The Breach

by Peter Baker

  Factually, the questions and answers followed the script Hutchinson had laid out. Jordan did not move off his story or offer any new disclosures that would change the dynamics of the trial. The only variance came when Hutchinson asked Jordan about a key breakfast the lawyer had had with Lewinsky on New Years Eve, 1997, at the Park Hyatt Hotel, where he often ate in the morning. During an appearance before the grand jury on March 5, 1998, barely two months later, Jordan had asserted flatly, Ive never had breakfast with Monica Lewinsky. But when she finally agreed to cooperate with Ken Starr and testified later in the year, she maintained that they did have breakfast that day and that she had mentioned some notes in her apartment that she had written to Clinton. Go home and make sure theyre not there, she remembered Jordan telling her, advice she took to mean she should destroy the notes, which she then did. If her account was true and it could be proved that Jordan intended for her to discard the missives rather than turn them over in response to the subpoena from the Jones lawyers, it could be construed as destroying evidence and obstruction of justice.

  Hutchinson reminded Jordan of this conflict in testimony and produced an American Express receipt from the lawyers account showing that he had paid for two coffees, an omelette, an English muffin, and a hot cereal at the Park Hyatt on December 31, 1997, just as Lewinsky had described. Jordan abruptly reversed course. Although he did not remember the breakfast when he testified before the grand jury, he said he now accepted that they did meet that morning. My recollection has subsequently been refreshed, and so it is undeniable that there was a breakfast in my usual breakfast place, in the corner at the Park Hyatt.

  Hutchinson got excited, but did his best to hide it. This was a new admission! True, it would not alter the course of the trial, but it was striking that Jordan was now changing his story. Several people in the rows behind him exchanged notes pointing out the development to each other.

  And do you recall a discussion with Ms. Lewinsky at the Park Hyatt on this occasion in which there were notes discussed that she had written to the president? Hutchinson pressed on.

  I am certain that Ms. Lewinsky talked to me about notes.

  Certain they talked about notes? Hutchinson found that intriguing. Jordan did not remember the breakfast but now suddenly recalled what was said at it? Hutchinson kept going. And did you make a statement to her, Go home and make sure theyre not there?

  Mr. Hutchinson, Jordan said firmly, Im a lawyer and Im a loyal friend, but Im not a fool, and the notion that I would suggest to anybody that they destroy anything just defies anything that I know about myself. So the notion that I said to her go home and destroy notes is ridiculous.

  Well, I appreciate that reminder of ethical responsibilities. It was

  Jordan interrupted, No, it had nothing to do with ethics, as much as its just good common sensemother wit. You remember that in the South.

  Just before 2:30 P.M., Hutchinson ended his inquiry. Senators Fred Thompson and Chris Dodd, who were presiding, turned it over to David Kendall for cross-examination. To Kendall and the rest of the White House team, Hutchinson had clearly done a far better job than Ed Bryant had done with Lewinsky the day before; their respect for Hutchinsons lawyering skills increased. Still, just as with Lewinsky, the presidential lawyers calculated that nothing Hutchinson had elicited from Jordan had changed the essential dynamics of the trial, so they decided to sit on their lead and ask just two quick questions.

  By prearrangement, Jordan wanted to make a statement at the end of his deposition defending his integrity, and Kendall obligingly asked an open-ended question to let him do so. Mr. Jordan, is there anything you think it appropriate to add to the record?

  Hutchinson objected, and Thompson asked Kendall to rephrase.

  Mr. Jordan, you were asked questions about job assistance, Kendall said. Would you describe the job assistance you have over your career given to people who have come to you requesting help finding a job or finding employment?

  Jordan pulled notes out of his pocket and began a testimonial to his roots and sense of propriety. Well, Ive known about job assistance and have for a very long time. I learned about it dramatically when I finished at Howard University law school, 1960, to return home to Atlanta, Georgia, to look for work. Jordan went on to recall how no law firm or government agency would hire a young black lawyer. His high school bandmaster called a fraternity brother and put in a good word. As a result, he said, I felt some responsibility to the extent that I could be helpful or got in a position to be helpful, that I would do that.

