The Breach

by Peter Baker

  In fact, Davis made it a point to launch a public crusade on the presidents behalf against findings of fact. Even before the Super Bowl, he had gone on a radio station in Bangor, Maine, to attack Susan Collinss idea, comments that got back to the senator and infuriated her. Collins had been searching for a way to sanction Clinton without convicting him since before the trial began, when she had read that article back in December advocating separate votes on conviction and removal. Collins had floated it by Trent Lott, who offered encouragement, but Tom Griffith, the chief Senate lawyer, had quickly shot it down, deeming it constitutionally flawed. When her top aides former law partner mentioned that many courts use findings of fact, Collins seized on the concept as another possible solution.

  Thats it, she said. Thats what we need to do. It would put the Senate on record. We dont let the president escape a finding that he did these things.

  Others had been advocating the same idea. Steve Buyer had mentioned it on the floor, Lindsey Graham had floated it on a Sunday talk show, and Senator Pete Domenici had brought it up with the Republican caucus. During the secret morning meetings of Lotts political advisers, consultant Frank Luntz had become fixated on findings, arguing almost every day that the Republican base would revolt against their elected officials if Clinton was let off with no punishment. So Lott decided to appoint a working group to explore the proposal and draft possible language, headed by Domenici, the old-bull Budget Committee chairman, and Olympia Snowe, perhaps the leading moderate in the caucus and the most likely to bolt on any final votes. Collins was put on the task force along with fellow Republican senators John W. Warner of Virginia, John Ashcroft of Missouri, and Tim Hutchinson, Asas brother.

  As the working group began to meet, it found its task harder than it seemed. Some thought Lott was sincere in his interest in findings, while others suspected he had only created the group to keep possible troublemakers busy, as he often did during legislative sessions. Domenici was interested in making his mark with the findings and pushed strongly to go forward in the face of serious doubts among his peers. Tension also developed between Snowe and Collins, the two women from Maine, who seemed to be jockeying for attention in the national press as the voice of New England moderation in the Republican party. Snowe struck some as resentful that her junior colleague was grabbing so much of the spotlight, while Collins appeared disgruntled about the older womans attempts to overshadow her. Eventually, Snowe and Collins began drafting separate versions of the findings.

  Then there were the constitutional and strategic considerations. Tom Griffith, who was skeptical of innovations on the framers work, quickly dismissed the original version of the findings that Domenici showed him because it used criminal language and had the Senate drawing legal conclusions. Concerned that their own lawyer was not on board, Lott called a meeting in his office in an attempt to get Griffiths blessing for the general concept at least. Although appointed by Lotts predecessor, Bob Dole, Griffiths role was to be the Senates neutral arbiter, and he tried to straddle a careful line. Nothing in the Constitution prohibited the Senate from issuing findings of fact, Griffith said, but it had never been done before, and there were plenty of reasons why. Lott took that measured appraisal as an endorsement.

  At 9:30 A.M. on Wednesday, January 27, just hours before the Senate would vote against dismissing the case and for calling witnesses, Domenici convened a meeting of the findings working group in Lotts conference room. With the help of Viet Dinh, a Georgetown law professor he had hired to help him, Domenici had a new draft that did not explicitly draw legal conclusions, using words like false and misleading testimony. Since it was less objectionable, Griffith signed off on it. But as the group met again through the day, the senators were uncertain whether to go with a short, straightforward document that might have a better chance of attracting bipartisan support or a longer, more detailed version that would provide a complete catalog of Clintons misdeeds for the history books. Snowe preferred the more concise variant, while Collins pushed for a fuller accounting. The meeting broke up inconclusively.

