What followed, however, was a signal moment in the whole long saga—one of the most irresponsible acts by Clinton’s adversaries, ever. It is considered professional misconduct for a lawyer to distribute a legal filing to the news media before it is submitted in court. So, on Saturday, March 28, the Jones lawyers deposited a brief in a twenty-four-hour drop box in the federal courthouse in Pine Bluff, many miles from Judge Wright’s chambers in Little Rock. This sham filing allowed the Dallas team to distribute copies of the document all over the country, in time for the Sunday papers.
The real outrage, however, was what the document said. The centerpiece of this brief was a new claim in the case: that “significant evidence suggests that Defendant Clinton and his agents have exerted great efforts to suppress and obstruct testimony by Juanita Hickey Broaddrick that Defendant Clinton in the past forcibly raped and sexually assaulted … her and then bribed and/or intimidated her and her family into remaining silent about this outrage.” The claim had no relevance to any issue in the brief (or even in the case), but rather it was meant to float one more example of the president’s alleged inhumanity. Not incidentally, the disclosure of her name also violated Judge Wright’s rules on privacy; Broaddrick was supposed to be identified only as Jane Doe Number Five. Jones’s lawyers also failed to inform the judge that Broaddrick had, just weeks earlier, given a sworn affidavit and deposition denying any untoward conduct by the president. This final brief by Jones’s team of Dallas lawyers—an improper, immoral act, which was as unfair to Broaddrick as it was to Clinton—epitomized the lawlessness at the heart of the legal offensive against Clinton.
Far worse for the lawyers, and especially for their client, they had riled Susan Webber Wright. Two days later, Judge Wright gave the first sign of her displeasure. In an order dated March 31, she repeated her admonition that “no party should make public any pleading, past, present or future, which reveals the identity of any ‘Jane Doe.’ ” Further, she noted frostily, “No future pleadings should be made public before they are filed in Little Rock or otherwise in the hands of the judge. The Court has not yet seen the pleadings filed by the plaintiff in a drop box in Pine Bluff, Arkansas.…” The following day, she took her revenge—not merely against this final transgression by the lawyers, but against the abuse of the legal process that the entire Paula Jones case represented. In a lucid, understated thirty-nine-page opinion issued on April 1, 1998, Judge Wright granted summary judgment to Clinton and (apparently) ended the case of Jones v. Clinton just short of the fourth anniversary of its commencement. True to her role as an isolated beacon of sanity in the darkness around her, Judge Wright ruled that nothing in the case showed that “plaintiff’s reaction to Governor Clinton’s alleged advances affected tangible aspects of her compensation, terms, conditions, or privileges of employment.”
On a state visit to Senegal, Clinton celebrated the news by smoking a cigar and banging on an African drum. But just as Judge Wright’s order did not entirely end the Paula Jones case, the president still had so much trouble ahead that he might have come to regard his apparent liberation as an April Fool’s joke.
Twenty-three days later, on April 24, Monica Lewinsky stood on a Malibu beach wearing plumy magenta feathers and not much else. In the photographs from that day that were eventually published in Vanity Fair magazine, Lewinsky looked as if she were alone on the windswept sand, but there was actually a sizable crowd watching Herb Ritts take the pictures. Bill Ginsburg was supervising, and Nate Speights came west for the occasion, and Monica’s father, a serious amateur photographer himself, and his wife were on hand, too. Counting makeup artists, lighting designers, and a security guard watching over $600,000 in borrowed jewelry, there were more than a dozen people observing Monica striking one suggestive pose after another. In one, she posed with the American flag. (After the shoot, Lewinsky had a brief fling with one of Ritts’s assistants, which would account for a cryptic phrase about the photo session in Andrew Morton’s authorized book about her: “She treasures the friendships she made …”)
When the photos were published, the magazine introduced them this way: “In the spirit of open government, and also for the heck of it, Monica Lewinsky permits HERB RITTS to remove her first veil.” As should have been apparent to anyone (but especially her lawyers), the Vanity Fair photo extravaganza was a terrible idea. At the time, Lewinsky remained a subject of Starr’s criminal investigation. In his public statements, Ginsburg was portraying his client as less a vamp than a victim—of Starr, of the media, and even of her former paramour, the president. But the Monica before the camera reveled in her notoriety and her sexuality. Ginsburg and the family justified the photo shoot in the New Age babble that was the Lewinsky lingua franca; Ritts’s attentions were said to boost the young woman’s “self-esteem.” When the photographs from the session were published, and the inevitable condemnations of Monica followed, Marcia Lewis and her ex-husband blamed Ginsburg for allowing the project to go forward, but plainly the photographs were encouraged by Mom and witnessed by Dad, and, in fact, they served as an apt expression of Lewinsky family values.
