A Vast Conspiracy

by Jeffrey Toobin

  “I’m retired,” he said. “I’m retired.”

  10

  Consensual Sex

  Clintons lies to his lawyers on December 6 were even more extraordinary in light of what had happened at the White House earlier that day.

  Lewinsky had wangled an invitation to a Christmas party at the White House the previous night, and she had seen the president only on the receiving line. This brief meeting sent Lewinsky into a new spiral of despair, and she made one of her periodic vows to be finished with the relationship once and for all. On Saturday morning, she decided to pack up all the Christmas presents she had been stockpiling for Clinton and leave them with Betty Currie at the White House. So at around ten o’clock, Lewinsky appeared at the southwest gate of the White House—bearing a sterling silver antique cigar holder, a mug from Starbucks, a tie, “a little box that’s called hugs and kisses,” and an antique book on Theodore Roosevelt that she had purchased at a New York flea market.

  Lewinsky tried to summon Currie to pick up the packages but didn’t get an answer from the secretary’s phone number or her pager. Then, seeing Marsha Scott, a presidential aide whom she regarded as one of her White House enemies, Lewinsky detoured to the northwest gate. There one of the guards let slip that Currie was giving a White House tour to Eleanor Mondale, the television correspondent and daughter of the former vice president, who was visiting Clinton in the Oval Office. In the grand jury, Lewinsky was asked, “What was your reaction to that?”

  “Not good.… Very upset. Hysterical.”

  Notwithstanding her resolution of that very morning to put Clinton behind her, Lewinsky dissolved into a jealous rage at the thought of Clinton with another “other” woman. Lewinsky stormed off to a nearby bar, telephoned Currie, and began screaming at her. Lewinsky thought Currie had deceived her by telling her that Clinton would be meeting with his attorneys in the Jones case on this day; here Monica had discovered that he was seeing a woman she regarded as a rival. (As it turned out, the lawyers were simply due at the White House later in the day.) At this point, Currie began to worry about finding herself in the middle of these intrigues, and she told Monica that she was concerned about being fired herself. Later that morning, Currie called Lewinsky at home and asked her to calm down. Monica demanded to talk to the president, who was then speaking with the attorney general. Moments later, Lewinsky called back again, and Currie at last put her through to Clinton.

  At the start of what turned out to be a fifty-six-minute telephone call between the president and his former girlfriend, Clinton lashed out. “In my life no one has ever treated me as poorly as I have been treated by you,” Lewinsky recalled him saying. “Outside of my family and my friends and my staff, I have spent more time with you than anyone else in the world. How dare you make such a scene? It’s none of your business who I see.” (For the record, he also denied any romance with Mondale. “In fact,” Lewinsky recalls him protesting, “I set her up with her current boyfriend.”)

  Eventually both Clinton and Lewinsky recovered their equilibrium, and the president actually invited her back to visit him that afternoon. So, in her second trip to the White House of the day, Monica gave him his Christmas presents, and in return he promised that he would have some gifts for her later in the month. The president sat in his rocking chair, stroking Monica’s hair as she sat on the floor at his feet. They chatted, as they often did, about their childhoods. Though she was now more or less committed to moving to New York, Monica left the meeting once more thinking that their relationship might resume. Their sexual encounters had begun twenty-five months earlier; they had broken up several times, but they’d last had phone sex only a few weeks earlier, and now here Clinton was still hinting that they might get back together. To be sure, Lewinsky should have realized much earlier that their relationship was doomed; but at the same time, Clinton kept tantalizing her with the possibility of reconciliation.

  In sum, then, Clinton and Lewinsky probably spent close to two hours together, on the phone and in person, before five o’clock on December 6, 1997. About ninety minutes after Monica slipped out of the Oval Office, her place was taken by Bob Bennett and his colleagues, who arrived bearing the plaintiff’s witness list in the Paula Jones case. When they reached the name Monica Lewinsky, the president dismissed—ridiculed!—the idea that he had had an affair with her.

