The Breach

by Peter Baker

  Indeed, the development did aggravate Senate Republicans, particularly because they had been caught unaware. Tom Griffith, the chief Senate lawyer, did not know about it until reading it in the newspaper and agreed with Democrats that it was an outrageous trampling on the privileges of the Senate. Calling Starr deputy Bob Bittman to get more details, Griffith tried to make his unhappiness clear. I would have thought before you made representations about what the Senate meant in S. Res. 16 you wouldve called the Senates lawyer, he said pointedly.

  At the Republican conference meeting that morning, held at nine before the trial was to resume at ten, the senators were agitated. Not only were they blindsided on the Starr-Lewinsky hearing, they were burned up about Byrds bombshell from the day before. Trent Lott tried to calm his anxious members: We all knew this day had to come. On Monday, well have to fish or cut bait. The majority leader then laid out the possibilities for how to get through the end of the trial, including an option to go directly to final votes on the articles, forgoing Byrds dismissal motion in exchange for calling no witnesses. Another alternative was to ram through a Republican procedural plan over the objections of the Democrats. At the moment, Lott was worried whether he could even hold his majority together to beat a motion to dismiss.

  His concern only deepened when Susan Collins got up to say that the Senate should go ahead and agree with the Democrats to dismiss Article I, the perjury count. That was the charge seen as weakest by some Republicans, and throwing it out would show that they were being fair, Collins argued.

  Phil Gramm disagreed. All other impeachment trials had gone the distance, he said, and this would be bad precedent for the future. What would happen, he asked, if the country had a tyrant in the White House who happened to be popular? As for Byrd, Gramm was aghast. The Byrd who issued that statement yesterday was not the master of the Senate and its history that Gramm had known. Senator Larry Craig seconded that thought and suggested they should not let Byrd deliver a lengthy speech on the floor.

  Then Senator James M. Jeffords of Vermont stood up. Another of the New England moderates who had been on the fence, Jeffords now sounded as if he had made up his mind. The evidence was slim that this was a high crime, he declared. The facts of the case were terrible, he allowed, but simply not impeachable. As he listened, Lott knew what this meantalong with Collins and Ted Stevens, who had already expressed similar sentiments, Jeffordss assessment meant that there were now three Republican votes against at least one of the articles. If Lott lost three more, and Democrats stuck together, they could cobble together a fifty-one-vote majority to dismiss the case. Lott could not afford to let that happen.

  When the trial resumed on the floor, Democrats immediately launched into their strategy of making the day about Starr. The first question was directed to the managers in Senator Harry Reids name: Did they notify the White House or the Senate that they planned to go to court with Starrs office to force Monica Lewinsky to talk with them? The second Democratic question came from Senator Pat Leahy: Did they talk with any member of the Senate about this or consider that it would violate Senate rules? The third was from Senator Chris Dodd and went to the White House: Wasnt there a fundamental due-process question raised by the unilateral actions of the managers? The fourth was from Daschle, again to the White House: Shouldnt the presidents lawyers be allowed to participate in any debriefing of Lewinsky? The Democrats, of course, knew the answers to all of these questions; the point was to make the managers squirm.

  Bill McCollum, who had goaded the managers into interviewing Lewinsky, was sent to the lectern to defend the move: It has everything to do with the right of anyone to prepare their witness, to get to know their witness, to shake hands, say hello, to put a face on that. It is normal practice to do this. We see in no way how that abrogates this rule, or in any way violates what you have set forth. As a matter of fact, we think we would have been incompetent and derelict as presenters of the witnesses, if we get a chance to present them, if we couldnt talk to her.

  Chuck Ruff was only too happy to pounce, mocking McCollums suggestion that the purpose was to say hello and pointing out that, under the terms of her immunity agreement, Lewinsky faced the possibility of imprisonment if she spurned Starrs dictates. Can we really say that is just normal, just okay, to have one side using the might and majesty of the independent counsels office, threatening a witness with violation of an immunity agreement if she doesnt agree to fly across the country and meet for this friendly little chat? Ruff asked. I think not.

