Contempt

by Ken Starr

  His months-long hiding behind the phantom shield of the Secret Service’s make-believe protective function privilege was an especially egregious abuse of presidential power, and wasted the time and resources of both our office and the DOJ. The president had also influenced members of the Cabinet, who were confirmed by the Senate to occupy their high offices, to go before the American public and lie to protect him. Clinton had directed a White House employee, Betty Currie, to gather and hide the gifts to Monica, all of which were relevant evidence. Even worse, the president had indirectly encouraged Currie and others to lie, just as he had encouraged Monica by his own example.

  In short, the president had employed the official levers of power to escape the basic demands of America’s system of justice. Abuse of power stood at the center of the president’s behavior; his other crimes would send an ordinary citizen to jail.

  The president had not just indulged in a lengthy illicit relationship with a subordinate in the workplace, and then continually lied about it under oath. He had gone far beyond “lying about sex.” The president had summoned up his powers as the nation’s chief executive to obstruct—month after long month—the orderly process of justice.

  The grilling went on hour after hour. As the day proceeded, I scanned committee members’ faces for reactions. Lawyers do that with judges and juries, reading body language and drawing inferences. Am I connecting? You can usually tell.

  I believed, from her facial expression, that I was making a basic emotional connection with one of the most partisan members on the minority side of the aisle, Representative Maxine Waters from Los Angeles. From her perch on the bottom row of the multitiered committee room, we were physically quite close to each other. In contrast to her nearby colleague from Texas, Sheila Jackson Lee, who scowled at me throughout the day, Representative Waters’s face seemed surprisingly gentle, at times even empathetic. Then came her turn to question me.

  She skewered me with gusto. I saw her previously soft features harden into a fixed, menacing stare. “No justice-loving American can respect the ill-gotten, ill-conceived, convoluted allegations based on the investigation of a private personal sex-related affair,” she said. “Mr. Starr’s obvious bias and dislike of the president, his investigatory tactics and his flimsy case, does not meet the constitutional standard for impeachment.”

  I had badly misread the situation. Or perhaps Representative Waters got back into character. She lashed out with venomous enthusiasm. She did not take kindly to the sex patrol’s intrusion into the personal life of America’s “first black president” (as Clinton was called) and blamed the shock and horror that had been visited on his family on me.

  The chairman finally cut off her intemperate rant. Her astonishing “flimsy case” broadside demonstrated that she had simply closed her eyes to the evidence.

  I made the point in different ways, time and again, saying, “We found the facts. We didn’t make up the facts. It’s now up to you to decide what, if anything, to do with those facts.”

  Our team followed my testimony on TV back at the office. Late in the day, they were alarmed to see that Sol, in plain view behind me, was nodding off as millions of people watched. Someone paged a short message to another prosecutor in the room: “Tell Sol to wake up!”

  The Republicans, to a person, were empathetic and open to hearing what I had to say. The headwinds created by the disappointing election returns earlier in the month seemed, at least for the time being, to have gone away. The GOP members focused on the facts and their implication. Every single member seemed to treat the record we had furnished to the Hill as essentially undisputed and authoritative.

  The most intriguing comment came deep into the hearing from Representative Lindsey Graham of South Carolina. With his charming southern style, Lindsey observed that he had been asking himself whether this entire episode was Peyton Place, a sexy TV drama of a prior decade, or was this the stuff of impeachment. As he continued, without consulting notes, Representative Graham’s eyes shifted over to the Democrats. He was talking to them, not to me or the cameras.

  Graham, a trial lawyer, got their attention. The audience sensed something different was happening. Camera shutters snapped away. After my long testimony, everybody was electrified. Would Graham break ranks with the GOP and join the rock-solid Democrats arrayed in opposition?

  Teeing up the issue, the homespun country lawyer Lindsey Graham then brought his Hamlet-like speech to a conclusion. He rendered his judgment: The case was not about sex and Peyton Place philandering. It was about a president flouting the rule of law, committing perjury and then encouraging others to lie. Lindsey Graham got it.

  Concluding for the Republicans was Mary Bono of California, widow of former entertainer Sonny Bono, who had tragically died on a ski slope. A nonlawyer on a lawyer-dominated committee, Bono represented constituents in the Southern California desert who were probably unenthusiastic about the impeachment drama under way across the continent.

  But she seemed determined to do the right thing, as opposed to taking the politically expedient course. Press reports had placed her in the “undecided” camp, but as her formal statement unfolded she was clearly taking her responsibilities seriously. To Representative Mary Bono, this was not Peyton Place. This was about the solemn legal obligations of the nation’s chief executive.

  Toward the end of the day, the time finally arrived for a much-anticipated confrontation with the president’s lawyer, David Kendall, whose tactics and scorched-earth litigation had dragged out our investigation for many months. Under the committee’s protocol, Kendall would interrogate me after all the members had taken their shots.

  Just before the showdown began, my friend Paul McNulty, on Chairman Hyde’s staff, sat me down in the chairman’s offices off the hearing room and said, “Ken, I know you must be very tired. But you have to summon all your energy and strength. The square-off against Kendall will be watched by the entire nation. You’ve got to be at the top of your game.”

