A Vast Conspiracy

by Jeffrey Toobin

  Hyde was seventy-four in 1998, a congressman first elected in the face of the Democratic landslide of 1974, after eight years in the Illinois house. In his twenty years in the minority party in Congress, he was best known as an abortion opponent—the author of the Hyde Amendment, which barred government funding of abortions. He represented a solidly Republican suburban Chicago district, and he had, in the past, frequently reached out to Democrats on issues like adoption and gun control. In the early nineties, though, his wife died, and he endured a serious bout of prostate cancer, which left a painful and inconvenient legacy in his life. He didn’t work as hard as he had formerly, and he had less patience, too. In every respect, as Hyde turned to face impeachment, his best years were behind him.

  Late in the spring, Hyde turned to an old friend as his chief counsel, David Schippers, a Chicago defense lawyer and former prosecutor. He was a safe, familiar face for Hyde, but Schippers could not have been less suited for this kind of delicate political assignment. As news reports invariably noted, the sixty-eight-year-old Schippers was a Democrat, but the designation was misleading. Having grown up during Chicago’s days as a one-party state, Schippers had a sort of genetic predisposition for the Democratic Party, but he was in fact a ferocious conservative. Schippers had almost no legal experience outside of the Chicago city limits and none at all in Washington. His staff consisted almost entirely of former prosecutors and investigators from Chicago, none of them terribly distinguished. In the best Chicago tradition, Schippers, the father of ten children, also hired one of his sons.

  In the months leading up to the release of the Starr report, Hyde often said that any impeachment had both to be and to be perceived as bipartisan. Yet during these critical months, Hyde did nothing to reach out to John Conyers, Jr., the ranking Democrat on the committee, or any other Democrat. In part, Hyde was the victim of the independent counsel law. Because the law in effect gave Starr the exclusive right to initiate an impeachment proceeding, Hyde might have looked overaggressive if he had started any impeachment work on his own. Still, there was much Hyde could have done, such as ask Conyers to have their staffs work together on some issues or allocate the number of staff members in an equal way. But Hyde lacked the energy for this kind of forward thinking. The chairman basically drifted through the summer without a plan for what to do when Starr finally made his case. In the months before September, Schippers spent most of his time in Chicago.

  The Republicans did accomplish one thing. In an obscure corner of Capitol Hill, Hyde directed the construction of what amounted to a small chapel dedicated to the contemplation of whether President Clinton should be impeached. In ordinary circumstances, only a hodgepodge of congressional staffers, and no actual members of the House of Representatives, worked in the Gerald R. Ford House Office Building. Until September, the newly renovated first-floor suite called H2-186 sat empty. There was a combination lock on the front door and a motion-detecting alarm system inside. There were two codes to disable the alarm—one for the majority Republicans on the Judiciary Committee and the other for the Democrats. This ecumenism also informed the interior design of the suite: flanking a little administrative area in the middle were separate offices for each party. Within these small rooms, the plan went, members of the Judiciary Committee would read and review the report on impeachment that Kenneth Starr was going to submit to them … someday.

  Like so much that happened in Starr’s office, the content of his report to Congress was determined more by many small decisions than by a single conclusive step. The law offered almost no guidance to Starr about how to proceed. The independent counsel law said that the counsel “shall advise the House of Representatives of any substantial and credible information … that may constitute grounds for an impeachment.” In the two decades that the law had been in effect, no independent counsel had ever found such information. In 1974, Leon Jaworski, the Watergate special prosecutor, had turned over some of his evidence to the Judiciary Committee, and he had done so in a dry and understated way, drawing no conclusions and making no arguments. That kind of report was one kind of report Starr could have written.