  How could Clinton have been so brazen—and in the middle of the most publicized sexual harassment lawsuit in history? Of course, one can only speculate about the president’s thought processes, but several conclusions seem apparent. First, like anyone having an extramarital affair, he was embarrassed to admit it. Second, he regarded the entire Jones case as a political vendetta against him, and he didn’t feel obligated to be candid in a lawsuit brought by adversaries he so despised. Third, Clinton had often, perhaps always, lied about his sex life.

  But there was another potential reason for his lies to his lawyers—indeed, a possible answer to the larger question of why he would have conducted the affair with Lewinsky when a sexual harassment case against him was pending. Clinton drew a clear distinction between sexual harassment and consensual sex. In his grand jury testimony, Clinton returned to this theme more than half a dozen times. Describing his relationship with Lewinsky, Clinton said, “There was no employment, no benefit in exchange, there was nothing having anything to do with sexual harassment.” In Clinton’s view, his consensual sexual activity had nothing to do with sexual harassment. (Lewinsky, likewise, never suggested that her relationship with Clinton involved any kind of harassment on his part.)

  As it happened, Judge Susan Webber Wright was then wrestling with just this issue—the relevance of Clinton’s consensual sexual relations to the issue of whether he sexually harassed Paula Jones. Over the many years the Jones case was pending, Wright became known to the public mostly through newspaper photographs, in which she appeared to be something of a schoolmarm—all pinched and nervous severity. She held her hair back with barrettes; her hooded eyes peered out from small, metal-rimmed spectacles. The details were the same in person, but the impression she left could not be more different. Susan Webber Wright was confident, funny, unbuttoned, even a little zany. This was a judge who, after a long and frustrating trial day, once announced to a jury, “I’m going to go home and abuse alcohol.” Everyone knew it was a joke, but it was not one that most federal judges would make.

  Susan Webber was the first of two daughters born to an up-and-coming young lawyer and his wife in Texarkana. Tom Webber, whose firm was known for producing civic leaders and judges, died when Susan was sixteen. His widow, forced to provide for Susan and her sister, Missy, went to work at a local bank. Fortunately, Susan excelled at school, and she won a scholarship to Randolph-Macon Woman’s College, in Lynchburg, Virginia, and afterward she won another, to continue her studies for a master’s in public administration at the University of Arkansas. She then enrolled in the university’s law school and split the costs with her mother, paying her portion with earnings from summer jobs and part-time work. In her final year, Susan became the first woman to edit the Law Review and was in the running to be the class valedictorian.

  It was at that moment that she played a role in an early legend about Bill Clinton. In 1973, following his graduation from Yale Law School, Clinton returned home to teach at the University of Arkansas School of Law. The next year, Susan Webber took Professor Clinton’s course in admiralty law—a subject that was apparently of little interest in the landlocked state. Toward the end of the semester, Clinton turned his attention to what became his first political campaign, against the incumbent Republican congressman John Paul Hammerschmidt. Clinton was so distracted by his campaign that he lost some of the final exams, including that of Susan Webber.

  The law school demanded that Clinton turn in grades for the course, so the young professor had a problem. He turned for help to his twenty-six-year-old girlfriend, Hillary Rodham, who came up with the idea of a deal for Susan Webber. Clinton wo
uld give her a B-plus in the class, and Webber wouldn’t have to take the final again. But as a candidate for valedictorian, Webber needed a better grade. She rejected Hillary’s deal and forced Professor Clinton to give her a new test—and got an A. Webber, who nevertheless missed out on the top position, immediately went to work as a volunteer on the reelection campaign of Representative Hammerschmidt, who beat the young professor handily. Clinton’s first political success came two years later, in 1976, when he was elected the state’s attorney general.

  At that point, though, Susan Webber largely withdrew from most political activity. She became a professor at the law school of the University of Arkansas at Little Rock, married a senior colleague, and earned a solid, if unspectacular, reputation as a scholar in oil-and-gas law. In 1988, she dipped back into politics, heading a local organization of lawyers for George Bush, and two years later she was rewarded with a federal judgeship, largely through the sponsorship of the then ranking Republican official in the state—Representative Hammerschmidt. Still, Wright bore Clinton no apparent animus, and she presided over Jones v. Clinton with a steady, diligent hand.

