The Breach

by Peter Baker

  When he was done four minutes later, Clinton ignored a question shouted from the press corps about whether reasonable people might conclude he committed perjuryRuffs formulationand disappeared back into the Oval Office. On Capitol Hill, in the side room where the Democratic committee members watched, his statement was greeted by silence. There were no cheers, no affirmations of support, not even so much as head nodding. Democratic members such as Howard Berman and Chuck Schumer and staff lawyers such as Abbe Lowell and Julian Epstein knew Clinton had not cleared the bar; if anything, they were convinced, he had only made matters worse. Some of them were mad at him for even trying if it was not going to be a more serious effort.

  In the Republican conference room, Lindsey Graham had stood right at the foot of the television, watching and worrying. Every eye in the room seemed to be on him, and he was nervous at the thought that maybe Clinton would actually make a meaningful statement, forcing the Republican congressman to live up to his word and vote against the articles of impeachment. After it was over, Graham felt relieved. Clinton had not made it a difficult choice. Graham could go ahead and vote yes. Several other Republican congressmen in the room teased him.

  You got off the hook, said Lamar Smith of Texas.

  All right, added Bob Inglis of South Carolina. This ones for you.

  He just cant get there, can he? Graham murmured a moment later as he emerged from the conference room. Too bad for the country. Too bad for him.

  The members shuffled back to their seats. The speechifying had continued while they were in the back, but for all intents and purposes it was now over. The committee quickly adopted an amendment from Jim Rogan adding the words one or more of the following before the general descriptions of what Clinton had lied about, so that members could vote yes as long as they believed that any of the four charges were proven. And then, just like that, at 4:24 P.M., nine minutes after the president finished speaking in the Rose Garden, the committee voted to impeach him for providing perjurious, false and misleading testimony to the grand jury.

  The clerk will call the roll, Hyde intoned.

  Mr. Sensenbrenner, the clerk called out.

  Aye, Sensenbrenner answered.

  Mr. Sensenbrenner votes aye, the clerk repeated. Mr. McCollum.

  Aye.

  And so on down the row it went until every Republican in the room had voted, except Hyde, who as chairman waited until the end. Then the clerk went down the list of Democrats and came up with the same singsong ritual in reverse.

  Mr. Conyers.

  No.

  Mr. Conyers votes no. Mr. Frank.

  No.

  Mr. Chairman, there are twenty-one ayes and sixteen noes. A straight party-line vote.

  And Article I is agreed to, Hyde announced.

  The room was briefly quiet. There was no surprise in the outcome, and yet still a sense of shock, of disbelief, settled in the hearing room. Over the next few hours, the debate would go on, but it had lost its power. The outcome was settled. At 6:30 P.M., the committee voted 2017 to approve Article II, with the only switch being Graham, who had said all along that he would not impeach the president for his civil testimony. At 9:15 P.M., the panel voted 2116, again on straight party lines, for Article III, the obstruction count. Then Hyde recessed for the night, leaving the fourth and most problematic article until the next morning. The Republicans expressed no joy or excitement, only grim satisfaction; the Democrats, mostly resignation. The Democrats had done what they could, but the real battle was to be fought elsewhere, on different terrain. They had laid the groundwork. They had made the issue as partisan as they could. And in doing so, they had provided the president with his best shot at victory.

  Asa Hutchinson woke up at five oclock the next morning, Saturday, December 12, still pondering the consequences of what had been done the day before and looking ahead to the final day of deliberations with deep misgivings. The committee had one final count to consider, Article IV, accusing President Clinton of abusing the power of his office by lying to the American people, lying to aides and cabinet secretaries, who then repeated his falsehoods to the public, frivolously and corruptly asserting executive privilege to impede Starrs investigation, and lying to Congress in his responses to the eighty-one questions sent to him by Hyde the month before. For Hutchinson, though, it was too much. Most of the lies being cited were not under oath. This was going too far. He resolved to vote no.

  As it turned out, he was not the only one. By the time the Republican committee caucus convened in the conference room in the Rayburn Building before the full panel was to meet, several of the members had reservations. George Gekas, a veteran congressman from Pennsylvania, had privately been crusading behind the scenes for weeks to drop the executive privilege count on the grounds that he did not want to weaken the presidency. Even if Clinton was wrong to assert it, every chief executive ought to have the option of asserting a privilege that is his to assert. Gekas had drawn little support at first. When he told Hyde that he planned to try to amend any impeachment articles to drop the executive privilege allegation, the chairman told him, I wont support it, but you can try. Yet Gekas had slowly picked up allies. Several Republicans had been won over after Chuck Ruff testified earlier in the week that he and the other White House attorneys had recommended that Clinton invoke the privilege. Besides, by rejecting some of the charges against Clinton, the Republicans concluded they would show they were not just tools for Starr or the GOP leadership. When they gathered in the conference room that morning, even Hyde said he would go along with the Gekas proposal.

