High Crimes and Misdemeanors: The Case Against Bill Clinton

  Evidence that Clinton had engaged in similar conduct with other women would be valuable for Jones’s case. Evidence of “other acts” is crucial in discrimination cases because, as the Supreme Court said, “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.”12 As a result, presenting “other women” evidence is now de rigueur in sexual harassment cases.

  Jones’s attorneys would have a lengthy period of time to ferret out all evidence they intended to use at trial. The process is called “discovery,” but ought to be called “obscurity,” since lawyers spend most of discovery trying to block the other side from acquiring relevant evidence. (Modern lawsuits have very little in common with Perry Mason’s TV trials, and not only because witnesses rarely blurt out confessions on the stand, but also because no surprise evidence at all can be sprung on the adversary.)

  But Clinton, facing reelection, could not allow “other acts” to come to light. So his lawyers embarked on a three-year campaign of delay with a “trumped-up” presidential immunity claim.13 But once discovery finally began in the Jones case, Judge Susan Webber Wright ruled—despite Clinton’s objections and the considered opinions of most TV lawyers—that Jones’s lawyers were entitled to take the depositions of witnesses to Clinton’s behavior with other women. Indeed, to exclude evidence of Clinton either making sexual advances toward subordinates or using government resources to pursue sexual conquests would almost certainly be reversible error.14

  The president’s lawyer, Bob Bennett, had conceded far more than that in oral argument before the Supreme Court. Bennett told the court that any other women Clinton “has come into contact with” could probably be deposed by Jones’s attorneys:

  MR. BENNETT: [Jones’s attorney], as he claims, [is] going to be deposing all of the troopers; and any time the president of the United States has come into contact with a member of the opposite sex, he intends to inquire of that; this is a conspiracy complaint; they talk about pattern of conduct….

  JUSTICE SOUTER: Mr. Bennett, do you think all those events are relevant to this case?

  MR. BENNETT: [S]ome trial courts might say they are [emphasis added].15

  Consequently, Jones’s lawyers followed up on leads to any woman who might be able to provide evidence in the Paula Jones case of such “prior acts” by defendant Clinton. This kept them busy. In addition to information about other women they elicited from the Arkansas State Troopers, the Jones team received some anonymous phone calls tipping them off to yet other women who may have been approached by Clinton since he lost the taxpayer-funded escort service he had had in the troopers. It was an anonymous phone call in January 1997, for example, that led them to a former White House volunteer, Kathleen Willey. The caller told Jones’s attorney, “I had a similar thing happen to me….”

  Then, around October 1997, Jones’s new attorneys and their financial backer, the Rutherford Institute, received phone calls alerting them to a former White House intern named Monica Lewinsky,16 who had been blabbing to former White House employee Linda Tripp—who had the conversations on tape. As luck would have it, Lewinsky’s claimed sexual relations with the president consisted exclusively of the “type of sex” Jones said Clinton urged on her.

  Clinton’s evidently successful redeployment of the “kiss it” line with Lewinsky on the government’s time would help Jones’s lawyers establish Clinton’s modus operandi. But that was not Lewinsky’s only use to Jones. The president had also succeeded with Lewinsky in another matter: he had silenced her. This would go a long way toward explaining to a jury why several women who had already been deposed in the Jones case were admitting to solitary meetings with Governor Clinton in the wee hours of the morning, but only for… policy discussions. In December, Jones’s lawyers issued subpoenas to both Monica Lewinsky and Linda Tripp.

  Jones’s attorneys hadn’t deposed either Lewinsky or Tripp on the eve of Clinton’s deposition. That night, however, one of Jones’s lawyers informally interviewed Tripp to fill in details of the anonymous phone calls.

  Tripp had agreed to an informal meeting with Jones’s attorneys in hopes of avoiding a formal deposition. She had only recently discovered that her home state of Maryland was one of the few states that prohibit people from taping their own phone conversations without telling the other person on the line; she had not told Lewinsky. A formal deposition in the Jones case would thus have required her to state under oath that she had broken the law, unless she was prepared to lie about this or plead the Fifth. But she was one of the rare witnesses in this case who seemed to take things like sworn statements seriously. Since Jones’s suit was a civil rather than criminal case, her lawyers did not have legal authority, as a criminal prosecutor would, to grant Tripp immunity in exchange for her testimony about the tapes.

