A Vast Conspiracy

by Jeffrey Toobin

  Still, as Lowell and everyone else who studied the subject came to recognize, it was impossible to conduct an impeachment in a kind of politics-free zone. For all that the labors of Congress would be guided by the text of the Constitution, there was also a rough-hewn truth in the most famous contemporary utterance on the subject. On April 15, 1970, then representative Gerald R. Ford took to the well of the House to speak in favor of the impeachment of Justice William O. Douglas, of the Supreme Court, on the ground of supposed financial conflicts of interest. “An impeachable offense,” Ford said, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” So, for better or worse, it was.

  Still, in the hours leading up to the report to his superiors in the Capitol, Lowell did his best to judge the evidence against Clinton under the general standards set down over the previous two centuries. To do this, he spent those two days cloistered in the Democrat quarters of the impeachment suite in the Ford building. Like the rest of the world, Lowell could read the Starr report on the Internet or in the newspapers, but the lawyer wanted to examine the underlying evidence before reporting his conclusions. Working until the guards threw them out after midnight each day, Lowell and his colleagues started marking up the evidence with Post-it notes—yellow for primary evidence against the president, blue for prosecutorial misconduct, and pink for exculpatory evidence.

  In this process, Lowell discovered early what the rest of the world would see when the evidence was released over the next several weeks. Through leaks to favored journalists like Schmidt at The Washington Post, Starr’s team had oversold their case. The famous “talking points”—the supposed instructions from Lewinsky to Tripp about how to testify falsely—fizzled completely as an issue. Lewinsky said she wrote them without help, and in any event they called for truthful testimony. Lewinsky’s job hunt was a far more complex undertaking than the Starr leakers had led anyone to believe; most important, Clinton and Vernon Jordan had started helping Monica well before she was subpoenaed in the Jones case. Similarly, there was no direct evidence that Clinton had asked Currie to retrieve his gifts from Monica. Clinton’s lies, on the other hand, were real. In his deposition in the Paula Jones case in particular, Clinton had clearly given false testimony.

  When Lowell made his report on Sunday morning, he didn’t resort to any cute legalisms to describe the president’s deposition. Surrounded by Gephardt, his staffers Elmendorf and Laura Nichols, the Democrats’ spokesman on impeachment, Jim Jordan, and Bob Bauer, an aide to Daschle, Lowell ran down each of Starr’s allegations against Clinton.

  “Perjury in the deposition,” Lowell began. “No question that he lied.

  “Perjury in the grand jury,” he said. “Closer call.

  “The rest of it is not there,” Lowell continued. “Vernon probably lied through his teeth about what he knew, but there’s no way to prove otherwise. They can’t make the case on obstruction of justice. There’s no smoking gun.”

  As far as the false statements were concerned, Lowell asserted that they were clearly not impeachable offenses. “It was all about sex,” he said. “It had no bearing on his public duties.” Lowell was applying the standard that Hamilton had set down in Federalist No. 65. With his lies about whether he had been alone with Monica Lewinsky, Clinton had done no injury to “society itself.”

  Gephardt had no love for Clinton—he was not at all surprised to hear that the president had lied under oath—but the minority leader was relieved to hear Lowell’s report. He did not want to have to call on a president of his own party, or of any party, to resign. Besides, Gephardt was a ferocious partisan himself—a true man of the House of Representatives, where Democrats and Republicans live in a state of constant, rattling warfare. So Gephardt had recoiled at the notion of driving a fellow Democrat out of office.

  Like everyone else, though, Gephardt was not beyond a certain bewildered fascination with the evidence. Well into his sixth decade, Gephardt retained his boyish looks (and his first wife), and his staff regarded him as an almost comically straight arrow—still the milkman’s dutiful son from St. Louis. Yet toward the end of the meeting, Gephardt couldn’t contain his curiosity about one subject.

  “Abbe,” Gephardt asked, “is the cigar thing real?”