  Kendall followed up to drive home the point. Was your assistance to Ms. Lewinsky which you have described in any way dependent upon her doing anything whatsoever in the Paula Jones case?

  No.

  While Hutchinson was jousting with Jordan, the House team was facing another threat they knew nothing about. If the managers did not succeed in turning Clinton out of office, the president was vowing that day that he would do it to them. Dick Gephardt had come to the White House to let Clinton know that he would not challenge Al Gore for the Democratic presidential nomination in 2000 but would instead concentrate on retaking the House, a decision that had actually been made in November just days after the midterm election. A relieved Clinton welcomed the news and promised to do everything he could to make Gephardt the Speaker. Then, revealing a little of the anger that aides knew consumed him, Clinton made clear he had his sights set on the managers and wanted Gephardt to target the presidents enemies.

  You have a chance against Barr, Clinton said of the Georgia conservative who had crusaded for impeachment before anyone else. He only got fifty-five percent against a nobody. In fact, Clinton rattled off numbers and names of opponents in several of the managers districts, indicating how much he had thought about it. He named four Republicans in particular he wanted to defeatBarr, Jim Rogan, Steve Chabot of Ohio, and Jay Dickey of Arkansas. Dickey was not one of the managers, but he represented the presidents hometowns of Hope and Hot Springs and Clinton felt intensely about the congressmans betrayal in voting for impeachment. Beating them, Clinton believed, would show for historys sake that their prosecution of him was illegitimate from the beginning.

  With two depositions behind them, the managers had just one last shot at a witness, and this was the one Rogan and Lindsey Graham had been itching to confront. Sidney Blumenthal had a way of irritating Republicansand more than a few Democratswith a smug, condescending attitude, and in many ways that was what his deposition was all about. The managers had decided to call him in part because they needed a villain. The House team was counting on Blumenthal to say something outrageous during his deposition.

  Just as Rogan and Graham had worked behind the scenes to replace Ed Bryant as the questioner at the Lewinsky deposition, they spent plenty of time collaborating on how to handle Blumenthal. Rogan had been assigned to do the interrogation, but he wanted Graham to do it with him, convinced that it could rattle Blumenthal because of the enmity that had developed between the two men. More than anyone else, Graham had advanced the charge that the White House had tried to smear Lewinsky, and Blumenthal resented being cast as the chief culprit in such a campaign. But Hyde had set down the rule that only one manager could do each deposition. Having blown off Bob Barr, Hyde could not very well allow Graham to participate.

  The day before Blumenthal was to show up for questioning, Rogan tracked down Graham on his cellular telephone in South Carolina to suggest a plan: Maybe Ill call in sick and youll do it.

  No, Graham said, you cant do that. But he had another idea. He would call Hyde and simply announce that he planned to show up at the Blumenthal deposition to share in the questioning with Rogan. He did and Hyde finally relented, but warned him not to tell anyone in advance.

  The Democrats were equally aware that Blumenthal was their least sympathetic witness. While they knew they could count on him for complete loyalty to the president, they did not want him to spout off and give ammunition to the other side, so the Democratic la
wyers stressed that he should restrain himself when the camera came on. In fact, they pressed the point so strongly that some Democratic strategists became worried when Blumenthal showed up so deflated, fearing that they had gone too far by undermining his confidence.

  When the time came to respond, Blumenthal kept his answers short and flat, going out of his way not to be inflammatory. The central recollection the managers wanted to put on the record was the conversation Blumenthal had had with the president in the Oval Office on the evening of January 21, 1998, when Clinton tarred Lewinsky as an unstable young woman who had stalked him and fantasized a relationship with him.

