The Breach

by Peter Baker

  Daschle, fifty-one, grew up in small-town South Dakota, earned a degree from the state university, and served for three years as an air force intelligence officer. He too found his way to Washington on the strength of a staff pass, going to work for Senator James Abourezk in 1972. Daschle was elected to the House six years later and to the Senate eight years after that. In 1994, while Lott was toppling Simpson, Daschle achieved an underdog victory of his own, edging past Senator Chris Dodd of Connecticut for the post of minority leader, also by a single vote. His soft-spoken, consensus-driven style proved popular in a caucus that bridled at overbearing leaders, to the point where Dodd would soon say that his colleagues had made the right choice in picking Daschle over him. While Daschle tried to work closely with the White House, he also liked to assert his independence. In his first Sunday television talk-show appearance after winning the leadership job, Daschle made a point of saying, We want to work with the White House, not for them.

  Both Lott and Daschle spent the days after their phone conversation reaching out to their own caucuses. With the Senate out of session and its members scattered around the country, the two leaders could only touch base with their colleagues one at a time in a marathon series of calls. Daschle, who spoke with all forty-four other Democratic senators before Christmas, termed it a sequential caucus. While both detected considerable desire to dispose of the issue as quickly as possible, Lott also heard an earful from senators who were insisting on nothing short of a full trial with witnesses, while Daschle was picking up enough anger at Clinton from his caucus to be concerned. Daschles survey suggested that if the vote were held then, there would not be twelve Democratic votes for conviction, the minimum needed assuming the fifty-five Republicans remained unified. But senators were holding back, careful not to commit. Some, including Robert Byrd and Harry Reid of Nevada, the minority whip, were particularly incensed at what was now being called the pep rally on the South Lawn of the White House following the impeachment, finding it unseemly. When it came time for an up-or-down vote, Daschle thought he would lose five or six Democratsincluding Byrd and possibly Senators Bob Kerrey of Nebraska, Daniel Patrick Moynihan of New York, Russ Feingold of Wisconsin, Bob Graham of Florida, and either of two newcomers from conservative, anti-Clinton states, Evan Bayh of Indiana or John Edwards of North Carolina. In a worst case scenario, if momentum really turned against the president, Daschle counted up to twenty Democratic votes he thought could go against Clinton. That was unlikely, he believed, but not impossible.

  Another bipartisan pair of senators was consulting by phone in the days after the House vote as well. Joe Lieberman, the righteous Democratic senator from Connecticut who had been so offended by Clintons conduct the previous fall, had grown just as dismayed at the partisanship in the House and now wanted to find a way to bring the controversy to a decorous end. He called his friend Republican senator Slade Gorton from Washington State, another former state attorney general. Lieberman had worked with Gorton in the past and considered him a fellow pragmatist who would set aside ideology in search of a reasonable solution; he also knew that Gorton was close to Lott. As it turned out, Gorton felt the same way about the Lewinsky case and had been planning to call Lieberman. They agreed to work on a plan to short-circuit a trial.

  Lieberman and Gorton were not the only ones trying to broker a middle-ground solution. With White House encouragement, two former presidents joined the discussion. After a phone call from Vice President Gore, Jimmy Carter teamed up with his Republican predecessor, Gerald R. Ford, who had spoken with Chuck Ruff. In an opinion piece in the New York Times on Monday, December 21, two days after the House vote, they proposed a deal in which the Senate would censure the president and Clinton would acknowledge that he did not tell the truth under oath, with the understanding that an admission could not be used against him in a criminal trial. On the same day, four House Republicans who had voted for impeachment just forty-eight hours earlier embraced essentially the same solution in a letter to Lott. We are not convinced, and do not want our votes interpreted to mean that we view removal from office as the only reasonable conclusion of this case, Congressmen Sherwood Boehlert, Mike Castle, Ben Gilman, and Jim Greenwood wrote. Their letter did not explain why they had voted against the Democratic move to censure Clinton in the House, lending ammunition to White House aides who suspected they were forced to vote for impeachment against their will.

