by Ken Starr
Now we stepped back to look at the overall picture of Hillary Clinton’s actions relevant to our wide-ranging investigations both in Little Rock and Washington, D.C.
That morning, we appreciated the gravity of the moment. We felt duty bound to bring her record before the entire group of lawyers for their evaluation and judgment. This was the final step in the deliberation process. What should we do?
By this stage of the investigation, there were no Hillary sympathizers left among our ranks. There were, however, strong feelings by some that it would be a mistake to seek a grand jury indictment. The investigation had been going on a long time, and the unrelenting criticism continued to take its toll. It seemed increasingly unlikely that we would be able to secure a conviction from a fair-minded jury. I remembered vividly the Perry County Bank trial, in which the evidence was overwhelming, but holdout jurors stood stubbornly in the way of justice.
I guided the conversation so that we focused, to the fullest extent possible, on the merits, not the extraordinary context in which we found ourselves. Outside, the world was absorbed with Monica. Inside the conference room, however, our eyes were trained only on the actions of Hillary Rodham Clinton.
Hickman stood on his feet for hours, making the case for indictment like a lawyer presenting an opening argument. About twenty prosecutors, many who had arrived recently to work on the Lewinsky investigation, sat around the long rectangular table.
Using a whiteboard, Hickman outlined the potential charges and the evidence to support them. He was entirely matter-of-fact, never raising his voice or pounding his fist on the conference room table. He was all business, no emotion.
We were of one accord that Hillary was a liar. She had likely participated in financial crimes back in Little Rock. But many records were missing or incomplete. We never found her time sheets from the Rose Law Firm for 1985 and 1986, the years she did work for Madison Guaranty.
The “jogging incident,” with Bill asking Jim McDougal to shift his legal work from Tucker’s law firm to the Rose Law Firm, was reexamined. Nothing wrong with that in and of itself, but the switch over from Tucker to Hillary opened the door for us to look carefully at her legal work. And the records did show she had worked on the fraud-infected Castle Grande project.
We found Hillary exhibited extreme high-handedness in the Travel Office purge, but arrogance was not an indictable offense. We also looked at false or misleading statements she made under oath, including to Congress.
Most troubling in terms of Hillary’s possible culpability was the question of how the long-sought billing records purloined from her law firm suddenly appeared in the Book Room at the Residence. That room was where Hillary wrote her first book, It Takes a Village, just in time for the 1996 reelection campaign.
The evidence seemed to us inescapable, if largely circumstantial. To protect Hillary from federal investigators, Vince Foster had stolen the law firm’s business records and brought them to Washington. Copies were later found in a briefcase in the attic of his Little Rock home. That was theft, pure and simple, and could constitute obstruction of justice.
Then, in the wake of Foster’s suicide, those records had been furtively removed from his office in the West Wing and hustled into the guarded privacy of the Residence. His office should have been treated as a possible crime scene that night and the following day.
However, when U.S. Park Police arrived, White House Counsel Nussbaum kept them from entering. The FBI was likewise kept at bay. But Nussbaum, Craig Livingstone, David Watkins, Hillary’s chief of staff Maggie Williams, and others went in and out of his office without supervision. Why was protocol not followed? Lots of round-robin phone calls had taken place that night and the following day among Hillary, her New York pal Susan Thomases, and Williams. But no one in this “circle of grief” had called Lisa, Vince’s widow.
This was the one of the most dangerous facts for Hillary. If, after Foster’s death, a set of records relating to her Little Rock legal work had been found, the right thing to do would have been to alert her former law firm of this “discovery” and then produce those records to federal law enforcement. The physical movement of the papers to the Residence showed a determination to keep the records hidden from peering eyes.
After careful evaluation, our ultimate assessment was that Carolyn Huber, who had found the papers in the Book Room, was being honest and truthful. She was in no way complicit in an effort to hide evidence relevant to the investigation. But we could not prove that Hillary had orchestrated the removal of the Rose Law Firm billing records to the Residence.