  Over the next week, as Collins and the others continued to deliberate among themselves, they simultaneously reached out to Democrats who might come on board, but quickly ran into a cross fire by the presidents allies. Aside from the public assault waged by Lanny Davis and others, the White House launched a subterranean campaign intended to keep Democratic senators away from findings. White House officials privately threatened to amend it to death if Republicans insisted on introducing findings of fact on the floor, ensuring that the process would degenerate into the sort of partisan mess that few senators wanted. Paul Begala, the presidents counselor, and another White House aide, Jonathan Prince, collaborated on a list of their own findings of fact that could be proposed as amendments in any floor fight over the ideathat the House impeached the President on the most narrow, partisan vote in history, that Ken Starr failed to include Monica Lewinskys direct exculpatory testimony in his Referral, that Mr. Starrs investigation has lasted more than four years and cost American taxpayers more than 50 million dollars, and so on. Begala and Prince came up with forty-five such findings and faxed them to Daschle aide Joel Johnson to make their point.

  At a GOP policy lunch on Tuesday, February 2, as Vernon Jordan was undergoing his interrogation elsewhere in the Capitol, Domenici stood up to sell his fellow Republicans on the findings idea, a copy of the latest draft rolled up in his hands like a college diploma. The parliamentarian had signed off on it, and Domenici told the group that he believed he had five Democratic senators interested in joining them. While he did not name them, the ones he had in mind were Joe Lieberman, Bob Graham, Russ Feingold, Bob Kerrey, and Pat Moynihan. Domenici then read his draft of the findings:

  The Senate finds that, regarding Article I, the House Managers established to the satisfaction of the Senate that: I. The President of the United States, William Jefferson Clinton, on August 17, 1998, swore to tell the truth, the whole truth, and nothing but the truth before a United States grand jury. Contrary to that oath, William Jefferson Clinton willfully provided false and misleading testimony to the grand jury. The document listed three examples. The Senate finds that, regarding Article II, the House Managers established to the satisfaction of the Senate that: II. The President of the United States, William Jefferson Clinton, wrongfully took steps to delay the discovery and cover up the existence of evidence and testimony related to Jones v. Clinton, a civil rights lawsuit, and to a United States grand jury investigation. Six actions would be cited, including the job search, the hidden gifts, and Lewinskys false affidavit.

  Domenici said they could keep it short or list the bill of particulars, then threw the question to the assembled group. Paul Coverdell, an energetic senator from Georgia, said he preferred the shorter version because he was con cerned that having a division on that would weaken them on the final vote. But there was already division. Other Republicans were not sold on the findings concept in the first place. Slade Gorton and New Hampshires Judd Gregg both expressed worry about the effect on future presidentsthis would be a floor for bad conduct, not a ceiling, they said. Besides, a decision on whether to go with a long or short version depended entirely on whether they could win over any Democrats. Despite Domenicis optimism, that remained uncertain. From the beginning, Lott had told Domenici, Collins, and the others to show him the Democratic votes. I really want to see them put their money where their mouth is, he said regularly.

  The pivotal moment came the next day at another closed-door meeting of the Republican conference that stretched on for two and a half hours. By now, most of the senators had seen the videotape of Lewinskys deposition, and regarded it as a debacle for the House managers. It was clearly a bad idea to let her testify on the floor. Some of the Republican senators even wanted to prevent the deposition video from being released out of fear of embarrassing Ed Bryant and jeopardizing his reelection chances.

  From the front of the room, Lott laid out the situation. Daschle ha
d made clear to him that he wanted no witnesses, no video excerpts, and no findings of fact. If the Republicans would not agree, then the Democrats would vote no in a bloc. Worried that he could not command the same party unity in his own caucus, Lott was making the situation sound as ominous as he could in hopes of rallying Republicans to his side. It was all or nothing, he told the room. They all had to stick together or there would not be any of them left.

  By this point, however, support for calling witnesses to the well of the Senate was quickly collapsing. The senators went around the room in a rapid-fire, round-robin discussion, each summarizing where he or she stood in just ten or fifteen seconds. Kit Bond and Phil Gramm were pro-witness and pro-video. Orrin Hatch said the House should only ask for Lewinsky. Rick Santorum wanted all three on the floor. You cant get any worse than the video, he said. Oh, yes, you could, others countered. Things are getting worse, said Slade Gorton. Don Nickles added, Weve got to finish next weekit can get worse. There was an ocean of downside in going forward with witnesses, offered Fred Thompson. Get out of Dodge, urged Sam Brownback.

