I look forward to continuing my intellectual challenge with you … in the coming months. Thank you again for a fantastic experience.
Yours sincerely,
Prince Andrew
The most frequent misconception about celebrities is that they must be “so fascinating.” The opposite is often the case. Most of my famous clients, with some important exceptions, have been uninteresting. Some have been outright boring. We tend to confuse their public persona and surroundings, which fascinate us, with their private personalities, which are often banal, mundane, and self-centered. Many of them have no ideas, no insights, and little to say about matters outside the narrow spheres of their professional lives. Yet we listen to their often uninformed opinions on important issues of the day affecting the world, just because they have a handsome face, strong muscles, or other talents or attributes that are irrelevant to their presumed credibility on the matters about which they are opining. Celebrities may seem fascinating from a distance, but the reality, viewed close-up, is often very different.
Their cases and controversies may be fascinating in part because of who they are, in part because of what they are accused of doing, and in part because the public obsesses over celebrity.
Brando
I have a small apartment in New York, which my wife and I use on weekends. On this particular weekend, I lent it out to my doctor, who called me from the apartment and said that while he was out, a message was left on the machine from a guy who did a pretty good imitation of Marlon Brando. He told me that the caller had criticized my diction on the outgoing message. I called my machine. It was Marlon Brando. I called him back, and he asked me if I would help get his son out of jail.
Christian Brando was originally charged with murder, after he shot his half-sister Cheyenne’s boyfriend, claiming that the boyfriend had physically abused her. Christian claimed that he confronted the boyfriend and they struggled over his gun, which fired accidentally. The prosecution claimed that it was a cold-blooded murder fueled by Christian’s drunken state.
Marlon Brando asked me to work with Robert Shapiro to get his son out of prison. Brando blamed himself for his family problems and wanted to help as much as he could. He said he heard that I “could perform miracles,” and he wanted my input. I tried to disabuse him of the notion that I could free his son immediately, but I promised to work as hard as I could with Shapiro. Eventually a plea bargain was struck and Christian pleaded guilty to manslaughter. He was released from prison after serving only five years, much to the chagrin of many in the public and the media. The story did not, however, have a happy ending. Cheyenne committed suicide in 1995 at age twenty-five and Christian died of pneumonia in 2008 at age forty-nine.
Marlon Brando, whose stage and screen presence was electric, was boring and predictable when I encountered him. He had stereotypically “Hollywood” political views, conventional ideas, and no sense of humor. He was accustomed to yes-men agreeing with his every idea and didn’t take criticism or disagreement easily. He loved his children but didn’t seem to have any notion of how to relate to them. All in all he struck me as a rather pathetic figure, totally at odds with his public persona.
The two cases I will now discuss received enormous media coverage. Both, not surprisingly, involve sex. Both involve world-famous people who were accused of having inappropriate sexual contact with inappropriate young women. Unlike most celebrities, both of these were fascinating people.
The paradigm of a famous person being tried under the klieg lights of worldwide media coverage was, of course, the impeachment of President William Jefferson Clinton, in which I played several roles: lawyer, witness, political advocate, television commentator, book author, and friend.
PRESIDENT BILL CLINTON
I first met President and Mrs. Clinton on Rosh Hashanah in 1993. We shared mutual friends and teachers from Yale Law School, but we had never actually met before I invited the President and the First Lady, who were vacationing on Martha’s Vineyard, to join my family for Rosh Hashanah services. When I learned that the Clintons were living near us on the Vineyard, I had the following letter delivered by a mutual friend:
Dear Mr. President:
It is my honor to invite you on behalf of the Martha’s Vineyard Hebrew Center to attend our Rosh Hashanah services. It is a part of the Jewish tradition for the congregation to bless the President and the great nation that has given us the freedom to practice our religion without prejudice or discrimination. Our congregation would love to extend that blessing personally to you and to invite you to respond with your own New Year’s greeting or to accept our good wishes silently.
In years gone by, Jews in different countries lived in fear that government officials would enter their religious sanctuaries. Such visits were often prelude to crusades, inquisitions, pogrom, and—eventually—the Holocaust. The lyrics of the Broadway hit “Fiddler on the Roof” include the following mock prayer for the Russian Czar. “May the good Lord bless and keep the Czar—far away from us.” In contemporary America, the attitude of the Jewish community is quite different: We welcome our president with open arms, [along with] your family and staff members (Jewish or non-Jewish).
The President accepted, thus becoming the first sitting American president ever to attend a Jewish High Holiday service. I sat next to him during the service and shared a mahzor (Holiday prayer book) with him for most of the davening, pointing out the prayers and whispering explanations of such concepts as the talit (“prayer shawl”) and mitzvot (“good deeds”). We used a prayer book in which the Hebrew was transliterated for the parts that are chanted, and the President and Mrs. Clinton sang along in Hebrew. Then the President spoke, declaring his role in the Mideast peace process “one of the most rewarding things I’ve done” and wishing the Jewish people a “Shana Tova.” He wore a white kippah my wife and I gave him from our wedding. He and Hillary signed it. We have kept it as a treasured reminder of that historic night.
