“A TRULY INDEPENDENT PROSECUTOR”
THE NATIONAL MEDIA DEBUT of David Hale prompted a growing chorus of Clinton adversaries to demand the appointment of a special prosecutor to investigate Whitewater. The first was Senator Lauch Faircloth, a very conservative North Carolina Republican and member of the Senate Banking Committee, who wrote to Attorney General Janet Reno in November 1993 urging her to act immediately to remove David Hale from the clutches of Paula Casey, the U.S. attorney in Little Rock. Similar messages and press releases issued in rapid succession from other Republicans on Capitol Hill until, two days after New Year’s 1994, Senate Republican leader Bob Dole publicly accused Reno of an unseemly delay.
“There are dozens of questions that need to be answered,” Dole said about Whitewater and Foster during a Sunday talk show appearance. “And I think it’s in the president’s interest,” he added, to support an independent investigation. As for Reno, Dole insisted she should move quickly, “for the sake of the integrity of the attorney general’s office. She’s wasted a lot of time dragging her feet, and it’s time she moved and appointed an independent counsel.”
That same weekend, Clinton’s mother, Virginia Kelley, died after a long illness. The president was outraged that Dole, who was already mulling whether to challenge Clinton in 1996, would assault him at a moment of such profound grief. Rebuked publicly by Vice President Al Gore for his insensitivity, Dole nevertheless continued the attack for several days, not pausing even for the Kelley funeral in Little Rock. Although Clinton later accepted Dole’s private apology, resentment lingered.
Still, there were some in the White House who agreed with Dole’s “advice,”
even if they doubted his motives and manners. The president’s lawyers, however, were not among them: White House counsel Bernard Nussbaum, for one, vehemently opposed the naming of a special counsel, or independent counsel, to use the precise legal term. In fact, Nussbaum opposed independent counsels in general, partly because he felt that once appointed, they followed an inevitable institutional mandate to indict someone. Other close advisers and many Democrats on Capitol Hill felt just as strongly that pressure for an investigation would not abate—would in fact hinder any other business—until Reno did name a special prosecutor. That pressure was rising not only among congressional Republicans but at major media outlets, in particular the editorial pages of the New York Times and the Washington Post. It was another signal that both papers had invested their own prestige in the Whitewater probe.
During November and December 1993, one accusatory article had followed another to the front pages of the nation’s two most important newspapers, followed by indignant editorials bristling with rhetorical questions. Did Arkansas regulators scheme to keep Madison Guaranty S&L open? Did Whitewater losses cause the institution’s failure? Did the Clintons corruptly benefit? There was little or no evidence that any of these things had happened. Nevertheless, David Hale’s accusations, combined with L. Jean Lewis’s leaked second set of criminal referrals, contributed to an air of excited speculation. That the Times and Post’s Whitewater coverage coincided with the “Troopergate” story only served to heighten the sense that the press had the administration on the run.
The editorials in both papers took on a peremptory tone. Even the Clintons’ possession of their own legal files following Vince Foster’s suicide was portrayed as suspect. “It may be that there is nothing damaging or even embarrassing” in the Clintons’ legal files, conceded the New York Times on December 23,1993. “The White House’s ongoing evasions over the past two years have left the impression that there’s something untoward in those files. There is only one way to tell: Hand them over.”
In early January 1994, the White House arranged to have the Clintons’ Whitewater records subpoenaed by the Justice Department in a manner calculated to make them available to investigators, but shield them from the press. The Washington Post reacted indignantly. “Someone said the other day that Washington may now have reached the state-of-the-art point of having a cover-up without a crime,” the paper’s editorial page mocked. The effect of the White House’s action was “to make it appear as if the Clintons have something to hide. White House cuteness is damaging the President and elevating interest in the Clintons’ Arkansas affairs far more than the ‘runaway prosecutor’ they are said to fear.”
Time magazine may have summed up the Washington press’s attitude best in a column by Michael Kramer, who wrote that since the president’s presumptive
wrongdoing happened long ago in Arkansas, “even if the worst were proved—and no one yet knows what that is—the offense might not warrant impeachment.” Yet he wondered how it could be “that two respected lawyers like Bill and Hillary Clinton didn’t possess a paper trail capable of proving their innocence.”
Janet Reno, however, wanted no part of appointing an independent counsel, because to do so would eventually place her in an untenable position that could only harm her reputation. She explained why in a reply to Senator Faircloth on January 11, almost three months after he had first written to her. It would be pointless for the attorney general to name a special prosecutor to investigate the president. “Any such counsel appointed by me,” she wrote, “would not be regarded as truly independent.” And whoever was dissatisfied or dismayed by the prosecutor’s performance, including the president, would blame her.
Reno’s observations were prescient, but by then the Republicans had no choice except a counsel appointed by her or no independent investigation at all.
The Republicans in Congress had brought this paradoxical situation upon themselves. Reacting angrily to the seven-year Iran-contra probe of the Reagan and Bush administrations by independent counsel Lawrence Walsh, as well as a host of lesser independent counsel probes, the Republican leadership in both houses had resisted reauthorization of the Independent Counsel Act, which had expired in 1992. Many Republicans and some eminent legal scholars regarded the statute not as a post-Watergate reform but as an unconstitutional monstrosity, cleverly designed by partisan Democrats to harass Republican administrations. In the 1988 case Morrison v. Olson (whose losing plaintiff was Theodore Olson), the Supreme Court had upheld the law—but not without a sharp rebuke from Antonin Scalia, the Court’s most respected conservative. Scalia blasted his colleagues for exposing the presidency to destruction by an unaccountable prosecutor. “The context of this statute,” Scalia had written, “is acrid with the smell of threatened impeachment.”