  Starr rejected the Jaworski model. From the beginning, Starr had divided the report in a way true to his roots as an appellate court judge—in two parts, the facts (called the “Narrative”) and the law (dubbed “Grounds for an Impeachment”). Separate teams of lawyers worked on each section for months, continually expanding the text as the investigators developed more evidence. Practically since the day he started examining Tripp’s allegations, even when his evidence consisted only of the tales from Lewinsky’s confidantes, Starr had believed Clinton had lied under oath about the sex. The new evidence, especially Clinton’s and Lewinsky’s testimony, simply reinforced his prior views. The authors of the report added new material as it came in, but they didn’t remove the old stuff—and the size of the report kept increasing.

  So did the staff’s passion for the destruction of Bill Clinton. Instead of following the just-the-facts style of the Jaworski report, Starr directed the creation of a sustained attack on the president in which every inference about Clinton’s behavior was drawn in the most negative possible way. In contrast to the custom at the Justice Department for “prosecution memos”—outlines of possible cases, which the Starr report roughly resembled—the independent counsel’s staff excluded exculpatory information. In terms of the substance of the report, nearly every dispute about whether an embarrassing detail should be included was resolved in the affirmative. Not surprisingly, then, by far the most important piece of evidence, certainly the one relied on most heavily in the footnotes of the report, was the sexual autobiography that Lewinsky provided for Karin Immergut on August 26. There was almost a tug-of-war between the authors of the Narrative and those of the Grounds for an Impeachment to make more use of Immergut’s work. Indeed, in the giddy rush to complete the report in the two weeks after that deposition, the Narrative and the Grounds started to resemble each other more and more.

  This similarity meant that every sexual encounter between Clinton and Lewinsky was described in the Starr report at least twice—and some three or four times. Though Starr originally envisioned the Grounds as a sort of legal brief for impeachment, it wound up with even more sexually explicit detail than the Narrative. The Grounds was principally the work of Brett Kavanaugh, a lawyer from Kirkland & Ellis and a former Supreme Court law clerk, who was perhaps the most favored of Starr’s young male protégés. In one amazing stretch of the Grounds, Kavanaugh cited Lewinsky’s sex deposition in thirty-four consecutive footnotes, and he included some material that even the Narrative’s authors judged too viciously unnecessary to mention. For example, after the description of the December 31, 1995, tryst, Kavanaugh’s team dropped the following deadpan footnote: “After the sexual encounter, she saw the President masturbate in the bathroom near the sink.” Such details had no conceivable relevance to Congress’s duty, but were rather designed to humiliate Clinton. The men (and they were all men) who wrote the Starr report were so confident of the historical importance of such work that they photographed themselves hunched over their word processors, just for posterity.

  For his part, Starr was so afraid of being accused of collaborating with the House Republicans that the independent counsel did not give anyone in Congress notice of when, or even if, the report might arrive. Indeed, Hyde had the suite built in the Ford building solely on the basis of news leaks and guesswork. But the guesses were right, as the House sergeant at arms learned at 3:45 P.M. on Wednesday, September 9. At that moment, Jackie Bennett announced that the report and its supporting material were being placed in vans for delivery to the Ford building. There were two copies of everything—one for the Democrats, one for the Republicans. The report itself totaled 452 pages, with 1,660 footnotes and 18 boxes of supporting material—FBI interviews, grand jury testimony, and other evidence. In a cover letter, Starr wrote: “The contents of the referral may not be publicly disclosed unless and until authori
zed by the House of Representatives.” In the roiling political environment of that moment, Starr’s cryptic message amounted to an invitation to the House to make the report public.

  Indeed, Newt Gingrich, the speaker of the House, had made certain that the report would be released almost immediately. He gave jurisdiction over the report first to the House Rules Committee, which the speaker controlled. On Thursday, September 10, the day after the report arrived on Capitol Hill, the committee voted to release the report before anyone had read it. Democrats made a brief fuss about allowing the president’s lawyers some advance opportunity to examine the contents before it was released to the public—an idea that was voted down along party lines—but in the end, all the members of the president’s party on Rules agreed to the immediate release. This was the beginning of a true disaster scenario for the president’s allies—a looming bipartisanship, even civility, on the question of impeachment. The next day, September 11, the full House took up the question of releasing the Starr report.