  After four consecutive questions on the subject, some of the Democratic aides preparing cards for Daschle to send to the lectern were raring for more. But Bauer pulled the plug, concluding they might look as if they were protesting too much if they persisted. The decision proved to be fortuitous, for the next line of inquiry would turn out to be immensely fruitful for the Democrats. Senators Herb Kohl of Wisconsin and John Edwards of North Carolina submitted an inquiry that, unlike so many of the questions, seemed less intended to make a point than to generate a more thoughtful dialogue. Throughout this trial both sides have spoken in absolutes; that is, if the president engaged in this conduct, prosecutors claim he must be convicted and removed from office, while the presidents lawyers argue that such conduct does not in any way rise to an impeachable offense. It strikes many of us as a closer call. So let me ask you this: Even if the president engaged in the alleged conduct, can reasonable people disagree with the conclusion that, as a matter of law, he must be convicted and removed from officeyes or no?

  Lindsey Graham volunteered to answer for the managers: Absolutely. The allegations in this case are not trivial, he said, and if the senators concluded Clinton committed perjury and obstruction of justice, he believed those counted as high crimes. But I would be the first to admit that the Constitution is silent on this question about whether or not every high crime has to result in removal. If I was sitting where you are, I would probably get down on my knees before I made that decision. Because the impact on society is going to be real either way. He added, You have to consider what is best for this nation.

  A wave of panic washed over the managers table. What was Graham doing? He was giving the senators an out. He was agreeing that this was a tough call. A basic rule of prosecutors was never to show a jury any hint of doubt, particularly if close to half of the jurors were already looking for reasons to acquit. They had to stop him. Steve Buyer, the hard-charging manager from Indiana, signaled that he would like to finish the answer for the managers, but Graham brushed him off.

  I will yield to Mr. Buyer in a second, Graham said, but the point that I am trying to make, not as articulately as I can, is that I know how hard that decision is. It has also been hard for me. It has never been hard to find out whether Bill Clinton committed perjury or whether he obstructed justice. That aint a hard one for me. But when you take the good of this nation, the upside and the downside, reasonable people can disagree on what we should do.

  Democrats looked at each other, eyes widened, grins barely suppressed. Did he just say what they thought he said? Did he just say reasonable people could disagree?

  Buyer jumped for the lectern as Graham sat down and tried to salvage the situation. I would just like to remind all of you that the impeachment process is intended to cleanse the executive or the judicial office when it is plagued with such a cancer as perjury or obstruction of justice, which violates the oath required to hold those high offices. You have a duty to preserve the integrity of public office, and that is what impeachment was precisely designed to do. If the senators had any question, Buyer added, they could come up with findings of fact, much like a civil court case, in which they could determine first whether Clinton lied under oath and obstructed justice before deciding whether to vote for conviction.

  Buyer had tried to contain the damage for the managers, but it was too late. Reasonable people can disagree. It took only a few moments for Ruff to weave that into his answer to another question, and it would soon become
the mantra for every Democrat who ran to a bank of microphones after the days session was over. Mr. Chief Justice, this is something I wont have an opportunity to say very often, but I believe that Mr. Manager Graham has, in fact, stated for you the essential of the role that this body must play, Ruff said at the next opportunity that presented itself on the floor. Not only can reasonable people differ on the facts, but reasonable people may differ on the outcome. And if, indeed, reasonable people can differ, doesnt that mean, by the very statement of that proposition, that this body cannot meet its constitutional heavy mandate, which is to determine whether or not, whatever conduct you believe the president committed, as outlined by these managers over the last many dayscan you legitimately determine that he ought to be removed from office?

