A Vast Conspiracy

by Jeffrey Toobin

  On February 20, Bennett orchestrated a subpoena of Sidney Blumenthal, so the prosecutors could ask him about his opposition research strategy. Bennett meant the subpoena as a signal that the Starr team would not be cowed by Blumenthal’s leaks. But like so much the Starr team did to make public statements, the subpoena to Blumenthal backfired.

  Starr himself explained the rationale for the Blumenthal subpoena during one of his morning strolls to deposit the garbage by the curb of his modest home in suburban Virginia. From the day the Lewinsky story broke, camera crews camped out on the front lawn of Starr’s house, and the independent counsel answered a few questions almost every day. If Starr had simply refused to talk, the networks would have pulled their crews after a few days. But Starr couldn’t resist trying to ingratiate himself with the Washington press corps, and he regularly commented on the day’s developments during these trash runs. For starters, these Hefty-bag press availabilities were simply a ludicrous way of imparting information on a matter of national importance; more important, Starr’s professorial style did not translate well in the curbside setting. For example, when asked about the Blumenthal subpoena, Starr said, “It’s not in the interest of the First Amendment for distortions, lies about civil servants to be spread about.… Lies and distortions have no place in our First Amendment universe.”

  As a judge, Starr had written eloquently on the values underlying the First Amendment, so even his admirers found it baffling that he so mangled the freedom-of-speech issue. According to long-settled constitutional law, the First Amendment exists to prevent the government from deciding what the truth is, not to empower some prosecutor to determine what is true or false. To be sure, Blumenthal’s press offensive had been distasteful, but he had every legal right to conduct it; a White House communications aide, regardless of his motives, has the right to distribute newspaper clippings to anyone he chooses. Jackie Bennett may have thought that Blumenthal was a gangster, but he was actually a White House aide whose job involved talking to reporters—whether the OIC liked it or not.

  Ironically, there was a perfectly legitimate, independent reason for Starr to call Blumenthal before the grand jury. Blumenthal’s conversation with Clinton on the day after the story broke constituted important evidence about the president’s state of mind. But by defending the subpoena in the inept way he did, Starr succeeded only in making the White House aide a martyr for the First Amendment. Out of all the options available to Starr—which included defending the subpoena as a way to gather relevant evidence, or better yet, saying nothing at all, or, better still, hiring prosecutors who did not send subpoenas out of macho posturing—the independent counsel made the worst choice. Here, Starr’s obsession with toughness, and with the press, led to more self-inflicted wounds.

  Blumenthal took advantage of this blunder by Starr—and then some. In a press conference on the courthouse steps after his grand jury appearance on February 26, Blumenthal said, “Today, I was forced to answer questions about my conversations, as part of my job, with—and I wrote this down—The New York Times, CNN, CBS, Time magazine, U.S. News, the New York Daily News, the Chicago Tribune, the New York Observer, and there may have been a few others I don’t remember right now. Ken Starr’s prosecutors demanded to know what I had told reporters and what reporters had told me about Ken Starr’s prosecutors.”

  This was a considerable distortion of what actually went on in the grand jury. Blumenthal was asked generally about his contacts with reporters, but it was he, not his interrogators, who volunteered the names of the news organizations. Moreover, before they turned to Blumenthal’s press contacts, prosecutors first asked him in the grand jury about his conversation with the president about Lewinsky on the day the story broke in the news media. On February 26, Blumenthal refused to answer questions on that subject, citing executive privilege. Blumenthal did not choose to mention that subject on the courthouse steps.

  The Blumenthal controversy, which occupied much of late February, was not only a public relations disaster for Starr; it also gave the Starr team no assistance at all in proving the sexual relationship between Clinton and Lewinsky. As it turned out, Starr’s task was much like that of a matrimonial lawyer, hired in a divorce case, who needs to prove adulterous conduct. So, first, the prosecutors began to look for admissions—people in whom Lewinsky might have confided about her relationship. Drawing on names taken from her computer, her e-mails, and her phone book, they made some good progress in this area. They started with her mother, of course, but then moved on to her friends. FBI agents fanned out around the country to interview these young women, and the prosecutors brought some of them back to the grand jury.

