by Peter Baker
Like Mills, Kendall initially had envisioned a provocative line of defense that worried fellow Clinton advisers. In his case, he wanted to challenge Lewinskys credibility in certain areas of her testimony that seemed to implicate the president. But through all of the congressional proceedings, the White House had been careful never to attack Lewinsky publicly, and the advisers decided not to start now. Besides, Kendall wanted to rely heavily on her most exculpatory statement to the grand jury, and it might confuse the issue to credit part of her testimony and undermine other aspects of it. Standing in the well of the Senate, Kendall reminded the juror-judges that Lewinsky flatly denied being coerced to provide false testimony. In case any senator had missed it, he repeated it seventeen times during his presentation: No one ever asked me to lie and I was never promised a job for my silence. Turning to the prosecution table, Kendall asked scornfully, Is there something difficult to understand here?
If Kendall was the mechanic, Dale Bumpers was to be the driver who powered the race car around the track. With his shock of silver hair, his deep voice, and country-lawyer mannerisms, Bumpers was the stereotypical picture of the senator. Just three weeks out of office, he spent no time on Subpart 4 of Article II, made no mention of the December 11 court order. Speaking from hand-scrawled notes on yellow legal paper and wandering around the well so far afield that his microphone kept falling off, Bumpers went straight for the hearts of his friends. He talked about his awe of the institution, the goose bumps he still got in the Senate chamber. He repeatedly addressed his audience as colleagues, citing a number by name.
The charge and the punishment are totally out of sync, Bumpers said. When you hear somebody say, This is not about sex, its about sex. In gentler style than Kendall, he too chided the managers, attributing their excesses to wanting to win too much. Taking direct aim at Hydes Flanders Fields speech, Bumpers said soldiers did not fight to impeach a president for this and pointed to a handful of senators around the chamber who were war heroes themselves.
Most powerfully, Bumpers brought home the personal dimension of the case. You pick your own adjective to describe the presidents conduct. Here are some that I would use: indefensible, outrageous, unforgivable, shameless. I promise you the president would not contest any of those or any others. But there is a human element in this case that has not even been mentioned. . . . The relationship between husband and wife, father and child, has been incredibly strained, if not destroyed. There has been nothing but sleepless nights, mental agony, for this family, for almost five years, day after day, from accusations of having Vince Foster assassinated, on down.
Looking around the room, Bumpers went on, We are, none of us, perfect. Sure, you say, he should have thought of all that beforehand. And indeed he should, just as Adam and Eve should have. Now pointing at the senators, he added, Just as you and you and you and you and millions of other people who have been caught in similar circumstances should have thought of it before. As I say, none of us is perfect.
CHAPTER FOURTEEN
The horseis stinking up the room
Chuck Ruff arranged the secret signal with the Senate Democratic leadershipand in characteristic fashion kept it so secret that he did not even tell his White House colleagues. When the Senate opened its two-day question-and-answer period on Friday, January 22, Ruff wanted the option of rebutting anything the managers might say, but the rules did not provide for any direct back-and-forth. So he and Tom Daschles aides agreed that if he needed a chance to reply, the Senate Democrats would submit a question to the chief justice asking the White House, Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question? The aides would simply fill in the name of one of several default senators, who had agreed in advance to let themselves be used in this way, such as reliable liberals Chris Dodd and Patrick Leahy. And Ruff would indicate when he needed such help simply by laying his pen down on the table in front of him on the Senate floor. The signal was so subtle that when it came time to put it into use, Senate aides sometimes missed it. Did he move his pen? they would ask one another. Left in the dark, Ruff s fellow White House lawyers correctly assumed he had made a deal with Senate staff and played guessing games among themselves trying to figure out what his cue was. Some wrongly speculated that it was when Ruff moved his wheelchair back from the table.