  In the first weekend after the release of the Starr report, the Clinton presidency teetered. Far more than when he was actually impeached by the House or tried by the Senate, this brief period was the closest the president came to being forced from office. During these frantic couple of days, James Carville happened to make a speech in northern Virginia, where he ran into James Moran, a moderate Democratic congressman from the area. Moran was furious at Clinton, and he all but asked Carville to pass along the message that the president should resign. A stampede for resignation from within the president’s own party—the kind that finally drove Nixon to quit—seemed a real possibility. A disastrous appearance by David Kendall on the Sunday program This Week failed to halt the momentum against Clinton. Kendall’s lawyerly insistence that his client had not committed perjury further inflamed even the president’s defenders. Gephardt promptly denounced Kendall for resorting to “hairsplitting” and “legalisms,” but in fact, even with his critical comments, the House minority leader was beginning the counterattack.

  The point, Gephardt believed, was to shift the focus from the president to his accusers. That was the way for Clinton—and more important, the Democrats—to win. Gephardt believed he couldn’t be seen as Clinton’s lapdog; thus his criticism about Kendall’s “hairsplitting.” But when Lowell came to him the following week to complain about how the Republicans on the Judiciary Committee were treating the Democrats unfairly, Gephardt replied with the words that would define his party’s strategy for the next six months.

  “Abbe,” Gephardt promised, “we’re going to win by losing.”

  Gephardt believed that Democrats would win the impeachment battle by showing that the process was a partisan vendetta. By this reckoning, Democrats, the minority party in the House, could triumph in the wider public arena by being consistently outvoted, along party lines. Then, in theory, public opinion would drive the Republicans to retreat on impeachment. In this, Gephardt was taking a big chance. His adversaries could preempt this strategy at any moment, just by displaying a little flexibility. And if the Republicans wanted to try some political jujitsu, they quickly had their chance.

  The gentleman from South Carolina had a motion.

  Along the upper tier of the great wooden rostrum that dominated Room 2141 of the Rayburn House Office Building, Representative Bob Inglis of South Carolina sat to the extreme right of Chairman Henry Hyde. On September 18, the Judiciary Committee convened for the first time in connection with the impeachment of President Clinton, but the seats before them were all empty. Hyde had called his committee in executive session to address the one issue left open by the overwhelming vote in the House of the previous week. How much of the supporting evidence that Starr had sent over to Capitol Hill should remain secret from the public?

  The Democrats had planned carefully for this moment. Lowell and Julian Epstein, who was Conyers’s chief aide, wanted to use this first hearing to test Gephardt’s strategy of winning by losing. The majority and minority staffs had met well into the previous night and come to some consensus on the material to be deleted from the documents—home addresses and telephone numbers, certain national security matters, details relating to Secret Service protection. From Lowell’s perspective, this era of good feelings was bad. He had to pick a fight—and lose.

  Then, not long after the hearing began, Inglis asked to be recognized. Intelligent, articulate, and ferociously conservative, Inglis wore the contented smile of a rising star in his party. After two terms in the House, he was engaged in a close and spirited campaign for the Senate seat held for decades by the Democrat Ernest Hollings. Partisans on both sides looked to him as a bellwether of Republican thought.

  As befit hi
s self-confident manner, Inglis was the first Republican on the committee to make a motion about the evidence. As he began to speak, it became clear that he thought that Schippers and his colleagues had given away too much in their negotiations with Lowell. The two sides had agreed to black out some of the most graphic sexual material, but Inglis thought that was wrong—about one sex act in particular. Instead of just redacting the material, Inglis thought that the committee should insert a message: “Reason for redaction,” the Inglis message would read, “description of oral-anal sexual contact between the President and Monica Lewinsky.”

  The proposal evoked a kind of mute awe from Inglis’s colleagues on the committee. The idea was so mad, so completely deranged—the notion that the House of Representatives needed this information to fulfill its constitutional duty on impeachment—that not even Inglis’s Republican colleagues could summon the nerve to speak about it. (Lowell and Epstein had to flee the committee room in haste because they were laughing so hard.) Inglis himself muttered a few words on behalf of his proposal, asserting that disclosure of this detail would help evaluate Lewinsky’s credibility. But the proposal itself was voted down by the full committee, twenty-nine to five.