  The first one they found was a woman named Neysa Erbland, a friend of Lewinsky’s from Beverly Hills High School. Sol Wisenberg put her before the grand jury, and she introduced the jurors to the kind of sexually explicit testimony that they would be hearing over the next several months.

  “She told me that she had given him a blow job,” Erbland said, “and that she had had all of her clothes off, but that he only had his shirt off and that she had given him oral sex and they kissed and fondled each other and that they didn’t have sex. That was kind of a little bit of a letdown for her.” (In retrospect, it is amazing that the secret of this relationship held for as long as it did. Erbland testified that even though Lewinsky swore her to secrecy about the affair, she had told her husband, her parents, her mother-in-law, and a friend named Charles, who was “a booking agent on a TV show.” Other friends of Lewinsky’s had similar difficulty in refraining from sharing what was, admittedly, very good gossip.)

  Shortly thereafter, the Starr investigators located Catherine Davis, a college friend of Monica’s, and she was brought from Japan, where she was living, to testify before the grand jury. Like Erbland, Davis recounted Lewinsky’s version of the relationship, but this time the indefatigable Wisenberg had new details he wanted to impart for the record.

  “When Monica was describing the physical relationship with the president,” the prosecutor asked, “did she ever mention any objects that were used as an aid to that physical activity?”

  “Yes,” said Davis.

  “All right. Tell us about that.”

  “She mentioned the use of a cigar.”

  “All right,” Wisenberg went on. “And what did she say was done with the cigar?”

  “She said that he used it and put it inside of her.”

  The statements to friends corroborated what Lewinsky had told Tripp on the tapes. Given Lewinsky’s emotional instability, however, Clinton’s defenders had enough ammunition to dismiss the young woman as an obsessed fan, a fantasist, or a stalker. Starr needed Lewinsky herself—or, better still, eyewitnesses.

  Here the prosecutors took the investigation into the White House itself. They worked meticulously, identifying all of the people who kept track of the president’s whereabouts. They ranged from former top advisers like Leon Panetta, Evelyn Lieberman, and George Stephanopoulos to his secretary, Betty Currie, and her supervisor, Nancy Hernreich, whose title was director of Oval Office operations. They questioned Stephen Goodin, the president’s personal aide, whose job it was to make sure Clinton had the papers he needed and that he made it to meetings on time. (In her conversations with Tripp, Lewinsky immortalized Lieberman, Hernreich, and Goodin as the “meanies” who did their best to keep her away from Clinton.) The investigators tracked down two of the Navy stewards, Bayani Nelvis and Glen Maes, who served Clinton his food and took care of his clothes. In the early part of 1998, Starr’s investigators also talked to some of the uniformed Secret Service agents who controlled access to the Oval Office. In all, the prosecutors proved the wisdom of the adage describing the White House as the crown jewel of the federal prison system. The picture of Clinton was of a man monitored, probed, scheduled, coddled, catered to, and controlled virtually twenty-four hours a day.

  And despite all that, no one saw anything—at least not directly. Almost all of the sexual
encounters had taken place on weekends when Monica was still on the White House staff. For most of their trysts, Clinton had simply arranged to run into Lewinsky “accidentally” in the hallway and then invite her to the study. Often, no one saw her go in. (And since they were intimate fewer than a dozen times, there were not many opportunities to be discovered.) Starr’s best witness was a former uniformed Secret Service agent named Lewis Fox, who testified about a weekend afternoon in late 1995, when he was on duty outside the Oval Office. On that day, Clinton had poked his head out of the office door and said to Fox, “I’m expecting a young lady, a congressional staff member. Would you please let me know when she shows up?” Moments later, Lewinsky arrived, and Fox admitted her to the Oval Office. “You can close the door,” Clinton then said. “She’ll be here for a while.” About forty minutes later, Lewinsky left. To be sure, the incident was suggestive, but it didn’t prove a sexual affair. And it was the best direct evidence Starr had.