Ruff did not want to leave much to chance. Unlike the opening arguments, the question-and-answer session would go beyond simply reading from the script and involve at least some spontaneous back-and-forth, presenting obvious dangers to the White House and managers alike. The Democrats were not the only ones clandestinely rigging the process to best serve their strategic needs. Asa Hutchinson and the rest of the House team were desperate for a chance to counter the previous three days of White House arguments and turned to Senate Republicans for help. An ordinary criminal proceeding would have allowed prosecutors a chance to respond to the defense, but in the frantic rush to draft rules two weeks earlier, Senate aides had forgotten to include any rebuttal time. So the managers asked Senator Fred Thompson, who was helping to coordinate the Republican side, to plant some questions that would let them make some points. Thompson agreed to set aside the first five questions.
Under the rules, any senator could ask a question, but only by submitting it in writing to the chief justice, who would read it aloud. The rules said nothing about follow-up questions or in what order they would be asked or whether anyone could screen them for redundancy and relevance. Without much to guide them, the senators fell back on the organizational system they knew besttheir political parties. Rather than allow members to send questions directly to Rehnquist, all Republicans would turn in their proposed inquiries to Trent Lott and all Democrats to Daschle. Logistically, they saw little choice; Rehnquist indicated he had no desire to winnow through the submissions, and the prospect of one hundred would-be interrogators posing random questions promised bedlam. Senator Orrin Hatch convinced Lott that the questions needed to be structured to make sure the most important areas of the case would be covered and to keep senators from asking the same question over and over. But the decision also subliminally reinforced the idea that the trial was just another party-line debate in which Democrats stuck together and Republicans did likewise. Tom Griffith, the Senates chief lawyer, raised that concern to aides for both Lott and Daschle, only to be told there was no real choice. The preparations for the questionand-answer session became about strategyhow best to emphasize the strengths of our case and the weaknesses in theirs.
Lott had appointed Hatch, Thompson, and Senator Mike DeWine of Ohio to coordinate the questions for Republicans, and Hatch sent out his first memo soliciting proposed questions on January 14 as the opening arguments began. Within five days, they had received some fifty questions from various senators and fed them into a database so that lawyers Mike Wallace, Stewart Verdery, and others could review them. An E-mail account was set up to accept more, with a simple question mark?serving as the electronic address. Hatch and his staff worked up a number of their own questions, grouping them into sectionslegal and constitutional matters, factual discrepancies, and so forth. The questioning was to switch off between the two parties every two hours, and Hatch wanted to develop a logical string of inquiries that would serve as the equivalent of a courtroom cross-examination.
Some of the questions submitted by senators or their aides to the Republican screening committee were clearly over the top. Senators Arlen Specter, the veteran legislator from Pennsylvania, and Jim Bunning, the baseball Hall of Famer just elected from Kentucky, jointly proposed asking What was the specific conduct of the President and Ms. Monica Lewinsky in what the President characterized as an inappropriate, intimate relationship? While Clintons grand jury testimony in effect raised that issue by describing their contact as intimate without constituting sexual relations, GOP leadership aides knew that asking about it would just give Democrats ammunition to say the Republicans were only interest
ed in who touched what. Scratch that question. Senators Michael Enzi of Wyoming and Bob Smith of New Hampshire sent in a sharp-edged zinger. They noted that before the grand jury Clinton had insisted his first sexual encounter with Lewinsky did not take place until 1996, even though she testified it was on November 15, 1995, after she brought him pizza during the government shutdown. Then they noted that in his Paula Jones testimony, Clinton remembered her delivering pizza. Is it really possible, they asked, that he remembered the pizza but forgot the intimate encounter which followed? Clever, the leadership aides thought, but maybe too much so. Scratch that too. Then there was the one from DeWine. The Ohio senator wanted to know how White House lawyers could argue Clinton did not commit perjury when he testified that his sexual relationship with Lewinsky grew out of a friendship, given that she performed oral sex on him the first night they met. Please explain and clarify with specificity the Presidents understanding of the term friendship and elucidate the details of the Presidents friendship period with Ms. Lewinsky, DeWine proposed asking. Once again, the leadership aides liked the question, but figured it could easily backfire.