  In December, however, Judge Wright was confronted with a provocative dilemma. The president’s deposition was scheduled for Saturday, January 17, 1998. The lawyers wanted Wright to rule on the scope of the questioning. Clearly, Clinton could be asked if he had ever engaged in sexual harassment. But could the president be asked about consensual sexual activities? The answers to such questions, of course, had the potential for great political embarrassment for the president. But more than that, the issue went to the heart of modern sexual harassment law. Is consensual sex evidence of, or even related to, sexual harassment?

  As Susan Webber Wright sat down to study that question, she could not have known that her answer would turn out to be one of the more momentous legal decisions of the twentieth century.

  The birthplace of American sexual harassment law can be identified with some precision: Ithaca, New York. The first use of the term seems to have been at a 1975 conference at Cornell when a group of feminists held a “Speak-Out on Sexual Harassment.” A pioneering survey of working women that was published by Redbook magazine in 1976 raised the issue before a mass audience, and two years later an activist from Ithaca named Lin Farley wrote a book on the subject, entitled Sexual Shakedown. But the most important turning point may have been when a woman named Catharine MacKinnon came to town.

  From her base in New Haven, MacKinnon became a feminist prodigy in the 1970s. During that time, she worked toward both a Ph.D. and a law degree at Yale, taught undergraduates, created the first women’s-studies course at the college, worked with unions, and cofounded a progressive collective in which she practiced law with a handful of like-minded young attorneys. In addition, she traveled around the country as a guitar-playing folksinger. At a gig in Ithaca, MacKinnon heard a story about a Cornell secretary named Carmita Wood, who had been fired for rebuffing her boss’s sexual advances. “My mind just went, This is it,” MacKinnon said years later. “It was an epiphany experience. Everything I had heard about what sex inequality is, is not it. This is it.”

  MacKinnon’s epiphany led to the recognition of a new legal form of employment discrimination—sexual harassment. To the extent that courts had dealt with the issue at all, judges had dismissed sexual overtures, like the one directed at the Cornell secretary, as “personal,” and they found that they did not constitute a legally recognizable form of discrimination. When MacKinnon had nearly completed a paper on sexual harassment that she was preparing for an independent-study course at Yale, she heard about a lawsuit at the federal appeals court in Washington that raised precisely the issues she was addressing. In Barnes v. Costle, Paulette Barnes, a clerk at the Environmental Protection Agency, had sued her employer because, she said, her supervisor had retaliated against her for her refusal to sleep with him. The district court had dismissed her case on the familiar ground that the harassment was personal. MacKinnon gave a copy of her paper to a law clerk on the case in the federal appeals court, and, she asserted, “it became the basis of the decision.” In 1977, the three-judge panel on the case reversed the district court and produced, as MacKinnon later wrote, “the most explicit treatment of the issues to date and a holding that sexual harassment is sex discrimination in employment.” (The late George MacKinnon, Catharine’s father—and a conservative Republican—was one of the judges on the panel.)

  MacKinnon turned the paper into a book, Sexual Harassment of Working Women, which was published in 1979. Now in its twelfth paperback printing, it surely ranks as one of the most influential law books of the late twentieth century. Dense, closely argued, and relentlessly polemical, MacKinnon’s book was dedicated to the proposition that “sexual harassment, the experience, is becoming ‘sexual harassment,’ the legal claim.” MacKinnon’s triumph reflected the liberal spirit of the era. Through the sheer force of their intellects—their brief-writing and legal skills—“public interest” lawyers like MacKinnon had transformed the politics of their times. The creation of sexual harassment law represented a paradigmatic example of the legal system’s takeover of the political system—a dramatic change in social policy engineered by lawyers and judges rather than by voters and legislators. Like much work by public interest lawyers in this period, the new law of sexual harassment made enormous contributions to the cause of fairness in the workplace. And like other such developments, the law also bore the scars of the idiosyncratic circumstances of its birth.