  In addition to deleting the privilege count, the Republicans decided to remove the charges that Clinton had lied to the public and his aides. While everyone was convinced Clinton had done those things, they were persuaded by the argument that those were not actions worthy of impeachment. What politician would want to set the precedent that lying to the public by itself merited dismissal from office? They would have a tough enough time convincing moderates in their own party, let alone Democrats, that the presidents other offenses amounted to high crimes. Better to exercise some restraint, they decided, or at least to look as if they were. That left only the presidents answers to the eighty-one questions, but there was a strong consensus to leave those in. For one thing, Clinton was explicitly warned when the questionnaire was sent to him that the answers would be under oath and that failing to respond truthfully would be considered perjury. For another, the presidents apparent arrogance in answering them dismissively was what had aroused such anger among House Republicans.

  When the full committee got started at 9:40 A.M. that Saturday, Gekas explained the reversal. We ought to give, in my judgment and the judgment of many, the benefit of the doubt in the assertion of executive privilege.

  The Democrats were unsure how to respond. They obviously agreed that the items Gekas wanted to strike were not impeachable, but they realized they were still left with an article they did not support, and worse, one that might be more palatable to the swing moderate members on the floor. As Congressman Jerrold Nadler put it, the Gekas amendment was changing the absolutely indefensible to the still absolutely indefensible, but on fewer grounds. The White House by this point had withdrawn from the committee deliberations altogether and was entirely focused on the upcoming floor fight. In fact, it had initially decided against sending anyone to the Rayburn Building to attend the final hearing this Saturday. When three aides, Adam Goldberg, Don Goldberg, and Jim Kennedy, had decided on their own to go, they were upbraided by deputy counsel Cheryl Mills. Why are you going up there? We dont want to give this credibility.

  But ignoring it would not make it go away. Over the next five hours, there was little debate about the Gekas amendment or even the remaining allegation involving the presidents answers to the eighty-one questions. Instead, Republicans labored to explain themselves while Democrats warned darkly about the ramifications of the panels actions. We are not being vengeful, insisted Con gressman Howard Coble from North
Carolina, an older Republican. Theres no lynch-mob mentality over here, and for the benefit of the gentleman who said that last night, Ive had knots in my gut all week because of this. I approached this, my friends, with a very heavy heart and Ill have knots in my gut next week when we cast votes. I dont take it lightly. I dont take it gleefully at all. Its a hard chore for all of us, on that side as well as on this side.

  Barney Frank seized on that to make a larger point. The Republicans had been stressing that impeachment was simply the equivalent of an indictment, he complained, when in fact it was ultimately about removing the president from office. By downplaying the significance of the action, Frank said, the majority was trying to make it easier for members struggling with the implications of their vote. Why has he got knots in his stomach? Frank asked rhetorically. Just because hes sending this over to the Senate to decide? He has knots in his stomach, as he courageously articulated, because he understands what we are doing. He understands that you are trying to undo the election.

  John Conyers put it more starkly: This does sometimes to some people begin to take on the appearance of a coup. Its frightening, its staggering. This is not in a developing country. Were talking about a polite, paper-exchanging, voting process in which we rip out the forty-second president of the United States.

  The Gekas amendment paring down the article passed easily, 295. Every Republican except Chris Cannon of Utah supported it, along with most Democrats. But Waters and fellow Democrats Robert Wexler, Sheila Jackson Lee of Texas, and Thomas Barrett of Wisconsin voted against it on principle, while Frank, Zoe Lofgren, and Marty Meehan voted present rather than make a choice. The final vote approving the amended article itself was more predictableagain 2116, on straight party lines. When the roll was read at 2:45 P.M., Clinton was in international airspace, having left that morning for a four-day trip to the Middle East to seal the progress made in the Wye negotiations in October.

  With all four articles now passed, the debate over the Democratic censure resolution seemed hopelessly anticlimactic. But the Democrats wanted to show the nation that they had a more reasonable alternative and hopefully build a wave of public support that would force Bob Livingston and the rest of the GOP leadership to allow censure to be debated on the floor. More than three hours of debate, though, did nothing to change any votes on the committee. At 6:10 P.M., Rick Bouchers resolution was voted down 2214. Bobby Scott was the lone Democrat joining a unanimous Republican caucus, though for the opposite reasonhe believed that censure was not justified. Similarly, Waters voted present. Ten minutes later, the committee recessed. It was done. The matter was now out of its hands.

  CHAPTER NINE

  The pressure got to me

  For The Campaign to succeed, Tom DeLay now had to kill censure for good. To kill censure, he had to force Bob Livingstons hand. Even as the Judiciary Committee finished its work on its articles of impeachment, DeLay maneuvered behind the scenes to do just that.

  It was Saturday, December 12, the same afternoon the committee was voting on its fourth article and Rick Bouchers censure resolution. DeLay was still steaming at how he had been sandbagged during the committee deliberations when Henry Hyde allowed the Democrats to introduce their motion to reprimand Clinton rather than impeach him. Hydes decision had handed the Democrats the politically potent argument that since the committee was allowed to vote on censure, so should the full House. Even before the panel had finished debating Bouchers motion, Dick Gephardt had already written a letter urging the Republican leadership to allow everyone an opportunity to vote their conscience, meaning censure. The last thing DeLay wanted to do was give weak-kneed Republicans an alternative to voting for impeachment or to allow Democrats a political escape route to avoid the consequences of voting against impeachment. The mistake DeLay and his aides had made during the committee deliberations, they decided, was allowing the censure option to remain viable until momentum for it grew. The trick now was to take it off the table right away.

