Contempt

by Ken Starr

  For all its weaknesses, the Secret Service’s “go silent” approach effectively served the president’s overarching strategic objective: buying time. Monica’s long period of noncooperation had given Clinton and the White House spin machine ample running room. With time, the prosecutors would likely commit unforced errors. Perhaps they hoped we would go too far, and then find ourselves as subjects of the criminal process. We could, in the meantime, be hammered relentlessly in the press.

  Unwittingly, I played right into the White House strategy.

  In the preceding three years, I had turned down interview requests time and again. But in late spring of 1998, when journalist-entrepreneur Steven Brill approached me, I considered his request. My relationship with Steve went back well over a decade. We had kibitzed when he launched the highly successful American Lawyer magazine in the early 1980s. I viewed him as trustworthy in part because he made a big deal out of not allowing his reporters to use anonymous sources.

  He called me from his office in New York and made a pitch to this effect: “Ken, I’m launching a new publication. I’m calling it Brill’s Content.”

  That self-promoting handle should have alerted me that this was an unlikely platform for objective journalism. But as a personal favor to Brill, I agreed to an in-depth interview for his inaugural issue. Tired of being bashed, I hoped that he would do a fair and balanced treatment of the investigation to date.

  I reported the Brill request at our regular morning meeting. My colleagues were dubious. Their views of Brill’s bona fides were decidedly negative.

  “Are you sure you want to do this?” one prosecutor said. “Brill is known to be a snake.”

  Charles G. Bakaly III, our new press spokesman, agreed that it was a bad idea. I had hired Bakaly on April 13, 1998, at the urging of several friends, and especially my wife, Alice. He was to help stem the hemorrhaging we were experiencing in the court of public opinion.

  Stubbornly, I stuck by my agreement. I had nothing to hide. I was also being encouraged to get out and defend the investigation and my own conduct. I failed to consult with Sam Dash.

  Instead, I went ahead and sat down with Brill at the OIC office. We talked for well over an hour. Throughout the conversation, I made it clear time and again that I was limited in what I could say. While I believed my role as independent counsel included a responsibility to provide the public with appropriate information, I could not get near, much less cross, an important line, namely protecting grand jury secrecy.

  Brill took what I had to say and spun it. The resulting twenty-nine-page article, titled “Pressgate,” in the much-ballyhooed June 1998 first issue of Brill’s Content made it appear as if I were spilling grand jury material to an outsider.

  The magazine’s editors sent an advance copy to our office in the middle of the day on a Saturday. Wisenberg read it and immediately paged me. “We thought it would be bad,” Sol told me. “But it’s worse than we could have imagined.”

  Relying heavily on unnamed sources, Brill’s organizing theme in the piece was: The Lewinsky scandal was a scam, manufactured to get Clinton. Starr and his cronies were cultivating and spinning the national press, resulting in unfairly damaging reports with respect to the president and Hillary.

  Brill’s slanted reporting constituted a blatant distortion of what I had said. I briefly mulled over the idea of filing a defamation action, but knew immediately that was a nonstarter, with a long line of Supreme Court jurisprudence vigorously protecting America’s free press. Liability would rest on my being able to demonstrate “knowing falsity” or “reckless disregard of the truth” on Brill’s part. The facts were on my side, but the law was decidedly against me.

  I surmised that Brill had been put up to this hit job by the Clinton White House or their friendly surrogates. Perhaps not; maybe he was just following his own left-leaning predilections. Later I learned that Steve’s latest journalistic venture was being bankrolled by, among others, the left-wing billionaire George Soros, a major Clinton supporter. Either way, thanks to my misplaced trust in Steve Brill, terrible damage had been done to the investigation.

  Brandishing the heavily promoted story, the president’s legal team marched into court, and accused me of violating basic precepts of grand jury integrity. If guilty, I had committed a crime. I was confident that no grand jury material had actually been disclosed. But we were in for a rough period, distracting us from getting the job done.