Throughout the long day, our roundtable discussion was lively. However, at the end of our lengthy deliberation, we concluded that we lacked sufficient evidence to go forward to the grand jury with possible charges against the First Lady. Hillary would not be indicted. All things considered, it was the correct professional conclusion. No one, including Hickman, dissented from that judgment. Hillary would walk.
What would have happened if Vince Foster had been alive, if Webb Hubbell and Susan McDougal had been cooperative, we could only speculate. Each doubtless had his or her reasons for holding back. Webb, her friend and former law partner, had been lavished with money; we could only speculate as to Susan’s motivation.
We would keep trying, putting the pressure on. But it appeared that the sun had largely set on the Whitewater investigation, with a few cleanup tasks remaining. My original mandate from August 1994 had largely been finished. I had investigated, I had found what information there was to be found, and I had taken the matter as far as it could go with the information we had.
However, as our meeting was drawing to a close, we reviewed the entire record of Susan McDougal’s contempt. The contrast was stark. Susan claimed she would not answer our questions because we were out to get the Clintons. Yet Hillary at least purported to answer our questions.
Susan had continued to thumb her nose at the entire legal process. We knew she held a key to the Clintons’ involvement in the Arkansas financial shenanigans. Our prosecutors were unanimous. We would seek a grand jury indictment in Little Rock against Susan for criminal contempt.
CHAPTER TWENTY-THREE
Monica in Trouble
Hillary might be skating free, but the camera-hungry Bill Ginsburg had badly overplayed his hand and profoundly disserved his client.
In February, he had insisted that our office had entered into a binding immunity agreement with Monica. I had never agreed to or signed off on any such pact. For months, she remained in legal jeopardy, though I was loath to request a grand jury to proceed against her on various criminal charges, including perjury and suborning perjury. We counseled ourselves to be patient. The only reasonable course for Monica was to cooperate. We would stay the course.
Ginsburg had filed a motion to enforce the purported immunity agreement. In a closed hearing in March, our prosecutor Rodger Heaton squared off against Ginsburg and methodically shredded all his arguments. On May 1, 1998, Judge Johnson upheld our position. There was no agreement. Monica’s potential legal shield had now evaporated.
But so much damage had been done. Ginsburg was still reveling in his celebrity, talking about getting his own TV show. He had given Monica spectacularly poor advice, setting her up to pose with celebrity photographer Herb Ritts for a glamour spread in the June issue of Vanity Fair, saying that his client’s “libido” had suffered and she needed cheering up.
The optics were disastrous. Here was the most famous intern in the world romping on a Malibu beach in provocative clothes and poses evocative of Marilyn Monroe.
“There’s something sickening about a young woman who vamps with an American flag, mocking her role as the silent center of a case that could bring down a president,” wrote Maureen Dowd in the New York Times.
I could only imagine cheers erupting at the White House as the most dangerous witness against the president was being pu
shed further into the mud by her own lawyer. For that reckless advice alone, Ginsburg should have been cashiered.
We had to decide what to do next. We didn’t trust Ginsburg to negotiate in good faith. We could call Monica before the grand jury, but if she lied, would we then charge her with perjury? I had no heart for that option, but asked Steve Binhak to draw up a draft indictment. Monica’s window for trading her truthful testimony in return for immunity was slipping away.
Meanwhile, we sent a subpoena to Ginsburg requesting Monica’s fingerprints and handwriting samples. As an accommodation, we agreed to handle the procedure in Los Angeles instead of Washington.
We sent prosecutor Ed Page, who had made his reputation in the DOJ by getting a fraud conviction against Linda Medlar, the ex-mistress of Henry Cisneros, Clinton’s first secretary of Housing and Urban Development. Page had such a calm, low-key manner that Sol nicknamed him Mr. Electricity. I had great confidence in Page. Given his experience with former girlfriends, maybe he could work miracles with Monica and her nutty lawyer.