  He, uhhe spoke, uh, fairly rapidly, as I recall, at that point and said that she had come on to him and made a demand for sex, that he had rebuffed her, turned her down, and that she, uh, threatened him, Blumenthal testified. And, uh, he said that she said to him, uh, that she was called the stalker by her peers and that she hated the term, and that she would claim that they had had an affair whether they had or they hadnt, and that she would tell people. Blumenthal added that he believed Clintons account. He was, uh, very upset. I thought he was a man in anguish.

  Rogan elicited the basic elements in about an hour and turned it over to Graham. That was when the fireworks began. Graham was determined to show that the White House had deliberately spread unflattering information about Lewinsky to destroy her credibility. But the folksiness that seemed so spellbinding in his floor speeches made for sometimes meandering questions that irked the lawyers for Blumenthal and the White House, not to mention the two senators who were presiding, Arlen Specter and John Edwards. It took only two questions to start drawing indignant objections from the Democratic lawyers. Just eight minutes into the interrogation, the presiding senators had to call an off-the-record recess to confer for twenty-eight minutes about how to handle Grahams line of questioning.

  The first question drew a concession Graham wanted but seemed surprised to get. Knowing what you know now, do you believe the president lied to you about his relationship with Ms. Lewinsky? Graham asked Blumenthal.

  I do, he answered simply.

  I appreciate your honesty, Graham said.

  Over the next few hours, though, Graham could not elicit any more admissions he sought, and at one point he grew so frustrated he slammed down his notepad in aggravation. He cited news articles that quoted unnamed people at the White House describing Lewinsky as a stalker who was known as a flirt, wore her skirts too short, and was thought to be a little bit weird. But Blumenthal steadfastly denied spreading negative information about Lewinsky or revealing his stalker discussion with the president to virtually anyone.

  I never mentioned my conversation, he testified. I regarded that conversation as a private conversation in confidence, and I didnt mention it to my colleagues, I didnt mention it to my friends, I didnt mention it to my family, besides my wife.

  Did you mention it to any White House lawyers? Graham asked.

  I mentioned it many months later to Lanny Breuer in preparation for one of my grand jury appearances when I knew I would be questioned about it. And I certainly never mentioned it to any reporter.

  Blumenthal acknowledged discussing Lewinsky in general with reporters, but without defaming her. I talked about Monica Lewinsky with all sorts of peoplemy mother, my friendsabout what was in the news stories every day. Just like everyone else, but when it came to talking about her personally, I drew a line.

  So, when you talk to your mother and your friends and Mr. Lyons about Ms. Lewinsky, Graham asked, referring to Gene Lyons, an Arkansas journalist sympathetic to Clinton, are you telling us that you have these conversations, and you know what the president has told you, and youre not tempted to tell somebody the president is a victim of this lady, out of his own mouth?

  Not only am I not tempted, I did not.

  CHAPTER SEVENTEEN

  Good God Almighty,take the vote!

  President Clinton was fuming. The way theyre going about this, Ill get less constitutional protection than a common criminal on the street who committed a heinous crime! And yet Ive never been charged with any crime! On the other end of the telephone line was Tom Harkin, the Iowa senator who had helped Clinton recruit Dale Bumpers to his defense team earlier in the trial. Now the president was looking for help in defeating Susan Collinss plan to adopt findings of fact that would allow the Senate to conclude by a mere majority vote that he had lied under oath and impeded the discovery of evidence even if it failed to convict and remove him by the two-thirds majority required by the Constitution.

  By this point, Clinton knew he would not be forced out of office at the end of the trial. But this findings proposal had presented a whole new threat. The concept was similar to a process often used by regular courts in civil cases and certain criminal trialsbefore a final verdict is entered, a judge or jury issues findings of fact that lay down their determination about the truth of the evidence. The findings sort through the competing claims of plaintiff and defendant and conclude which are proven and which are not. Based on that established set of facts, the judge or jury then determines whether a defendant violated the law. In this case, the intent was not to help the jury reach an outcome but to lay out a permanent record of Clintons actions. If the idea garnered bipartisan support as Collins hoped, it could negate the vindication Clinton so desperately wanted out of an acquittal vote.

