by Ken Starr
Although he had recently retired from the Senate, Bumpers now served as President Clinton’s lawyer. It was a masterstroke. Bumpers was respected on both sides of the aisle as a thoughtful moderate Democrat. A highly successful trial lawyer back in Arkansas, he wowed his former colleagues with his stirring and whimsical argument for the defense on January 21, 1999.
“H. L. Mencken said one time, ‘When you hear somebody say, “This is not about money”—it’s about money,’ and when you hear somebody say, ‘This is not about sex’—it’s about sex,” Bumpers said. “Pick your own adjective to describe the president’s conduct. Here are some that I would use: indefensible, outrageous, unforgivable, shameless. I promise you the president would not contest any of those or any others.”
The final vote on February 12, 1999, came with little drama. The Senate went into secret session for several hours. A vote to open the proceedings for the debate was rejected 59–41. Interestingly, the closed session echoed the confidentiality of jury deliberations. The Senate obviously wanted it both ways, the freedom to speak without the burden of accountability other than the bottom line, yay or nay.
Various senators later released statements as to what they had said during the secret session. Intriguingly, no Democrat joined in that process.
Once again, the Chief Justice was parsimonious in his comments as the decisive vote drew nigh. He simply invoked the Senate rule prohibiting demonstrative outbursts. The first article (perjury) was voted down 45–55. The second article (obstruction of justice) failed by a tied 50–50 vote. The eccentric Republican senator Arlen Specter of Pennsylvania cast what he dubbed the “Scottish verdict”—“Not proved.” He made clear, however, that he was not persuaded that the president was actually innocent. That jump-ball tie reflected the prevailing national mood. Everyone just wanted it to be over.
The perfect record of presidential gauntlet-running remained intact.
Chief Justice Rehnquist drew the proceedings to a close with a verbal bouquet: “I have been impressed by the quality of the debate in closed session on the entire question of impeachment as provided for under the Constitution. . . . I leave you now a wiser but not a sadder man.”
The impeachment-or-bust strategy proved to be a boon to the president’s already soaring popularity. As portrayed day after day, Clinton was the victim. He was trying to work hard for the American people. The House managers were the obstructionist pariahs.
After the Senate vote brought the long national ordeal to closure on the birthday of Honest Abe Lincoln, a solemn President Clinton spoke to the nation from a podium in the Rose Garden.
“Now that the Senate has fulfilled its constitutional responsibility bringing this process to a conclusion, I want to say again to the American people how profoundly sorry I am for what I said and did to trigger these events and the great burden they have imposed on the Congress and on the American people.”
Leaving the podium, with eyes on the ground, he then did an about-face, returned to the podium, and made a final plea for forgiveness.
“I believe any person who asks for forgiveness has to be prepared to give it,” Clinton said.
That’s the way the drama ended. Few paused to consider this: If the president had simply told the truth before the grand jury the prior August, and then apologized to the American people for his mendacity, all this could have been avoided. The president, and he alone, was squarely to blame for the long national ordeal.
I am frequently asked if I was disappointed that the Senate didn’t convict him. No, I’m not. Eventually Clinton would be called before the bar of justice by my successor to answer for his long trail of contempt.
At the end of 1998, Time magazine put Clinton and me on the cover as “Men of the Year.” Under the circumstances, it was tantamount to being awarded “Skunk of the Year.”
CHAPTER THIRTY-FOUR
Winding Down
It was time for our long-running investigation to begin winding down. A few items of business remained, including the odd case of Julie Hiatt Steele. An on-again, off-again witness, Steele allegedly spoke with another asserted Clinton sexual assault victim, Kathleen Willey, who had emerged from the Oval Office disheveled and in an agitated state after an unwelcome encounter with the president many years earlier.
By Steele’s early account, Willey had told her on the day of the alleged episode about the aggressive and unwanted physical encounter with Clinton. But Steele’s story waxed and waned. Finally, under oath, Steele claimed that Willey had pressured her to lie about what happened. Our prosecutors believed Willey’s account.