  For the rest of the day, other managers implicitly tried to rebut their own colleague. In answer to a question about whether the views of the public should enter into the equation, Hyde tried to turn the issue into one of principle. There are issues of transcendent importance that you have to be willing to lose your office over. I can think of several that I am willing to lose my office over. Abortion is one; national defense is another; strengthening, not emasculating, the concept of equal justice under the law. And I am willing to lose my seat any day in the week rather than sell out on those issues. Despite all the polls and all the hostile editorials, America is hungry for people who believe in something. You may disagree with us, but we believe in something.

  Jim Rogan tried to turn the reasonable people formulation around. Yes, reasonable minds can differ on this case as to whether the president should be removed from office, he told the senators after a recess. But reasonable minds can only differ if those reasonable minds come to the conclusion that enforcement of the sexual harassment laws in this country are less important than the preservation of this man in the office of the presidency.

  While Democrats happily piled on, they were quietly facing dissension in their own ranks. Senator Russ Feingold was pressuring Daschle to submit the question Feingold had drafted with Susan Collins. It was the only bipartisan question written through this entire two-day session, in effect reinforcing what a party-line exercise the trial had devolved into. As the day wore on, Feingold became more agitated that the question had not been asked; he was worried that they were being shut out because he and Collins had reached across the aisle. If the question was not submitted, Feingold threatened Daschle and Bauer, he would make a public issue out of it.

  Finally, Daschle sent the question to the chief justice. Collins and Feingold asked the House managers if Clinton, in coaching Betty Currie, had met all of the elements of the criminal statutes on obstruction of justice and witness tampering. We are particularly interested in your analysis of whether the Senate can infer that President Clinton intended to corruptly influence or persuade Ms. Currie to testify falsely and the weight to be given Ms. Curries testimony in that regard, they asked.

  Hutchinson happily took the question. Clintons actions did meet all the elements of the statute, he said. In fact, a federal court recently decided a man was still guilty of witness tampering even if he did not know the person he was trying to influence was going to testify before the grand jury, as long as it was clear the person could be called. Besides, Hutchinson reminded the senators, he had shown them the subpoena for Currie yesterday. She actually was called to testify in the Jones case and Clinton had every reason to believe she would be. The legal question is, as a prospective witness, is she covered under the obstruction of justice statute? The answer is, yes, because other people go to jail for exactly the same thing.

  As the day wore on into the afternoon, the questions and the answers began taking on a numbing familiarity. By this point, the senators were already obviously debating guilt or innocence among themselves by using the lawyers for each side as proxies. These questions are starting to get a little cruddy, Daschle told his staff. Even the chief justice, who had been uncharacteristically patient through days of oration that went well beyond time limits, finally began showing his weariness by gently cutting off managers who were rambling too long. The chair has the view that you have answered the question, he interrupted Buyer after one such lengthy discourse.

  The lawyers too were growing tired. Greg Craig slipped up during an answer to a Republican question about whether Clinton would be willing to answer a written interrogatory from the Senate about his Jones testimony. We would be happy to take questions and get responses to you, consult the president, if you would like to submit them. It was just a brush-off answer in which Craig meant the lawyers would respond to whatever the senators wanted, but the Republicans, and even some Democrats, took him to mean that Clinton himself would respond to written questions. Craig had opened the door to what the White House had been trying to forestall from the beginning of the trialthe direct participation of the president in the proceeding. Back at the White House, the presidents strategists were peeved at Craigs inartful answer as Senate Republicans immediately announced that they would submit an interrogatory to Clinton. Joe Lockhart, the White House press secretary, was dispatched to tamp down expectations, telling reporters that the president had already testified before the grand jury and would not answer any more questions.

  While the question-and-answer period was wrapping up, Judge Norma Johnson sided with the managers and ordered Lewinsky to submit to an interview with the House team. Lewinsky, who had gotten on an airplane early that morning in Los Angeles, arrived back in Washington to a media mob that rushed into traffic and jostled her when she entered the Mayflower Hotel a few blocks from the White House. The scene stood in contrast to the dignified images that had been emerging from the Senate over the last few weeks, a flashback to the ugly days early in the investigation when Lewinsky was stalked everywhere she went by an unruly crowd of camera crews and photographers.