In what would become a classic dissenting opinion, he noted that “in the ten years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations.” Senator Dole, who had been a virulent critic of both Walsh and the law that empowered the independent counsel, agreed. When that law expired, Dole had decided he didn’t want any more “political” indictments of public servants like his friend Caspar Weinberger, the former secretary of defense indicted by Walsh and then pardoned by President Bush.
Yet now, two years after they had shut down the mechanism for naming an independent counsel, the Republicans suddenly wanted one to investigate a
Democratic president. Under the Independent Counsel Act, all appointments had been made by a Washington-based panel of three federal appellate judges: the Division to Appoint Independent Counsels, better known as the “Special Division.” The Special Division’s purpose was to ensure that every prosecutor named would be seen as completely free of outside influence. After all, the aim of the independent counsel law was to create the perception as well as the reality of independence and integrity whenever high officials were suspected of criminality. But with the act no longer in force, the Special Division had gone dormant; the panel of three judges, left only with the power to supervise investigations already under way, no longer possessed the legal authority to name a new independent counsel. The Republicans had left no legal method for the appointment of a special prosecutor except action by the attorney general. This was the same situation that had obtained during Watergate, before the Independent Counsel Act was first signed into law in 1978 by President Carter.
The president resolved the dispute within the White House on January 12—the day after Reno’s negative answer to Senator Faircloth. For all his skills, Clinton’s greatest political vulnerability arguably lay in his eagerness to compromise with his enemies. Evidently confident that an objective Whitewater probe would put the issue to rest, and sure of his ability to finesse tomorrow’s crisis as adroitly as today’s, Bill Clinton made the worst blunder of his presidency. While traveling in eastern Europe, he asked the attorney general to name a Whitewater special counsel. Despite her earlier resistance, she had thought such a request from Clinton might be coming, and had instructed her assistants to prepare a list of prospective appointees. Selecting Robert B. Fiske of New York from a roster that included some of the country’s most distinguished attorneys, she quickly reached agreement with Fiske on the investigation’s scope and his prerogatives, and announced his appointment on January 20.
Unpretentious and taciturn, the sixty-three-year-old Fiske possessed every credential to make him an ideal choice to probe and, if necessary, prosecute a Democratic president and his associates. Though by then ensconced in a top Manhattan law firm, Davis, Polk & Wardwell, he had previously served as the United States attorney for the Southern District of New York, one of the most demanding posts in the Justice Department (and, years earlier, as an assistant prosecutor in the same office).
The consensus of Bob Fiske’s peers, including many of his opponents in court, was that he had done a very difficult job exceedingly well. Appointed U.S. attorney by President Ford and kept in office by President Carter, he had successfully prosecuted several highly sensitive white-collar and organized-crime cases—indicting an important Democratic labor leader and a top drug informant—without a whisper of partisanship or misconduct. During his tenure, the office had won convictions in almost every case prosecuted.
Politically Fiske was a moderate, Manhattan-style Republican; professionally he was a respected leader of the American Bar Association, the sort of civic-minded attorney regularly appointed to commissions and committees by politicians of both parties. For a time, he had chaired the ABA’s prestigious committee on nominees to the federal bench. So when Reno named Fiske to investigate Whitewater, the junior Republican senator from his own state, Alfonse D’Amato, praised him as “uniquely qualified for this position … a man of uncompromising integrity … one of the most honorable and most skilled lawyers anywhere.” Bob Dole, echoing his friend D’Amato, cautiously welcomed the selection of Fiske, noting that “people who know him think he is extremely well qualified [and he] is independent.” Few objections were heard from any quarter.
At a press conference with Reno, Fiske vowed to resolve questions about Whitewater “as quickly as I can, consistent with doing the job right.” In response to a reporter’s question, he added, “I would certainly expect, before this investigation is over, [that] I would question both the president and the first lady, and it would be under oath.” Fiske took an immediate leave of absence from Davis, Polk to begin staffing his new office.
Three weeks later, Paula Corbin Jones made her public debut at the Omni Shoreham Hotel in Washington during the convention of the Conservative Political Action Committee, a major annual event for the capital’s most right-wing Republicans. Paula and her husband, Steve Jones, had flown in from their home in Long Beach, California, to attend a press conference at the CPAC meeting, where Arkansas state troopers Roger Perry and Larry Patterson also planned to announce the creation of a “Troopergate Whistleblower Fund” (complete with a toll-free telephone number for contributors). Cliff Jackson, the attorney for Perry and Patterson, had graciously invited the Joneses to attach themselves as a sideshow to the February 11 announcement of the Troopergate fund. Ostensibly meant to defray the legal expenses of any future Arkansas informants, the fund’s actual purpose was to line Perry and Patterson’s pockets. Jackson would later admit to the Arkansas Times that the trio cleared $40,000. By packaging the troopers and Jones together for the national press at a right-wing Clinton-bashing forum, Jackson clearly hoped to revive the already waning interest in his own clients. The troopers’ stories from the previous December were old news already, while Jones’s allegations of sexual harassment by Bill Clinton were fresh.
Besides, it would cost Jackson nothing. From the very beginning, Clinton’s right-wing enemies subsidized Paula Jones. All the costs of her trip—including a stay in the hotel’s Presidential Suite—were picked up by the bland-sounding Legal Affairs Council. The council claimed to have raised $300,000 in support of Oliver North’s Iran-contra defense. The night before the Jones press conference,
troopers Perry and Patterson received a $1,000 check and appreciation plaques at an event sponsored by the council, where they also met Floyd Brown and David Bossie. Occasionally another right-wing celebrity such as North himself or G. Gordon Liddy approached the troopers to shake their hands and praise their patriotic gumption. So did Republican minority leader Newt Gingrich, destined to take over the House of Representatives by the end of the year.