  As the incoming Speaker of the House, it would fall to Livingston, not DeLay, to decide whether to allow a censure vote on the floor. But the majority whip had been lobbying quietly for weeks, telling Livingston at private meetings that the vast bulk of the Republican caucus opposed censure and warning that permitting such a resolution to be introduced could even endanger his formal election to the Speakership. Livingston, who shortly after the election had told Gephardt that all options are on the table, had now come around to DeLays way of thinking. I just dont think its going to be possible, he had told Gephardt just three days before the committee finished its work that Saturday.

  But the pressure on Livingston from all sides was building. In recent days, his chief of staff, Allen Martin, had received a telephone call that the two men took as a barely veiled threat. Butler Derrick, a former Democratic congressman from South Carolina who was working with the White House to lobby former House colleagues, had rung up Martin and offered congratulations for Livingstons impending ascension to Speaker. As Livingston later related it to friends, Derrick had told Martin something to the effect of You are going to consider censure, right? and then quickly asked, Bob can stand scrutiny, cant he? Livingston knew instantly that, in fact, he could not withstand scrutiny. He had cheated on his wife more than once, and if that came out, it could destroy him politically and personally. Derrick would later deny saying that, let alone trying to intimidate the incoming Speaker. But that was the way Livingston took it, and the perceived danger was weighing heavily on him. What if he did oppose censure? Did that mean his past infidelities would be dredged up? Was he the target of a White House attack machine? Would he be publicly humiliated the way Hyde, Dan Burton, and Helen Chenoweth had been?

  DeLay knew Livingston felt pressure and wanted to lock in the new Speakers opposition to a censure vote as soon as possible, lest he cave in to the Democrats the way Hyde had. So as the Judiciary Committee was finishing its work that Saturday, congressional aide Kathryn Lehman, a refugee from Newt Gingrichs departing staff who had just agreed to join DeLays office, sat hunched over a computer in the committees back room drafting a series of three letters that would do the job. The first was to be sent to Livingston and Gingrich and signed by Hyde stating his opposition to allowing a censure vote on the floor. It is my view that a resolution or amendment proposing censure of the President in lieu of impeachment violates the rules of the House, threatens separation of powers, and fails to meet constitutional muster, Lehman wrote in the two-page letter intended for Hydes signature. The second letter was to be sent to Hyde from Livingston, a much shorter return message essentially endorsing the first letter. As a constitutional matter, I share your view that censure of the President would violate the careful balance of separation of powers and the scheme laid out by the Framers to address the issue of executive misconduct, said the reply intended for the future Speaker. The third was the coup de grce, a four-sentence declaration by Gingrich to Hyde that he would summon the full House back to Washington to take up impeachment next Thursday at 10 A.M. and would not allow censure to be considered on the floor. As I carry out my duties, I plan to follow your advice with respect to this matter, said the letter written in Gingrichs name. Although he had ceded authority to his successor, Gingrich had to sign off on the matter because he was still officially Speaker until Livingstons installation.

  As soon as the committee was done for the day, Lehman set about getting the three signatures DeLay needed. Even though he had just allowed a censure vote in his own committee, Hyde signed the letter drafted for him after being assured that it was the decision of the leadership. Lehman rushed over to Livingstons office, where she met a Judiciary aide formally delivering the Hyde letteronly to find the door locked and the new Speaker nowhere to be found. Panicking, Lehman got a Capitol Police officer to let them inside the office, where they waited anxiously until Allen Martin, Livingstons top aide, arrived. Lehman pressed him to sign Livingstons name on the response letter she had drafted. Even though Livingston
had agreed over the phone, Martin hesitated.

  Whats wrong? Lehman asked.

  Its such an important thing, Martin said.

  Thats why we need you to sign it. Youve known Mr. Livingston a long time. Does he change his mind?

  No, he doesnt.

  Well, its really important that we get it out now.

  Martin took the pen and signed Livingstons name to the letter. Martin asked if he should put his own initials next to Livingstons signature to indicate that he had been the one who really signed it. Lehman said no.

  Like Livingston, Gingrich had agreed by phone to the letter written in his name but was not around when it came time to put it out. Lehman signed it herself, tracing his signature from a sample of stationery she had from her tenure in the Speakers office. The three letters were then released to the news media barely an hour after the Judiciary Committee adjourned at 6:20 P.M. To the public, it looked as if Hyde, Livingston, and Gingrich had consulted and determined the proper course of action. In fact, it was all DeLay. His name appeared on none of the letters, but he had accomplished his immediate goal: he had strangled censure and left no fingerprints.

  Still in Israel, where he was dealing with issues of war and peace, Clinton was consumed with what was happening to him back home. He had long since resigned himself to the likelihood that the Judiciary Committee would vote out articles, and so there was little shock about that, more a determination to win the next battle on the House floor. Censure had been the answer, he knew, and with Republicans now vowing to block consideration of it, the only route left was to focus public pressure on congressional leaders.