  On that Friday morning, it became apparent that Clinton’s own influence on the impeachment process would be limited, if not nonexistent. As it happened, a national prayer breakfast was scheduled for the morning of September 11 at the White House, and Clinton always worked hard to prepare for it. On this day, he told his aides that he had stayed up until four o’clock in the morning writing what he was going to say. “I may not be quite as easy with my words today as I have been in years past,” he told the hundred or so assembled clerics of many faiths assembled in the East Room. “I was up rather late last night thinking about and praying about what I ought to say today. And rather unusually for me, I actually tried to write it down. So if you will forgive me, I will do my best to say what it is I want to say to you, and I may have to take my glasses out to read my own writing.

  “First, I want to say to all of you that, as you might imagine, I have been on quite a journey these last few weeks to get to the end of this, to the rock-bottom truth of where I am and where we all are. I agreed with those who have said that in my first statement after I testified, I was not contrite enough. I don’t think there is a fancy way to say that I have sinned.

  “It is important to me that everybody who has been hurt know the sorrow I feel is genuine: first, and most important, my family; also my friends; my staff; my cabinet; Monica Lewinsky and her family; and the American people. I have asked all for their forgiveness. But I believe that to be forgiven, more than sorrow is required, at least two more things.

  “First, genuine repentance: a determination to change and to repair breaches of my own making. I have repented.

  “Second, what my Bible calls a broken spirit: an understanding that I must have God’s help to be the person that I want to be, a willingness to give the very forgiveness I seek, a renunciation of the pride and the anger which cloud judgment, lead people to excuse and compare, and to blame and complain.…”

  Clinton’s remarks—at once passionate, earnest, and humble—demonstrated a kind of eloquence rarely seen in American life. Yet their impact reflected how much he had squandered his gifts. When it came to the Clintons’ personal life, who could believe anything he said? Eight months earlier, he had spoken with just as much conviction when he denied having sexual relations with “that woman.” In the coming battle over his impeachment, he would turn out to be a discredited, even useless witness in his own behalf. His supporters on the Hill preferred him as a symbol—of prosecutorial excess—rather than as the flesh-and-blood real thing.

  Ignoring the president’s latest words of contrition, the members of the full House turned on that Friday morning to debate disclosure of the Starr report. The result was a bipartisan rout, a vote of 363 to 63 to release the report. In a little-noticed, but ultimately important, provision of the resolution, the House also voted to release all of Starr’s underlying evidence by September 28, unless the Judiciary Committee voted to the contrary. The chief backer of opening all the files was John Dingell, the veteran Michigan Democrat, who had a special loathing for Clinton’s behavior, if not for all of his policies. Only the Congressional Black Caucus, which accounted for twenty-nine of the sixty-three votes against the resolution, and a handful of other urban liberals stood with the president on release of the report. The House leadership, including Gephardt, voted for disclosure. Another senior Democrat, David Obey, a passionate liberal, turned to Gephardt amid the voting and said, “We have to get rid of this guy. He will destroy the Democratic Party for a generation, Dick. You and [Senate Democratic leader Tom] Daschle have to go tell him to get out.”

  Shortly after two o’clock in the afternoon, technicians in the House clerk’s office threw a switch and posted the full text of the report on Congress’s internal intranet. From there, moments later, it was copied on virtually all of the major news web sites—and devoured by a fascinated public. America Online said its thirteen million users spent a record 10.1 million hours logged on to AOL on that Friday. The single file containing the Starr report was downloaded 750,000 times during the first twenty-four hours. Congressional staffers remembered a strange stillness on Capitol Hill that Friday afternoon. The phones did not ring. People everywhere sat at their computers, reading. Many major newspapers printed the full 112,000-word text of the report the following day.