Logistics for the next morning’s press event were managed by Craig Shirley, a professional conservative publicist and consultant to the Republican National Committee. Nervous and mostly quiet, the twenty-seven-year-old Jones, dressed demurely with her long dark hair teased and poufed, sat behind the podium with her husband and the troopers. They listened while her short, portly Little Rock lawyer, Danny Traylor, and the rangy, angular Jackson recounted her woeful tale.
On May 8, 1991, Paula Jones had been doing her job as a clerical employee of the Arkansas Industrial Development Commission, helping to staff a state-sponsored “quality management” conference at Little Rock’s Excelsior Hotel. Sometime that afternoon, Jones had been approached by state trooper Danny Ferguson, a member of Governor Clinton’s security detail. Ferguson allegedly told her that she “made the governor’s knees knock,” and that he wanted to meet her in his suite at the hotel, then gave her Clinton’s room number.
Viewing this invitation as a possible opportunity for career advancement, according to Jones’s testimony, she and Ferguson had gone up in the elevator to Clinton’s suite a few minutes later. There, she said, the governor had complimented her hair and figure before attempting three “unsolicited and unwanted sexual advances,” each one “more aggressive” than the last. The governor also had asked her for “a type of sex,” she said, although she and Traylor declined to be more specific at the Omni press conference. Jones insisted that she’d been so shaken by the encounter that she had left work almost immediately and gone straight home. As Paula told her story, the well-prepared Jackson gave out copies of affidavits Traylor had taken from two of Jones’s friends, each swearing that Jones had complained at the time about Clinton’s unwanted sexual overtures.
Jones had decided to speak out, after remaining silent for almost three years, Traylor said, upon learning about David Brock’s Troopergate expose in the American Spectator. She didn’t claim to be a regular Spectator reader, but she had heard about the article during a January trip home to visit her family in Arkansas. To her dismay, a friend had showed Jones the passage in which Brock mentioned a woman identified only as “Paula,” who had become one of Clinton’s complaisant conquests in a one-hour hotel-room tryst. The Spectator piece said that this “Paula” had even told Danny Ferguson, the trooper who
escorted her to Clinton’s suite, that she “was available to be Clinton’s regular girlfriend if he so desired.” She had decided to go public, as she put it, “to clear my name.”
As they recited Jones’s troubles, Traylor and Jackson understandably omitted a few salient details. Traylor’s version did not, for example, include his own effort a few weeks earlier to settle the matter quietly with a call to George Cook, a Little Rock businessman and Clinton supporter with whom he was acquainted. As Cook later explained in a sworn deposition that went essentially uncontradicted by Traylor, the Jones attorney had met with him to deliver an ominous message sometime in January 1994. According to Cook, Traylor recited his client’s story about Clinton, saying that “if she did not get money … she would embarrass him publicly.” The lawyer suggested that for $25,000 cash, Jones would go away. Traylor had also suggested that an acting job for Steve Jones, perhaps provided by the successful TV producer Harry Thomason, a close Clinton associate, “would help.” Cook rejected this overture as “preposterous” and reported it to Clinton’s lawyers. (Paula Jones later insisted that Traylor had contacted Cook without her knowledge or consent, that in fact she had no interest in money at all.)
Traylor, whose Little Rock solo practice mainly involved real estate transactions, also did not mention the fact that he and his client had agreed to split any proceeds from future movie, TV, and book deals based on her story. Nor did he bring up the doubts of Jones’s older sister Charlotte and Charlotte’s husband, Mark Brown, both of whom had attempted to dissuade Paula from pursuing her claims against Clinton, which they regarded as “a stupid lie.” They believed that Paula had gotten herself in a lot of trouble out of simple greed. Just before Paula left for Washington, Charlotte Brown would later tell reporters, she had boasted that “either way it went, it smelled [like] money.”
The prospect of money and a moment of fame were powerfully seductive for Paula Corbin Jones. She had grown up quite poor in a rural county outside Little Rock, under the strict religious discipline of her father, Bobby Gene Corbin, a garment factory worker and lay preacher in the Christian fundamentalist Nazarene sect. In the devout Corbin household many modern pleasures—movies, television, dancing, fashionable clothes and makeup, even bowling and skating—were held to be “worldly,” probably sinful, and thus forbidden. Paula and her two sisters would accompany Bobby Gene Corbin to prayer meetings where they would sing hymns while he played the piano.
But when Paula was only nineteen, her father died of a heart attack; and her mother, Delmer Corbin, was unable to control her and her sisters as Bobby Gene had. Suddenly, Paula could wear short skirts and date men, staying out as late as she pleased and sometimes not coming home at all. Her brother-in-law Mark Brown, with whom she and her mother lived for several years after her
father’s death, worried about her flirtatious sexuality and her choice of boyfriends. Quite rightly, since one of them eventually sold seminude pictures of Paula to Penthouse magazine. (Even that came as no surprise to Mark and Charlotte Brown, who had seen the same photographs years before, when Paula boldly displayed them to the family.) In an accompanying article, several of Paula’s former boyfriends described her as what southerners call a “wild child,” promiscuous and bold.
Paula graduated high school but dropped out of the local community college before completing her first year there, moving on through a series of clerical jobs, sometimes quitting, sometimes getting fired, until she went to work as a receptionist for the Arkansas Industrial Development Commission, located on the state capitol grounds in Little Rock. A familiar figure around the capitol complex, her short, tight skirts, squeaky voice, and flirtatious manner earned her the nickname “Minnie Mouse.” In the meantime she had met Steve Jones, a Northwest Airlines ticket agent and aspiring actor who bore a slight resemblance to Elvis Presley, at a Little Rock nightclub. By the spring of 1991 and her encounter with Bill Clinton, they were living together in a suburb north of the city. They married in 1992.