  Byrd weighed in as well. The stern Democratic senator from West Virginia signaled that he was open to some other solution than a full trialjust so long as Clinton and his advisers kept out of it. To a very large degree, we are now navigating in previously uncharted waters, but one thing is clear, Byrd said. For the good of our nation, there must be no deal involving the White House or any entity beyond the current membership of the U.S. Senate. By current, he meant that George Mitchell and Bob Dole should keep their noses out of it as well.

  ***

  How did it feel to be the first impeached president in 130 years?

  Not bad, Clinton answered casually.

  In the hours and days after the House vote, Clinton was determined not to show any wounds. Hosting friends at a holiday party at the White House, he made light of his situation, telling jokes and asserting that in ten or twenty years it would become clear he was on the right side of history. Proceeding with parties such as the one in the State Dining Room, all decked out in holiday colors, was Clintons way of getting through a painful period. If he treated it like business as usualor, rather, politics as usualthen it lessened the sting. Indeed, the friends and college classmates who surrounded him at these events seemed more distressed than he did. Or at least more than he let on.

  Still, signs of the rage that smoldered inside occasionally showed through. Clinton told his friends that he purged himself regularly of his anger by turning to a wide array of advisers, including Jim Wright and Nelson Mandela. A Louisiana minister had urged him to remain the light in the face of the dark forces of the Republican Congress and not to fight them directly because when light mixed with darkness, it only became gray. The lesson Clinton had drawn from such advice was to leave his battle to lawyers and allies. If he engaged himself, Clinton told his guests, he risked losing the support of the American people, who had stuck with him because they believed he remained focused on his job, not survival. But he now recognized the trade-offs involved in that approach. By going forward with his trip to the Middle East instead of staying to lobby swing Republicans, he had made it easier for the House to impeach him. Clinton said his biggest mistake came in the heady days immediately after the November election when he did not lock in the moderate Republicans who wanted to vote against impeachment by pressuring them to commit publicly.

  The surrogates the president had relied on were reevaluating their strategy now as well. The largely unspoken secret among his lawyers was that even they believed Clinton had lied under oath in the Paula Jones deposition. As attorneys, they could make the case that his testimony about Monica Lewinsky was not material to the lawsuit and therefore did not constitute perjury as defined by federal statute. But they knew as well as anyone that the president did not tell the truth, the whole truth, and nothing but the truth. Greg Craig, for one, could understand how Clinton might not have understood the definition of sexual relations used at the deposition because even the judge appeared confused. However, Craig believed the presidents assertion that he had no specific recollection of being alone with Lewinsky was a bald-faced lie. There was no getting around that.

  As a result, for all the despair surrounding the impeachment vote in the House, Craig and the other presidential attorneys were able to find a silver liningthe rejection of Article II, the civil perjury count. The House Republicans did them an enormous favor by knocking out the one charge that was hardest to defend against. The main reason the White House team had not mounted much of a factual defense during the House hearings was that Craig and the others calculated there was no way to defend the presidents testimo
ny in the Jones case. The grand jury perjury and the obstruction allegations were different. The disputed testimony before the grand jury was far more ambiguous than in the civil deposition and dealt with narrower questions, such as what month the relationship had actually started and whether the president had actually touched certain parts of Lewinskys body. Similarly, many of the events labeled as obstruction by the House had alternative explanations that could at least raise reasonable doubtBetty Currie testified that it was Lewinskys idea to hide the gifts, not the presidents, for example, and no one had testified to an explicit link between the job search and the false affidavit. Unlike in the civil testimony, a basis for a factual defense existed in both remaining articles of impeachment.

  Meeting a few days after the impeachment vote, Craig and the other lawyers decided to recalibrate their strategy now that Article II was no longer on the table. If the Senate did hold a trial, they decided, they would put on a real factual defense for the first time. They would not simply argue that Alexander Hamilton and James Madison would never have wanted a president thrown out of office for this type of conduct; they would talk about the evidence and try to make the case that the prosecutors had not established proof that Clinton did what they said he did.

