The Breach

by Peter Baker

  For Christs sake! Schippers exploded. No matter what you do, theyll say that about you.

  Equally hot inside the Rayburn Building was Congressman Bill McCollum, the intense Republican from Florida. After reviewing the draft impeachment articles developed by Mitch Glazier, he noticed one word conspicuously missing: perjury. In a meeting of the GOP members in the Rayburn conference room, McCollum demanded to know why they were not calling a spade a spade.

  Schippers said he and the staff felt that false and misleading statements covered a broader range of presidential wrongdoing and would be the strongest way to bring the case. False statements, after all, was the way the Nixon articles phrased the crime.

  McCollum was not satisfied. They had to use the word perjury, he insisted. A false statement could be something not specifically related to a court case, such as lying in a federal job application. Perjury meant it was a lie in court, a far more serious issue. That was what this president had done, McCollum went on; he had undermined the judicial system.

  Hyde accepted McCollums idea and told the staff to include it. The lawyers were unhappy with the instruction. By calling it perjury, they were only setting a higher bar for themselves to clear to prove their case. Not every lie under oath was perjury, and now they were opening the door for the White House to defend Clinton on the issue of whether his testimony fit the technical legal requirements of the perjury statute. Using the false-statements standard would keep the focus on the truthfulness of his testimony. But on Hydes order, the lawyers did not have much choice. Looking for a way to hedge, they made it an adjective rather than a nouninstead of perjury, Clinton would now be accused of providing perjurious, false and misleading testimony, in the hope that the narrow distinction would somehow make a difference.

  McCollum advocated another revision of the draft articles as well. Several Republicans wanted to separate the presidents testimony in the Paula Jones case from his statements before the grand jury, splitting the current Article I in two. Lindsey Graham had already made clear that he did not want to vote to impeach Clinton for lying in the Jones civil deposition when the president had been ambushed with unexpected questions; it seemed less serious than lying to a grand jury after being publicly warned not to. His committee colleagues wanted to divide the issue so that Graham could still vote for grand jury perjury. In fact, though, Graham had signaled that he would vote for a catchall perjury article even if it included the civil deposition. Floor tactics were the real motivation for the changethe committee Republicans wanted to make sure moderate colleagues who were not on the panel did not have an excuse to vote against grand jury perjury when it came to a vote of the full House.

  So now the Republicans had four articles. Article I accused Clinton of perjury before the grand jury on August 17, 1998, by lying about the nature and details of his relationship with a subordinate Government employee, about the truthfulness of his earlier testimony in the Jones deposition, about the untrue statement he had allowed his attorney to make during that deposition, and about his corrupt efforts to influence testimony and hide evidence. Article II accused Clinton of perjury in the Jones case, first in his answers to written interrogatories on December 23, 1997, when he denied having sexual relations with any subordinate federal government employee and then again in the January 17, 1998, deposition. Article III accused him of obstruction of justice, citing seven examples, including his encouragement of Lewinsky to file a false affidavit, his efforts to find her a job to keep her quiet about their affair, his coaching of Betty Currie, and his involvement in hiding the gifts. Article IV accused him of abusing the power of his office by lying to the American public, lying to aides and cabinet secretaries who would repeat those false statements publicly, frivolously and improperly asserting executive privilege to impede Starrs investigation, and making perjurious, false and misleading sworn statements in response to the eighty-one questions posed by the Judiciary Committee.

  The Republicans made no real attempt to involve Democrats in the drafting of these articles on the assumption that it was hopeless. But the Democrats were busy with their own editing process. After much agonizing and internal debate over the wording, they were putting the last touches on a censure resolution they hoped would hold their caucus together and still appeal to moderate Republicans when it came time for a floor vote.

