A Vast Conspiracy

by Jeffrey Toobin

  After months, even years, of irrelevance, it was suddenly a heady time for Starr’s prosecutors. The Jones lawyers wanted to piggyback on the OIC’s investigation, so they started to send their own subpoenas to everyone Starr was calling before the grand jury, starting with Betty Currie. The Starr team objected, filing a motion before Judge Wright to stop the Dallas attorneys. “After serious consideration,” the brief stated, “we respectfully submit that the pending criminal investigation is of such gravity and paramount importance that this Court would do a disservice to the Nation if it were to permit the unfettered—and extraordinarily aggressive—discovery efforts currently underway to proceed unabated. The criminal matter raises issues of the gravest concern, and their resolution may moot many of the discovery questions pending.” This last line demonstrated the confidence in the Starr camp. It suggested that Clinton might soon leave office, and thus his departure would moot some of the issues before Judge Wright.

  But the Arkansas judge was one of the few people to remain calm and focused in the excitement of the first week of the scandal. She noted that discovery was already scheduled to close at the end of January, so she was disinclined to cancel the last few days. Then Judge Wright did something even bolder. She simply ruled that all “evidence concerning Monica Lewinsky should be excluded from the trial of this matter.” From the beginning, Wright had clung to the idea that the Jones case was about one lone woman’s claim of employment discrimination, not an open-ended inquiry into Bill Clinton’s sex life. Judge Wright concluded that Clinton’s relationship with Lewinsky in 1998 had nothing to do with whether Paula Jones was sexually harassed in 1991. The decision was both an astute resolution of a legal quandary and a subtle message to Starr—that his investigation had steered off into areas remote from anything except his determination to land the president.

  If that was Wright’s message, few in Starr’s camp were in the mood to hear it. They believed they had Clinton on the ropes, and their confidence leeched into arrogance with everyone they dealt with—especially Bill Ginsburg. True, Ginsburg seemed to be doing his best to alienate Starr’s people as well. In public, he had become a one-man interview machine, providing reporters with often inaccurate accounts of his negotiations with Starr. In private, Ginsburg was even more unhinged. During one session with Jackie Bennett, the prosecutor mentioned darkly that successful doctors like Bernie Lewinsky often found themselves in trouble with the IRS and then asked Ginsburg to accept service of a subpoena to Monica’s father, just as he had earlier accepted one for her mother.

  It was a ghoulish, entirely inappropriate threat by Bennett, and Ginsburg—jet-lagged, emotionally overwrought, and a little loony—responded by losing his composure completely.

  “You motherfucking, cocksucking cunt,” he remembered saying, “I will kill you before I accept service for a subpoena to Bernie.”

  Bennett stood up across the conference table.

  “If you want to take a cut at me,” Ginsburg went on, “I’ll whip your ass.” Ginsburg collected Speights and left with the issue of immunity for Monica still unresolved. (Bennett denies mentioning the IRS.)

  At last, the OIC hit on the strategy of leaving the negotiations with Ginsburg to the two most experienced public corruption prosecutors in the office, Mike Emmick and Bruce Udolf. (Ginsburg and Bennett couldn’t get along, and Bittman, preoccupied with Betty Currie, popped in and out of the discussions.) In their own ways, Emmick and Udolf were renowned for their toughness in their respective parts of the country. But they quickly came to the conclusion that it was self-defeating to go on quibbling with Ginsburg about immunity for Lewinsky. They had, at best, a one-witness case against Clinton for lying and obstruction of justice, and Monica was the witness. Sure, Ginsburg was behaving like a clown, but the needs of the case required that Starr give the lawyer what he wanted.

  By January 27—the day of the State of the Union address—Ginsburg and the prosecutors were exchanging drafts of an immunity agreement. Each day, Emmick and Udolf would haggle with Ginsburg and then return to the conference room, where their work would be critiqued by the committee of fifty. The invariable consensus there: Emmick and Udolf weren’t being tough enough. Why wouldn’t she take a polygraph? In response, Udolf added a line to the agreement: “It is understood and agreed that upon request by the United States, Ms. Lewinsky will voluntarily submit to polygraph examination.” What if she told her shrink about her relationship with Clinton? Another new line: “Upon request, she will waive all privileges, without limitation, except as to your representation of her.” This meant the prosecutors could interview Lewinsky’s therapists.