  Having lost her bid to convince the judge to keep her from being dragged into the trial, Lewinsky found herself with an unanticipated ally in the Senate chamber. As Lott moved to end the Saturday session, Senator Tom Harkin tried to block adjournment in an effort to stop the Lewinsky interview. I object, he cried out. Mr. Chief Justice, I seek recognition. But this time, Rehnquist ignored him and adjourned the Senate at 3:55 P.M. Harkin had drafted a letter to Rehnquist asking him to quash Judge Johnsons order. Harkin raced down the aisle and tried to thrust the letter into Rehnquists hand before the chief justice could leave the chamber, but missed him and had to settle for delivering the letter to his assistant, Jim Duff.

  Harkin was not the only Democrat to continue pounding away at the issue. Democrats collected the signatures of all but one of their senators on a letter complaining about the move, and Byrd wrote his own, far more scathing missive. But Harkin was not about to leave it at that. The Iowa senator found a telephone and called over to the law firm representing Lewinsky. He finally tracked down her lawyer, Plato Cacheris, at home, and urged him to appeal the judges order. Cacheris was noncommittal and suggested that the senator talk with his colleague, Preston Burton. Harkin then found Burton at home and began lobbying him to appeal as well.

  Call me Tom, Harkin said as he tried to establish an alliance.

  If you dont mind, sir, Ill call you Senator, Burton replied.

  Harkin would not give up. He called again the next morning, Sunday, January 24, this time finding Burton at the office as he was preparing for his clients session with the managers, now scheduled for the afternoon. While reluctant to blow off a U.S. senator, Burton had to tell him they would not appeal. Lewinskys lawyers had concluded there was little or no chance of winning anyway, and what they did not tell Harkin was they had another iron in the fire with Judge Johnsona secret request for permission under Lewinskys immunity agreement to conduct a television interview with Barbara Walters after the trial. The last thing they wanted to do was anger Johnson by attacking her ruling in a higher court.

  For Lewinsky, who had been holed away throughout the trial in Los Angeles, far from the realp
olitik in Washington, this was the moment she had dreaded. In the year since Starrs agents had first confronted her in a Virginia hotel, life had been a series of rude awakenings. She had spent countless hours glued to the television, watching people she had never met describe her as a tart and a bimbo. She had been grilled by investigators two dozen times about her most intimate moments with the president as well as everything from her troubled family history to her depression medication. Now she felt she was about to be put in a glorified glass cage for the world to stare at her againfor the sole purpose of removing the president she once thought she loved.

  All of a sudden this whole impeachment thing is back on my shoulders, she complained in a phone call to her ghostwriter, Andrew Morton, who was working on her forthcoming autobiography, intended to help defray her massive legal bills. She was convinced that Starr thinks Im going to turn this around for him, which I dont want to do and cant do. Its not my fault that theres not really a case here. So Im nervous about what he will do to me if he doesnt get what he wants.

  She was nervous too that she was being bugged again. As soon as she arrived at the Mayflower, she switched rooms and conducted sensitive conversations with the shower running in the bathroom to mask the sound.

  ***

  Asa Hutchinson arrived at the House office building that Sunday unsure what to expect. He had hoped to be the one to question Lewinsky, but Hyde had instead tapped Ed Bryant, the soft-spoken manager from Tennessee. Bryant missed their prep session and arrived just in time to catch the ride from Capitol Hill to the Mayflower in vehicles provided by the Capitol Police. Like Hutchinson, Bryant was casually dressed in a sweater and slacks, the better to put a potentially hostile witness at ease. The plan originally called for Hutchinson and Bryant to go alone, but Bill McCollum showed up too; he wore a suit and tie.