  Still, notwithstanding his defeat, Inglis had set the tone for the committee’s deliberations. The Republicans would not give in on anything. By the day of this hearing, a week had passed since the disclosure of the Starr report, and a public backlash against the report was building. Starr had included so many gratuitous details about Clinton and Lewinsky’s misadventures that the prosecutor had generated a certain degree of sympathy for the president. Characteristically, the Republicans missed these signals from the public. In an odd way, the president’s accusers, like Clinton himself, were blinded by lust—in their case, for one man’s downfall.

  By the end of the first day of secret deliberations in the committee, the Judiciary panel had taken twelve roll-call votes, and virtually all of them were decided along party lines. More than anyone, Hyde understood how the Democrats were trying to win by losing, but he lacked the will to fight back. To be sure, there was a cynical core to Gephardt’s strategy of provoking fights and then crying partisanship; it was the rough legislative equivalent of the man who murders his parents and seeks sympathy as an orphan. But the Democratic strategy illustrated a truth about the impeachment fight, too—that Clinton’s opponents were indeed obsessed with his humiliation, with his ouster, and with his sex life.

  The tableau of the full Judiciary Committee in session resembled a caricature of the contemporary Republican and Democratic parties. The twenty-one Republicans included twenty white Christian males, plus Mary Bono, Sonny’s newly elected widow. The sixteen Democrats included five African-Americans, six Jews, three women, and one openly gay man. This was no coincidence. Judiciary attracted the hard core of both parties, the kind of representatives who cared more about taking stands than bringing home pork. To a great degree, the members of the committee had safe seats—thirty of the thirty-seven members had been last elected with at least 60 percent of the vote—so they had little reason to fear retaliation at the polls for taking controversial stands.

  It was ironic, then, that the single member of the committee who had the most important, if least publicized, role in the impeachment debate fit none of the stereotypes about the Judiciary Committee. With his starched white shirts, thick glasses, thinning hair, and formal manner, Rick Boucher was the one Democrat on the committee who looked like a Republican. He represented the poor and rural southwestern corner of Virginia, and his legislative concerns focused on economic issues dear to his constituents in Appalachia. In light of his legislative priorities, Boucher was not looking for this fight. Instead, in the best American tradition, this soft-spoken congressman came from, and largely returned to, obscurity—but not before emerging as one of the few admirable characters in the whole sordid drama.

  Opposing impeachment did Boucher no particular good in his district, but he brought fervor to the cause. A Wall Street lawyer before he returned home to the small city of Abingdon, Boucher was offended by the lynchmob atmosphere he sensed among the Republicans. Moreover, as a congressman since 1982, Boucher had watched the House descend into more or less permanent partisan rancor. Boucher determined to do whatever he could to stop the process, which was fortunate, because Gephardt had plans for him as well. From the beginning, the minority leader fixed on Boucher as the one Democrat on Judiciary who could reach out to his more moderate colleagues in the full House.

  But before Boucher could do anything, the president had one more important hurdle to pass. On September 21, thanks to the vote of the Judiciary Committee in executive session, the videotape of Clinton’s grand jury testimony was released. As with each major development in the case, this one was preceded by predictions from pundits that it was finally—finally!—going to change public opinion about the president. And like all the others, the release of the tape prompted no meaningful change in the polls. No matter what question was asked, the polls stuck at where they had been since January—about 60 percent support for Clinton, 30 percent opposition, and 10 percent undecided. Though many questioned Kendall’s agreement to the taping procedure, the release of the tape did prove he was right about one thing. Kendall had insisted that the camera remain fixed on Clinton, with no provision for pictures of the questioners or their reactions. This pitiless shot, unchanged over four hours, generated sympathy for Clinton, as viewers identified more with his discomfort at answering these questions than with his interrogators’ struggle to get him to tell the truth.