  Over the next few days, Craig and the others pored through the evidence books and pulled out material that undercut the House charges against the president. Craig, bearing color-coded documents, then met with a few select reporters from major newspapers to privately spotlight the holes in the case. The White House, he told them, was not afraid of the facts. Not any more, at least. Other White House aides burned when they heard what Craig had donehe had telegraphed their new strategy in the media and made it easier for the opposition. Press secretary Joe Lockhart fumed at the leak, and Doug Sosnik was assigned to take Craig to the woodshed.

  Either way, the presidents team was still searching for ways to avoid a trial altogether. The most obvious way to head off a trial would be a motion to dismiss the case, which could be filed the day the Senate opened its proceedings and would require only a simple majority. Assuming he could hold the forty-five Democrats, Clinton would have to win over just six Republicans to toss out the chargesa number that did not seem out of reach, considering the number of moderates who had expressed distaste at the prospect of a trial. Even if they could not get an absolute majority, they would presumably garner at least thirty-four votes, demonstrating from the outset that there was no chance for a two-thirds vote for conviction and possibly spurring on the Republican leadership to cut short the trial.

  Another tactic under consideration at the White House was a constitutional challenge to the legitimacy of the House vote because it had occurred after the election and before the new Congress was to be sworn in. Bruce Ackerman, a Yale Law School professor, had raised such an attack on a lame-duck impeachment when he had appeared before the Judiciary Committee as a Clinton defense witness earlier in the month. Now the presidents lawyers, particularly Craig and David Kendall, were intrigued about whether he might be right. If they could get Chief Justice William H. Rehnquist, acting as presiding officer at a Senate trial, to throw out the articles of impeachment based on that argument, it would force the House to take another vote, this time with five more Democrats. That would not make a difference in the grand jury charge, but they might be able to defeat the obstruction of justice article on a second try. Since it only passed 221212, a swing of five votes would change that to 216217. Narrowing the case in the Senate to just a single article would make their job that much easier.

  White House aides raised other possible motions they could file as well. They suggested a motion barring Asa Hutchinson from serving as a manager because his brother, Senator Tim Hutchinson, was serving as a member of the jury. It did not take long to rule that idea out, however, after a little research showed that such conflicts of interest were allowed during the Andrew Johnson trial. In 1868, the Senate permitted the participation of one senator who was Johnsons son-in-law and another who was the Senates president pro tempore and under the line of succession at the time would have taken over as president in the event of a conviction.

  Aside from tactics, the presidents team was also reevaluating its messengers. While unhappy with Craigs backdoor contacts with reporters, his fellow White House aides decided he should play a more public role, given that he had been the most effective advocate for the president on television. But that was not enough. Craig and most of the others involved in constructing the White House defense had Senate experience and knew they would be better off if they had someone of stature who could relate to the senators as a peer. When Johnson had gone on trial 131 years earlier, his attorney general had resigned and signed up as his chief defense lawyer. The leading candidate for Clinton was George Mitchell, the former Senate majority leader, who had declined to come on board in the fall. Mitchell had an odd history with Clinton. The president had wanted to put him on the Supreme Court a few years back, but the former senator played Hamlet, in the view of the White House, and never committed. After Clinton won reelection, however, Mitchell wanted to be secretary of state in the second term, only to lose out to Madeleine Albright. Still, as the presidents emissary, Mitchell had played the critical role in forcing peace in Northern Ireland, an achievement Clinton considered among his most important legacies.

  When the White House contacted him again about coming to Clintons rescue in his worst domestic political crisis, Mitchell was still reluctant but agreed to think about it. Steve Ricchetti, the deputy chief of staff, assigned Special Counsel Lanny Breuer to be his liaison and to prepare the briefing books that would get Mitchell ready to join the defense team.