  The discussion came back around to what to do after the witness issuenamely findings of fact. By this point, Domenici had abandoned the longer version in favor of a shorter, less specific draft. As many as ten Democratic senators had been on record in news accounts and public statements saying harsher things about Clinton, but the White House lobbying seemed to be paying offone by one, Democrats were telling Domenici and Collins that they would not sign on to their findings. At this point, Fred Thompson stood and spoke out against the idea. Made famous as a lawyer for the Senate Watergate committee, Thompson had given more thought to impeachment and the constitutional prerogatives than nearly any of his colleagues, and the more he considered the findings proposal, the more uncomfortable he had become. We have great flexibility, but we shouldnt hamper future trials by setting a floor, by saying that a future president can get away with thislying, a cover-up, he told the Republican gathering. That would become part of the impeachment process. Its never been done before. The only people who needed the findings were those planning to vote not guilty, he added. You have all the elements you need to vote to convict.

  After everyone had spoken, GOP aides tallied the likely lineup within their own caucus, and the disturbing count showed eight Republican supporters for findings and ten opponents. If the Republicans could not get any Democrats and their own caucus was split, then the outcome was clear: the findings proposal was dead.

  While Susan Collinss efforts to orchestrate findings of fact were unraveling, Senator Dianne Feinstein was laboring hard to revive the idea of censure as a reasonable outcome to the trial. Feinstein, the California Democrat who had been so outraged because she had been at Clintons side at the White House when he initially denied having sex with that woman, had long since cooled down enough to turn her ire against Starr and the House Republicans instead. But she did not want Clinton to get off scot-free any more than her fellow senators across the aisle did. She felt strongly that the president had to be held accountable and censure seemed to be the only avenue open to them.

  As with Collins and her findings, Feinstein knew her proposal had to be bipartisan to have any hope of passing, let alone to infuse it with any lasting meaning, and so she set about searching for a Republican to team up with. She found a willing partner in Bob Bennett, the blunt-spoken senator from Utah, who was not related to the presidents lawyer with the same name. The two sounded out colleagues to see where possible votes might be and began work on some language. In trying to make it genuinely bipartisan, Feinstein and Bennett had to appeal to senators with widely divergent views of the case. Democrats resisted the idea of drawing any conclusions that sounded as if Clinton broke the law because it would seem to conflict with their not-guilty votes. Republicans, or at least those willing to consider it, did not want some weak resolution without teeth because it would not really punish Clinton but merely provide political cover for his allies to acquit him. As Feinstein and Bennett played wordsmiths, they found the tougher they made the language to attract Republicans, the more Democrats they would lose, and vice versa. And a solid core of senators refused even to consider the idea, including liberals who did not want to beat up on Clinton, conservatives who would settle for nothing less than removal, and institutionalists on both sides who harbored genuine concerns about censures constitutionality. The negotiations were so dicey that during conversations on the floor, Senator Chuck Schumer joked that the censure resolution should say, We not only condemn what Clinton did but anything he might do in the future.

  Over several days, Feinstein and Bennett tweaked the wording until, after some twenty drafts, they had one they thought should work. It included a series of whereas clauses designed to excoriate Clinton for his conduct, starting off with a bare-knuckled introduction: Whereas, William Jefferson Clinton, President of the United States, engaged in an inappropriate relationship with a subordinate employee in the White House, which was shameless, reckless and indefensible . . . It went on to deem his conduct unacceptable for a President of the United States and concluded that he has brought shame and dishonor to himself and to the Office of the President and violated the trust of the American people.