  In recent days, the idea had begun to catch a little fire among Republicans and even a few Democrats. Like censure, it would allow senators to express their disapproval of the presidents misconduct, yet it would state legal conclusions and become part of the official trial record without the possibility of being expunged by a future Congress, as a simple resolution of reprimand might be. Clinton feared it might have a more perilous impactit could, in effect, declare him guilty of federal crimes and provide ammunition to Starr to convict him in a regular court.

  Clinton tracked down Harkin in the Democratic cloakroom during a break in the trial to vent his outrage. This was entirely unfair, he complained. The Republicans were trying to do with fifty-one votes what they could not obtain sixty-seven votes to do. Findings would amount to a criminal indictment, and yet he had not been afforded any of the customary protections of a court process, Clinton said.

  I can handle a censure if you see fit to do that, he told Harkin. But this has implications that would treat me worse than a common criminal.

  Harkin needed no convincing. He had immediately recognized the pernicious effects of the findings plan and set about trying to destroy it before it got too far. He already had made one presentation to the Democratic caucus and now spent a weekend gathering more material for his assaulthe talked by phone with Laurence Tribe at Harvard and Bruce Ackerman at Yale and collected writings from Burt Neuborne at New York University, Susan Bloch at Georgetown, and Cass Sunstein at the University of Chicago questioning the constitutionality of the idea. The criticisms were straightforward. The Constitution made no provision for a two-part vote on impeachment but instead indicated clearly that a finding of guilt required a two-thirds vote and resulted in automatic expulsion from office. The president shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors, the framers wrote, adding that punishment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.

  Other Democrats were disturbed by the findings concept as well and tried to rally against it. Such a plan would set the dangerous precedent that a Senate impeachment trial could be used for the purpose of criticizing nonimpeachable conduct, thereby trivializing the constitutional impeachment process and inviting future impeachments for non-impeachable offenses, Senator Pat Leahy wrote in a memo to Tom Daschle that was made available to other Democratic senators.

  But the topic was a sensitive one in the Democratic caucus. Many of the senators were eager for a bipartisan solution that would ch
astise Clinton. Joe Lieberman and Bob Graham had both spoken with Collins about her idea and suggested they were open to persuasion. Senate Democrats were nervous about exonerating Clinton, only to watch some explosive new allegation arise before the end of his term. By now, they knew Juanita Broaddrick had given an interview about her rape charge. Nervous NBC executives had bottled up the interview and so far it had not aired, but if it did, no one could predict the public reaction. Republicans were openly rooting for the prospect. Senator Chuck Grassley of Iowa had taken to wearing a button on the Senate floor that said, Free Lisa Myers. So the argument that findings of fact might be bad for Clinton carried little appeal in the Democratic caucus. When Bob Bauer, Daschles lawyer, mentioned at a caucus meeting that findings could increase the presidents legal exposure once the trial ended, Senator Kent Conrad objected, Im hearing a lot of people talking about a strategy about defending Bill Clinton. Im not here to defend Bill Clinton.

  Still, Clinton continued to press the point with anyone who would listen. On Sunday, January 31, he invited a group of allies and advisers to Camp David to watch the Super Bowl with him, including Jesse Jackson and his two sons, lobbyists Mike Berman and Pat Griffin, Energy Secretary Bill Richardson, and lawyers Richard Ben-Veniste and Lanny Davis. The president paid little attention as John Elway led the Denver Broncos to a second straight national championship and instead talked politics with his guests in the Maryland mountains. This findings proposal was completely unfair, Clinton complained to some guests. It was rewriting the rules after the game had been played, he said. Davis, among others, volunteered to call Joe Lieberman and make that case.