Former coworkers of Steve Jones recalled that he, too, liked to display pictures of Paula in various states of undress. They remembered as well his powerful animosity toward Clinton and his equally strong support for the Republican ticket in 1992. Jones put Bush-Quayle stickers on his locker and his gym bag, and had to be admonished to remove a Bush-Quayle button from his Northwest uniform. But none of his old colleagues had ever heard him say his wife had been harassed by Clinton. “Steve would have been screaming bloody murder if something happened to Paula,” a friend told People magazine. “He would have made us aware that Clinton was a scumbag.” People who knew Steve and Paula believed that he had pushed her into pursuing a vendetta against the president, to promote either his political views or his acting career, or perhaps both.
Whatever Paula Jones’s initial motives, the reviews of her appearance in Washington were dismal where she got any coverage at all. By surrounding her with ultraconservative activists, Traylor and Jackson had ensured that her motives would be questioned and her story discounted, at least for the moment. Both that strategic blunder, and his failed effort to obtain a settlement, had demonstrated that Traylor lacked the skill and experience to handle an explosive case against the president.
The unveiling of her complaint in that highly political milieu also undermined Jackson’s quiet effort to gain credibility for Jones, as he had done for the troopers a few months earlier, with mainstream news coverage. Instead of the Los Angeles Times’s Bill Rempel, Jackson had given the exclusive this time to
Michael Isikoff at the Washington Post; Jackson had arranged the paper’s access to Jones and two friends who corroborated parts of her story, Pamela Blackard and Debra Ballentine. Isikoff met with Jones in Washington during her February visit, and had then overseen a team of reporters in Little Rock trying to confirm her accusations.
Isikoff had quickly become convinced that Jones and her friends—who swore she had tearfully told them of her humiliation by Clinton the day it occurred—were telling the truth. His superiors, however, took a more skeptical view, and before the Jones story finally ran three months later, Isikoff would go nose-to-nose with a doubting editor as they screamed at each other in a Post office. (That incident led to Isikoff’s departure in May for Newsweek, also owned by the Washington Post Company.)
According to Ambrose Evans-Pritchard, the Washington correspondent for the London Sunday Telegraph who became a journalistic icon of the Clinton-hating right, Isikoff’s failure to get her story in print spurred Jones into launching her lawsuit against the president. Traylor told the English journalist about his plan at a March 1994 meeting on Everett Ham’s houseboat in North Little Rock (the same houseboat on which the fiercely bigoted Ham had so impressed Andrew Cooper, the young reporter from New Zealand, with his determination to destroy Clinton in 1992). Frustrated by Isikoff’s exclusive access to Jones and wanting to interview her himself, Evans-Pritchard visited the houseboat to ask his friend Everett Ham and Ham’s sidekick Gene Wirges for help. Immediately, Ham phoned Traylor, ordering the lawyer to “get your ass over here right away.” And it quickly became clear that Traylor answered to this group, which was led by Cliff Jackson. Having refused several times before to give Evans-Pritchard his client’s California phone number, Traylor quickly handed the number over when he was summoned to the houseboat.
After a few drinks, Traylor also confided that Jones might file a “tort of outrage” lawsuit against Clinton, but admitted he would need more skilled co-counsel to join a battle against the White House. Given the widespread belief among Clinton’s Arkansas enemies that his campaign was in the practice of paying “hush money” to keep women quiet, Traylor may never have actually intended filing a lawsuit at all. Apparently convinced of Jones’s veracity before he had even spoken with her, Evans-Pritchard suggested the name of Gerry Spence, a nationally famous attorney with a reputation for taking tough cases. Spence later declined Traylor’s offer, but the search for a serious litigation team had begun. By early March, only eight weeks remained before the statute of limitations on Jones’s claims against Clinton would expire. The point in suing Clinton was simple, Evans-Pritchard told his Sunday Telegraph readers. It doesn’t “matter all that much whether Jones ultimately wins or loses her case,” he wrote. “The ticking time bomb of the lawsuit lies elsewhere, in the testimony of other witnesses. Put plainly, the political purpose of the Jones lawsuit
is to reconstruct the inner history of the Arkansas Governor’s Mansion, using the legal power of discovery.”
Apparently word went out in right-wing circles that Jones needed help, because at some point that spring Stephen Boynton and David Henderson, the duo directing the Scaife-funded Arkansas Project, tried to find her better legal assistance. Their eagerness to assist her was a sign that Traylor’s threat to sue the American Spectator had been hollow. The Little Rock lawyer, in over his head, hadn’t realized that his client’s right-wing sponsors would never approve such a lawsuit.
It was during a fishing trip on the Chesapeake Bay that Boynton and Henderson—joined by their associate Parker Dozhier and their benefactor Richard Larry, the Scaife Foundation executive—placed a series of calls to Republican lawyers and conservative organizations seeking additional counsel for Jones. Dozhier’s ex-girlfriend, Caryn Mann, recalled that on the fishing trip, “they wore out the batteries on six cell phones trying to find someone,” but didn’t do much fishing.
Exactly how Paula Jones finally found her way to Gilbert Davis and Joseph Cammarata, the Virginia attorneys who filed her complaint against Clinton on the deadline date of May 8, 1994, was then unclear. Reporters who asked about their sudden alliance with Traylor received vague answers or no answer at all. The Landmark Legal Foundation, a conservative legal advocacy group that received hundreds of thousands annually from Scaife, played some matchmaking role at the beginning. (Landmark attorneys reportedly convinced Jones not to sue the American Spectator, which of course was also funded by Scaife.)