  Those were strong words, but they did not address the legal charges included in the articles of impeachment, so Bennett convinced Feinstein to add another whereas clause that he hoped would appeal specifically to Collins and other Republican authors of the now doomed findings of fact: Whereas, William Jefferson Clinton, President of the United States, gave false or misleading testimony and impeded discovery of evidence in judicial proceedings . . . That did not say he committed perjury or obstruction of justice, but it came closer. The pair also included another clause intended to win over skeptics: Whereas William Jefferson Clinton remains subject to criminal and civil actions . . . In other words, he would not be getting away with anything if the Senate left him in office because Starr could prosecute him in criminal court or Judge Susan Webber Wright could find him in contempt.

  Henry Hyde was still looking for a way out too. At a meeting of the managers on the same afternoon that the findings plan was sinking in the Senate Republican conference, Hyde again brought up Orrin Hatchs alternate proposal to adjourn without a final up-or-down vote. Asa Hutchinson, Jim Rogan, and the others made clear they were not interested. They had not come all this way for an inconclusive ending. Win or loseand no one was fooling himself into thinking they would winthey wanted to carry their mission to completion. Hyde knew his own team was a brick wall on this point. But without their knowledge, he also tried another backdoor avenue to adjournment. Just as he had secretly reached out during the House proceedings, Hyde spoke with his Democratic friend from the Judiciary Committee, Howard Berman, and revealed that he was more open to a compromise than the younger managers. Berman passed that along to Joe Lieberman, suggesting that the senator convey this to his colleagues. For it to have any credibility, Lieberman replied, Hyde would have to tell Republican senators himself, but evidently he was not willing, since the Connecticut senator never heard from the lead manager.

  At the White House, the presidents aides knew that fueling the almost desperate desire to find a way to slap Clinton at the end of the trial was the widespread fear, even among some Democrats, that acquittal would set off a Rose Garden jubilee of celebration and claims of vindication, along the lines of the defiant pep rally on the South Lawn following the House impeachment vote in December. Peppered with questions about the prospect at his daily briefing, Joe Lockhart tried to dismiss it with a quick quip: I now declare, in a postimpeachment era, this a gloat-free zone. John Podesta later found Lockhart and groused at him for the line, but it succeeded in defusing the issue for the moment.

  Clinton himself did all he could to look repentant rather than jubilant the next morning, Thursday, February 4, as he used one of his favorite settings, a prayer breakfast, to talk about reconciliation. While discussing Middle East peacemaking, hi
s own situation was clearly not far from his thoughts. If Nelson Mandela can walk away from twenty-eight years of oppression in a little prison cell, we can walk away from whatever is bothering us, he said, citing one of his favorite aphorisms as he struggled with his own anger at his political foes. If Leah Rabin and her family can continue their struggle for peace after the prime ministers assassination, then we can continue to believe in our better selves.

  The president received a little salvation from a pair of critics at the breakfast. Lord, Joe Lieberman prayed aloud before the audience, may I say a special prayer at this time of difficulty for our president, that you would hear his prayers, that you help him with the work hes doing with his family and his clergy, that you accept his atonement. So, Lord, I pray that you will not only restore his soul and lead it in the paths of righteousness, but help us join with him to heal the breach, to begin the reconciliation, and restore our national soul. Congressman Steve Largent, a staunch conservative Oklahoma Republican who had voted for impeachment, shared in the themes of redemption and fellowship. Mr. President, I may not have voted with you in the four years Ive been in Congress, but I want you to know that I care for you and love you, and thats part of the mystery of Jesus.

  In a final strategic retreat along the lines that Orrin Hatch had suggested separately in the Senate Republican conference, the House managers decided later that morning to ask for only one witness to be called to the floor to testifyMonica Lewinsky. Otherwise they would settle for being allowed to show videotaped portions of the other two depositions. Returning to the floor to argue the matter before the Senate, the managers described the depositions and pleaded for what they considered one last scrap. Please allow this to be a public trial in the real sense, Rogan asked.

  The Senate has indulged the managers, Greg Craig countered on behalf of the White House. And despite the misgivings of many senators, the Senate has leaned over backwards to accommodate the managers. We believe it is time for the Senate to say it is time to vote.