A day or two before the question session was to begin, binders of 179 proposed questions were left in the Republican cloakroom with spaces for senators to fill in their names if they wanted to ask any of them. Near the end of one party conference that week, Lott noted that some senators had not signed on to any of the questions, let alone submitted their own, and urged all of them to do so, in order that history would record that they participated. Aides quietly steered many of the questions most likely to be asked to Senators Susan Collins, Olympia Snowe, John Chafee, and other fence-sitting moderates, hoping to make sure they felt involved.
The Democrats were going through a similar process. Bob Bauer and his fellow lawyers, Kevin Simpson and Steven Reich, collected scores of questions, sorted them into piles, put them into huge notebooks, and screened out those they considered poorly drafted or too inflammatory. Among the rejected were two rather pointed queries from newly elected senator Chuck Schumer, who sought to contrast current Republican piety with the partys own past scandals. In light of these eloquent testimonials to the need for honor, veracity, and truthfulness in our leaders, did any of you vote against the reelection of Newt Gingrich as Speaker of the House in January of 1997 or request his resignation upon reading the Special Counsels report? Schumer wanted to ask the managers, knowing that none had. One of the screeners marked No next to this one. Another Schumer jab: Given your concern for the impact of President Clintons conduct on military morale and discipline, did any of you call for President Bushs resignation when he pardoned Caspar Weinberger in 1992, while Weinberger was already under indictment for perjury? This one was nixed as well.
The Democratic lawyers settled on what they called a Bill Walsh strategyjust as the famed San Francisco 49ers football coach would script out his first ten plays and call subsequent ones depending on how the game was going, they determined their first ten questions and would then leave things open to improvisation. To keep the other side from developing a rhythm, Daschle had insisted on a late switch in the format. Instead of granting each party a two-hour block at a time, every Republican question would be followed by a Democratic one and vice versa, guaranteeing instant rebuttal. The biggest debate in Daschles office centered on whether to direct any questions to the House managers at all. Several Democrats wanted to challenge prosecutors on the flaws in their case and confront them about how they had conducted themselves. But in the end, Daschle and his advisers decided to pose no more than a few to the managers because time was limited and no follow-ups were allowed so they could not really force them to answer directly. Worse, it could just provide an opportunity for the House team to segue into some far more damaging area. Instead, the Democrats decided it was better to concentrate on sending softball questions to the White House lawyers so they could score rhetorical points.
As Friday, January 22, arrived, Republican senators were growing increasingly anxious about where the trial was headed. The presidents lawyers had arrested the House teams momentum, and a number of GOP moderates, particularly from the Northeast, were struggling with deep doubts about the strength of the case. The managers began to pick up signals of where their problems laySusan Collins wanted to limit the scope of what witnesses could address, Fred Thompson was concerned about having too many witnesses, Democrat Richard Bryan of Nevada wanted a representative sample of witnesses, not an exhaustive list. At the Senate Republican conference lunch, the tone of the discussion turned more nervous.
Weve got to get out of here, said Bob Bennett, the lanky senator from Utah who had earlier tried to discourage his home-state House manager, Chris Cannon, from pushing for witnesses. The horse is stinking up the room.
At 1 P.M., the senators, managers, and lawyers gathered again on the Senate floor. If the opening arguments were merely set-piece speeches, a question-and-answer period could be far more volatile, more like a debate right before an election. They could prep all they wanted, but in the end, it still required the main players to match wits and think quickly. Much as a candidate can be haunted by a single debate gaffe, the prosecutors and defense attorneys knew any ill-considered remark during the next two days could easily be used against them to ruinous effect.
From his seat on the aisle, Lott handed a sheet of paper to the deputy sergeant at arms, who delivered it to a clerk, who passed it to the chief justice. In a flat voice, Rehnquist read the first question, attributed to four bedrock conservative Republicans, Senators Wayne Allard, Jim Bunning, Paul Coverdell, and Larry Craig: Is it the opinion of the House managers that the presidents defense team, in the presentation, mischaracterized any factual or legal issue in this case? If so, please explain.