  THE TAPES

  Linda Tripp had quite a few tapes—about twenty in all.

  Tripp had developed a relationship with Lewinsky, a fellow Clinton White House expatriate, when they both ended up with jobs in the Pentagon press office. This was not a coincidence: The Pentagon press office had become a dumping ground for troublesome women in the Clinton White House, courtesy of a Clinton appointee, Assistant Defense Secretary Kenneth H. Bacon. Bacon would perform many favors for the man who appointed him.

  Linda Tripp was a problem for the White House on account of her position as executive assistant in the White House Counsel’s Office, the locus of numerous Clinton scandals. As we will see, from the Travel Office putsch to the botched investigation of Vince Foster’s office, which led to the forced resignation of Tripp’s boss, Bernard Nussbaum, the Counsel’s Office generated crisis after crisis. Tripp had sat outside the offices of Bernard Nussbaum and Vince Foster.

  Tripp’s bird’s-eye view of the office, combined with her penchant for wry observations—such as her e-mail missive referring to Nussbaum and two others as “the three stooges”—had put Tripp in the hot seat on more than one occasion. It was Tripp to whom Kathleen Willey had run immediately after emerging from a meeting with President Clinton in November 1993, claiming she had been groped by the commander in chief.

  While Tripp had become a problem by earning spots before congressional investigative committees, Lewinsky had become trouble by earning her “presidential kneepads,” as Lewinsky herself put it. The two vexatious women were sent to the Pentagon press office, where they met and became friends. What happened after that seems almost inevitable in retrospect.

  In numerous conversations, Lewinsky recounted to Tripp intimate and lascivious details of her two-year term as “Special Assistant to the President for B—J—,” as Lewinsky had proposed for her title. Lewinsky’s salacious confidences regarding her lengthy affair with the president would be red meat for Jones’s lawyers.

  After Paula Jones’s lawyers subpoenaed Lewinsky and Tripp, Lewinsky began telling her friend of Clinton’s attempts to ensure that she lie under oath about the affair. Clinton, she said, had offered the assistance of FOB and Washington power lawyer Vernon Jordan. Jordan was to help Lewinsky prepare an affidavit for the Jones case as well as set up job opportunities in New York as a payoff for her affidavit denying that she had had a sexual affair with the president.

  Lewinsky was playing hardball. She turned down a job offer from United Nations Ambassador Bill Richardson, even after Richardson met her in her apartment building for the interview. She was refusing to give an affidavit denying the affair until Jordan came through with a private-sector job in New York. He eventually did: Lewinsky received a $40,000-a-year job offer from Revlon, where Jordan sits on the board.

  Tripp had been tape-recording it all for about six months, capturing descriptions of oral sex with the president in a small study off the Oval Office, and capturing as well Lewinsky’s attempt to suborn Tripp’s perjury. Toward the end of twentysome hours of tape, Lewinsky expresses her horror at the prospect of Tripp truthfully describing their previous conversations in her deposition in the Jones case. The “Big Creep,” as Le
winsky calls Clinton, would find out that she has been blabbing in technicolor, that she has been talking like a—well, like a twenty-four-year-old intern.

  Lewinsky pleads with Tripp to lie to Jones’s lawyers about what Lewinsky has been blathering to Tripp in earlier segments of the tapes: That she had been performing sexual acts on Clinton since she was twenty-one years old. Lewinsky says, “I’ll give you one-half interest in my condo in Australia”—if Tripp would corroborate Lewinsky’s proposed lies with her own lies. More interesting is Lewinsky’s query to Tripp, “What if I can assure you had job security?”17

  Even if Lewinsky was fantasizing an oral-sex-only “affair” with the president and lying to Tripp about it for hours on end, month after month, Lewinsky is on tape suborning perjury. It doesn’t matter if the oral sex stories were false, the product of an overactive and highly unusual twenty-four-year-old’s imagination. Lewinsky asked Tripp to lie about those conversations—to say that conversations that happened didn’t happen. The substantive truth of those discourses is irrelevant to Lewinsky’s attempt to get Tripp to lie about them. Indeed, Lewinsky never tried to persuade Tripp that her claims of sex with the president had been invented: Monica as fantasy-weaver was the White House’s post-scandal spin. Lewinsky is on the tapes asking Tripp to lie under oath about what Lewinsky had told her. That’s suborning perjury.