  The resolution produced by Rick Boucher would conclude that Clinton made false statements and wrongly took steps to delay discovery of the truth without conceding that those actions amounted to perjury or obstruction of justice. It would note that Clinton remained liable for criminal prosecution and would require him to sign the resolution as an acknowledgment of his misconduct. Noting that the president has a duty to set an example of high moral standards, the censure would assert that William Jefferson Clinton has egregiously failed in this obligation, and through his actions has violated the trust of the American people, lessened their esteem for the office of President and dishonored the office which they have entrusted to him.

  The House Republicans and Democrats were not the only ones busy at work on documents that would condemn the president. So was his own staff.

  With the denouement in the Judiciary Committee approaching and the outcome seemingly certain, the White House team was focusing on what to do on the House floor. The presidents advisers clearly knew that many of the moderate Republicans who held the key were not yet satisfied that Clinton had been sufficiently contrite. Over the weekend, before the committee was to open its debate, a group of aides bantered back and forth about various options. Finally they agreed Clinton should make another stab at conceding wrongdoing, but this time focus not so much on his personal behavior as on his deceptive testimony in the Jones case. He could not credibly continue to insist his answers were somehow truthful, if misleading. If they could have him admit that, it might win over those like Lindsey Graham who were looking for a reason to vote no.

  The problem was that Clinton would never admit a crime, nor would David Kendall let him. Kendall was the guardian of the presidents legal liability beyond the congressional impeachment proceedings and forever resisted any strategies that could endanger his client in a criminal court after his term in office was over. Kendall felt he had made a mistake by letting political considerations force Clinton into agreeing to testify before the grand jury back in August, and he was determined not to let that happen again.

  You guys are not going to be here two years from now when Im in a trial defending the president, Kendall told political aides repeatedly.

  I dont care, Paul Begala would testily reply, revealing the depth of his disillusionment with the president. I dont work for Bill Clinton. I work for the people of the United States. I dont care if he goes to prison the day he leaves office. But until then I want him doing his job.

  The trick became finding language that would let the president give ground without it crumbling beneath him. Steve Ricchetti, the congressional lobbyist who had since been promoted to deputy chief of staff, and the group of aides decided to try it in the form of a letter to every member of the House and handed the assignment of working up a first draft to Jonathan Prince, the communications aide who had warned that the Republicans were on a glide path to impeachment.

  Let me begin with this unvarnished fact: my relationship with Ms. Lewinsky and my efforts to hide it were terribly wrong, the first version began. In the weeks since August 17, it has become more and more clear to me just how much damage my conduct has causedto the American peo ple, to my staff, to my friends, and above all, to my family. In this draft, Clinton would go on to apologize again, explicitly and unambiguously. I let a lot of people down. I know it. I am sorry for it. And I understand that I must be held accountable for it. For the first time, the president would directly accept censure as a punishment for his wrongdoing and the possibility of criminal prosecution after his presidency. I am ready to accept a sanction that is commensurate with the damage I have caused. I deserve it. Let me also be clear that I
expect to be treated, and should be treated, no differently than any American citizen if the Independent Counsel chooses to pursue this matter after January 20, 2001.

  While defending his grand jury testimony as accurate and responsive, the staff draft would have Clinton acknowledge for the first time that he was wrong to try to mislead Paula Joness lawyers, even if his answers were not perjury. I walked a very fine line, and I understand that some may think I crossed it. I do not believe I did, but that is no excuse. My relationship with Ms. Lewinsky was wrong, and my approach to questions about it in the Jones deposition was wrong as well.

  Prince showed the draft to Cheryl Mills, Greg Craig, Chuck Ruff, and John Podesta, and soon the editing began. By 8:30 A.M. on Monday, December 7, Clintons lawyers had deleted the concession that his approach to questions was as wrong as his original dalliance with Lewinsky, fearing that could make him more vulnerable to a perjury charge. By 10 A.M., it had been argued back in. By 11 A.M. the next day, at Kendalls insistence, aides were debating whether to take out the line about Clinton expecting to be treated the same in court after his presidency. By 1:50 P.M. the next day, that was gone. Then the group started having second thoughts about venuemaybe it should not be a letter after all, but rather a speech in the Rose Garden. After all, the real audience was the American people, and what could be more powerful than the master communicator himself? Begala, whose carefully written speech had been cast aside on August 17, was brought in to try his hand once again.

