A Vast Conspiracy

by Jeffrey Toobin

  Clinton’s lawyer then noted that during Starr’s testimony before the committee, he had been asked many questions about the credibility of witnesses, including Lewinsky. “It is true,” Kendall then asked Starr, “that you were not present when Ms. Lewinsky testified before the grand jury?”

  “That is true,” Starr replied.

  “And you were not present at her deposition?”

  “I was not present.”

  Then Kendall went through all of the interviews that Starr had not seen firsthand, including all of them with Lewinsky (whom Starr never met), as well as the interrogations of Betty Currie, Vernon Jordan, and literally hundreds of other people questioned by the OIC.

  Kendall’s point was clear—and devastating. Starr was the only witness to testify about the facts of the allegations against the president. Yet Starr had neither seen the events in question nor interviewed anyone who had. In other words, the Judiciary Committee was considering the impeachment of the president of the United States based on, at best, a thirdhand recitation of the evidence against him. Even by the low standards of congressional hearings, it was a remarkably shabby practice.

  Having made this elegant point, however, Kendall promptly turned to the same kind of name-calling as the rest of the Democrats. “Mr. Starr,” Kendall intoned at one point, “in fact there has been no case remotely similar to this in terms of the massive leaking from the prosecutor’s office. I think we know that.” This kind of speechifying by Kendall allowed Starr to offer some righteous indignation of his own. “I totally disagree with that,” Starr said, and the examination descended into a decorous spat.

  Kendall even left an opening for Hyde to make a telling joke at his expense. Shortly after nine at night, with everyone in the room growing punchy, Hyde announced, “Mr. Kendall, your time is up. You may want to get into the facts. Do you need additional time?”

  As the chairman pointed out, Kendall had not asked Starr a single question about Clinton’s conduct, preferring to belabor Starr about his. It was probably a wise strategic choice on Kendall’s part, but it also opened a revealing window on the legal case for the president. By implication, Kendall’s priorities suggested that even Clinton’s own lawyers found his conduct indefensible—not impeachable, to be sure, but repugnant in every other way. In any event, Kendall devoted the remaining minutes that Hyde granted him to hectoring Starr about the treatment of Lewinsky at the Ritz-Carlton.

  With the clock passing ten, Schippers finally took over, and he brought his mannered, regular-guy persona to Starr’s defense—and to Hyde’s. Unfortunately, Schippers also brought a nearly total ignorance of constitutional law. For example, stung by Kendall’s criticism of the process in the Judiciary Committee, Schippers pointed out that “the sole power to try an impeachment resides in the Senate.”

  “That is true,” said Starr.

  “So if this House were to permit cross-examination and to hold a mini-trial here, they would be usurping the constitutional duties of the United States Senate, isn’t that correct?”

  Much as Starr welcomed Schippers’s softballs, the former judge knew too much about the Constitution to embrace this absurd idea. “Well,” Starr stuttered, “I am not sure I would necessarily agree with that”—and then the Democrats began groaning at the absurdity of Schippers’s idea that the House had no right to call witnesses. Except for this impeachment, that was how it was always done.

  “I hear the moaning of the left,” Schippers snarled, then moved on to his remaining questions. He had planned his peroration carefully. “Judge,” Schippers wound up, “you have been pilloried and attacked from all sides, is that correct?”

  “I would hope not all sides, but yes, that’s—”

  “How long have you been an attorney, Judge Starr?”

  “Twenty-five years.”

  “Well, I have been an attorney for almost forty years, and I want to say I am proud to be in the same room with you and your staff.”

  With that, to close the day’s events, Schippers led a Republicans-only standing ovation for the independent counsel.