  Tripp may have become the century’s greatest villain for making the tapes. But imagine what she would be if she hadn’t, but still told the truth under oath. That, in any event, was what worried her. Tripp had already made news as the last person to see Vince Foster alive. Most fatefully, she had made news as a nearwitness to Kathleen Willey’s Oval Office groping. Tripp had given the White House spin on the incident, but was criticized by the president’s lawyer for adulterating the spin with the truth.

  In fact, this was Tripp’s motivation to make the Lewinsky tapes. After the story of Kathleen Willey broke on August 11, 1997, Tripp was quoted in Newsweek saying that she had seen Willey come out of Clinton’s office disheveled, but “happy and flustered”— precisely the spin the White House had been trying to put on Paula Jones’s encounter with Clinton in the Excelsior Hotel. Bob Bennett still called Tripp a liar in the same Newsweek article: he didn’t want to allow Tripp’s claim that Willey was disheveled to go uncontradicted. Angered by Bennett’s attack, Tripp began taping her telephone conversations with Lewinsky. If she was ever required to testify about these conversations, no one was going to be able to call her a liar.

  Clinton’s people would learn two lessons the hard way: Don’t call Paula Jones trailer-park trash, and don’t call Linda Tripp a liar.

  STARR STRUCK

  But there was a chink in Tripp’s armor. As a resident of Maryland, she lived in one of a minority of jurisdictions that forbids taping telephone conversations without both parties’ consent, a fact she says she had not known when she made the tapes. The offense is minor and rarely prosecuted, but might well have been prosecuted in this case as political payback. She wanted to make one good, juicy, legal tape, to protect herself free and clear.

  On Friday, January 9, 1998, her then-lawyers agreed to wire her personally so she could tape Lewinsky somewhere outside of Maryland the following Monday. Over the weekend, however, they listened to her tapes. When Monday arrived, they told her they wanted to take the tapes to Bob Bennett, so he would know that he had better settle the Jones case in a hurry.

  There was no way Tripp was handing the tapes over to Bennett. He was the precise reason she was making the tapes in the first place. Tripp fired her lawyers and went to Independent Counsel Kenneth Starr on Monday, January 12. Tripp had a prior relationship with Starr through the Vince Foster and Travelgate investigations. Starr, who was already investigating Vernon Jordan for arranging lucrative payments to Arkansas FOB Webster Hubbell (see Chapter 16),18 had to act fast: the story was already starting to leak. Starr’s office decided to wire Tripp for lunch with Lewinsky the next day.

  Monica Lewinsky had plans to meet Linda Tripp for lunch on Tuesday, January 13, 1998, at the Ritz Carlton in Pentagon City, Virginia, just across the river from Washington, D.C. Coincidentally, that was the day after Tripp had walked out on her first set of lawyers and taken her story to Ken Starr. When Lewinsky showed up at the Ritz, Tripp was wired. As Lewinsky and Tripp talked, FBI agents and Starr’s deputies listened in. Both women had been subpoenaed in the Jones case about a month before. Lewinsky had already given the court an affidavit denying a sexual relationship with Clinton, which Bennett was about to use during the president’s deposition.

  Still in the dark the next day, Lewinsky, while driving Tripp home from the Pentagon, handed Tripp three typewritten pages titled “Points to make in an Affidavit.” The talking points told Tripp how she should recall events in an affidavit to be submitted in the Jones case.

  On Wednesday, January 14, 1998, Tripp formally retained a new lawyer, Jim Moody.