  Initially, the president’s lawyers found a receptive judicial audience in Chief Judge Norma Holloway Johnson, who supervised all matters pertaining to grand juries operating in the federal courthouse. Judge Johnson was entirely honest and honorable, but she held to a sweeping definition of grand jury secrecy, which was later rejected by the D.C. Circuit. In doing so, this diligent, hardworking judge inadvertently played into the president’s hands.

  Judge Johnson responded promptly to the alleged grand jury secrecy violation by conducting a conference behind closed doors at 4:00 P.M. on Tuesday, June 16. It went poorly for us. Bittman and Paul Rosenzweig said that David Kendall and his team were nothing short of giddy. Starr’s team was going down. The judge expressed her extreme disappointment, essentially accepting Brill’s story at face value.

  I was on the Metroliner going from New York to Washington, returning from cohosting a conference of appellate judges in New York, when I heard a report of the hearing. Judge Johnson authorized Kendall to take depositions of both Jackie Bennett and me.

  I was heartsick. My misplaced confidence in Steve Brill and my belief in my own integrity had led to potential disaster for our entire effort.

  At our next morning roundtable, I apologized to my colleagues for my naïveté and stupidity.

  “I have no excuses,” I said. My colleagues found my blunder difficult to understand. After all, I was an old Washington hand. How could I have been so misguided, especially since I had been forewarned? I had no good answer. The accurate response was that I had been too obliging, too eager to counter the president’s attacks, and naively assumed good faith on the part of an ambitious, aggressive journalist.

  We had to fight back, to forestall those depositions at all costs. We immediately went to the Court of Appeals. In addition, we responded to Brill’s story with a nineteen-page letter rebutting his misstatements and misrepresentations point by point. We heard from Sue Schmidt and Mike Isikoff, who complained that Brill had misquoted them. Glenn Simpson of the Wall Street Journal was also misquoted. Brill conceded error after learning that Simpson had tape-recorded the interview.

  The appellate court reversed Judge Johnson’s order allowing Kendall to take our depositions. But she then appointed a special master, a highly respected retired judge from the District of Columbia local court system, to investigate—all as a result of phony reporting and my own disastrous decision.

  There were other blows. I was asked to resign from the Alibi Club, a private group that included the leading lights of the nation’s capital. I was miffed. These people had known me for years.

  Then my law firm sent a partner to “suggest” I take an unpaid leave of absence. I was too radioactive. Clients were asking questions. Although I knew it was the right and smart thing for the firm to do, this was a grievous blow to my paycheck and my sense of self.

  I remember attending church one Sunday during this period. Through the previous weeks, Lon Solomon had been very pastoral, sending notes and reaching out. That day, he preached about bad things that can happen to good people, especially loss of reputation. As we left the church, Lon shook my hand.

  “Ken, did you relate to what I was saying?” he asked.

  I was so overwhelmed by emotion, I couldn’t answer. Silent, unable to form words, I saw my reputation crumbling. I realized I was very prideful, too concerned about what people in my world thought about me. It was a dark moment.

  In the drama now swirling around us, Judg
e Johnson’s penchant for secrecy proved, ironically, to aid our ability to move forward. At her direction, the special master conducted his work behind a heavy curtain of confidentiality. Assured of a fair-minded process, we proceeded with our investigation.

  To her great credit, Judge Johnson did not stand in the way of our ongoing work, which was focused entirely on the grand jury’s truth-seeking endeavors. Day after day, witnesses came streaming in. Many seemed honest and forthright. Others, not so much. But through it all, we were systematically building our case, with the crimes of perjury and obstruction of justice at the core of what we understood, ever more thoroughly, the president had committed. What was becoming clear: The president had blatantly lied in the Paula Jones deposition by insisting he and Monica were never alone, and in the process obstructed justice. But as the pieces came together, we increasingly saw a broader evil at work. The president was abusing his power to protect himself from his own folly.

