The Breach

by Peter Baker

  If the first two days of the prosecution case were spent scouring through the weeds of evidence, the final day on Saturday, January 16, brought the Senate back to more elevated terrain, with talk of honor, principle, and patriotism. Steve Buyer, Charles Canady, and George Gekas made the constitutional arguments that Clintons misdeeds qualified as high crimes worthy of removal, but it was the odd couple of Lindsey Graham and Henry Hyde who caught the attention of the triers of fact and law, as the senators were now being called.

  Graham was the Matlock of the House team, spinning folksy homilies in his South Carolina drawl. Unlike the methodical Asa Hutchinson or the roaring Jim Rogan, Graham relied not on a prepared script but scrawled notes and his own stream-of-consciousness improvisation. His was a talk, a conversation even, not a speech. Occasionally, he wandered away from the lectern, Oprah-like, a microphone clipped to his lapel. He empathized with senators sitting through what he agreed might seem like a snoozer. In his sometimes rambling yet captivating way, Graham tried to undercut two of the strongest arguments from the other sidethat the presidents misdeeds had no broader consequences that required a constitutional solution and that the country could not stand the upheaval that would result from replacing its president. To set aside an election is a very scary thought in a democracy, Graham acknowledged, but he stressed that the nation had calmly absorbed what was happening. If you convict him, it will be traumatic, and if you remove him, it will be traumatic, but we will survive. Graham then tried to place the Paula Jones lawsuit and sexual harassment laws in the context of civil rights, something the president had defended passionately for his whole career. When those rights had to be applied to him, he failed miserably, Graham said. The Supreme Court had ruled unanimously that he had to answer to Jones, but when he chose to lie, when he chose to manipulate the evidence to witnesses against him and get his friends to go lie for him, he, in fact, I think, vetoed that decision.

  Graham compared Clintons case with that of federal judges impeached and convicted for perjury and similar charges. The question becomes, if a federal judge could be thrown out of office for lying and trying to fix a friends sons case, can the president of the United States be removed from office for trying to fix his case? You could not live with yourself, knowing that you were going to leave a perjurer as a judge on the bench. Ladies and gentlemen, as hard as it may be, for the same reasons, cleanse this office.

  Hyde provided the lofty counterpoint to the down-home Graham. Silver-haired and well-practiced at the art of soaring political oratory, Hyde liked to summon the ghosts of Anglo-American icons and invoke concepts like sacred honor and bedrock principle. As he had done on the floor of the House a month earlier, he cited the Ten Commandments, Roman law, and the Magna Carta and framed the choice before the Senate as a question of patriotism. We must never tolerate one law for the ruler and another for the ruled, Hyde intoned. If we do, we break faith with our ancestors from Bunker Hill, Lexington, Concord, to Flanders Fields, Normandy, Hiroshima, Panmunjom, Saigon, and Desert Storm.

  Hyde even resorted to the time-honored tool of the politicians mastered by Ronald Reaganthe letter from a constituent. In this case, Hyde read a note sent by a third-grader from Chicago, who wrote that Clinton should be forced to write a hundred-word essay by hand because I do not believe the president tells the truth anymore right now. The boys father added a post-script disclosing that he had forced his son to write the letter as punishment after he had lied and defended himself by saying that the president had lied too. Some of us have been called Clinton haters, Hyde said. I must tell you distinguished senators that this impeachment trial is not, for those of us from the House, a question of hating anyone. This is not a question of who we hate, its a question of what we love. And among the things we love are the rule of law, equal justice before the law, and honor in our public life. All of us are trying as hard as we can to do our duty as we see itno more and no less.

  The problem for the managers was that they did not always see eye to eye on what that duty should be. After leaving the floor that evening, they gathered to discuss strategy, including whether to call Clinton as a witness. The constitutionality of issuing a subpoena to a president to testify in a congressional proceeding was dubious at best, so most of the discussion centered on whether they should ask the Senate to invite Clinton to come voluntarily. Rogan and Bill McCollum argued strongly for calling the president. He was the one person who knew the most about all of the events in dispute. He owed it to the Senate to appear and answer for his actions. Even if they could not subpoena him, ratcheting up the pressure might compel him to come to avoid appearing afraid. Rogan had already been tapped by Hyde to prepare for questioning the president, and he was anxious for the opportunity.