  Starr had borne up with dignity during his nearly twelve hours of testimony, but he wasn’t allowed even a day’s grace to savor the accomplishment. The following morning, November 20, Starr’s “ethics adviser,” Samuel Dash, resigned from the OIC in protest. A law professor at Georgetown and a former aide to the Senate Watergate committee, Dash charged that Starr had impermissibly become an “advocate” for impeachment during his testimony before the Judiciary Committee. In truth, Starr’s remarks differed only in degree, not in kind, from his report to Congress two months earlier. The only thing that had changed in the interim was that Starr’s popularity had continued to plummet. A prodigious egomaniac even by Washington standards, Dash no longer found it useful to be associated with the office that had paid him $400 per hour in taxpayer money for his advice on lawyerly virtue. Dash’s eleventh-hour abandonment said more about his own character than Starr’s ethics, but the White House savored the news, just the same.

  Hyde thought Starr had been a superb witness, even though he had not delivered any bombshells to change the political dynamic surrounding the impeachment. (Indeed, the only “news” in Starr’s appearance had been his revelation that the Clintons had been cleared on Travelgate and Filegate.) Still, the chairman was frustrated by what he regarded as hostile press coverage of Starr’s appearance. He wanted the Republican members of the House to know that the independent counsel had made a powerful case for Clinton’s impeachment. Fortunately, to Hyde’s thinking, there was a volunteer to spread the news among the Republican faithful.

  Tom DeLay agreed to keep everyone posted. In the months that followed the House vote on impeachment, several myths flourished about the role of the former exterminator who went on to become the third-ranking Republican in Congress. It was said that DeLay, the majority whip, browbeat fellow Republicans into voting yes, that he threatened to take away their subcommittee chairmanships, that he promised conservative primary challengers to any moderates planning to vote the other way. With everything from his slicked-back hair to his well-cultivated air of menace, DeLay practically encouraged the legends about his own ferocity. But in truth, DeLay did less than many people thought. At a time when Gingrich had surrendered and his designated successor, Robert Livingston, had refused to play a public role in the impeachment controversy, DeLay made sure the process continued. He vowed that the House leadership would deliver a prompt vote on any articles of impeachment—and, most important, he promised that no vote on censure would be allowed. By depriving fence-sitters of the appealing middle ground of censure, DeLay forced his fellow Republicans to make a straight up-or-down vote on the president’s conduct.

  DeLay’s role began after Starr’s testimony. He ordered his whip organization to put out summaries of Starr’s main arguments, and from that point forward DeLay kept his deputies churning out anti-Clinton material to the members. In an atmosphere in which many members often feel neglected by their leadership, DeLay’s attentions were much appreciated by the rank and file. After November 27, when Clinton gave heavily lawyered answers to the eighty-one questions Hyde had submitted to him, DeLay helped spread the official Republican line of indignation.

  DeLay’s priorities were noted by his nominal superiors as well. During the week after Starr’s testimony, Gephardt went to Livingston’s office for a private one-on-one meeting with the speaker-designee about impeachment. Earlier, just after the election, Livingston had suggested to Gephardt that he might be amenable to allowing a vote on censure in the House. But by later in the month, Livingston had a different message for the Democratic leader. Now he wasn’t going to allow an alternative to impeachment to reach the floor. DeLay’s view had become Livingston’s.

  Notwithstanding the backstage machinations, though, Hyde was still left with the problem of what to do with the rest of the hearings. In this he was guided by one of his most energetic and determined fellow Republicans, Bill McCo
llum, of Florida, the third-ranking member of the panel. McCollum had represented an Orlando district for nearly two decades, but he retained a boyish enthusiasm for his work. Actually, McCollum was mesmerized by one part of the case in particular, and it earned him a secret nickname among Republican staff members: “Mr. Genitalia.” McCollum dwelled obsessively on the fact that Clinton had lied about where and how he placed his hands on Monica Lewinsky’s body. McCollum did have a point. Lewinsky had testified that the president had touched her breasts and vagina, and Clinton had denied it, or at least denied that he had employed his hands and lips “with intent to arouse” her. McCollum had carefully placed tabs on the sections of Lewinsky’s sex deposition where she had described how Clinton had stimulated her. “If he fondled her breast or messed around with her in the other way, it’s perjury,” he told visitors to his office.