A more direct role in the talent search was played by Richard Porter of Kirkland & Ellis—the Chicago attorney who had consulted with financier Peter Smith and Cliff Jackson on a compensation deal for the Arkansas troopers.
Either Smith or Jackson had approached Porter, a former aide to both President Bush and Vice President Dan Quayle, to represent Jones. Porter had turned the case down and instead called Nelson Lund, a law professor at George Mason University with expertise in employment discrimination and civil rights law. Lund, too, had worked in the Bush administration, serving as a lawyer in the White House Office of Legal Counsel; and like Porter, he was a Federalist Society stalwart with ties to Newt Gingrich.
Lund also declined the Jones case. But it was he who put Davis and Cammarata in touch with Danny Traylor, through a mutual friend and sometime associate of Davis named Frank Dunham, a Republican lawyer who also taught at George Mason. (Davis’s friend Oliver North, whose benefactors at the Legal Affairs Council had paid for Jones and her husband to visit Washington, also encouraged Davis to take the case.) With only weeks to go before the statutory deadline, Traylor twice announced and then postponed the filing of Jones’s lawsuit until the last day possible. Independent analysts surveyed by
Legal Times, a Washington legal publication, derided the complaint as poorly drafted and “dismissable on its face.” That didn’t discourage the flock of reporters and TV crews who had come to the federal courthouse in Little Rock to make Paula Jones a celebrity. Early media coverage was balanced with skepticism. On May 23, 1994, Newsweek interviewed several people around the Arkansas state capitol who scoffed at her claims. Jones was described as an unreliable, self-dramatizing person who had made a pest of herself hanging around the reception desk outside the governor’s office, prattling about Clinton’s sex appeal like a starstruck teenager. Nevertheless, with her lawsuit officially begun, she broke out of the right-wing ghetto and into the mainstream media.
Only by contrast to Traylor would Gilbert Davis or Joseph Cammarata seem like Washington insiders. Both were solo practitioners in the Washington area, well respected by their colleagues but of no great distinction. A former assistant United States attorney, the heavyset fifty-one-year-old Davis specialized in personal injury lawsuits, though he was known to take a drunk-driving case when business was slow; while Cammarata, a brisk, dark-haired, intense New York native of thirty-six who had once worked in the Reagan Justice Department, usually handled routine tax matters. Genial but sharp, Davis had been deeply involved in Virginia Republican politics since the early seventies, first as chairman of the Young Republican Federation, then running unsuccessfully for state attorney general in 1975. He regularly attended the annual state GOP conventions and had volunteered as an election lawyer in the 1988 Bush campaign.
Still, no one who knew the two lawyers believed they had accepted the Jones case to make a political point. By Virginia standards Davis was a moderate conservative, and Cammarata, until recently a Democrat, seemed to have little political commitment of any kind. They thought that the president, rather than see his personal life opened up in the process of legal discovery, would offer a substantial settlement.
They were well aware that Clinton wouldn’t surrender without a fight, however, and probably thought they were overmatched by his attorney, Robert Bennett, a Washington eminence who commanded fees of $450 an hour. Already, Bennett had vowed to go to the Supreme Court if necessary to seek immunity from the Jones lawsuit. And they no doubt had assessed the weaknesses of their client and her allegations. “What stirs a warrior’s blood is battle,” Davis told the Washington Post in June, relishing the pose of David to Bob Bennett’s Goliath.
But in fact he and Cammarata also knew they could rely upon a brain trust of hotshot conservative attorneys, all affiliated with the Federalist Society, from some of the country’s most eminent firms and law schools. Included
among these advisers, in addition to Richard Porter, were George T. Conway III, a tobacco litigator at Wachtell, Lipton, Rosen & Katz, one of the biggest New York corporate firms; Jerome Marcus, a young partner at the Philadelphia firm of Berger & Montague; and Ronald Rotunda, a distinguished professor of constitutional law at the University of Illinois, who would also coauthor an amicus brief to the Supreme Court supporting Jones.
The sole public hint of the hidden legal network accessible to Davis and Cammarata came in the presence of Kenneth W. Starr, who appeared on television and in the newspapers several times during the spring and summer of 1994 to argue that the Jones lawsuit should be permitted to proceed against Clinton without delay. “Our system is premised on the proposition not only that we’re all subject to the rule of law,” he told CBS News, “but secondly, that we will proceed as expeditiously as we can to get to the bottom of things.”
In Washington, Starr carried at least as much clout as Bennett, maybe more. He had stepped down from the bench of the U.S. Court of Appeals for the District of Columbia in 1989 to serve as solicitor general in the Bush administration. He had long nursed hopes of a Supreme Court appointment, but when Clinton took office he had been exiled into the private sector. Since 1992 he had been earning roughly a million dollars a year, handling appeals for major corporate clients in the tobacco and auto industries as a senior partner in the Washington office of Kirkland & Ellis—the same firm that housed Richard Porter.
Starr took a personal interest in the Jones case, speaking frequently with Gil Davis about the constitutional issues raised by Clinton’s claim of immunity. Early that summer, he even considered filing an amicus brief for Jones on behalf of the Independent Women’s Forum, a conservative group funded by Richard Mellon Scaife as a counterweight to liberal feminist organizations. One of his younger partners told the Washington Times that Starr felt so strongly about the Jones case that he was willing to forgo his usual $400-an-hour fee and write the brief for free.