  As if the personal attacks on our team weren’t bad enough, then the “leak war” erupted. Embracing the concept of condemning the other side for something your side was doing, Kendall accused the OIC of leaking grand jury information. Untrue.

  Only the prosecutor and the grand jurors themselves are legally obliged to maintain absolute secrecy about what happens inside the grand jury room. The prosecutor cannot disclose what the grand jurors are thinking, what the grand jury’s ultimate decision may or may not be, or who the prosecutor or grand jurors may want to call as a witness, much less what a witness testified to.

  In contrast to these severe and proper limitations on the prosecutor’s and grand jurors’ ability to speak, a witness can walk out of the grand jury room and describe, accurately or otherwise, what had transpired. So, too, can the witness’s lawyer.

  Furthermore, in a joint-defense arrangement, lawyers for various witnesses can team up, debrief the grand jury witness or the lawyer for the witness, compare notes, and formulate a joint strategy to fend off the prosecutor.

  They can leak the information to the press without attribution. A common tactic for defense lawyers is to describe their sourcing as “sources close to the investigation,” which naturally sounds as though the prosecutor (or the FBI) is leaking.

  Even more exasperating, the witness, or his lawyer, can outright lie to the press about what happened in the grand jury room. We, on the other hand, had to remain mum about grand jury matters. We just had to take it.

  Oddly enough, a huge practical impediment to maintaining confidentiality was the physical location of the D.C. grand jury. In the early phase of our work, as key witnesses were coming and going in their respective grand jury appearances, members of the press were not only allowed inside the courthouse, they were permitted to roam around on the same floor where the grand jury was in session.

  Milling around in the courthouse hallway, a witness could neither get in nor get out of the grand jury room without being seen and therefore being subjected to press questioning.

  We had one court-authorized method for secreting witnesses in and out, but this required special arrangements with the courthouse security personnel. We were reluctant to make use of that avenue, save for the most sensitive circumstances. We had offered that alternative to David Kendall in connection with the grand jury appearance of the First Lady. They declined, and she marched dramatically into the courthouse through the front door. The symbolic message: “I have nothing to hide.” Smart.

  In the face of the alleged leaks, I went stonily silent. We retreated from carrying out what I viewed as an entirely lawful function of providing appropriate information to the public.

  The special master, whose identity had not been officially revealed, quietly carried on his work. The Williams & Connolly warriors had been silenced by the confidential process now being played out. The appointment, all things considered, proved to be a blessing in disguise, with its calming effect on the hysteria.

  Even though we necessarily adopted a bunker mentality, we continued day by day to make significant progress on the merits. The growing body of evidence was pointing entirely in one direction: Bill Clinton had committed perjury and obstruction of justice in connection with his Paula Jones deposition, and he had been encouraging others to lie. He was also taking affirmative steps to cover up the truth. In doing so, the president was abusing the powers of his office.

  We were moving toward a head-to-head confrontation with the president. There was no doubt in the minds of any of my colleagues in the investigation, including those who had voted—twice—for Clinton. Perjury, we believed, constituted a “high crime or misdemeanor” within the meaning of the Constitution. Clinton’s obstructionism simply added additional weight to our growing conviction of his criminality.

  If he had nothing to hide, if he hadn’t committed perjury during the Paula Jones deposition, then why wasn’t he forthcoming? Why was he invoking executive privilege? Our office was moving steadily toward a unanimous conclusion. The president of the United States appeared to have committed crimes worthy of possible impeachment, and possibly of criminal prosecution.

  Especially damning was the statement of the highly credible Betty Currie, the president’s secretary.

  In the wake of his deposition testimony in the Paula Jones case on Saturday, January 17, Clinton had summoned Betty to the White House the following day, when Betty always went to church. She testified that the president rehearsed the circumstances of Monica’s frequent visits to the Oval Office: “You were always there when she was there, right?” he suggested. “We were never really alone.” A lie. The two had actually been alone time and again. Betty knew this full well.