  The issue actually made a useful proxy for the whole impeachment debate. On the one hand, the president’s position that his gropings with Lewinsky amounted to a sexual one-way street was fairly absurd on its face. But on the other, one could scarcely imagine less significant falsehoods than those concerning the mechanics of the Clinton-Lewinsky frolics. The question came down to how seriously to take the issue of “lying about sex,” as Clinton’s perfidy was often described. McCollum and his allies asserted that lies on this subject, as much as any other, amounted to high crimes and misdemeanors; the public—with the history and meaning of the Constitution on its side—was never convinced.

  The obsession of McCollum and others with pumping up outrage over this kind of misdeed led to the unintentional comic high point of the impeachment hearings. On December 1, Hyde convened a hearing on what he called, rather grandly, “the consequences of perjury and related crimes.” Hyde and his staff located the two witnesses around whom the day’s testimony would resolve—“the perjury ladies,” as some would come to call them.

  After his sonorous introduction, Hyde turned the questioning over to McCollum, who promptly demonstrated why many congressmen leave this sort of thing to the staff.

  “Ms. Parsons,” McCollum intoned, addressing the younger of the two women at the witness table before him, “am I correct that you were basketball coach at the University of South Carolina when the occasion of this perjury that you were convicted of arose? Am I right about that?”

  “No,” the witness corrected gently. “I had resigned.”

  “You had resigned, but you had been previously.”

  “I had been previously,” Pam Parsons agreed.

  “Am I correct that the subject of your perjury was consensual sex?”

  “No,” she said. Wrong again.

  “What was the subject of the perjury, then?” the ill-prepared McCollum went on. “Please clarify that.”

  “Well, it is really kind of funny,” the languid and somewhat spacey Parsons answered. “There is a gay bar called Puss in Boots in Salt Lake City, Utah. It wasn’t easy to say. I have been there. That occurrence was two years after, then, the things that I was suing Sports Illustrated for. It wasn’t a pretty picture for me. I thought I had many reasons for why I could say no, but it was an out-and-out lie. I had been there.”

  At this moment, there was scarcely a person in the packed hearing room who had any idea what Parsons was talking about. Puss in Boots? Sports Illustrated? Who was this woman, and what did she have to do with the impeachment of the president?

  To McCollum, apparently, she was both an expert witness and an exhibit on the wages of perjury. “You were in a position at one time of leadership.”

  “Absolutely,” Parsons said. “I was also an athletic director.”

  “There you go,” McCollum encouraged. “The president of the United States is the top leader in this country. What kind of message do you think it sends if we conclude that he committed perjury and do not impeach him and he gets away scot-free …?”

  “Please let me give this answer. I am ready,” Parsons said dreamily, “Mixed message. We cannot raise our young people with mixed messages. There are no secrets, but the discretion of when to tell them things is what maturity is about. But secrecy doesn’t cut it when we are raising young children.”

  Bewildered as everyone else by this answer, McCollum turned to the next witness, an older, demurely attired woman with a more earthbound manner. “Dr. Battalino, what is your thought about the double standard we might be creating if we conclude the president committed perjury and we don’t impeach him, with respect to people such as yourself are convicted and sent to jail or put in house arrest for perjury regarding consensual sex? Is this fair?”

  Barbara Battalino understood her role better than Parsons, and she gave the answer McCollum wanted. “I believe that we as a people, as a country, must not give the impression … that we are indeed a country that does not take seriously the rule of law and liberty and justice for all.”

  Few could quarrel with this admirable sentiment, but neither McCollum nor anyone else explained who these women were or why they were testifying. From 1977 to 1982, Pam Parsons had been a successful women’s basketball coach at the University of the South Carolina, but then Sports Illustrated ran a story that described her as a predatory lesbian who had “sex in mind” when she recruited players. Parsons sued the magazine for libel. During that civil case, she lied about many different subjects, including her familiarity with the establishment known as Puss in Boots. After her civil case was thrown out, the judge demanded that she be criminally investigated for her false statements. In the end, she pleaded guilty to perjury and was sentenced to four months in prison and five years of probation, which she completed in 1990.