  Asa Hutchinson dissented. Under the separation-of-powers doctrine, he said, it would be inappropriate to do anything to pressure a president to appear before Congress. Besides, he added, it would look too political and simply backlash in favor of the Democrats.

  At that moment, the Democrats would have welcomed anything that would work to their benefit. As they left the floor, the Democratic senators looked like war-weary soldiers who had been strafed by the enemy. Gathering in Daschles conference room after the floor session, a number of rattled senators worried that the managers were scoring points, particularly after Grahams presentation that afternoon. This guys killing us, complained Bob Bauer, Daschles lawyer. Graham had successfully minimized the significance of removing the president; he had made the unthinkable thinkable. The Democrats had also cringed when Graham described Clinton as a champion of civil rights who had failed when it came to his own case. Oh, fuck, that was powerful, Kevin Simpson, the Democratic investigator, told colleagues. And the comparison with the judges who had been removed for perjury had unnerved several of the Democratic senatorsthat was an argument that really cut.

  Bauer opened the meeting by proposing two ways that they should hit back at Hyde for his Flanders Fields analogies on the grounds that he went way too far in suggesting the Senate had to convict Clinton to honor its war dead. This cant be compared to the sacrifice of troops at Normandy, Bauer told the group.

  But it quickly became apparent that the senators had no fight in them. Im not comfortable with this, said Dick Durbin. Why dont we just say, You cant judge the score by halftime? suggested Chuck Schumer.

  The others around the table nodded their agreement. That was the way to gocut their losses and hope the White House could mount an effective comeback next week.

  Despite the success of the joint caucus in the Old Senate Chamber that had produced the trial rules a week earlier, both Democrats and Republicans had decided to keep meeting separately for the remainder of the trial, once again reinforcing the party-line nature of the proceeding. Daschle, who in normal times convened his caucus once a week, was now holding meetings every morning at ten oclock in an effort to keep his troops on board. The closed-door ses sions over the last week, though, had revealed the depth of the partys frustration with Clinton. Resentment flavored the discussion as senators chewed through the case in detail for the first time. A lot of what the Republicans had been saying about Clinton resonated with the Democratsthey did not like him much either, let alone trust him. By several counts, seven or eight of the forty-five Democratic senators got up at these caucus meetings and suggested they would have been better off had the president stepped down.

  Clinton should have resigned, Senator Fritz Hollings told the caucus one day. If he had an ounce of honor, he would have done it a long time ago. But he didnt, so were stuck with him. Wearing sunglasses because of recent eye surgery, the seventy-seven-year-old conservative from South Carolina did not bother to hide his disdain for Clinton. Lets get this thing over with, he said, and then paused. Wheres Dianne? he asked, looking around the room for Dianne Feinstein from California. Spotting her, Hollings continued his tirade against Clinton. And then after this is all over with, I think what he ought to do is go back to San Francisco where they don
t recognize funny people like him.

  The other senators laughed, including Feinstein. I cant believe, Fritz, youre doing this to me after I backed you in the last election! she shot back.

  At the White House, a sense of foreboding hung over the strategy sessions that weekend as the presidents advisers tried to figure out how to present his defense in a way that would appeal to senatorial skeptics. Despite what the pundits were saying, the White House was not at all sure it could count on acquittal. While their heads told them there were not twelve Democrats who would defect, their hearts were seized with fear born of the recognition that nothing had gone according to plan so far in this crisis. Who knew what might happen now? The managers were clearly on a roll, and the Clinton team had to find a way to put a stop to it. As the lawyers reminded the presidents political aides, the prosecution in any trial appears strong after it has presented its own case. But the aides realized that Tom Harkin was right and they needed another way to communicate with the senators, particularly the Democrats. They had to rally the Democrats.