Still, fairly or not, Monica and her parents added the Vanity Fair fiasco to a lengthening bill of particulars against Ginsburg. After the immunity negotiations with Starr broke down in February, Ginsburg had actually engaged in some clever lawyering. He and Speights filed a motion before Chief Judge Norma Holloway Johnson demanding that she intervene in the investigation and order that Lewinsky be granted immunity. The defense lawyers’ theory was simple. They asserted that the February 2 letter—the one with the blank signature spaces for Emmick and Udolf—amounted to a valid contract between Lewinsky and the OIC, and she had the right to sue to enforce it. Judges rarely intervene in a prosecutor’s decision to grant or withhold immunity, but Johnson took Ginsburg’s demand seriously enough to conduct a hearing about it.
So, on March 12, Ginsburg, Emmick, and Bittman testified in secret sessions before the judge about what had been said in the course of their negotiations. No prosecutor enjoys testifying, and the experience was especially awkward for Emmick, because he was forced to admit that Udolf had told Ginsburg that they had a deal. (Fortunately for the OIC, Udolf himself was unavailable at the time, and thus was spared giving his version of the events.) Ironically, it might have been better for the Starr forces to lose this particular motion; if the judge had forced them to grant Lewinsky immunity, they could finally have started using her as a witness. But the notoriously pro-government Judge Johnson came through for Starr, albeit on extremely narrow grounds. She ruled that because Udolf, not Starr himself, had made the deal with Ginsburg, the immunity contract was not valid, and she would not enforce it. As the judge put it, “Mr. Udolf did not have actual authority to bind the OIC to such a contract.” So, as March moved into April, Ginsburg and Starr remained at odds—and Lewinsky, neither a defendant nor a witness, remained in limbo.
Notwithstanding Ginsburg’s commendable legal efforts, the Vanity Fair photographs, plus the lawyer’s continued sniping at Starr in the press, began to crystallize the doubts that Monica and her parents were having about him. All through the spring, both sides of the Lewinsky family began relying increasingly on a different lawyer—Billy Martin, whom Nate Speights had recruited to represent Marcia Lewis. Martin had spent fifteen years as a federal prosecutor, including seven in Washington, and he projected a silky proficiency, a notable contrast to the frequently overwrought Ginsburg. Martin regarded the Starr prosecutors as just obsessed enough to bring a case against Lewinsky. He told the family that they had better make a deal or face the possibility that Monica would be indicted.
Ginsburg, oddly enough, was thinking much the same thing, except, in his megalomania, he was looking forward to it. In May, without telling Monica or Bernie, Ginsburg published “An Open Letter to Kenneth Starr,” an extended attack on the prosecutor, in California Lawyer magazine. “Congratulations, Mr. Starr!” he wrote. “As a result of your callous disregard for cherished constituti
onal rights, you may have succeeded in unmasking a sexual relationship between two consenting adults.” At this point, Ginsburg really did seem to be trying to provoke Starr into charging Lewinsky, a point the lawyer did not really deny. “I didn’t want to make any deals with the devil, because I was angry,” Ginsburg said. “I got to the point where I wanted to have a trial. I wanted to take them down in court.”