  So the prosecutors, imbued with the macho culture of the Starr office, pressed their witnesses for any sliver of information about Clinton and Lewinsky’s relationship. Grand juries operate under different, looser rules of evidence than criminal trials. Most important, hearsay evidence is admissible before grand juries, so witnesses can be asked what they heard from other people about the issues in the case. But as weeks and then months passed with little visible progress, the prosecutors grew frustrated, and they began searching farther afield to find something—anything—that might substantiate Lewinsky’s tales to Tripp. The testimony of a uniformed Secret Service agent named John Muskett provided a characteristic, and disturbing, example of the Starr office in action.

  Muskett testified about how he saw Lewinsky enter the Oval Office alone on Easter Sunday in 1996—similar testimony to Fox’s, about a different occasion. The prosecutor Sol Wisenberg then asked, “Now, were there to your knowledge before the April 6, 1996, incident, were there any rumors about Monica and the president that you were aware of before that incident?…”

  “Not that I was aware of, sir,” Muskett said.

  “Okay, and were there any rumors about why she was transferred?”

  “Yes, sir.”

  “And can you tell us briefly what those rumors were?”

  “Briefly, Monica was seen by someone, and I believe to the best of my ability today, someone from the White House or the first lady’s staff walked in on the president and Monica in the family theater located in the East Wing,” Muskett explained.

  “All right,” Wisenberg went on. “Walked in and then what?”

  “I guess in a compromising position.”

  “Okay, that’s the rumor that was going around?”

  “Yes, sir.”

  There was nothing technically improper about this kind of questioning by Wisenberg, but it was an extraordinarily shabby way to conduct a criminal investigation. “Rumors” have no legal significance. Like Isikoff years earlier, the prosecutors were having trouble nailing down “rumors” of Clinton’s amorous adventures, and like the reporter, Starr’s investigators were expanding the definition of relevance in an effort to pin something on the president.

  But Wisenberg wasn’t finished with Muskett. The prosecutor went on to ask about what he called an “outlandish version” of a rumor: “Was it ever expressed to you as you having witnessed Monica with her head in the president’s lap?”

  “The only time I ever heard that side of the story or that rumor was in the independent counsel,” said Muskett, “when I came down here to have a talk a couple of weeks ago.” In other words, Wisenberg was polluting the minds of the grand jurors with “rumors” that appear to have been manufactured in Starr’s office. (False rumors at that; not even Lewinsky ever claimed to have had a sexual encounter with Clinton in the White House theater.)

  This kind of zeal and desperation bred questions like this one from prosecutor Mary Anne Wirth to Navy steward Glen Maes: “Did you ever hear anything from any source, firsthand, secondhand, eighteenth-hand … ever hear anything that led you to believe that there may have been some kind of social or physical relationship between Monica Lewinsky and the president?”

  The reply was as succinct as the question was tendentious: “No.”

  As the Lewinsky investigation moved into its third month, in March, the Starr forces and Paula Jones’s lawyers moved into an imperfect alignment. In the first days of Starr’s Lewinsky investigation, the Jones forces had made trouble for the prosecutors by trying to subpoena people who were also witnesses in the criminal case. But after January, when Judge Wright had cut off further depositions in Jones v. Clinton, the priorities of these two centers of anti-Clinton activity merged. Each one, in its own way, put aside all other priorities to try to drum the president out of office. For his part, Starr began assembling staff to write an impeachment report to Congress. The Jones lawyers took a less decorous and, for them, more familiar route—that of public humiliation.

  Ever since Judge Wright’s candid remarks in the secret court hearing before Clinton’s deposition, the Jones lawyers had known she was strongly tempted to throw the case out on summary judgment. Thus, the lawyers recognized that if they were going to hurt the president politically, they had to use the process of what was probably the final legal proceeding in the case to dump damaging material into the public domain.