  Oddly enough, I was not disturbed. I felt entirely at peace. At the same time, I wondered if the combined litigation armada of the White House and Williams & Connolly had found any chink in our armor. Had we gotten some material fact wrong? I had no reason to doubt the accuracy of our referral, but the fleeting thought occurred: Has Kendall found something?

  The hearing resumed at 8:30 P.M. Kendall, seated at a table to my right, began his questioning. I expected a full-blown Williams & Connolly onslaught to try to poke holes in the record. To my surprise, Kendall did not even try to deconstruct the mountain of damning evidence arrayed against his client. Instead, he trained his guns on the investigation itself. He was going after our methods, not our conclusions.

  That was a smart move, as the hours of hostile questioning from Democrats had entirely failed to draw the evidence into serious question. And, at a public relations level, I was potentially vulnerable to defense-lawyer hammering, since the caricatures in the press were highly negative. Halloween masks of scary Ken Starr worn by trick-or-treaters the prior month sent a strong message about my image across the country.

  Defense lawyers are wont to say, “If you have the facts, pound the facts. If you have the law, pound the law. If you don’t have either the facts or the law, pound the table and attack the prosecutor.” That’s precisely what Kendall did.

  Even though I had remained on the hot seat for over twelve hours, I felt strangely energized during Kendall’s barrage. This was lawyer against lawyer, one-on-one. This was no longer high-stakes politics and posturing for the constituents back home, or seeking to curry favor with the White House. This was a superb Washington lawyer practicing at a high level, with me as his sole target.

  Not in the least fatigued, I felt in command and in control. Kendall did well, but at every turn I parried his thrusts with reasonable success. Listening to myself, as lawyers are oddly able to do, I sounded confident without coming across
as either obnoxious or overbearing. Throughout Kendall’s interrogation, I kept reciting Scripture to myself for strength and comfort. Abruptly, the exchange with Kendall was over.

  Chairman Hyde, who had remained unruffled and dignified throughout the stormy proceedings, brought the hearing to a close with some kind words about the guy sitting, still all alone, at the counsel table.

  To my pleasant surprise, the audience rose and gave me a standing ovation, joined by many of the Republican representatives. The Democrats remained glumly seated. The day had not gone well for them.

  I later learned that the public opinion polling shifted throughout the day from a solidly negative, anti-impeachment position to a significant majority polling in favor. By the time the hearing concluded, the decision had been made. The House Judiciary Committee agreed to debate several counts of impeachment.

  With my years in and around courthouses as a lawyer and judge, I felt that throughout the hearing I remained judicious and restrained. I had walked a fine line, trying to answer the questions honestly, but not turn myself into an advocate for impeachment.

  When the chairman adjourned the hearing, it was around 11:00 P.M. I went into the committee offices and plopped down. Well-wishers came in to express congratulations about my performance throughout the long day.

  I felt profound relief. I said a silent prayer of thanks. My strength had held up. I had never requested a recess or break, but now I was mentally exhausted.

  The marshals ferried me home quickly. I made it to McLean around midnight. Alice had beaten me there. She had the television on; the news commentary was flowing freely. It was clear the day was being taken seriously and not simply dismissed.

  The next morning, I was still at home when CBS reported that Sam Dash had resigned.

  I had, in Sam’s view, transformed myself during the course of the hearing into an advocate for impeachment, not simply a lawyer presenting facts and providing answers. I strongly disagreed, as did our entire legal team.

  I was stunned, yet not really surprised. Sam had come under unrelenting pressure from his Democrat colleagues. He didn’t call me in advance. He just did it. His resignation made page-one news in every major newspaper across the country. His resignation stung, sending a message that my ethics counselor was so outraged by my actions he had no choice but to resign.

  I didn’t call him up to complain; in fact, we never had occasion to speak again. To this day, I very much regret that. Sam was such a large figure, at times controversial and not well liked by some of my colleagues, but I appreciated what he had brought to the investigation. I tried to take the longer view of these events. How significant was it that Sam Dash had resigned? I viewed it as a personal rebuff, but not a challenge to the integrity of our work.

  Sam and I had strongly agreed on count 11, presidential abuse of power. That would be largely set aside during the House’s deliberative process. The reaction of the abuse-of-power skeptics—including Republican members of the House—surprised me. This wasn’t an obscure legal doctrine. This is what had brought Nixon down. The president employed his power and prerogatives to further an enterprise aimed at shielding himself from the rule of law.

  My sense was that in the avalanche of facts, many of which were salacious, House members were unable to adequately reflect on the significance of the president’s misuse of constitutional protections. This was the constitutional lawyer in me. I felt the structure of the entire referral led to the mountaintop of count 11. Instead, the members got lost in the forest of facts along the way. The debate that ensued was the poorer for it.

  CHAPTER THIRTY-ONE

  Media Madness

  When I emerged from the House impeachment hearing, I looked forward to doing a long-discussed, elaborately negotiated interview on ABC News’s popular program 20/20. Finally, I would be able to communicate publicly in detail the goals and methods of our investigation.

