed his advances was subjected to “intentional infliction of emotional distress” and defamation.

  While investigating various cases in Little Rock, the OIC never pursued any case of sexual wrongdoing against Clinton. That simply was not in our mandate. At times our agents talked to women who allegedly had been involved with the governor, but as witnesses related to another investigation. And we never came across the path of Paula Jones. I was uninterested in the facts of her case. I was deeply interested, however, in the issues of presidential power and prerogative.

  Jones’s lawsuit alleged that during a convention at the Excelsior Hotel in Little Rock on May 8, 1991, Jones and another woman were manning a registration desk on behalf of the Arkansas Industrial Development Commission (AIDC). Governor Clinton arrived to make a keynote address.

  After Clinton’s speech, Danny Ferguson, a state trooper, approached the desk. Trooper Ferguson was in street clothes but wearing a sidearm. He made small talk with Jones and the other woman and left. He reappeared at 2:30 P.M. and handed a piece of paper to Jones with a four-digit number written on it.

  “The governor would like to meet with you,” he said, indicating that the number was Clinton’s suite at the hotel.

  Jones hadn’t met the governor. She had joined the AIDC only in March and was making a paltry $6.35 an hour. In essence, she was a very junior staffer, certainly not important enough to meet with the chief executive of Arkansas. She asked Ferguson what Clinton wanted.

  “It’s okay, we do this all the time for the governor,” Ferguson said.

  Ferguson escorted Jones to the suite. He knocked, Clinton answered, and Jones entered the room while the trooper remained outside.

  Clinton made small talk, asking Jones about her job, mentioning that David Harrington, director of the AIDC and her boss, was his good friend. Then the governor took Jones’s hand and pulled her toward him.

  She pulled back and retreated several feet. But he continued to move toward her.

  “I love the way your hair flows down your back,” he said. “I love your curves.”

  When he attempted to kiss her, Jones moved away.

  “What are you doing?” she said.

  Jones tried to distract him by chatting about Hillary. She was confused. Here was the governor, whom she had never met, talking about her boss and obviously making a pass.

  What transpired, according to Jones, was an uninvited and ugly experience. President Clinton, she alleged, had unzipped his pants, exposed himself, and invited her to perform a sex act.

  She insisted, “I’m not that kind of a girl,” and said she had to go.

  “Well, I don’t want to make you do anything you don’t want to do,” he said, pulling up his pants. “If you get in trouble for leaving work, have Dave call me immediately and I’ll take care of it.”

  Why was he mentioning her boss? As she left the suite, Clinton looked at her “sternly,” and said, “You are smart. Let’s keep this between ourselves.”

  Back at the registration desk, a visibly upset Jones told her fellow employee what had occurred. She left the conference, went to the workplace of a friend, and also told her. Her friend urged her to report the incident, but Jones feared she’d lose her job. No one would believe her—and what about her fiancé, Steve? Their relationship was all-important to her. He might think she’d invited Clinton’s overtures.

  Over the next few days, Jones told other people about the encounter, but she didn’t report it to her boss or the police.

  One of Jones’s duties at her job was to deliver documents to the Governor’s Office and other agencies in the Capitol Complex. On one trip, Ferguson approached her again. “Bill wants your phone number,” he said. “Hillary’s out of town often and Bill would like to see you.”

  Jones refused to give the trooper her phone number and walked away. On another occasion, Ferguson approached Jones yet again.

  “How’s Steve?” he asked. Since she’d never mentioned her fiancé’s first name, the remark made Jones feel as if she were being watched.

  Time passed, and Jones married her fiancé and had a baby. She continued to work at the AIDC. Ferguson was like a bad penny; he kept turning up, making cryptic comments.

  “I’ve told Bill how good-looking you are since you’ve had the baby,” he said one day. Jones felt her activities were being monitored.

  One day, Jones was in the rotunda of the Capitol. Clinton walked by and draped his arm around her shoulders and pulled her close and said to a trooper standing nearby, “Don’t we make a beautiful couple: Beauty and the Beast?”

  At her job, Jones believed she was under negative scrutiny. Her duties were diminished, her advancement stalled, and she received no pay raises beyond cost-of-living increases. She quit her job in 1993 and moved to California.

  Her new life was jarred in January 1994, right about the time of Fiske’s initial appointment as independent counsel.

  Jones was in Arkansas to visit her family and friends when she got a call from a friend who read her a segment from that month’s issue of the American Spectator. The story, “His Cheatin’ Heart” by David Brock, focused on allegations by Arkansas state troopers that they had scouted women for the governor—getting their phone numbers, escorting them to hotel rooms, and in general assisting in his assignations with dozens of women.