  MacKinnon later became better known for her crusades, with the writer Andrea Dworkin, against pornography than for her more important work on sexual harassment. The subjects were different, of course, but they shared certain common philosophical underpinnings. MacKinnon invariably portrayed men and women in a constant state of war—a war that the men were winning. This was especially true when it came to sex itself. MacKinnon long argued that in a patriarchal society, the notion of consent had no real meaning for women. The real question, as she put it in her book, was “whether women have a chance, structurally speaking and as a normal matter, even to consider whether they want to have sex or not.” In the light of the argument of her book, MacKinnon’s question was clearly rhetorical. When men have greater power and status than women—and that is virtually all the time—consent is a myth; in such circumstances, all sex is harassment.

  This view came to be reflected in the law of sexual harassment. The law to a great extent drew little distinction between consensual sex and actual sexual harassment. Indeed, evidence that a defendant had engaged in consensual sex in the workplace came to be seen as evidence that he also engaged in sexual harassment. The distinction that Clinton emphasized so strongly in his grand jury testimony—that he had engaged in consensual sex, not sexual harassment—scarcely even existed under the law relevant to his case. The law virtually compelled Judge Wright to allow the Jones lawyers to ask the president about his history of consensual sexual affairs with women he met at work. It would be up to the women to say if they had “consented” to sex with the boss. And even if the women in these affairs “consented,” they could be seen as evidence of a pattern of sexual harassment. Indeed, in the years leading up to Jones v. Clinton, the trend had been toward more, not less, disclosure of the sexual history of defendants. For that, in some measure, Bill Clinton could blame … Bill Clinton.

  In 1991, in the first of the major televised criminal trials of the decade, William Kennedy Smith was acquitted of raping an acquaintance in Palm Beach. During the trial, the rape-shield law offered the accuser only a limited defense from questions about her sexual history and behavior. But the judge in the case barred the prosecution from putting forth evidence that purported to show that Smith had assaulted three other women in social settings. The perceived imbalance—open season on the woman’s past and cover-up of the man’s—generated calls for change. The Clarence Thomas–Anita Hill hearings that same year played out some of the same themes and added to the momentum for
reform.

  As is so often the case, however, the legal cure may have been worse than the disease. In Congress, Susan Molinari, then a Republican representative from New York, introduced changes to the federal rules of evidence to allow juries in civil and criminal sexual misconduct cases to consider evidence that the accused had engaged in such misconduct in the past. But Molinari proposed such a broad definition of “sexual assault”—which included any attempted contact, “without consent, between any part of the defendant’s body or an object and the genitals or anus of another person”—that it would apply to mere fanny-pinching as well as rape. But the criminal defense lobby was no match for the women’s groups on this issue. When Clinton’s crime bill stalled in the House, in 1994, the president called Molinari to see what he could do to win her vote. She agreed to vote for the bill if Clinton would accept her amendments on admitting the evidence of previous offenses in sex trials. “He told me that he was shocked that it wasn’t part of the bill, and he supported it,” Molinari recalled to Jeffrey Rosen of The New Yorker. “Clinton basically assisted me in passing that legislation.”

  The Molinari law referred to sexual relations “without consent,” but as far as the questioning of defendants was concerned, many judges simply read those words out of the statute. It was up to women to decide whether they had consented or not; the men had to answer whether there was any sexual activity of any kind. Indeed, for better or worse, the law was so clear that Judge Wright’s decision turned out to be more important than it was difficult. In a ruling that was released to the lawyers in the case at 5:33 P.M. on December 11—the time of day would later prove important—Wright held that “the plaintiff is entitled to information regarding any individuals with whom the President had sexual relations or proposed or sought to have sexual relations and who were during the relevant time frame state or federal employees.” The judge drew no distinction between consensual sex and sexual harassment; the plaintiff was entitled to know about it all.