  A senior network producer, Chris Vlasto, had interacted with our colleagues over the years, including in Little Rock. Chris had developed friendships among various folks swept up in the Little Rock phase of the investigation, Jim McDougal among them. In my simple taxonomy, Chris was squarely in the media camp of truth seekers. The Clinton White House hated him, as it did other truth-seeking press people, especially Sue Schmidt of the Washington Post.

  We sifted through various invitations, as virtually every media platform on the planet was eagerly seeking an extended on-camera interview. Prior to the November hearing on Capitol Hill, Chris had worked up the concept of an hour-long, taped interview with one of ABC’s most respected reporters and anchors, Diane Sawyer. Trusting Chris, we agreed to the ABC proposal. The taping would follow soon after my Judiciary Committee testimony, and then be aired during Thanksgiving week.

  I should have turned around and walked out the door when we showed up at the designated place for the taping, which turned out to be a nondescript building far removed from ABC’s downtown D.C. studios. In contrast to the regular network operation situated across the street from the Mayflower Hotel in Washington, a makeshift studio had been set up, creating a cold, forbidding atmosphere of gloomy darkness. It was ridiculous. With no preliminaries, and in a frosty atmosphere, I sat down, got miked up, and Sawyer launched an assault.

  The announcer set the stage: “The tables are turned. Now it’s the prosecutor’s turn to be grilled.”

  Jettisoning her usual Kentucky charm, Sawyer immediately went on the offensive. She lambasted me for producing “demented pornography, pornography for puritans.” On and on. When she asked me about the tone of the referral, I was matter-of-fact: “Diane, don’t fault career prosecutors for telling the truth.”

  A rhetorical question from Sawyer: “Are you part of a right-wing conspiracy?” I had the presence of mind to answer: “No. I don’t know that there is one.” That was all Hillary-generated nonsense, intended to avert the nation’s gaze from her husband’s crimes. She was a systematic enabler, in the White House no less, just as she had been in Little Rock, viciously attacking the various women who came forward to say they were Bill’s paramours, including Monica Lewinsky.

  About the president, I offered my honest opinion. Clinton was “extraordinarily talented, wonderfully empathetic.” But I believed then, and now, that he was a terrible example for others called to testify truthfully in our legal system.

  “I think perjury—lying under oath and encouraging lies under oath—does go to the heart and soul of what courts do,” I said. “And if we say we don’t care, let’s forget about courts and we’ll just have other ways of figuring out how to handle disputes. Let’s abolish the judiciary. But as long as we have the courts—I think any judge worth his or her salt would say, ‘We cannot tolerate perjury.’”

  Sawyer asked if she had the right to ask me if I’d cheated on my wife. As if adultery were the issue.

  “I have not been unfaithful to my spouse,” I said. “I’m not trying to pat myself on the back, but I’ve tried to live by what I believe is my obligation and my responsibility.”

  After about an hour, I left the makeshift studio feeling as if I had been set up. There was not the slightest hint that Diane was even vaguely aware that the president had forced our hand. She ignored the fact that Clinton had denied under oath the key element of the Bill-Monica relationship, which in turn was the pivotally important fact in assessing whether the president had committed perjury both in the Paula Jones deposition and then again in the federal grand jury.

  Sawyer and her editors brushed past all that. She wanted to taunt me and demean the investigation. She wanted the opportunity to attack the guy who revealed the facts, a bit of an irony for a journalist. Unwisely, we gave her a golden opportunity to do so.

  Instead of shock that the president, during one of his sessions with Monica, had employed his cigar in a grossly demeaning way, Diane was outraged that the referral would dare even mention the de
grading incident.

  My family and I watched Diane’s 20/20 show on November 25, over Thanksgiving weekend at the welcome retreat of the Grand Floridian at Disney World. My fears about Sawyer’s bias were proved justified. Some of her questions were doctored up in studio after the interview was over, which I viewed as manifestly unprofessional. The producers had even added ominous special effects to enhance the forbidding setting.

  Although I was taken aback by the almost silly, menacing background music, I was all in all surprisingly satisfied with my answers. Diane had embraced the White House narrative that the investigation represented a gross intrusion into personal privacy, but my responses came across well, I thought. I was honest and straightforward, or at least I tried to be. Maintaining my cool, I didn’t look, as I had feared, like the hapless deer caught in the headlights.

  Family members agreed with my rosy assessment of ABC’s attempted ambush. Sawyer came across, ironically, as the bad guy, using third-degree tactics to browbeat her guest. The emotion of the one-on-one struggle seemed to flow in my rather unlikely direction. But as with Steve Brill, I had learned my lesson. That was it for formal, taped press interviews.

  Even with round-the-clock security, whose ranks were augmented by Disney security personnel, I was determined to have as “normal” a Thanksgiving break as possible. It was my father-in-law’s favorite holiday, one of his last, and I was eager to be a typical, carefree Disney World visitor enjoying the company of close family.