As I watched the President davening in his yarmulke, I thought of Jules Feiffer’s quip: “The time is at hand when the wearing of prayer shawl and skullcap will not bar a man from the White House—unless, of course, the man is Jewish!”7
Following the service, the Clintons invited us to join them for dinner at the Savoir Fare restaurant in Edgartown. At a relaxed dinner, the President discussed movies with my son, who is a producer, while my wife and I discussed health care policy with Hillary.8 At the end of the evening, the President lifted a glass of champagne to toast the Jewish New Year. As I touched my glass to his, I gave the traditional Jewish toast, “L’Chaim”—“To Life.”
During subsequent summers, the Clintons vacationed in Martha’s Vineyard and lived near us. We frequently dined, partied, and even square-danced with them, and became friends. We were invited to the White House on several occasions and to Bill’s birthday parties on the Vineyard. The President sought my advice from time to time.
Sometimes, I offered unsolicited advice, such as when I urged him to commute to time served the life sentence of Jonathan Pollard, who had pled guilty to passing classified information to Israel while working as an American intelligence analyst. The President wanted to commute the sentence, but he got push-back not only from the intelligence community but also from several Jewish senators. He asked me: If he couldn’t even get the Jewish senators to support commutation, how could he justify it to the intelligence community, which was adamantly opposed to it?
Another issue on which I initially offered my unsolicited advice involved the Monica Lewinsky scandal. As I watched the drama unfold, I saw a familiar pattern that had gotten other celebrities in trouble: opting for short-term gratification without considering the longer-term consequences.
At every decision point, it seemed to me, the President and his advisors opted for a political tactic that helped them get good headlines and poll results in the short term, rather than focusing on the longer-term strategy that might have prevented an entirely lawful sexual indiscretion fr
om turning into a possible crime.
The first point was, of course, the President’s decision to engage in a sexual relationship with a White House intern in the first place, especially at a time when he knew he was under intense investigation by Kenneth Starr, a somewhat puritanical prosecutor.
If there was a “vast right-wing conspiracy” out there waiting to “get” the President, as Hillary Clinton had alleged, it is difficult to imagine any action more reckless than Oval Office sex with a young blabbermouth whose goal was probably as much to brag about her conquest of the President as to engage in an intimate relationship. She really did want oral sex: She wanted to talk about it. And she did—to more than a dozen people. The President achieved immediate gratification, while risking long-term consequences to his marriage, his presidency, and, above all, the nation’s stability.
At the time he began his encounter with Lewinsky, Clinton knew that he might have to testify about his sex life. He knew that his enemies had the powerful weapon of subpoena power aimed directly at his presidency. That is probably why he was reluctant to engage in sexual intercourse. He wanted sex with deniability. What he got was unsatisfying sex with unconvincing deniability. Or, as Maureen Dowd put it:
Mr. Clinton’s habit, with language and behavior, has been to try to incorporate his alibi into his sin. The result is more twisted than titillating.9
This was not the first time Bill Clinton put his future at risk for immediate sexual gratification. But in every other instance he had been able to avoid the long-term consequences. I am certain that he believed that this pattern of short-term risk-taking and subsequent avoidance of long-term consequences would be repeated. I doubt he believed, at the moment that he first allowed Lewinsky to touch him in a sexual manner, that this action would eventually lead to possible removal from office. He would not have consciously taken such a known risk. But when people have succeeded so often in the past in achieving both immediate gratification and avoidance of long-term consequences, they miscalculate the odds and act as if they can have their cake and eat it too.
The history of many of my own celebrity clients is largely a history of defendants who for years—sometimes decades—have risked their careers, family lives, fortunes, and freedom for some form of immediate gratification. Finally, when they are caught, everyone asks: “How could they have risked so much for so little?” What people fail to understand is that the “little” thing for which they were caught was usually only the tip of a large iceberg of misconduct that they had gotten away with for years. In their minds, therefore, they were risking very little (the unlikelihood that this time they would get caught) for a great deal (a lifetime of small, short-term gratifications, which add up to something for which it is worth taking small risks).
In retrospect, we consider such actions reckless because we are running the video backwards: We know he was caught. But at the time Clinton made the decision, he probably did not regard it as any more reckless than the similar decisions he had previously made, when it seemed from the results that he had not risked his career. He had probably played the same sexual-verbal game before: limiting his sexual contact so that he could plausibly deny that he engaged in “sexual relationships” outside of his marriage.10 But he never before had to testify under oath about these relationships. What he failed to appreciate was how much the risks had increased as the result of the legal proceedings then in place—the Paula Jones case, in which a former Arkansas state employee was suing Clinton for sexual harassment—and the Kenneth Starr investigation. These legal proceedings escalated the stakes by turning a private sexual encounter into the subject of sworn testimony and investigation by an independent counsel.