  The chief justice has less of a role than he might imagine. The Senates chief lawyer tried to be delicate. The Senates parliamentarian was more blunt about it: William Rehnquist should leave the decisions to the Senate.

  While Lott and Daschle were working their caucuses, their aides were busy preparing as well. Senate legal counsel Thomas B. Griffith, parliamentarian Bob Dove, Lott chief of staff David Hoppe, and Daschle aide William V. Corr began a marathon round of meetings with House officials, White House lawyers, and others to figure out what everyone wanted and to make sure they understood who was really in chargethe Senate. The most sensitive meeting was with the chief justices right-hand aide.

  At 9:30 A.M. on Tuesday, December 22, just three days after the House vote, the Senate officials met in the office of the sergeant at arms with Rehnquist chief of staff Jim Duff. Under the Constitution, the chief justice would preside over the trial, but the precise parameters of that role were fuzzy since only one other chief justice had ever served in that capacity. Rehnquist was intimately familiar with that precedent, having written a book about impeachment called Grand Inquests, which reconstructed the Andrew Johnson trial. But acting on behalf of Lott and Daschle, Griffith and the others wanted Rehnquist to understand that the senators were not looking for a heavy hand from the rostrum. While a Republican appointee, Griffith was a pragmatic lawyer who shunned ideology in favor of his broader mission of protecting the prerogatives of his institution. Griffith was worried Rehnquist would take it upon himself to rule on a White House motion to dismiss, something he knew the senators would strenuously object to. So Griffith and the others reminded Duff that the Senate could overturn any rulings by Rehnquist on a simple majority vote, and that, in any case, they believed he should rule only on evidentiary and incidental questions, neither of which would cover a dismissal motion. Duff was sympathetic without offering commitments. Another tricky issue involved setting the ground rules for the trial. Duff said the chief justice wanted to hold pretrial conferences with both parties, much as any judge in a normal trial might, but Griffith and the others were reluctant to involve him. It was the Senates show, they said.

  All of this amounted to a calculated bluff. Griffith and the others knew the Senate could never overrule Rehnquist because he wore the black robe. If the Republican majority were to rever
se a ruling by the chief justice, particularly a known conservative such as Rehnquist, it would be seen as a strictly political move to tamper with the judgments of an independent presiding officer. That was why Griffith and the others wanted to lay down markers at the beginning in the hope that Rehnquist would not force such a confrontation.

  In case the message that he would not really be in charge was not clear enough, the chief justice would soon get a pointed reminder. Visiting the Senate chamber to familiarize himself with the layout and the equipment soon after Griffiths meeting with Duff, Rehnquist noticed the microphone while trying out the chair at the top of the rostrum.

  How do I activate the microphone? Rehnquist asked.

  You dont, answered the sergeant at arms, James W. Ziglar. That too was controlled by Senate officials.

  Over the Christmas holiday, Lieberman and Gorton devised a mechanism for wrapping up the case in a hurry. Their plan would allow each side a day to present opening arguments, followed by a day of questioning by senators. Then on the fourth day, the Senate would begin debating in open session whether the charges, if true as presented, rose to the level of high crimes and misdemeanors. With each senator allowed up to ten minutes to speak, the deliberations could stretch into a fifth and sixth day, but at that point, only if two-thirds of the senators agreedthe same margin required for conviction by the Constitutionwould the trial move to a second phase that would involve witnesses and more extended debate. Otherwise, the Senate would adjourn the trial and then, after the chief justice had left the presiding chair, move to consider a bipartisan resolution censuring the president.

  Lieberman committed the plan to writing in a December 28 memo and sent it to Gorton. The above procedure completes the trial within a week, and debate and votes on a censure resolution within no more than another week, allowing the nation and the Senate to return to our normal business without having brought the sordid details of this case onto the Senate floor, Lieberman wrote, never imagining that two-thirds of his colleagues might vote to continue to a full-fledged trial. The above procedure does not, however, excuse the Presidents misconduct or minimize the damage it has caused to the country and the presidency.