  Harkin had heard back from John Glenns office that he was out of the country and would not be available. George Mitchell once again turned down the job in a telephone call on Sunday, January 17. About an hour later, Dale Bumpers called Harkin back. Oh, God, I cant do that, he said once Harkin explained what he wanted.

  Im just telling you, we need you, Harkin implored. The country needs you. The president needs you.

  Bumpers told him he would think about it and hung up. Bumpers, seventy-three, who had served as governor of Arkansas before Clinton did, had just stepped down from the Senate after twenty-four years of service. Known as a staunch liberal who crusaded against profligate military spending, he was generally popular on both sides of the aisle, although some Republicans considered him a demagogue. But Bumpers was not really close to Clinton. In fact, for years the two were wary rivals for the mantle of top dog in a small state. While he was governor, Clinton even suspected Bumpers of spreading stories in Arkansas about his womanizing. To overcome Bumperss resistance, Harkin decided more pressure was needed and tracked down Terry McAuliffe, the presidents friend, at the steam room of a gym the next day, Monday, January 18, to arrange for Clinton to call Bumpers personally. The president did, but Bumpers was still reluctant.

  Im not the right man for the job, Bumpers told Clinton. They were from the same state, he pointed out. It would not have any credibility.

  Clinton persisted. Think about it, will you? A few hours later, Clinton called again to see if he would agree.

  Bumpers put him off again. Let me meditate tonight and see what I could put together.

  After hanging up, Bumpers deposited himself in a recliner in his suburban Maryland home and spent the next three or four hours scribbling on a notepad. The next morning, he called Bruce Lindsey and accepted the assignment.

  In the meantime, Greg Craig was pursuing another idea. Since some of the Democratic senators had been appalled during caucus meetings when they were told about the unfair impeachment process in the House, he figured the White House should recruit some of the Democrats from the House Judiciary Committee to join the defense team to tell the whole Senate how the president had been railroaded. Craig and the others at the White House came up with three House Democrats to add to the teamJohn Conyers, Rick Boucher, and Tom Barrett from Wisconsin. The Clinton aides had been impressed with Boucher and Barrett and felt they had to have Conyers as the senior Democrat on the committee.

  Yet the idea collapsed before it could be developed. Word of the plan leaked out even before the White House had bothered to ask the House members whether they would be willing. Conyers and Barrett agreed to join the team anyway, but when John Podesta reached Boucher at 8 A.M. on Tuesday, January 19, the Virginia congressman said no. After all the time he had spent on this painful issue in the House, Boucher had felt an enormous sense of relief to be freed of the responsibility. Besides, he reasoned, how could he adequately prepare with just a few days notice? Podesta thanked him politely, but when word got around the White House, other aides fumed and vowed to take revenge.

  It made no difference. While White House aides thought Daschle had cleared the idea of recruiting House members with Robert Byrd, in fact the powerful senator objected vehemently to the plan once he learned about it during the Democrats closed-door caucus meeting later that Tuesday morning, just hours before the defense team was to take the floor and open its case. It was wholly inappropriate for members of the House to play a role on the defense team of the chief executive, Byrd declared. Other senators tried to reason with him. Clinton had a right to choose whomever he wanted. This is his defense, some argued.

  You dont understand how strongly I feel about this, Byrd roared back. It hits me right here, he said, fiercely chopping his hand at his own chest. Right here!

  Even though Byrd was outnumbered, Daschle quickly realized it was better to pull the plug and told the White House to drop the House Democrats. In keeping with their dont-irritate-Byrd strategy, the presidents advisers promptly did just that. But it was one more blowup they did not need.

  More internal tension would be generated when the presidential lawyers sat down to go over their assignments for the coming weeks arguments. Chuck Ruff told the group that he would open their presentation but keep it relatively brief so as to avoid upstaging the presidents State of the Union address scheduled for later the same evening. White House aides had given some thought to giving up their time on the first day of defense arguments and leaving the message entirely to Clinton and his annual policy address, but decided on this middle-ground course instead. On the second day, Ruff told the group, Craig would present the defense against the perjury count, and Cheryl Mills would handle half of the obstruction charges, leaving the rest of that count to David Kendall on the third day. Dale Bumpers would close. Left out were Nicole Seligman and Lanny Breuer, who were told they might get to handle motions and witnesses later in the trial. Seligman reacted calmly to the decision, but Breuer was distraught at what he saw as a betrayal by Ruff, his former law partner at Covington & Burling.