  While the White House political staff focused on convincing millions, Ruff was focused on an audience of one: Henry Hyde. For three months now, the presidents chief lawyer had failed to make any headway through official channels, so on the eve of the final committee hearings he agreed to try the back door. Lloyd Cutler, once again playing intermediary, set up a secret meeting between the White House counsel and the Judiciary Committee chairman, a summit so confidential that Ruff did not tell even some of his fellow attorneys, and Hyde hid it from top aides Tom Mooney and David Schippers. On Monday, December 7, the day before the presidents team was scheduled to open its defense before the committee, Ruff, Hyde, and Cutler got together on neutral territory, the conference room of a Washington hotel where a spread of shrimp and other food was laid out. To avoid impeachment, Ruff offered to have the president accept censure. It could be a bipartisan ending of the kind Ruff knew Hyde instinctively wanted. But Hyde set terms the lawyer knew Clinton would never agree to. Hyde wanted Clinton practically to admit committing a crime. The conversation was cordial, and Ruff came away convinced that Hyde wanted to find a middle ground, but it seemed unobtainable.

  Hyde was not ready to give up, though. After returning from the hotel and thinking over the discussion, he called Ruff directly at the White House with an even more startling proposal: if the president would drop his opposition to impeachment by the House, Hyde would negotiate a reasonable censure deal in the Senate with Majority Leader Trent Lott and Judiciary chairman Orrin Hatch. Constitutionally, the Senate was the place to resolve sanctions, Hyde maintained. As part of the arrangement, Hyde threw in a sweetener: he would work out an end to Starrs investigation as well, removing the threat of criminal prosecution after Clinton left office. All the president would have to do would be to let himself be impeached.

  Ruff could hardly believe what he was hearing. Accept impeachment? Ruff was stunned at the presumption, and when he told colleagues at an impeachment strategy meeting the next morning, they were too. How preposterous. How out of step with the public. Ruff never bothered to bring it to the president to ask him. He called Hyde back later that day. Thanks but no thanks.

  Hyde was frustrated. He was quietly trying to help, but the White House was not meeting him halfway. All they were doing was putting weakly worded censure proposals on the table, language that would never fly with anyone in his caucus. They were not giving him anything to work with. Hyde figured he would have to vote for impeachment himself no matter what. But if Clinton put a serious compromise on the table, a sincere apology with details about his misconduct, Hyde had agreed to work one-on-one with Lindsey Graham, the most undecided committee Republican, as well as a few others to meet their concerns. That would free scores of nervous moderate Republicans from an impeachment vote they did not want to cast on the floor, and Hyde would have been satisfied. If only Clinton would give in a little.

  Listen, the congressman told the president. I think youre in very serious trouble. Youre going to be impeached if the vote is held.

  Clinton appeared taken aback. He and the first lady were hosting one of the numerous annual Christmas parties at the White House, this one for all 535 members of Congress, when Tim Roemer appeared in the receiving line with that stark message. It was the evening of Monday, December 7, just a few hours after the secret Ruff-Hyde meeting, and the executive mansion was filled with elaborate decorations and delicacies, a joyful tableau that seemed to clash with the political tension in town this season. Normally guests engaged in light chitchat during the sixty seconds or so they had the presidents attention as they went through the assembly line of having their picture taken with the first couple. So when Roemer, a Democratic congressman from Indiana, showed up in line with a dire warning, Clinton immediately took notice.

  I might have two or three ideas, Roemer offered.

  The president said he wanted to hear them. Call when you get home tonight, Clinton instructed.