  Amid all the excitement, Gephardt found time to summon Abbe Lowell, the Democrats’ chief counsel to the Judiciary Committee, to his office for a brief conversation. From Obey, and from his own political instincts, Gephardt knew that he would have to make a fast decision. “Tom Daschle and I would like to meet with you on Sunday at one o’clock,” Gephardt said. “And I know you’re going to be under a lot of time pressure, but we’d like you to go through the evidence by then and tell us what you think. We’d like you to tell us whether you think the president has committed an impeachable offense. Because if he has, we’ll have to go to the White House next week, and it will be our sad duty to say that he has to resign.”

  For most of the summer, as Lowell waited for Starr to complete his report, the defense lawyer had relatively little to do. At forty-six, the Bronx-born Lowell had spent most of his career in street fights with prosecutors on behalf of clients, often congressmen in ethical trouble. But he also had a scholarly bent—he’d worked on human rights issues for the United Nations—and so Lowell set out to learn everything he could about the history of impeachment. The subject had come up just rarely enough that this was a manageable assignment. Before Clinton, there had been a total of fifteen impeachment proceedings in Congress—of twelve judges, one cabinet member, one senator, and one president. The most recent had been in 1989, when the federal judges Walter L. Nixon, Jr., of Mississippi, and Alcee L. Hastings, of Florida, were impeached and then removed from office. Judge Nixon had been convicted of perjury, and Hastings lost his trial in the Senate even though he had been acquitted of bribery charges in a criminal trial. (Following his expulsion, Hastings won election to Congress, where he applied his novel form of expertise to the subject of Clinton’s impeachment.)

  In light of the modest number of precedents, impeachment was one of the few subjects in constitutional law where the answers to most questions were relatively clear. Lowell found most of these conclusions in the leading work on the history of impeachment, a report prepared by the staff of the House Judiciary Committee during the Nixon investigation, twenty-five years earlier. Among its authors had been a young lawyer named Hillary Rodham, who had joined the committee staff shortly after her graduation from Yale Law School. Like many liberal lawyers of her day, Rodham had helped engineer the legal system’s takeover of the political world. Now she and her husband were living with the consequences.

  The final wording of the provision for impeachment in the Constitution emerged from a brief debate among some of the greatest of the Framers, on September 8, 1787, in Philadelphia. The working draft of the document allowed Congress to remove the president only for bribery and for treason, but George Mason, fearing an unduly po
werful chief executive, proposed that “maladministration” be added as another basis. His fellow Virginian James Madison objected, because “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Gouverneur Morris added a similar point, noting that “an election of every four years will prevent maladministration.” As an alternative, Mason offered instead to add a phrase that had been used in English law as early as 1386—“high Crimes and Misdemeanors.”

  By the twentieth century, the word “misdemeanor” had come to suggest a minor or trivial offense, but the Framers had a different understanding. In eighteenth-century England, high misdemeanors referred to offenses against the state, as opposed to those against property or other people. In Federalist No. 65, Alexander Hamilton put forth the most famous explication of this view. Impeachable offenses, Hamilton wrote, “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” In 1974, the Judiciary Committee rejected an article that sought Richard Nixon’s impeachment for cheating on his income taxes. Even among most Democrats, the consensus had been that this kind of offense was too personal—and insufficiently POLITICAL—to merit the sanction of impeachment.

  For all its august beginnings, the early history of impeachment unfolded largely by negative example. In 1805, Justice Samuel Chase, a Federalist on the Supreme Court, was impeached on politically motivated charges of judicial bias raised by his Jeffersonian adversaries; he then narrowly avoided conviction in the Senate. The low point in impeachment history took place in 1868, when a bitter Reconstruction Era political battle nearly drove President Andrew Johnson from office. Radical Republicans, who controlled the House and despised Johnson, had passed, over his veto, a plainly unconstitutional restriction on the president’s power to fire members of his cabinet. Johnson tested the law by firing his secretary of war, Edwin M. Stanton, and the House responded by voting to impeach the president. Johnson avoided conviction in the Senate by a single vote. The lesson of these failures was plain: the more that political imperatives, rather than actual high crimes, were seen to have driven the impeachment process, the more damning the judgment of history.