By the end of June, only five months after his appointment as Whitewater independent counsel by the attorney general, Robert Fiske had thoroughly infuriated his fellow Republicans. Their disenchantment with him had started to grow as early as March, when he told congressional leaders that any hearings on Whitewater ought to be postponed until he completed his investigation. He had issued subpoenas to presidential advisers George Stephanopoulos and Harold Ickes and Assistant Treasury Secretary Roger Altman, seeking to question them about their contacts concerning the Resolution Trust Corporation’s investigation of Whitewater. Among the matters Fiske intended to explore was whether Stephanopoulos had tried to reverse the appointment of Republican attorney Jay Stephens and his firm, Pillsbury, Madison & Sutro, to prepare a
report for the RTC about Madison Guaranty Savings and Loan, the Clintons, and other aspects of the alleged scandal.
Although Senate Republicans were eager to hold hearings about allegations that the White House had interfered with the probe or received an illicit warning about it, Fiske didn’t want any of the Clinton officials scheduled to appear before his grand jury to testify at public hearings. If they obtained grants of congressional immunity, any chance to prosecute them later might be lost. Similar conflicts had virtually crippled the Iran-contra investigation run by Fiske’s longtime friend and mentor Lawrence Walsh. Congressional immunity bestowed on Iran-contra witnesses had led to several criminal convictions, most notably Oliver North’s, being overturned on appeal.
Led by New York senator Alfonse D’Amato, the ranking Republican on the Banking Committee, the Senate minority pushed ahead anyway, intimidating enough Democrats into voting for hearings in mid-March. The resolution did promise that the Senate “would not interfere” with Fiske, adding specifically that no witnesses would be granted immunity. The House Banking Committee planned to hold its own limited inquiry in late July.
But this compromise didn’t placate Fiske’s increasingly irritable critics in the press, notable the Wall Street Journal editorial writers and New York Times op-ed columnist William Safire, both of whom had accused Fiske of complicity in a White House “cover-up.” Possibly mindful of Fiske’s moderate reputation, the Journal had raised the specter of conflicts of interest between Fiske’s law practice and his prosecutorial role. “Mr. Fiske has taken a full leave of absence, which means something other than resignation,” huffed a February editorial. “Davis Polk is a sprawling firm with sprawling clients … . Seems to us there’s a potential for conflict of interest with practically the whole world … . When the special counsel gets around to learning something about Whitewater, he will discover its largest single transaction was a land deal with International Paper Co.,” a Davis, Polk client. Even Fiske’s successful negotiation of a plea agreement with David Hale around the same time won him no friends in the anti-Clinton camp, perhaps because he required Hale to accept not one but two felony counts.
On March 24, Hale appeared before U.S. district judge Stephen M. Reasoner and admitted to “deceit, craft, trickery and dishonest means to defraud the United States” by falsely inflating the assets of Capital Management Services in order to secure federal matching funds, and by lying about the status of several government-backed loans. The judge, a Reagan appointee, asked Hale a series of pointed questions. Specifically, Reasoner wanted to know what had happened to some $900,000 in Small Business Administration matching funds.
“It was loaned out to various entities,” Hale answered.
“Were any of the entities [ones] that you had an interest in?” the judge
asked. In other words, had Hale stolen the money twice, once when he fraudulently obtained it as working capital, and a second time by lending it to one of the shell corporations he’d set up to funnel government money directly into his pockets?
“I don’t believe so,” Hale said.
Fiske and his assistants stood mute. Given the extraordinary complexity of Hale’s schemes and his willingness to plead guilty, they may have been unaware that he was telling something less than the whole truth. Money the ex-judge never admitted stealing, he couldn’t be forced to pay back. Hale had made a proffer to Fiske of allegations against Jim McDougal, Governor Jim Guy Tucker, and Bill Clinton. His sentencing would be postponed until its usefulness could be assessed. In the meantime, the independent counsel placed Hale under FBI supervision. Long prone to worries about his safety, Hale professed to believe that his life was in danger.
Hysteria over the circumstances of Vince Foster’s death was being fanned daily on talk radio that spring, the most notorious example being Rush Limbaugh’s repetition of a rumor that “Vince Foster was murdered in an apartment owned by Hillary Clinton.” Citing an obscure investment newsletter as his source, Limbaugh contended that a fake crime scene had been fabricated at Fort Marcy Park. A hitherto little-known reporter named Christopher Ruddy began an extended series of articles that was ultimately published in the Scaife-owned Tribune-Review attempting to cast doubt on the findings of suicide. Encouraging the wild speculation about Foster, Senator Bob Dole referred to his death as an “alleged suicide,” while Newt Gingrich also rejected the findings of the FBI and the Park Police, remarking ominously: “There’s a lot there that is weird.” The ranking Republican on the House Banking Committee, Representative Jim Leach, whose staff had been consulting regularly with Floyd Brown and David Bossie, insisted that Foster’s death was somehow linked to Whitewater.
The cool, professional Fiske ignored his critics, proceeding expeditiously with investigations of both the Foster case and the RTC matter. On June 30, five months after his appointment, he released two reports. Regarding Foster, Fiske found that the late White House deputy counsel had “committed suicide by firing a bullet from a .38-caliber revolver into his mouth,” and that “there is no evidence to the contrary.” Furthermore, he “found no evidence that issues involving Whitewater” or the Clintons had led to Foster’s suicide. The true cause was Foster’s untreated clinical depression, which according to Fiske had been exacerbated by the harsh editorials about him in the Wall Street Journal.
As for whether White House aides had attempted to impede the RTC’s probe of Whitewater, Fiske concluded that “the evidence is insufficient to establish that anyone within the White House or the Department of the Treasury acted with the intent to corruptly influence an RTC investigation.” He would issue no indictments in either matter.
The special counsel’s interim findings predictably outraged Clinton’s critics, notably Safire, Floyd Brown, Republican leaders on Capitol Hill, and of course the Journal’s editors. Not only was Fiske coming to the wrong conclusions, he was moving much too fast.