  Clinton knew to take what Roemer said seriously. Soundings on Capitol Hill had indicated as far back as August that Roemer was one of those disaffected Democrats close to abandoning him, and Roemer had warned Greg Craig to focus on the facts because they were serious, then joined Republicans in voting to open the impeachment inquiry in October. A leader of the more conservative wing of the party, Roemer was also one of the more thoughtful members of Congress, with better friendships on the other side of the aisle than most Democrats. After he got back to his house in Virginia that night, Roemer dialed the White House and the operator told him the president was expecting the call but would have to try back in a few minutes. At about 11:30 P.M., Clinton did so, and the two talked for the next half hour.

  The president did not seem to have a sense of how quickly things were shifting in the House, how the process was evolving from an assessment of facts and guilt to one of politics and pressure on Republicans through their base constituencies. Voters in Republican districts felt adamantly about the issue and were contacting their representatives; that was having a seismic impact on the dynamics of the fight. Roemer made some suggestions about what the president should do, people he should contact, things he might say.

  Clinton was defensive, talking about his enemies and their history of vindictiveness against him. It all went back to his first race for president in 1992, when the Republicans had tried to destroy him, he said.

  That was the wrong attitude, Roemer felt, and told Clinton so bluntly: Get over it. Youre ten days away from a vote. This is not about you being a victim. You made mistakesyou have to understand that. Its not just a conspiracy out to get you.

  Instead of the sometimes astringent David Kendall, the soothing Greg Craig would lead off the presidents defense before the Judiciary Committee. By this point, the committee itself was a lost cause for the president, and so the real target over the next two days of hearings would be the moderate Republicans who did not serve on the panel but would control the fate of impeachment once it reached the House floor, the ones hearing from their anti-Clinton constituents back home. Whatever his strengths in court, Kendall would not be the right messenger for that audience. For Craig, it was at last the chance to do what he had wanted when he first came on board in September, to rally to the presidents defense at the moment of maximum peril. Yet it was not to be quite the way he had envisioned. Throughout much of the fall, Craig had pushed to call witnesses who could testify about the facts of the case or the origins of the Starr investigation, but got nowhere either within the White House or on Capitol Hill
. So when he showed up at the committee hearing room in the Rayburn Building on the morning of Tuesday, December 8, to open the presidents defense, he was left with no one to put at the witness table but a panel of prosecutors and legal experts who would try to dissect Starrs case and argue why it did not amount to high crimes and misdemeanors but possessed no firsthand knowledge of the events at issue.

  With their eyes on the moderates, Craig and the others decided to soften the edges of their defense, dispense with the attack-the-accuser style, and offer as much conciliation as they could. The theme the White House lawyers came up with for their presentation boiled down to three words: it aint Watergate. The witnesses Craig brought along included James Hamilton, who had served as a lawyer working on the congressional investigation into Richard Nixon; Richard Ben-Veniste, a former Watergate prosecutor; and three members of the Judiciary Committee who had voted to impeach Nixon in the same room twenty-four years earlier: Elizabeth Holtzman of New York, Robert F. Drinan of Massachusetts, and Wayne Owens of Utahthree ghosts of impeachment past, as Owens put it. In case that were not enough to make the point, the closer the next day would be Chuck Ruff, the last of the Watergate special prosecutors.

  Craig opened by trying to acknowledge Clintons misdeeds, while placing them in context. Just as no fancy language can obscure the simple fact that what the president did was morally wrong, no amount of rhetoric can change the legal reality that there are no grounds for impeachment. As surely as we all know that what he did is sinful, we also know it is not impeachable. Just as the speechwriters were trying to get the president to do himself, Craig went on to give some ground on Clintons behavior under oath. I am willing to concede that in the Jones deposition, the presidents testimony was evasive, incomplete, misleading, even maddening, but it was not perjury.

  But Craigs effort to reach out to the committee without incendiary rhetoric was quickly dashed by his own witness panel. Sean Wilentz, a Princeton history professor, jabbed the Republicans for casting such trivial allegations as high crimes and misdemeanors. If you believe they do rise to that level, you will vote for impeachment and take your risk at going down in history with the zealots and the fanatics, Wilentz told the committee. If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway for some other reason, history will track you down and condemn you for your cravenness.