Steele was indicted in Virginia for obstructing justice and making false statements. In a hard-fought criminal trial in Alexandria in the spring of 1999, Steele was acquitted on the obstruction of justice charge, but the jury deadlocked on the issue of who was lying, Willey or Steele. We let the case go.
Remaining on our docket was the ever-appearing Waldo, Webb Hubbell. Putting together a criminal tax prosecution arising out of his failure to report hundreds of thousands of dollars of compensation for purported consulting work, our office subpoenaed various financial records from the former DOJ official and Rose Law Firm partner. He was indicted on November 13, 1998, for tax evasion.
To my surprise, we created a minor constitutional law landmark when the district court, upheld by a divided D.C. Circuit in January 1999, accepted Hubbell’s claim that the documents he produced under subpoena could not be used as evidence against him. Without those documents, the prosecution was at best a very long shot. (The Supreme Court eventually sided with Hubbell.)
That left Susan McDougal. In March 1999, Susan was once again in the Little Rock courthouse to stand trial on charges of criminal contempt and obstruction of justice before an Arkansas jury. Our terrific team of Mark Barrett, a career prosecutor from Denver, and Julie Myers knew they had a tough case to prosecute, given the venue.
Susan was represented by the colorful Los Angeles attorney Mark Geragos. He had defended her in Santa Monica on California state charges of embezzling $150,000 from Nancy Mehta and her husband, the famous conductor Zubin Mehta, while she worked for them as a personal assistant in the early 1990s. She was acquitted in November 1998 on all charges. The high-profile case put Geragos on the map.
The trial had an unusual twist. Hickman Ewing was called as a witness, not by the prosecution but by the defense. The purpose of this unusual gambit was to suggest that the OIC generally—and Hickman in particular—was simply out to get the Clintons. Hickman was examined at length by Geragos, in connection with his early draft of a possible indictment against Hillary. The indictment, of course, was never presented to a grand jury for its consideration.
But Geragos skillfully employed the defunct draft to try to discredit our entire investigation in the eyes of the Little Rock trial jury.
Susan’s trial also witnessed a vicious public attack on Hickman’s faith journey. Hickman and his wife, Mary, became devout Evangelical Christians early in their marriage. Hickman taught Sunday school and regularly made mission trips to Mexico. As a sign of the growing secularism of American culture, Hickman’s beliefs came under public assault in the media. It echoed James Carville’s mocking of my own penchant for singing hymns in the Northern Virginia woods. The assaults represented a sad commentary on the coarsening culture.
After a four-week trial, Susan was acquitted on the obstruction of justice charge; on criminal contempt, we ended up with a hung jury. Susan had protected Clinton until the end. Her contempt for the system had paid off. She no longer had to respond to basic questions about her own stewardship of Madison Guaranty, and the possible culpability of her business partners, the Clintons.
At the same time, the recurring nightmare of alleged leaks—and ensuing investigations—had continued into 1999. My colleague and friend Charles Bakaly was caught up in a leak-related investigation by the FBI concerning the OIC’s poss
ible consideration of criminal charges against the president. Although, to my sorrow, Charles had to leave our office, he was eventually fully vindicated. Our office’s squeaky-clean record in properly handling grand jury information remained intact.
In the fullness of time, I would voluntarily step aside. On October 18, 1999, I turned the office over to Robert Ray, an experienced prosecutor on our staff who was chosen by the three-judge panel as my successor. I had had enough.
I had been eager to leave the office for a long time. The protracted experiences in Arkansas provided a grim reminder that attacks on the prosecutor inevitably take a toll—a toll that grows with time. I remembered all too vividly being banished from trial courtrooms in Little Rock. Literally for years, my personal integrity and professionalism had been subject to a well-organized, relentless campaign of character assassination. Quite apart from personal and family considerations, I was strongly of the view that the investigation needed a fresh face.