  The videotape of the president’s grand jury testimony, much more than the transcript, demonstrated something else that seemed strangely unexpected after all this time. In a peculiar way, one could see that Clinton cared for Monica Lewinsky. He generally gave an embarrassed smile when he spoke of her, but there was, if not gallantry, a kind of affection as well. At one point during his testimony, he said that he recognized that Lewinsky would tell others about their affair. “Not because Monica Lewinsky is a bad person,” he went on. “She’s basically a good girl. She’s a good young woman with a good heart and a good mind. I think she is burdened by some unfortunate conditions of her, her upbringing. But she’s basically a good person.” These were the words of a man who had listened to Monica complain about her parents, and Clinton’s demeanor as he discussed his former girlfriend illustrated a seldom-noticed key to the president’s enduring popularity, especially among women. It has often been observed that some philandering men love women, and some hate them. Perhaps Clinton behaved as he did out of loneliness, lust, or simple neediness, but he was not a misogynist. Many women sensed the peculiar form of Clinton’s neuroses and they recognized, in other circumstances, his clear respect and admiration for women; thus many, as a consequence, tolerated his wayward ways.

  With the release of the president’s grand jury testimony safely in the past, Boucher turned to the next big date on the impeachment calendar. On October 8, the House would vote on whether to authorize the Judiciary Committee to begin a full impeachment investigation. Could the Republicans maintain the bipartisan spirit that characterized the first, full House vote on impeachment? Or could Gephardt win by losing, and thus demonstrate that impeachment was a Republican plot to get the president?

  Gephardt put Boucher in charge of crafting the Democratic position. Boucher realized that the country was tiring of the whole Lewinsky story, so he came up with the idea of placing a time limit on the impeachment inquiry. In the same spirit, Boucher sought to limit the scope of the investigation to Starr’s referral to Congress—that is, to the Lewinsky allegations only. This restriction would keep the Republicans from turning the impeachment hearing into the meandering search for wrongdoing that Clinton’s opponents in Congress had been conducting for years. On September 29, Boucher put his proposal to Gephardt, who approved it and then directed the Virginian to unify the Democrats on the Judiciary Committee around the proposal.

  This wasn
’t easy. These Democrats were a fractious, opinionated bunch, and all of them wanted their fingerprints on a piece of American history. The hard-core liberals on the panel—including Zoe Lofgren and Maxine Waters of California, Bobby Scott of Virginia, Mel Watt of North Carolina, and Jerrold Nadler of New York—didn’t like Boucher’s idea at first. They wanted the committee to set down the standards for an impeachable offense, and only then to establish limits on the time and scope of hearings. Gradually, though, Boucher wore down his colleagues and convinced them of the political appeal of his proposal. On October 1, in a meeting in Gephardt’s office, Boucher reported that the committee Democrats were united on the issues of time and scope.

  But Boucher’s work was only half done. Having persuaded the liberal Democrats that he wasn’t being too tough on the president, he then had to convince the conservative Democrats that he wasn’t being too easy on him. There wasn’t much time, either, because Gephardt wanted the Democratic position announced at a press conference on Friday morning, October 2, at 10:30 A.M. So Boucher asked the “Blue Dogs”—the collection of the two dozen or so most conservative Democrats in the House—to meet with him at 8:30 A.M. that Friday. At half past ten, Boucher would meet the rest of his Judiciary colleagues and let them know if there was a unified Democratic position or not.

  The Blue Dogs gathered in the office of their leader, Gary Condit, of California. At a meeting like this one, a Maxine Waters or Jerry Nadler would have been out of place, but Boucher spoke the moderates’ language. Condit said he could live with a time limit on the impeachment hearings, but it had to be long enough for a reasonable examination of the evidence. “If it’s only forty-five days, that sounds like a cover-up,” Condit said. Boucher said around ninety days, or until the end of the year, would be fine. All of the congressmen present wanted to talk, and the time of the press conference was drawing near, but Boucher didn’t want to break away.