  Finally, the committee persisted on the issue of the oral proffer. Why should they give her immunity if they didn’t get to talk to her first? They wanted the “Queen for a Day” agreement before they committed themselves to immunity. Here, Ginsburg, fearing for Monica’s sanity, wouldn’t budge. But he hit on a compromise with Emmick and Udolf. In her own hand, Monica would write out a proffer, which would summarize her testimony, and the prosecutors could decide whether it was sufficient.

  So on January 30, Ginsburg sent Monica to an empty room at the Cosmos Club—the city club in downtown Washington where he was now staying—and told her to write a summary of her relationship with the president. The resulting ten-page document, written in Monica’s girlish scrawl, is above all a poignant summary of a young woman’s crush. She summarized all of the key issues in the relationship—her transfer to the Pentagon, her dealings with Vernon Jordan, her job hunt, the subpoena from the Jones team—but the first sentence gave the clearest picture of Monica’s conception of the relationship. The first two paragraphs isolated the key legal issues as well.

  1. Ms. Lewinsky had an intimate and emotional relationship with President Clinton beginning in 1995. At various times between 1995 and 1997, Ms. Lewinsky and the President had physically intimate contact. This included oral sex, but excluded intercourse.

  2. When asked what should be said if anyone questioned Ms. Lewinsky about her being with the President, he said she should say she was bringing him letters (when she worked in Legislative Affairs) or visiting Betty Currie (after she left the WH). There is truth to both of these statements.

  The ten pages were good enough for Emmick and Udolf. The handwritten proffer merely repeated what Monica had been saying through her lawyers all week, and it was undoubtedly the best they were going to do. On Sunday, February 1, Emmick wrote back to Ginsburg that “after evaluating your draft, we hope to meet with you this evening and, if we succeed in bridging what I believe are relatively small differences between us, negotiate a binding agreement.” The deal, in other words, was just about cut.

  If Bill Ginsburg is remembered for anything in future years, it may be for a dubious bit of history he made on the same day that Mike Emmick wrote to him about his client’s immunity. On February 1, Ginsburg appeared on all five major Sunday-morning talk shows. From the day Lewinsky’s name became public, Ginsburg had reveled in the attention of the television news aristocracy. Months after the stars lost interest in him, Ginsburg still pined for them. “Mike Wallace is like a father to me,” he said. “Barbara, Wolf, and Cokie kept me sane.”

  February 1 marked the high point of his logorrhea. Yet Ginsburg didn’t just talk a lot, he seemed to go out of his way to offend the very prosecutors with whom he was trying to close a deal. For one thing, Ginsburg simply lied in the interviews about what Monica’s testimony would be—denying, for example, that she and the president had engaged in phone sex when he knew that they had. Sometimes he undercut his own client’s credibility. When the reporter Gloria Borger asked him, on Face the Nation, whether “your twenty-four-year-old client might have a tendency to exaggerate a bit,” he replied, “I’m saying that every twenty-four-year-old, and we were all once twenty-four, except for you—you still look twenty-four. Seriously, all twenty-four-year-olds … tend to embellish.” Altogether, it was a baffling performance. Worse still was what Ginsburg w
as saying off-camera. While his public posture was that Lewinsky told the truth in her affidavit, he was admitting to any number of journalists, off the record, that his client and the president had indeed had a sexual relationship. These remarks filtered back to the prosecutors, further enraging them about Ginsburg’s media campaign.

  Still, on Monday, February 2, Emmick and Udolf pressed forward on closing the deal with Lewinsky. The heart of Starr’s planned case against Clinton was that he had obstructed justice by persuading Lewinsky to lie about their relationship. Udolf wanted to strengthen that portion of the written proffer, so he and Ginsburg negotiated two new, final paragraphs for Monica’s statement. After several phone calls, the two lawyers settled on the following language, which Lewinsky approved and then wrote out in her own hand:

  11. At some point in the relationship between Ms. L and the President, the President told Ms. L to deny a relationship, if ever asked about it. He also said something to the effect of if the two people who are involved say it didn’t happen—it didn’t happen. Ms. L knows this was said some time prior to the subpoena in the Paula Jones case.