This was exactly what the managers wanted, an open-ended question intended to give them the rebuttal time they were denied during the opening arguments. Ed Bryant moved to the lectern and addressed points he argued were misconstrued by the presidents team, emphasizing that this was hardly a case of he-said/she-said given the voluminous corroboration of Lewinskys testimony. But what had clearly gotten to the managers were the attacks on their integrity. Twice in the course of a nine-minute answer Bryant brought up the White House charges that they had been fudging the facts and concocting a witches brew of deception.
It may be good theater, but it is simply not the case that these managers are engaged in that type of practice before the Senate and the American people, Bryant complained.
The next question came from the Democrats, relayed by Daschle to Rehnquist, and in keeping with their strategy it asked the White House lawyers if they had anything to say in response. Ruff dismissed the issue of corroboration. The evidence Bryant cited proved only what the president had already admittedan inappropriate relationship with Lewinskyand had no bearing on what was still in dispute, whether he had committed perjury or obstruction of justice. Aware that he had struck a nerve with his earlier zingers, Ruff said in an innocent tone that he did not mean to apply the fudging label to everything the managers had told the Senate. I have never suggested that the entire presentation is so, and I made very clear in my comments to the Senate the other day the specific examples, which I think we documented quite fully, he said.
With the opening round out of the way, Asa Hutchinson finally got the chance he had been anticipating for days. Still burned at Ruff for undercut ting his obstruction argument by using the Vernon Jordan trip to Amsterdam, Hutchinson had been determined to catch the White House in a blatant factual blunder, and now thanks to investigator Susan Bogart he had the documentation in front of him. In response to the second open-ended Republican questionPlease elaborate on whether the presidents defense team failed to respond to any allegations made by the House managersHutchinson practically leapt to the lectern, papers in hand.
Hutchinson reminded the senators that Ruff had argued that the president could not have been coaching a witness when he ran through the false statements with Betty
Currie because Clinton had no reason to suspect she might be called to testify in the Jones case. Hutchinson had Ruff s quotes in case anyone had forgottenIn the entire history of the Jones case, Ms. Curries name had not appeared on any witness list, nor was there any reason to suspect that Ms. Currie would play a role in the Jones case, and in the days and weeks following the deposition, the Jones lawyers never listed her, never contacted her, never added her to any witness list.
Not true, Hutchinson declared. In fact, the Jones lawyers had issued a subpoena to Currie on January 22, 1998, five days after the deposition, and put her name on a supplemental witness list on January 23. The list was sent to the presidents personal lawyer, and Currie was served with the subpoena on January 27. To drive home his point, Hutchinson held up copies of the subpoena and the witness list. Talk about prosecutorial fudging! the manager exclaimed. How about defense fudging?
Hutchinson had nailed Ruff with a clean shot, one just as damning, he hoped, as the White House counsels Amsterdam-trip rebuttal. Ruff had said there was never a subpoena, never a witness list, but there they were. Ruff was chagrined. He had not known about the subpoena or the supplemental witness list. Much as Hutchinson had drawn his information from David Schipperss report during the House hearings, Ruff had relied on Abbe Lowells presentation. But as a seasoned courtroom practitioner, Ruff knew the best thing to do when confronted with an error was to own up to it without equivocationand then try to pass it off as essentially irrelevant.
I owe him indeed an explanation and he is correct in one respect, Ruff said of Hutchinson when it came his turn to respond. I did not accurately reflect the fact that after the January twenty-first story in the Washington Post, the Jones lawyers did, in fact, attempt to track the entire independent counsel investigation. And I think Mr. Hutchinson will tell you, they indeed issued a long list of subpoenas. For that misleading statement, I apologize, and I trust we will hear equally candid assessments from the managers.