Lewinsky, understandably, did not. Prodded by Martin, Monica started interviewing replacements for Ginsburg. Martin had two top candidates—Plato Cacheris and Jacob Stein. To Washington insiders, the mere mention of their names explained why they were being considered. Cacheris was sixty-nine and Stein was seventy-three, and they were Starr’s peers in the upper echelon of Washington law practice. In the course of their eminent careers, Cacheris had represented John Mitchell in Watergate, Fawn Hall in Iran-contra, and Aldrich Ames in the CIA spy scandals; Stein had represented Kenneth Parkinson, the only major Watergate figure to be acquitted, and served as an independent counsel himself, to investigate former attorney general Edwin Meese III. Both men had basically stopped trying cases and instead cut deals for their clients. That was what Lewinsky and Martin wanted them to do now—get her immunity at long last.
When Lewinsky and Martin interviewed Cacheris—in a secret meeting in an obscure hotel on Capitol Hill, on June 1—the lawyer made a great show of saying he would never negotiate a guilty plea for Lewinsky. “If you want to plead guilty,” the lawyer told his prospective client, “you should hire someone else.” In fact, this bravado was a form of marketing. As any competent attorney would recognize, Cacheris saw that Lewinsky made an unappealing target for Starr. Even the reviled Ginsburg recognized from the start that Monica should demand immunity. All Lewinsky and her advisers were doing (probably wisely) was changing the messenger but not the message.
Cacheris and Stein were old friends who worked in the same office building, and when they heard they were both interviewing for the job, they decided to join forces. On June 2, the two lawyers returned to the Washington Court Hotel and signed on officially as Lewinsky’s new lawyers. Ginsburg later made a great show of insisting that he had not been fired—“I Didn’t Get Dumped” was the headline of an op-ed piece he wrote for The Washington Post later that week—but instead he asserted that he volunteered to leave the case. The truth was somewhere along the lines of a job departure once described by Casey Stengel: “We call it discharged because there is no question I had to leave.”
For their part, still on June 2, Cacheris and Stein decided to make a courtesy call on the prosecutors before they publicly announced that they were replacing Ginsburg. Seated around a conference table before Bittman, Bennett, and Wisenberg, the two new defense lawyers said they were looking forward to a new chapter in the relationship between Lewinsky and the OIC. Bittman, however, was anxious to make one of his characteristic “shows of strength.”
“You know,” he said, “we have a strong case against her.”
Cacheris raised his hand and said this was not the time to debate the merits of the case. They just wanted to say hello and clear the slate. A couple of days later, however, Cacheris and Stein returned to the OIC for a more formal negotiating session, this one with Starr in attendance.
Bittman again began by announcing that Lewinsky had much to fear from an indictment. They had the evidence to convict her.
This time Cacheris answered, saying, “We are not here to discuss a disposition.” There would be no guilty plea. Stein, the quieter of the defense pair, muttered, “I have one good trial left in me.”
From there, the conversation turned to the issue of immunity, and it quickly bogged down on the question of an oral proffer. Bittman said Monica had to provide one before the OIC would consider granting immunity. Cacheris said he wanted immunity before Monica made any oral statement to the prosecutors. Through it all, Starr was silent, and neither side changed its position.
In all, this conversation was nearly identical in substance to those Ginsburg and Speights had conducted with the OIC four months earlier. A quick rejection of a guilty plea; a standoff about an oral proffer. Without Ginsburg’s theatrics, the tone was more civilized, but Lewinsky’s status remained unchanged. The two sides had returned to the stalemate that had charcterized their relations during the Ginsburg era. After June 12, Cacheris and Stein heard nothing from the other side.
Inside the OIC, Starr was obsessing—still—about toughness. In the daily meetings around the big conference table, the prosecutors mused like teenagers planning dates: Should we call them or wait for their call? If we call first, does that make us look weak? Days passed, then weeks. In the summer, Starr was feeling energized. Several witnesses, like Blumenthal, had asserted executive and attorney-client privileges during their grand jury testimony, and Starr was leading the fight to force them to answer questions. These were purely legal questions, and as such they represented one of the few areas where Starr, the former solicitor general, could stand on equal footing with his staff. The White House ultimately backed down on most of the privilege issues, but this battle in particular invigorated Starr. More than many on his staff, Starr thought he had a strong case against the president, even before he had the testimony of Lewinsky or Clinton himself. It was a circumstantial case, to be sure, but Starr had thought since early spring that it was strong enough to file an impeachment report to Congress. Maybe, he thought, they didn’t even need Monica.