In light of all the accusations, going back to my appointment in August 1994, I would not be the one to make the fateful decision on what action, if any, to take against William Jefferson Clinton, private citizen, when that time finally came.
To my great satisfaction, on the day after I left office, I received a magnificent letter from FBI Director Freeh. In his generous way, Freeh kindly praised what he called my “persistence and uncompromising personal and professional integrity” and passed along thanks from the FBI’s lab scientists.
Ironically, Clinton had settled Paula Jones’s lawsuit against him for $850,000 on November 13, 1998, just before my testimony to the House Judiciary Committee. For the president’s misconduct in that case, Judge Wright issued a stern rebuke on April 12, 1999, finding him in contempt of court. She accompanied that with sanctions, including a fine of $96,000.
This was imposed, Judge Wright ruled, to cover some of Ms. Jones’s legal expenses. But Her Honor also invoked the goal “to deter others who might consider emulating the president’s misconduct.”
To rub salt into the wound, Judge Wright directed the president to pay her travel expenses to Washington back in January 1998, when she had journeyed to the nation’s capital for the sole purpose of presiding over the president’s civil deposition. She had done so at the president’s specific request, a highly unusual procedure taken entirely out of judicial respect for the presidency. He had perjured himself in her presence. That slap in the court’s face constituted an egregious instance of contempt.
The sanctions for his contempt of the rule of law kept flowing in.
In a symbolic imposition of a quasi–death penalty for the profession, the Arkansas Supreme Court began proceedings to revoke or suspend his law license. True, Bill would soon amass a fortune speechifying and writing his bestselling memoir, My Life. He didn’t need to hang out his shingle and start hustling clients. But the legal authorities did what they deemed fully within their power to say, in effect: “What you did was contemptuously wrong. As an officer of the court, you deserve stern punishment.”
Back in his natural habitat, Chief Justice Rehnquist—along with his eight colleagues—administered the ultimate sanction for a lawyer. The Supreme Court removed Clinton from the rolls on October 1, 2001. He could never practice there again. The judiciary—both in the federal courthouse in his native state and the highest court in the land—had spoken with a clarity and firmness that triggered a lame response of “inappropriate” from David Kendall.
But what was “inappropriate” about slamming shut the courthouse door to a perjurer? Not even his fawning supporters in the press suggested that the federal judiciary had behaved precipitously or imposed an “inappropriate” punishment in light of what were now firmly established facts of record.
CHAPTER THIRTY-FIVE
Legacy of Contempt
We were never alone.” By those simple words, William Jefferson Clinton knowingly and deliberately entered the legal landscape of contempt. By those words, Chief Judge Susan Webber Wright authoritatively adjudged the president of the United States as guilty of obstruction of justice.
That judgment, never appealed, stands forever in the annals of American jurisprudence.
Over the years, on three separate occasions, I have been asked by influential individuals whether I would be willing to meet with President Clinton in the spirit of reconciliation. Each time I answered the same: “Yes, of course. Anytime, anywhere.” Nothing ever came of it.
My last significant act as independent counsel was to testify on April 14, 1999, before the Senate Government Operations Committee chaired by Senator Fred Thompson, Republican of Tennessee. The issue was whether to reauthorize the independent counsel law.
Placed under oath, I testified that the law should be allowed to expire. Senator Dick Durbin, Democrat of Illinois, was incredulous. He wasn’t unkind, but he was perplexed. How could I, of all people, be opposed to the law’s renewal? In response, I took the senator quickly through the long history of DOJ opposition, by both parties, until the arrival of Janet Reno.
I recounted the DOJ’s strenuous disapproval of the law, going back to the early 1980s, during my first tour of duty in the department. Much of that stormy history had been lost in the fog of incessant political warfare on Capitol Hill. But too much blood, on both sides of the aisle, had been spilled.
To my relief, Congress allowed the independent counsel law to expire later that year with existing ICs grandfathered in to complete their work.