By a curious coincidence, the president provided the means for retribution against Fiske on the same day that Fiske’s reports were released, when he signed the newly reauthorized Independent Counsel Act that had been approved by the Senate several weeks earlier. With a Democrat in the White House, most Republicans had dropped their long-standing objections to the law. And now Clinton heard no objection from Bernard Nussbaum, the White House counsel who had argued so strenuously in January against appointing a Whitewater special counsel, and denounced the institution of the independent counsel as biased and “evil.” Nussbaum was gone, forced to resign months earlier over a spate of bad press resulting from his alleged interference with the investigation of Vince Foster’s death. Clinton himself felt misgivings about the Independent Counsel Act, though he had long since committed to renewing it. As he put pen to paper in the Oval Office, he muttered, “I may be making a terrible mistake.”
With his signature, the president returned the power to choose and supervise independent counsels to the Special Division, the panel of three federal appeals judges selected by William Rehnquist, the chief justice of the United States. Once appointed, an independent counsel ultimately answered to no one else, regardless of his or her excesses—not even to the attorney general. The final authority to apply disciplinary sanctions, including dismissal, rested with the Special Division. Judges served on the panel for two-year terms, after which they could be reappointed or replaced by the chief justice. In an era of scandal politics, few appointments were more critical than those of the judges who held the ultimate legal weapon of the independent counsel. It was a serious mistake indeed for any Democratic president to cede control over that lethal mechanism to Rehnquist, a committed Republican and conservative ideologue.
During his two decades on the high court, memories of the fierce battle over Rehnquist’s original 1971 nomination to the Supreme Court had faded, although the chief justice hadn’t changed much. He had come to Washington from a western extremist milieu, associated with Barry Goldwater and the John Birch Society, as had many of the lawyers in Nixon’s White House and Justice Department, where Rehnquist had served as assistant attorney general. When he had clerked at the Supreme Court in the early fifties, Rehnquist had composed a memorandum arguing for continued school segregation that later returned to haunt him. His spotty record at Justice, where he had approved covert army surveillance of antiwar protesters, became an issue in 1986, after
President Reagan nominated him as chief justice. Reagan surely knew, as Nixon had, that Bill Rehnquist would faithfully reflect his own political disposition.
The chief justice fulfilled those expectations on many occasions, and he did so again when he kept the Special Division stacked with two Republican judges and one Democrat. Had he wanted to avoid the appearance of partisanship, the chief justice could have rotated the three positions so that no party had a majority of the three judges for more than two years at a time. But Rehnquist erred in the other direction, going so far as to appoint David Sentelle, a protégé of Senator Jesse Helms and former Republican Party chairman in North Carolina’s Mecklenburg County, to preside over the Special Division in 1992, and then reappointing him to the same position again in 1994. Few commentators seemed to notice at the time that Sentelle, who had risen so swiftly from a federal judgeship in 1985 to a seat on the D.C. Circuit Court of Appeals only two years later, lacked the best credentials for such a sensitive political position.
A loophole in the Independent Counsel Act permitted Rehnquist to appoint the relatively inexperienced and partisan Sentelle. The statute’s pertinent clause clearly directed the chief justice, “in assigning judges or justices” to the Special Division, to give “priority” to “senior [i.e., semiretired] circuit judges and retired justices.” But it didn’t explicitly require him to appoint senior judges. Sentelle’s two colleagues on the panel fit that description: John Butzner, seventy-six, a Johnson appointee, and Joseph Sneed, seventy-four, a Nixon appointee whose selection also presumably satisfied Rehnquist’s implicit criteria. Like the chief justice himself, Sneed was a veteran of the Nixon Justice Department. A reliable conservative from Texas, Sneed had served as deputy attorney general, with broad responsibility for political and policy issues. Nixon trusted Sneed so much that early in the Watergate investigation—when then attorney general Richard Kleindienst recused himself from overseeing the probe—the president and his aides briefly considered asking Sneed, Kleindienst’s deputy, to deal with the scandal. They discarded that idea because Sneed would have been seen as an obvious pawn of the White House. A few months later, in August 1973, Nixon named Sneed to the U.S. Court of Appeals’ Ninth Circuit.
Neither Sneed, based in San Francisco, nor Butzner, whose chambers were in Richmond, Virginia, satisfied the law’s sensible requirement that one of the three judges on the Special Division must come from the D.C. Circuit Court of Appeals, where the panel is headquartered. Sentelle’s presence in the capital’s federal courthouse was his sole visible qualification.
When Rehnquist first named Sentelle to head the Special Division in 1992, the North Carolina native was just forty-eight years old and had served only seven years on the bench. Widely regarded as one of the federal judiciary’s most extreme conservatives, he was so enamored of the president who had
first appointed him that he named one of his daughters Reagan. Though a competent attorney, he had earned his appointment after much political fund-raising and campaigning for Reagan and Helms. Even after his elevation to the U.S. appeals court, Sentelle continued to write articles laced with strident partisanship, often couched in religious terms. In one 1991 article Sentelle accused “leftist heretics” of scheming to turn the United States into “a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state.”
To choose such a figure to preside over the Special Division appeared to mock the appearance of impartiality that the Independent Counsel Act was supposed to guarantee. Besides, there were at least a dozen judges in the D.C. circuit who were senior to Sentelle and thus better qualified to oversee the independent counsel. Some believed Rehnquist had selected him not because of any particular qualification, but to do exactly what would be expected of a conservative ideologue: that is, to engineer the appointment of reliable Republican lawyers to investigate Democratic officeholders. First, however, Robert Fiske had to be removed.