On May 28, a press mob gathered outside the Wilshire Federal Building in Los Angeles. Monica, Dr. Lewinsky, and Ginsburg arrived at 8:15 A.M. “Kenneth Starr is trying to use her as a pawn to get to the presidency,” shouted Monica’s father to reporters. “This is unfair. This is totally un-American.”
Inside, they were met by Page, who escorted them into the fingerprint area. An FBI agent took her finger- and palm prints, then Page took Monica upstairs to give handwriting samples. As Monica wrote out various phrases, using different pens, Ginsburg objected to certain FBI requests, saying he’d allow negotiations to go forward only if he could take handwriting samples from Ken Starr. Ridiculous.
Page was astonished. The tension in the room was overpowering. Then a female FBI agent pulled him aside and pointed out that Monica seemed under the influence of medication. Excusing himself, Page called FBI experts in Washington to ask if drugs could affect a handwriting sample. The answer was yes, it was possible.
Was Monica trying to disguise her handwriting or was she under the influence of medicine? Page asked Ginsburg if his client had taken any drugs that morning. “No,” he snapped. Then Monica whispered to her lawyer. Ginsburg changed his tune, saying she had taken medication but it was nothing that would alter her motor skills. (Later, Monica told her biographer she was taking antidepressants that day.)
The session devolved further and was finally called off at 11:00 A.M. An FBI agent handed Ginsburg a subpoena requiring Monica to complete the exam on June 4, this time in Washington, D.C. It was all so unnecessary. But it took one more boneheaded move by Ginsburg to bring Monica to her senses.
Someone showed her an article by Ginsburg titled “An Open Letter to Kenneth Starr,” which had appeared a few days earlier in a California law journal.
“Congratulations, Mr. Starr!” Ginsburg wrote. “As a result of your callous disregard for cherished constitutional rights, you may have succeeded in unmasking a sexual relationship between two consenting adults.”
Since she had filed an affidavit denying a sexual relationship, and the president had adamantly denied “having sexual relations with that woman, Miss Lewinsky,” this assertion by her attorney bordered on malpractice.
By Memorial Day, Monica and her parents had had enough. They fired Ginsburg. In early June, Monica interviewed a handful of Washington lawyers and settled on Jake Stein and Plato Cacheris, two highly experienced and well-respected pros. When I heard the news, I thought, “At long last. What an ordeal we’ve all been through thanks to this goofball.” It seemed like divine intervention.
CHAPTER TWENTY-FOUR
Obfuscating the Truth
Unlike Monica, Bill and Hillary had chosen their courtroom warriors well.
Trained by the legendary Edward Bennett Williams, whose fruits of extraordinary success as a lawyer brought him ownership of both the Baltimore Orioles and the iconic Jefferson Hotel, David Kendall and his colleagues from Williams & Connolly were smart and extraordinarily aggressive. Their job was to protect their client from criminal charges and, in the process, to prevent the truth from coming out. They would fight us every step of the way. They came close to succeeding.
Delay, delay, delay. Obfuscate the truth. Attack the prosecutor, primarily through surrogates. The Williams & Connolly no-holds-barred but entirely legal approach was to overwhelm the other side with superior firepower coupled with superb lawyering.
Just as he had done with Susan McDougal in Little Rock, Kendall closely coordinated with lawyers for potential witnesses who were in the line of fire or just sympathetic to the president.
In the meantime, the White House kept up its relentless charge that the bad guys in the unfolding saga were the overly zealous OIC prosecutors intruding into the president’s private life, a moral outrage in a free society. In any event, the president had denied any sexual relationship. Case closed.
Kendall was formidable, but he lacked one important arrow in his quiver—the truth was not on his side.
I was dismayed to discover that Kendall laid claim to a powerful new ally: the Department of Justice. My former professional home, which I held in the highest regard, now abandoned all pretense of neutrality.