The prospect of the 1998 midterm congressional elections preyed on Starr’s mind. At first, he wanted to send his report to Congress by the end of July; that date was sufficiently before November that he couldn’t be accused of trying to affect the outcome. But that deadline proved unrealistic. Linda Tripp, the prosecutors’ star witness, didn’t even begin testifying in the grand jury until June 30, and Bittman was still asking questions of Betty Currie well into July. Then there was Clinton’s own testimony. Bittman had basically given up on his pas de deux with David Kendall in April. The prosecutor’s increasingly forlorn letters (“Yet since this matter arose, the President has—with all respect—found time to play golf, attend basketball games and political fund-raisers, and enjoy a ski vacation …”) continued to be met with dismissive replies.
At last, Starr decided to call Kendall’s bluff. With the end of summer bearing down, Starr authorized Bittman to send, on July 17, 1998, a grand jury subpoena calling for the testimony of William Jefferson Clinton—the first such subpoena to a president of the United States in American history. Clinton would need more than Kendall’s cute evasions now.
From almost the day the scandal broke, the key members of the White House political operation—among them John Podesta, Rahm Emanuel, and Paul Begala—recognized that the chances for Clinton’s survival in office rested principally on the shoulders of congressional Democrats. As long as the White House could portray Starr’s investigation as a partisan vendetta, impeachment and removal—not to mention resignation—appeared to be remote possibilities. But the political team thought frequently of the delegation of Senate Republicans who came calling on Richard Nixon in the first week of August 1974. When this group, which included such party stalwarts as Barry Goldwater and Hugh Scott, told Nixon he had to go, they—more than any Democrats—forced the first presidential resignation. It was the possibility of a similar mission by their heirs across the aisle that obsessed Clinton loyalists.
So John Podesta was especially attentive when he was summoned to Steve Elmendorf’s office one afternoon in May. As the top aide to Richard Gephardt, the leader of the Democrats in the House, Elmendorf served as the principal day-to-day emissary between the White House and its most important constituency. (The frenetic Emanuel would sometimes call Elmendorf almost hourly for briefings on Clinton’s status among House Democrats.) Gephardt had told Elmendorf to pass an emphatic message to his counterparts on Clinton’s staff. “John,” Elmendorf told Podesta, “you cannot let him take the Fifth. He has got to know that that’s just not an option. He has
got to testify. You’ll lose the Democrats up here if he doesn’t.” Podesta, who had worked on Capitol Hill for many years, did not disagree, but David Kendall did—vehemently.
Fifty-three years old, Kendall was an odd amalgam—a Quaker and a zealot. After growing up in a small Indiana town, he had discovered the civil rights movement—he was jailed in Mississippi during the Freedom Summer of 1964—and eventually moved into private law practice at Williams & Connolly. If the Quaker values of tolerance and nonviolence shaped Kendall’s political consciousness, the very different spirit of Edward Bennett Williams forged his approach to the law. Williams believed in litigation, and especially criminal law, as total war—a ceaseless battle in which a lawyer should never yield on even the smallest points. (In this, Kendall’s outlook clashed with that of Bob Bennett, who took a more accommodating approach, and the two men shared a rich contempt for each other.) Kendall did mostly civil work at the firm, and he long represented the National Enquirer. In his office, he possessed perhaps the only leather-bound sets in existence of not only the Enquirer but its wackier sister tabloid, the Weekly World News.
In representing criminal defendants, Kendall had absorbed the central lesson of Williams’s catechism—that a suspect should always, always take the Fifth Amendment. But this was, as even Kendall had to recognize, a political matter more than a legal issue, and ultimately Clinton’s political advisers—and, of course, the president himself—had their way. On July 24, in a letter marked CONFIDENTIAL, Kendall wrote to Bittman, “The President is willing to provide testimony for the grand jury.…”
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