  12. Item #2 above also occurred prior to the subpoena in the Paula Jones case.

  The statement, even with the additions, did not give the prosecutors everything they wanted. Lewinsky’s position all along was that Clinton always wanted her to lie about their relationship, not just when asked about it by the Jones lawyers. As Ginsburg and Lewinsky recognized—indeed, as a clear majority of the country came to recognize—lying is simply an integral part of such relationships, with or without a pending lawsuit.

  In any event, Monica’s written proffer was enough for Udolf. “There does not seem to be any purpose in prosecuting this woman,” he told Ginsburg. “If you, Nate, and your client will sign and return it with the one change, we have a deal.… If that’s what it says, I think we have a deal.” (Udolf, Emmick, and Ginsburg have substantially identical recollections of what Udolf said on this occasion.) As Emmick later testified, he heard Udolf give “words of assent” to Ginsburg that they had concluded an immunity deal for Lewinsky.

  In this conversation late on Monday night, Emmick asked Lewinsky’s lawyers when his team could start debriefing Monica. Ginsburg said that he was taking Monica home to Los Angeles, to see her father, on the following day, but that they could start talking out there on Wednesday, February 4. They even agreed on a schedule for her debriefings: ten in the morning to three in the afternoon for weekdays, eleven to three on weekends.

  With that, Bob Bittman faxed a formal immunity agreement to Ginsburg. Written on OIC letterhead and dated February 2, 1998, the three-page document began, “This letter will confirm the agreement reached between Monica Lewinsky and the United States, represented by the Office of Independent Counsel.” In the key provision, the agreement said that if Lewinsky testified truthfully, “the United States will not prosecute her for any crimes committed prior to the date of this agreement arising out of the facts summarized in [Lewinsky’s handwritten] proffer.” The agreement also stated that in return for Monica’s truthful testimony, the OIC would not prosecute Bernard Lewinsky or Marcia Lewis, either.

  At the bottom of the last page were spaces for five signatures: Bruce L. Udolf and Mike Emmick, for the OIC; and Monica Lewinsky, William Ginsburg, and Nathaniel H. Speights III. Monica and her two lawyers signed their names, faxed the document back to Bittman, and completed their plans to fly west in the morning. Monica Lewinsky had every reason to believe that she was hours away from beginning her career as a witness for the prosecution.

  “It’s a sign of weakness,” said Jackie Bennett.

  On February 3, the prosecutors assembled around the big conference table for a postmortem on the negotiations that had led to the grant of immunity to Lewinsky. Bennett thought that his colleagues Bittman and Udolf had wimped out.

  She was still holding back, Bennett asserted. They needed to get her in there and examine her themselves. The written proffer was inadequate. It was true that prosecutors, in general, rarely gave immunity without insisting on face-to-face proffers—that is, without “Queen for a Day” interviews with witnesses. Monica didn’t deserve any special treatment. They were giving away the store to Monica … and to Ginsburg.

  The mention of Ginsburg set off a round of groans and denunciations around the table. His five-show television onslaught had enraged everyone on Starr’s team. On Meet the Press, Tim Russert had asked Ginsburg, “How is this all going to wind up?” In response, Ginsburg had waxed elegiac. “It’ll pass,” he said. “The president will remain in office. He’ll do a good job. We’ll all hopefully have a sound economy, keep our jobs, and I think everything’s going to be fine.”

  The president will remain in office. This guy was obviously in the tank to Clinton. The prosecutors should give him nothing.

  By the time the meeting began, everyone in Starr’s office had seen a front-page story in The Washington Post, written by Ruth Marcus and Bob Woodward. Under the headline AS GINSBURG BROADCASTS, COLLEAGUES AIR DISBELIEF, the story catalogued the attorney’s extraordinary media offensive. “The airwaves have become a virtual Ginsburg News Network, with up-to-the-minute bulletins about the progress of his negotiations with Starr over whether Lewinsky should receive immunity from prosecution in return for cooperating with Starr,” the story noted. “Ginsburg’s media whirlwind has astonished and perplexed those with more experience in criminal matters. It has also—by Ginsburg’s own admission—infuriated prosecutors in Starr’s office.”