  One trooper described escorting a woman named “Paula” to a hotel room, quoting her as saying that “she was available to be Clinton’s regular girlfr
iend if he so desired.”

  Jones was extremely upset and worried that people who knew about the encounter would believe that she had agreed to be Clinton’s “girlfriend” while she was engaged. Days later, Paula and her husband happened to be eating at a Little Rock restaurant when Trooper Ferguson, who she believed was the source who told Brock about “Paula,” approached them. He said he was sorry her name appeared in the magazine, but he had purposely kept her last name and place of employment out of the story.

  “Clinton told me you wouldn’t do anything anyway,” Ferguson said.

  Jones felt the article threatened not only her marriage but her relationships with her family and friends, as well as her reputation. On February 11, 1994, Jones, with her lawyer by her side, made a public statement saying that she was the “Paula” mentioned in the story, but that she had rebuffed Clinton’s crude sexual advance and had not asked to be his “girlfriend.” She demanded that Clinton—now the president of the United States—acknowledge the incident, state that Jones had rejected his advances, and apologize.

  What would have happened if Clinton had apologized? Instead, he attacked, saying the incident never happened, he’d never met Jones, and her account was a “cheap political trick” to hurt his presidency.

  “It’s just not true,” said Dee Dee Meyers, White House spokeswoman.

  Worse attacks were to follow.

  “If you drag a hundred-dollar bill through a trailer park, you never know what you’ll find” was James Carville’s pronouncement on Jones.

  A few months after the “Cheatin’ Heart” story, Paula Jones filed a history-shaping federal lawsuit alleging four counts, including violation of her federal civil rights, retaliation, and defamation. She asked for compensatory and punitive damages in the amount of $175,000 for each count, plus attorneys’ fees.

  Clinton had the audacity to suggest that as president he should be immune from this kind of lawsuit while in office. Judicial interpretation had already created a cloak of immunity for the president when sued for official actions taken as president. Now Clinton argued that he should have immunity for his private actions, too. After all, lawsuits will distract the president while attending to his important work, regardless of the nature of the underlying dispute. Lawsuits are lawsuits, with all their attendant disruptions.

  Unfortunately for the White House, history was not helpful to the new president’s cause. Over the span of two centuries, the issue had arisen only three times, all in the twentieth century. Presidents Harding, Truman, and Kennedy came into office with the cloud of civil litigation hanging over their heads.

  Harding and Truman quickly settled their respective lawsuits. Responding to two lawsuits emerging out of an automobile accident during the 1960 campaign, JFK requested a temporary halt to the litigation based on a congressional statute that provides temporary relief to our military personnel from litigation demands back home. The trial court turned President Kennedy down, and those two cases likewise promptly settled.

  Notably, Kennedy had not asserted a constitutional right to freedom from litigation. He maintained, more modestly, that Congress had spoken to the issue, but the trial courts had rejected that straightforward claim of statutory interpretation.

  Ardent admirer that he was of JFK, President Clinton should have taken a page from President Kennedy’s story and settled the Paula Jones litigation. He would have had plenty of company; well over 90 percent of civil cases filed in the United States settle before trial. But Clinton wasn’t interested in peace; he wanted outright victory. Or perhaps, if his political adviser Dick Morris is right, Hillary would hear nothing of a settlement. As a result, the president embarked on a horribly self-destructive course. Instead of settling the Jones litigation, he asked the Supreme Court to invent new law. That’s almost always an uphill battle.

  The Court of Appeals in St. Louis disagreed that the president could successfully claim a pass with respect to civil cases until he had left office. Trial judges enjoy considerable discretion in scheduling litigation matters and would doubtless take the high demands of the presidential office into account. But that would be a matter of judicial discretion, not presidential prerogative.

  The president litigated the issue to the hilt. Spending hundreds of thousands of dollars, if not more, on attorneys’ fees, the president petitioned the Supreme Court to hear his case. Having lost in the Court of Appeals, the president had no further right of judicial review. However, he could, as thousands of litigants do every year, request the Supreme Court to hear the case in the exercise of its broad discretion. The result of the president filing what lawyers call a petition for certiorari was that the case will be forever be known as Clinton v. Jones.

  The Court agreed and granted the president’s request for review. In theory, this did not bode well for the Jones team. The rule of thumb among Supreme Court observers is that the Court does not agree to hear a case just to affirm the lower court’s judgment.