  Battalino’s tale was even more peculiar. A patient had sued Battalino for malpractice based on her work as a psychiatrist at a Veterans Administration hospital in Idaho. The suit was dismissed, but then Battalino, who was a lawyer as well as a doctor, went to court to force the government to pay her legal fees. In the course of that proceeding, she was asked in a deposition whether she had ever had sex with the patient in question. She said no—a lie. (She had performed oral sex on him at the hospital.) She pleaded guilty to obstruction of justice and was sentenced to six months of home detention. She also lost her medical and law licenses.

  As was apparent to almost any reasonable viewer, these women’s sad stories bore little relevance to whether Bill Clinton should be impeached. For one thing, both women initiated the legal proceedings in which they lied—Parsons with her libel suit and Battalino with her fee application. The legal system looks especially askance at those who drag others into court on false pretenses. Moreover, Battalino’s act of sex with a patient was misconduct in and of itself. Most important, though, the legal decision to bring a criminal charge differed fundamentally from the political choice to impeach an elected president. Regardless of Congress’s decision on impeachment, Clinton could still have been prosecuted. The crude parallelism of McCollum’s argument—these women didn’t get away with it so neither should Clinton—was simply wrong. For the perjury ladies, the question was never whether they had committed high crimes and misdemeanors; for Bill Clinton, that was all it was.

  This daylong perjury debacle was just one symptom of the disarray in Hyde’s investigation. As the chairman knew better than most, the public had no interest in an impeachment based on the Lewinsky allegations. Thanks to Starr’s testimony, Travelgate and Filegate had flamed out as possible grounds for impeachment. So, prodded by Schippers, Hyde announced plans to open an investigation on yet another front—the alleged campaign finance scandal. In the midst of the perjury hearing, Hyde confirmed that the committee would subpoena records from the Justice Department about its inquiry into the matter. “We are trying to find some things and we have good reason to believe they may be there,” he said, adding that the committee was “duty-bound to explore” the campaign finance issues.

  This exploration took less than forty-eight hours. Hyde quickly recognized that in the less than a month remaining before his state
d finish line for the investigation, he couldn’t accomplish more than his Republican congressional colleagues had in months of hearings about campaign finance. Schippers continued to mosey around other corners of the investigation—interviewing Kathleen Willey, trying to question Juanita Broaddrick—but Hyde, at least, confronted the fact that Lewinsky was all he had. In the end, Hyde resorted to a crude desperation to invest that sorry little tale with a significance it did not possess.

  “Have you been to Auschwitz?” the chairman suddenly asked during the session with the perjury ladies. “Do you see what happens when the rule of law doesn’t prevail?”

  After midnight on the day of Starr’s testimony before the Judiciary Committee, Abbe Lowell, the Democrats’ counsel, had gone for a late supper in Georgetown with three of the younger Republicans on the panel, Steve Buyer, Mary Bono, and Lindsey Graham. Over their beers, Lowell and Graham discussed the outline of a possible deal to avoid impeachment.

  With his down-home demeanor and easygoing style, Graham came to enjoy a reputation as a sort of moderate on the committee. This wasn’t really deserved. As a first-term representative from South Carolina, Graham had helped lead the first, abortive coup against Gingrich—the one based on the speaker’s alleged undue moderation. In 1997, Graham had joined about a dozen extremists like Bob Barr in calling for impeachment hearings against Clinton even before the Lewinsky allegations arose. Still, Graham liked being the center of attention as much as he cared about ideological purity, so he told Lowell about an idea he had.

  “If the president would only admit this,” Graham told Lowell, “we could do this deal.”

  Thus was born, in theory at least, the last hope for Clinton to avoid impeachment. In the days leading to the committee vote, Graham and a handful of others floated the idea that if Clinton would only come clean, they would agree to some lesser punishment than impeachment—a censure, perhaps. Graham said he wanted Clinton to admit to “lying” and “perjury,” which the president would never do, for good reason. For one thing, it was far from clear that his conduct did fit the technical meaning of perjury; for another, with Starr able to indict Clinton at any moment, it was madness to expect the president to admit to a crime. In fact, the whole Graham proposal resembled a sucker’s game for Clinton—a floating standard of contrition that invariably found his remorse inadequate.