  At thirty-three, Mills had been a tough behind-the-scenes operator in the Clinton White House since its inception, earning the unwavering trust of the first family with her give-no-ground approach. But she had spent only two years at a law firm before joining the Clinton camp and had none of the extensive courtroom experience of Breuer, a forty-year-old former New York prosecutor, or Seligman, who at forty-two had helped defend Oliver North during Iran-contra and had handled other high-profile Washington cases. Aside from her smarts and her tight relationship with the Clintons, though, Mills brought something to the lectern none of the other lawyers didshe was African-American, which would stand in silent contrast to the thirteen white men prosecuting the president and allow her to counter the damaging points made by Lindsey Graham about Clintons failure to live up to civil rights laws.

  Just before 1 P.M. on that Tuesday, Ruff wheeled himself onto the floor of the Senate and, after the opening prayer, rolled over to the well to begin the presidents defense. The lectern had been removed to accommodate his wheelchair and a small table set up to his left on which to put his papers and a glass of water. He also put down a copy of The Federalist papers. Ruff attached a microphone to his lapel, but it would fall off repeatedly until he gave up and held it in his hand. For all of his years of experience at the intersection of law and politics in Washington, Ruff seemed atypically nervous at first, his left hand shaking as he talked. He had worked late into the night at home writing his presentation by himself without consulting the other lawyers and had kept his drafts so secret that even the client had no idea what Ruff would say this day. The night before, Clinton had called Mills to ask what Ruff planned to tell the Senate, she told a colleague; Mills had to confess she did not know either.

  Ruff knew he had to undercut the managers credibility and spent much of the next few hours methodically pulling at the loose threads of their case in hop
es of unraveling the entire quilt. While the managers had impressed their audience with measured professionalism, it fell to Ruff to recast them as overzealous advocates willing to shade the truth and draw unsubstantiated conclusions from flimsy evidence. What you have before you, Ruff told the senators, is the product of nothing more than a rush to judgment. The managers had concocted a witches brew of charges and constructed their case out of sealing wax and string and spiders webs on top of shifting sand castles of speculation.

  Ruff gave several examples of what he called prosecutorial fudging. The knockout blow: Vernon Jordan could not have been motivated to intensify his job search for Lewinsky on December 11, 1997, by a court order allowing women such as her to be questioned in the Jones lawsuit because the judge made her ruling during a conference call that began at 6:33 P.M., nearly forty minutes after Jordan had gotten on a plane for Amsterdam. Beware of the prosecutor who feels it necessary to deceive the court, Ruff warned solemnly, with Asa Hutchinsons own chart mounted on the easel to his side.

  If this had been a regular courtroom, the jury might have gasped at the revelation. In this case, it cemented Ruffs standing with the Senate. Relentlessly sober, the presidents trial lawyer offered a striking contrast to the orations of the politician-managers. Theater was not his style. He had brought the copy of The Federalist papers with him to hold up as a prop, but decided when he came to that section of his presentation simply to read the desired citations from his notes instead. While rarely scintillating, he projected a sense of gravitas that played well in the chamber. After all the shouting of the last twelve months, here was a grown-up, reminding the country of what was really at stake.

  We are not here to defend William Clinton the man, he said. He, like all of us, will find his judges elsewhere. We are here to defend William Clinton the president of the United States, for whom you are the only judges. You are free to criticize him, to find his personal conduct distasteful. But ask whether this is the moment when, for the first time in our history, the actions of a president have so put at risk the government the framers created that there is only one solution. You must find not merely that removal is an acceptable option, that we will be okay the day after you vote, he added in an implicit rebuttal to Lindsey Grahams powerful argument from the week before. You must find that its the only solution, that our democracy should not be made to sustain two more years of this presidents service.