  Bob Bennett, too, spent much of the previous month seething at Bill Clinton. The lawyer quickly came to the conclusion that the president had at least misled him about his relationship with Lewinsky, if not outright lied. (Later, it became apparent that Clinton did lie.) But the existence of Starr’s Lewinsky inquiries made it all the more important for Bennett to win his summary judgment motion. In filing such a motion, a defendant says, in effect, that in light of all the evidence collected in the discovery process, the plaintiff has no case. Winning a motion for summary judgment would thus serve a crucial double purpose for Clinton. It would, on a simple level, rid him at last of the Jones case; and in a more atmospheric way, it would also undermine Starr’s efforts by showing that his obstruction of justice case was, in effect, created out of thin air—that there was never a genuine case to obstruct.

  Bennett had studied Wright carefully during the long years that the case had been pending, and he knew the argument that would appeal most to her. He recognized that Wright had no special fondness for Clinton, but he could tell that the judge resented how the Dallas lawyers used her court to press their political agenda. In ordinary circumstances, a he said/she said case like this one might not be dismissed on summary judgment; judges usually let juries decide whom to believe. But in a brilliant, powerful brief written by Bennett’s colleague Amy Sabrin, the Clinton lawyers argued that even if the then governor had propositioned Paula Corbin at the Excelsior Hotel, she had never suffered any on-the-job harm that amounted to legal sexual harassment.

  The brief included a damning recital of the way Jones’s lawyers neglected the facts of their client’s case in favor of their investigation of Clinton’s sex life. “Plaintiff spent 99 percent of her discovery efforts attempting to substantiate rumors that President Clinton made sexual advances to other women,” Sabrin wrote. “But she has failed to establish that she personally has a cause of action.” In a small but revealing fact about the way the Jones case was pursued, Clinton’s brief noted that the plaintiff admitted during her deposition that she had never examined her own employment records at the Arkansas Industrial Development Commission—neither before she filed the suit nor before she gave her deposition. Those records revealed that Jones had always received raises and satisfactory job reviews. In short, there was no evidence of any kind of retribution for the purported incident at the hotel. What was the only “tangible job detriment” that Jones could point to as a supposed result of her encounter with the governor? “The only specific act of rudeness to which plaintiff pointed was that she did not receive flowers on Secretary’s Day in April 1992, nearly one year after the purported incident,” the
brief observed.

  The Dallas lawyers used their reply brief, which was submitted to Judge Wright on March 13, to disgorge the sexual research they had gathered over the past six months. As exhibits to their brief, the plaintiffs attached hundreds of pages of excerpts from the depositions of Kathleen Willey, Gennifer Flowers, and Dolly Kyle Browning—the most salacious material they had. (In light of the fact that the husband-and-wife team of Rick and Beverly Lambert had interviewed more than two hundred women in search of dirt on Clinton, their yield of useful material was rather small.) All of this sexual evidence was, of course, irrelevant to the summary judgment issue before Judge Wright, but the Dallas team still ladled it into the public domain.

  In the relatively small portion of their brief devoted to the actual issues in the case, the Jones lawyers betrayed their desperation to prove that Paula had suffered some kind of legal injury because of the incident at the hotel. So they attached a deposition they had obtained just a week earlier from one Patrick J. Carnes, the editor in chief of a publication called Sexual Addiction and Compulsivity, in Wickenburg, Arizona. Carnes said that he had met Jones in February 1998, nearly seven years after the alleged incident. Based on this single meeting, Carnes concluded that Jones was still suffering from post-traumatic stress disorder and that Clinton had caused her to experience “extreme anxiety, intrusive thoughts and memories, and consequent sexual aversion.” The precise nature of her sexual aversion was not disclosed. Her lawyers asserted in their brief, “Mrs. Jones continues to feel ashamed and horrified and is unable to watch Mr. Clinton on television, talk about the incident, or even think about it without experiencing emotional trauma and stress.” (A few weeks later, Jones was apparently able to put aside these feelings and attend the president’s speech at the White House Correspondents’ Dinner, where she and Susan Carpenter-McMillan were guests of Sun Myung Moon’s Insight magazine.) On March 20, the Clinton team responded to this torrent of irrelevancies by asking, in a rather perfunctory way, for Judge Wright to strike them from the record, itself a rather meaningless remedy because the documents were already public.