  Ironically, in early summer 1994, when this issue was the talk of Washington, Robert Fiske contacted me at my law firm to ask what I thought about preparing a friend-of-the-court brief on behalf of his office regarding the Clinton v. Jones lawsuit. Without having reached any conclusions, Fiske wanted to leave the door open to possible civil litigation against the president. He was considering filing a brief in the Jones litigation urging the federal courts not to exempt the president from the reach of the law. We discussed the matter briefly by phone. My position on the issue was straightforward: the president was not immune from a civil lawsuit by virtue of his position as the nation’s chief executive.

  Those conversations never came to fruition. But my firm did approve the filing of a friend-of-the-court brief pro bono on behalf of a nonprofit organization, the Independent Women’s Forum. I jettisoned the project when I became independent counsel.

  Clinton had a lot of friend-of-the-court briefs on his side. Nevertheless, the president’s case was difficult to make. Regardless of philosophy or ideology, the justices take their precedents seriously. Here, literally no precedent could be summoned to support his claim. Equally daunting, no prior president had even asked the American judiciary to create such an immunity bath. That fact alone made it difficult in the extreme for President Clinton and his allies to prevail.

  Lacking any on-point Supreme Court precedent to support the president’s novel position, his lawyers turned to examples from history. Two loomed large. First was a comment by John Adams that the president of the United States should not be subject to the will of a single judge sitting somewhere in the vastness of our country. That sentiment was expressed, of course, when the country was much smaller and considerably less litigious. The second was Thomas Jefferson’s recoiling at receiving a subpoena for presidential documents for possible use in the Aaron Burr treason case in Richmond.

  In fairness, President Clinton was not claiming total immunity from civil lawsuits. He simply wanted a time-out. Clinton argued that the presidency carries with it such vast and constant demands that postponing civil litigation—at least a lawsuit not involving life and death—struck the right balance between presidential responsibilities and a litigant’s demand for her day in court.

  Justice would be delayed, not denied, out of respect for the demands on the president’s time and attention. LBJ had recalled that of his 1,886 nights as president, he rarely went to sleep before 1:00 or 2:00 A.M. and then was up by 6:00 or 6:30. In addition, to allow Jones’s lawsuit to go forward would potentially open the floodgates to all manner of time-consuming lawsuits.

  Yet despite all of this, my position that the president was not above the law remained unchanged. That same position became the eventual ruling of a unanimous Supreme Court in the historic case of Clinton v. Jones. Clinton lost on May 27, 1997. His broad reach for outright immunity during the course of his presidential term garnered not a single vote from the nine justices, two of whom he had appoint
ed during his first term. The Court sided with Jones, holding that the president, as the nation’s chief magistrate, deserves our respect, but he does not enjoy immunity from the reach of the law. The sexual harassment lawsuit could proceed, and Jones’s lawyers could take a civil deposition of President Clinton.

  What would happen thereafter was entirely up to President Clinton. He could have handled the case honorably and with integrity. He could have done what his namesake Mr. Jefferson grudgingly did when Chief Justice Marshall insisted that the president obey a subpoena. Like Mr. Jefferson, Clinton could have grumbled but obeyed the judicial command. Indeed, in contrast to Jefferson and Nixon, who were required to turn over presidential materials that each wanted to shield from disclosure, all President Clinton had to do was write a check to Paula Jones and say, “I’m sorry.”

  Sadly, the president chose the wrong path.

  Unaware of the profound implications of Clinton v. Jones, in late 1997 the OIC carried on as before. We were examining a massive criminal referral regarding possible conflicts of interest at the Rose Law Firm, in addition to working toward resolution of the Tucker tax case and continuing our increasingly tiresome jousting with Susan McDougal and Webb Hubbell.

  Susan and Webb were impossible. Squeezing the truth out of those turnips was maddening, but we felt obliged to use every lawful tool at our disposal to get to the bottom of what happened. Just tell the truth, we told each of them, whatever it is, and get it over with.

  However, we did feel obliged to make a decision about whether to seek an indictment of Hillary. Her constant disclaimer of “I don’t recall” in her various appearances drew the ire of our entire cadre of career prosecutors, including Sam Dash. This was entirely a professional reaction, because we had lawyers of every political stripe in the OIC. This was prosecutorial intuition and judgment.

  No matter the subject, Hillary was a classic noncredible witness. For starters, she was smug and dismissive. Her brittle personality was evident in all our interactions. Just as there was bifurcated Bill (Saturday Night Bill and Sunday Morning Bill), there were two Hillarys. The supersmart, articulate, policy-wonk Hillary; and the private, mean-streak, vulgar Hillary.