I had never met Janet Reno. She had little federal experience; her career was spent as a district attorney in Dade County, Florida. She had been gutsy and courageous during the congressional hearings on the Branch Davidian tragedy near Waco, by saying essentially that the buck stopped with her.
But Reno was no longer the highly principled defender of the rule of law. The prior years of support evaporated. All Janet Reno had to do was to say, internally, to the administration: “Stop attacking the Starr investigation. I personally authorized this inquiry into perjury and possible obstruction of justice. This is serious business, so stand down.”
A principled Attorney General would have demanded as much, on threat of resignation.
Yet Reno refused. She had come under withering criticism from the administration for authorizing a number of independent counsels, including one targeting Henry Cisneros, a Clinton favorite. Now, it seemed she had decided it was time to close ranks, and the DOJ got in line.
In terms of principled behavior, Eric Holder likewise left the straight-and-narrow path. For years, he had been a stalwart ally, beginning with his supportive service as a line attorney in the Public Integrity Section, which had detailed my colleagues Jackie Bennett and Rod Rosenstein to the OIC.
Later, as U.S. Attorney for the District of Columbia, Holder had readily agreed to the temporary assignment of a key leader, John Bates, who had questioned Hillary at a deposition, to join the investigation. For all Holder’s help along the way, I was most grateful.
That was then, this was now. Reno and Holder, perhaps tired of fighting other battles within the administration, persisted in claiming, lamely, that for them to stand up and be counted for the cause of the honest administration of justice would somehow compromise the OIC’s “independence.”
This was nonsense. By their inaction, Reno and Holder allowed the White House—and its myriad surrogates—free rein to carry out daily attacks on the OIC’s integrity.
Word came to us that Holder was now frequently seen at the White House. If true, that could be entirely legitimate, or it could also mean that the Deputy Attorney General had joined the defend-Clinton squad. We assumed the latter.
But whether the Deputy AG was an active collaborator or not, Clinton’s determination to win at all costs significantly compromised the Justice Department’s hallowed independence from politics. Just as Richard Nixon compromised the DOJ, so did Bill Clinton.
I first understood that the rug was actively being pulled out from under us by the DOJ when we subpoenaed certain Secret Service personnel to testify to the grand jury about their knowledge of Monica’s visits to the White House, including the dates, her extraordinary efforts
to gain access to the Oval Office, and times she met privately with the president. We believed they knew a lot.
The Solicitor General’s office helped block the subpoenas, presenting an argument that was preposterous on its face, namely, that Secret Service agents should be shielded from testifying before the federal grand jury.
The administration’s lawyers had come up with the novel idea that Secret Service special agents could not be required to testify under a previously unheard-of “protective function privilege.”
But no such privilege had been recognized over many centuries of Anglo-American law. Congress had never provided for such an evidence-cloaking measure at the federal level. No state had recognized it. This was a phantom doctrine, one cleverly invented solely for the occasion of preventing federal law enforcement agents from doing their sworn duty in the perjury and obstruction of justice investigation into Bill Clinton’s actions. Not even Richard Nixon’s lawyers had come up with such a bizarre notion.
This frivolous legal argument was unfortunately cloaked with legitimacy by able DOJ attorneys. I urged the department to reject the heretical doctrine. Even if there were such a privilege, it could be waived. To no avail.
This was classic Clintonian maneuvering. Just as he had urged the courts in the Paula Jones sexual harassment litigation to fashion an unknown doctrine—presidential immunity from civil lawsuits against him personally—the president was now advancing through the formal apparatus of the DOJ a dubious constitutional doctrine animated entirely by self-interest, for individual, not institutional, reasons. He was once again using the law to try to shield his personal peccadilloes. (He would later whine about the expensive legal bills he had incurred with all this pointless litigation.)
There were no logical limits to the president’s blunderbuss position. The asserted privilege would attach, by way of hypothetical example, to what Secret Service agents overheard the president saying to Webb Hubbell on the golf course about taking care of his financial needs at a time when Hubbell was supposedly cooperating with the OIC’s investigation.