  On Thursday, Starr presented his evidence to Attorney General Janet Reno, requesting an expansion of his investigation of Hubbell and Jordan to include the president’s and Jordan’s role in similarly fixing Lewinsky’s testimony. According to a report in the Washington Post, “Justice officials were shocked by the allegations,” and “there was no question about approving Starr’s request.”19 Reno quickly forwarded Starr’s request to a three-judge appeals court panel.

  The next day, Friday, January 16, Starr’s deputies approached Lewinsky as she sat down to lunch with Tripp, again at the Ritz Carlton. They took her upstairs along with Tripp for a chat. Did Starr’s deputies browbeat little Monica? On the contrary. Typically prosecutors who had captured a witness on tape prattling about her perjurious statements under oath and attempting to suborn another person’s perjury would be told, You’ve got fifteen minutes to make the most important decision of your life. If Lewinsky was told anything like that, Starr’s deputies or Starr himself immediately backed off.

  Lewinsky informed the prosecutors that she wanted to talk to her mother before making a decision, rather than talking to a lawyer. Given who her lawyer turned out to be, this would have been a good call if her mother hadn’t been who she was. (With her daughter in the hands of the most determined prosecutor in the country, she decided to take the scenic route, taking the train from New York rather than flying.) Did Starr’s deputies take this opportunity to browbeat Monica? No, they agreed to wait all day for Lewinsky’s mother to take the train, while taking Monica for lunch in the Pentagon City Mall, followed by a shopping foray at Crate & Barrel. This is not how people caught discussing their felonies on tape are typically treated. Earning her “presidential kneepads” had brought some perks.

  Also on Friday, January 16, 1998, Starr’s investigation was expanded by order of the Special Division of the D.C. Circuit to investigate “to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law other than a Class B or Class C misdemeanor or infraction in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton.”

  President Clinton could certainly be one of the “others” covered by the order and perjury is a violation of “federal law other than a Class B or C misdemeanor or infraction.” But the order did not specifically mention “the Big He,” as Monica calls President Clinton on the tapes. Nor by Friday, January 16, had “the Big He” given any testimony yet in the Jones case: the order was entered the day before Clinton perjured himself at his deposition.

  On Saturday morning it probably took only a few minutes after the oath was administered at 10:30 AM before “the Big He” launched one of his whoppers. The perjury investigation could probably have been in full swing by 10:35 AM. But it would not be for another four months that the public would definitively learn that Starr was expressly “investigating allegations of misconduct against the President.”20

/>   On Saturday, as President Clinton was being deposed by Jones’s lawyers, a friend of the Lewinsky family, Los Angeles lawyer William Ginsburg, flew to Washington to represent the former White House intern.

  Chapter Three

  Prevaricator in Chief: The President’s Deposition

  The next day, Saturday, January 17, Jones’s lawyers took President Clinton’s deposition, an out-of-court legal procedure in which lawyers question witnesses under oath. This was the first time a sitting president had ever been deposed in his own case.1 Armed with Tripp’s recollection of Monica’s midnight confessions,2 Jones lawyer James Fisher asked the president detailed questions about his relationship with Lewinsky.

  The president’s lawyer, Bob Bennett, attempted to block the questioning about Lewinsky altogether by brandishing her post-Revlon affidavit and saying, as he put it, “that there is absolutely no sex of any kind in any manner, shape, or form, with President Clinton,” and requesting that she not be required to give testimony in the Jones case. Judge Wright, however, allowed Fisher to proceed with questions to the president, following up this line of inquiry.3

  And what a line it was.

  As Fisher asked increasingly detailed questions about “Jane Doe #6,” Lewinsky’s public designation, Clinton surely realized the jig was up:

  Q: Have you ever met with Monica Lewinsky in the White House between the hours of midnight and six AM?

  A: I certainly don’t think so.

  Q: Have you ever met—

  Whoops ! The prevaricator in chief needed to expand on “I certainly don’t think so”:

  A: Now, let me just say, when she was working there, during, there may have been a time when we were all—we were up working late. There are lots of, on any given night, when the Congress is in session, there are always several people around until late in the night, but I don’t have any memory of that. I just can’t say that there could have been a time when that occurred, I just—but I don’t remember it.