It is unlikely that Bill Clinton confided the truth of his relationship with Monica Lewinsky to his lawyers, because his principal lawyer was representing both him and his wife. Thus if he didn’t want his wife to find out about Lewinsky, he could not tell his lawyer about her. But it is likely that his lawyers suspected that there was some truth to the rumors that something untoward had occurred between Clinton and Lewinsky. After all, Clinton did testify that he had engaged in adulterous sex with Gennifer Flowers, despite his previous public denial. Moreover his reputation was well known. Any lawyer worth his salt should have based decisions regarding the President’s testimony on the assumption that he may have engaged in a sexual relationship with Monica Lewinsky. A good lawyer should also have assumed that a twenty-two-year-old intern who had engaged in a sexual relationship with the President would talk about it.
President Clinton’s lawyer in the Paula Jones case, Robert Bennett, was on notice that the President was going to be asked about Lewinsky. If he had conducted any investigation to determine the nature of their relationship, he would have uncovered the widespread concern around the White House over Lewinsky’s unusual access to the President. He would also have learned of the dozens of logged meetings between the President and a young government employee. This should have alerted Bennett to probe more deeply. At the very least he should have interviewed Lewinsky, confronted her with the concerns, and asked her direct questions. He should also have interviewed those White House officials who had expressed concern. Yet on the basis of little more than an assurance from the President, he allowed an affidavit to be submitted by Lewinsky denying any sexual relationship.
Putting aside the ethical issues arising from relying on an affidavit that he was on notice might be false, and having his client testify to facts that he had to suspect might be false, it is difficult to understand the tactical considerations that led the President’s lawyers to allow him to testify about his sex life.
It is not as if Bennett had not been cautioned about the risks of having the President testify about his sex life at the Jones deposition. On May 27, 1997, six months before President Clinton testified at a deposition in the Paula Jones lawsuit, as a guest expert on The Geraldo Rivera Show, I offered the following advice:
This case never should have gotten this far. It should have been settled early when he could have settled it easily. He must settle the case.…
Remember, depositions are very broad in latitude. He could be asked questions about adultery. He could be asked questions about his prior sexual life. There are no relevancy objections that are generally sustained to depositions.…
I think the President could win if it actually went to trial, but it won’t go to trial. What I would do if I were his lawyer is to say, “Look, the dignity of the office precludes the President from answering any of these questions. We realize that as a result of not answering these questions, we will reluctantly, without admitting anything, have to be sanctioned by having the verdict directed against us on the merits. We accept that because we can’t answer the questions and preserve the dignity. And now let’s move on to the damages, where the focus is not on the President but on Paula Jones.” And in that way, he can, in effect, settle the case, even if the other side doesn’t settle because the damages will be very low, there won’t be an apology. There’ll be a judgment against him, but the judgment will be explained on the basis of the dignity of the presidency. So if the settlement talks fail, that’s what I would recommend that his lawyers think about.
I went on to suggest that the President had to start asking himself, “Is he well advised here?”11
To my mind, the President had three options. But he was aware of only two of them. He knew that he could litigate and try to win—as he ended up doing. He also knew that he could try to settle the case, which would have avoided the necessity of testifying at the deposition or trial. A settlement requires both sides to agree. In the Jones case, the President reportedly offered to pay Jones $700,000 in order to settle the case. Jones insisted on an apology12 and the settlement talks broke down.
The third option, of which the president was unaware, was to default the Jones case. Every litigant in a civil case has the right to default—which means, essentially, to settle the case unilaterally by simply refusing to contest the a
llegations in the complaint. Consider, for example, the following hypothetical: A fired employee of a high-tech business sues for $10,000 in back pay. The business realizes that in order to defend its actions, it would have to reveal commercial secrets valued at $1 million and take the time of executives which it estimates at being worth $200,000. It offers to settle the case for the $10,000 the employee is demanding, but the angry employee prefers a trial at which he will be publicly vindicated. The company has the right simply to default, have the judgment entered against it, and have the court order it to pay the damages sought by the employee. Defaulting a case does not necessarily entail an admission of liability. It represents a practical assessment of the costs and benefits of litigating and not litigating.
Robert Bennett never told President Clinton that he could have defaulted and paid Jones without making any apology. Perhaps the Lewinsky story would have leaked, but the President would not have had to dignify a rumor with a response. It was the entirely avoidable decision to have him testify under oath—not once, but twice—that turned a sex rumor into a possibly impeachable offense.
How do I know that Robert Bennett never told President Clinton of the default option? Because both men personally told me.13 Here is the story:
On January 17, 1998, President Clinton was deposed in the Paula Jones lawsuit. In the course of the deposition, he was asked questions about his relationship with Monica Lewinsky, including “Did you have an extramarital sexual affair with Monica Lewinsky?”
Taking the Stand Page 47