  Indeed it had. Bennett, joined by Bittman, challenged Starr, who sat through the commentary of his subordinates in silence. Were they going to let this clown push them around?

  Emmick and Udolf, who had negotiated the immunity deal with Ginsburg, said little at first. Then, gradually, they began to defend their work. Emmick, the smooth Californian, spoke of the need for them to keep their eye on the ball. Monica would be a good witness for the prosecution. She would prove conclusively that Clinton had lied under oath about the sex—and, in time, she might turn into a valuable witness on obstruction of justice as well. Forget Ginsburg, Emmick urged. The point was how best to help their investigation, and Lewinsky was the witness who could do the most for them.

  Udolf, in contrast to his glib ally, was so angry he could barely speak. He loathed the macho posturing of his colleagues, most of whom had a fraction of the experience that he and Emmick did. So what if they hated Monica’s lawyer? How in the world were they proposing to make a case against Clinton without Lewinsky’s testimony? It was foolish to pretend they didn’t need her. And anyway, they had a deal. They had sent her the immunity agreement, and she and her lawyers had signed it.

  That may be, someone pointed out, but the agreement had only been signed by the defense. The spaces for Emmick’s and Udolf’s signatures were still blank. There was no contract until both sides signed.

  Udolf was incredulous. As a technical matter of contract law, it might have been true that no formal contract existed. But in U.S. Attorney’s Offices around the country, when a prosecutor faxes an immunity agreement to a defense lawyer on government letterhead, that’s a deal.

  “I gave my word as a man and as a lawyer,” Udolf said.

  In the end, of course, the decision was up to Starr. He said he was going to go with the clear majority view on his staff: he would veto the immunity deal with Monica. Ginsburg was behaving horribly, Starr said. He thought Bennett was right. Monica should have to give an oral proffer. She was probably holding back information damaging to Clinton. In short, the independent counsel wasn’t yet ready to authorize an immunity deal.

  Starr’s decision on February 3 marked the precise moment when Bill Clinton’s survival in office became assured. It was made just seven days after Bill Clinton gave the American people his finger-wagging denial of a sexual relationship with Lewinsky. If Starr had agreed to the immunity deal on that day, he would have had the ammunition—in testimony and in conclusive genetic evidence
—to prove that Clinton had lied. He could have had an impeachment report for Congress in a month or less. Instead, Starr’s obsession with toughness and devotion to the Washington conventional wisdom led him to disaster. In attempting to punish Ginsburg, he merely damaged himself. In believing the reports about Ginsburg’s incompetence, he only established his own.

  The Lewinsky immunity debacle in February illustrated a larger truth about Clinton’s enemies, too. Starr and his team rejected the deal for Lewinsky because they were convinced she was withholding additional evidence of Clinton’s criminality. This belief was pervasive among those who tried to drive the president out of office—that some grander conspiracy was sure to be uncovered, just over the horizon. Of course, this evidence was never located because it didn’t exist. The persistence of this myth proved more about the fanaticism of those who believed in it than about the evidence against the president. And it was to such zealots that Starr increasingly turned to direct his investigation.

  Emmick and Udolf refused to put their names to the letter informing Ginsburg that the immunity deal was off. Indeed, after he had humiliated Emmick and Udolf, Starr made it clear that he now preferred someone else to run the Lewinsky investigation. So it fell to the new boss to inform Ginsburg and Speights that their client was not getting immunity after all. On February 4—the day that Lewinsky’s debriefing was scheduled to begin in Los Angeles—Ginsburg instead received a fax from Washington. (Speights had even traveled to Los Angeles to assist in the prosecutors’ first interviews with Monica.) “Dear Messrs. Ginsburg and Speights,” the letter began. “Thank you for your proposed modifications to the draft agreement and the amendments to your client’s written proffer,” it said, employing an Orwellian redesignation of the signed government contract that Ginsburg had returned to the OIC. “After carefully considering them,” the letter continued, “we must respectfully decline to enter into an agreement on the proposed terms.” The letter was signed “Robert J. Bittman.”