Despite all the controversy, Kirkland & Ellis brought me back into the fold as a litigation partner. I was grateful for that, as well as to George Mason Law School for inviting me aboard to teach and write First Among Equals, my long-postponed book on the Supreme Court. The law firm—and GMU—were especially kind, even courageous.
During his final day in office in January 2001, Clinton pardoned Susan McDougal, just as Jim McDougal predicted. Clinton described the convicted felon who helped bring Madison Guaranty to financial ruin as “horribly mistreated by the independent counsel.” He left Webb Hubbell and Jim Guy Tucker languishing, but pardoned three other convicted Whitewater defendants.
In doing so, Clinton flagrantly bypassed the normal Justice Department procedures governing pardons. Even his go-along Deputy Attorney General, Eric Holder, rebuked this high-handed display of raw power. As did FBI Director Freeh, who later wrote that Clinton “tainted the old and honorable tradition of presidential mercy by his inability to rein in his own instincts, by his penchant for excess.” In all, Clinton issued 177 pardons as he left office, including that of notorious fugitive financier Marc Rich.
Clinton’s autobiography claimed that Susan and other Whitewater defendants were indicted because of Starr; his account left out all the damning evidence against them, and the fact that grand juries, not I, indicted them.
Notwithstanding his final-day confession of having lied under oath, Clinton left office immensely popular. His southern charm had conquered all. The nation’s “first black president” repaired to his new office in Harlem. Arkansas, other than serving as the site of his presidential library, was in the Clintons’ rearview mirror. They would make their lives—and launch Hillary’s two presidential campaigns—from America’s northeastern corridor, not Bill Clinton’s native South.
But in the fullness of time, the culture would change significantly. In the first quarter of the twenty-first century, societal indulgence about the mistreatment of women, especially in the workplace, would come to a long-overdue reckoning. Victims began speaking out. Firings and resignations of abusive powerful men became an everyday story.
The Kathleen Willeys and other women who claimed to have been assaulted by Clinton would at long last get a hearing, respectfully, in the public square. The verbal assaults on women by the Clintons and their surrogates, who hurled demeaning epithets such as “trailer park trash,” would become unthinkable in 2017 and 2018.
Bu
t the now-fading Clinton years were starkly different, culturally and politically, in terms of respecting the rights of all persons, especially those subject to the exploitative hands of the powerful. Both as governor and as president, Clinton could malign his jettisoned paramours and victims with little if any consequence. In those days, oddly, no one seemed to care about the exploitative power arrangement. That was just Saturday Night Bill from Hot Springs, Arkansas.
Those days, thankfully, are gone. And so, it would appear, are the Clintons. Tragically, their legacy, despite their accomplishments, despite their talents, is, above all, contempt: contempt for the rule of law that binds us together as citizens, and contempt for human beings—especially women—as inherently worthy of dignity and respect.
That was Bill Clinton, the protagonist of My Life, a life brimming with talent, but fatally infected by self-indulgent exploitation of the vulnerable. It all could have been radically different, and the country would have been in a better place. And so, too, would the White House, with the Age of Clinton now having given way to the Age of Trump.
I’m frequently asked whether I have any regrets. In response, I have often said that other than Congress’s originally enacting and then reauthorizing the independent counsel law in the first place, I deeply regret that I took on the Lewinsky phase of the investigation. But at the same time, as I still see it twenty years later, there was no practical alternative to my doing so. If an independent counsel had been on standby, a sort of “call up the reserves” regime, then yes, the assignment should have gone to the ready reservist. But the governmental machinery in place at the time didn’t work that way. There was no reservist standing by, as with the National Guard.
The president’s premeditated perjury in the Jones federal civil rights case cried out for investigation, and we were the only logical shop for getting that job done efficiently. But we didn’t just sally forth and launch yet another front on the multifaceted OIC inquiry. Instead, we went promptly to the Attorney General, and she readily agreed to seek expansion of our portfolio from the appointing court. Under the statutory reauthorization that Congress had passed and President Clinton himself had signed into law, the president had to be investigated. Bill Clinton signed his own impeachment warrant.