  “You could see and hear everything, right?” he said. “Monica came on to me, and I never touched her, right?” The president was not only lying, but he was engaged in witness tampering. He was also blatantly violating Judge Wright’s specific directive that he was not to be in contact with other potential witnesses.

  Likewise incriminating: The president urged Betty to contact Monica and retrieve various gifts he had showered on her over the course of their long relationship. Betty did as she was directed. She recovered approximately eighteen gifts from Monica and tucked them under her bed.

  To her credit, Betty, a person of deep faith, admitted all this. In contrast to her mendacious boss, Betty took the oath to tell the truth seriously.

  CHAPTER TWENTY-FIVE

  Breakthrough

  Even as my reputation was taking constant hits, things were looking up for the office. We had won a series of important judicial rulings. I was particularly pleased that Judge Johnson determined we had neither violated Monica’s constitutional rights on Prom Night at the Ritz-Carlton nor violated any ethical requirements.

  And we batted down the president’s attempt to claim the bogus protective function privilege regarding the Secret Service.

  The outlandish White House arguments over privilege had gotten so crazy that one day our prosecutors arrived at the office to find a memo from the White House arguing the “culinary protective privilege,” shielding waiters and cooks in the Residence from testifying about matters observed while serving at state dinners. Pretty soon everyone was laughing at the joke, crafted cleverly by one of our more creative legal writers so that you had to read it all to realize it was phony.

  We had tired of jousting with the White House over interviewing President Clinton. Bittman had sent Kendall six letters asking for his client to be made available for a voluntary interview. The answer was no, or maybe later.

  Perhaps we’d have a breakthrough now that Monica had jettisoned Ginsburg. I trusted Jake Stein and Plato Cacheris; both were outstanding criminal defense lawyers of integrity. They’d take care of their client.

  By June 1, the OIC was in a considerably stronger position against Monica than we had been in February, when Ginsburg was making nutty demands. We had taken the statements of many witnesses in th
e grand jury, including Vernon Jordan. We had retrieved the president’s gifts to Monica. But we suspected she had another piece of evidence: the blue dress.

  On the Tripp tapes, Monica talked about wearing a dress from Old Navy when, during a sexual encounter with the president, it had been stained with semen. Upon the execution of a search warrant, the FBI had recovered a blue dress and had tested it, but it had no such stains. Perhaps the dress had been cleaned, or had been thrown away, if it ever existed.

  In early June, Jake and Plato met with me, Bob Bittman, Jackie Bennett, and Sol Wisenberg in a conference room in Washington. Plato did virtually all of the talking, as he usually did when Jake and he worked together. We negotiated the immunity deal, and Plato pulled out his trump card. “We have material evidence that would strongly corroborate her testimony,” he told us. We suspected he meant the dress, but he refused to say.

  It took time to work out all the details. But we agreed that Monica would be made what prosecutors call “queen for a day,” granted temporary immunity. In return we’d be able to ask questions to explore her potential testimony and credibility. I offered a location: my stepmother-in-law’s apartment in midtown Manhattan, away from prying eyes in D.C.

  I said to Grandma Joan, “Mum’s the word.” She readily agreed. Although excited about stepping into an odd chapter in history, Grandma Joan was true to her word.

  On July 26, I put on casual clothes, donned a baseball cap, and took the train to New York. I tidied up the apartment and spent the night there. The next morning, I went out for bagels and orange juice for our unusual guests.

  Monica would be debriefed by Dash, Bittman, Wisenberg, and Mary Anne Wirth, a New York prosecutor with our team who had broad experience in sexual assault cases. I wanted a woman there. A devout Catholic, Mary Anne’s nickname in the office was Hallmark, for her warmth and empathy. She was pivotal in our work with the grand jury, and in building the case. Wisenberg, who by this time was a deputy independent counsel, led the day-to-day operations of the grand jury.