From the moment that Fiske issued his findings about the Foster death and the RTC inquiries, Republican leaders and influential conservatives began maneuvering to eliminate him. William Safire, who had criticized Fiske early on for seeking to preserve his investigation from congressional interference, made a particularly blunt recommendation. Attacking Fiske’s interim report, Safire wrote that he “cheerfully sees no evil … . What’s with this non-independent counsel who helps Democrats avoid oversight? Find a way to get rid of him.” The Times columnist was echoed by Floyd Brown and ten Republican members of Congress who wrote to the Special Division asking for Fiske to be replaced.
On July 1, Attorney General Reno wrote to the panel with the opposite request, suggesting that the three judges officially name Fiske as independent counsel so that his probe could continue with their sanction. That same afternoon, however, Senator Faircloth gave a speech on the Senate floor, asking the Special Division to appoint “a new, truly independent counsel.” Among other complaints, the North Carolina senator mentioned Fiske’s cooperation in an unrelated matter with Robert Bennett, the president’s lawyer in the Paula Jones case, as well as his firm’s representation of International Paper Company, which many years earlier had sold a parcel of land to Jim and Susan McDougal. To Faircloth, these were all serious conflicts of interest.
The sequence of events that followed Faircloth’s speech left a permanent taint on the Whitewater investigation. In mid-July, he met with Judge Sentelle for a luncheon where they were joined by Sentelle’s political sponsor and Faircloth’s Senate colleague, Jesse Helms. Both of the North Carolina senators would
later insist that they had spoken of nothing related to Fiske or Whitewater, but had merely engaged in friendly chatter with Sentelle about old acquaintances, western-style clothing, and prostate problems. Eventually, however, Sentelle himself would admit in public testimony that the subject of a new independent counsel might have come up.
On August 5, the Special Division unanimously rejected Reno’s request that Fiske be reappointed and instead chose Kenneth Starr to continue the Whitewater probe. Explaining its decision, the panel’s order said that allowing Fiske to continue “would not be consistent with the purposes” of the Independent Counsel Act, “though this reflects no conclusion on the part of the Court that Fiske lacks either the actual independence or any other attribute necessary to the conclusion of the investigation … . It is not our intent to impugn the integrity of the Attorney General’s appointee, but rather to reflect the intent of the Act that the [independent counsel] be protected against perceptions of conflict … . The Court therefore deems it in the best interest of the appearance of independence … that a person not affiliated with the incumbent administration be appointed.”
It did not take long for the irony of these assertions to become obvious. Within two weeks, Sentelle’s lunch with Helms and Faircloth was reported in the press, raising eyebrows even among observers who professed little sympathy for the White House (which prudently issued no statement on the matter). In an editorial headlined “Mr. Starr’s Duty to Resign,” the New York Times recalled that in removing Fiske, the Special Division had cited “the need for the appearance, as well as the reality, of impartial justice.” But, said the Times, “it is now clear that the chairman of that panel, Judge David Sentelle, violated the court’s own standard for purity of appearances by meeting with a Senator eager to have the court dump Mr. Fiske as counsel,” which the Times described as an example of “flamboyantly bad judgment.” Five former heads of the American Bar Association also publicly urged Starr to step aside. None of this appeared to faze Starr, who ignored the editorial’s call for him to step down immediately, lest his sterling reputation be impaired. Nor did it trouble Sentelle, who knew he had nothing to fear from the Times’s advice to Rehnquist that Sentelle ought to likewise stand aside or be replaced.
From the perspective of his fellow Republicans, Kenneth W. Starr must have seemed a nearly perfect choice as independent counsel. He was that rare combination of a deeply committed conservative and an esteemed stalwart of the bipartisan Washington establishment. As proclaimed years later by Sally Quinn, that establishment’s self-styled doyenne, Starr had long been included as a capital insider. The forty-eight-year-old lawyer had started his career as a clerk for Warren Burger, then the chief justice of the United States; had gone on to work in the Reagan Justice Department; and had been named at a surprisingly early age to the U.S. Court of Appeals, without the slightest demurral
from anyone. As President Bush’s solicitor general he had managed to avoid arousing the ire of liberals and Democrats, to a point where some hard-line conservatives regarded him as a bit “soft.”
His reputation for reasonableness was matched by a mild, ingratiating manner that didn’t quite conceal his intense ambition but did set him apart from the cruder partisans on his end of the spectrum, who didn’t get invited to Georgetown dinner parties. More importantly, Starr had earned the deference of the Washington Post when, as an appeals judge in 1987, he handed down a landmark First Amendment decision in a libel suit brought against the newspaper by a Mobil Oil executive. Among editors and executives at the Post, Bob Woodward was hardly alone in regarding that opinion as one of the most important moments in the paper’s history, freeing it from inhibiting strictures on its tradition of aggressive investigative reporting, not to mention a multimillion-dollar jury verdict in favor of the plaintiff.
With his record of personal achievement and million-dollar salary, Starr had risen far from his rural Texas roots. His father had been a Church of Christ minister, renowned for severe interpretations of Scripture, and he had indoctrinated young Kenneth in biblical inerrancy and the dangers of drinking, dancing, playing music, and other worldly distractions. (In those details, Starr’s strict upbringing resembled the grimly devout youth of Paula Jones.) His religious background may help to account for Starr’s almost mystical confidence in his own righteousness. “We really did feel like we were special, like we were right and everybody else was wrong,” an old high school friend of Starr’s once explained to a reporter.
Politically, the Church of Christ elders gravitated toward the far right, particularly when Starr was growing up in the fifties. After graduation he attended Harding College, a church-affiliated institution in Arkansas that barred black students and maintained ties to the John Birch Society. But after two years there, Starr grew restless and moved on to George Washington University, where he met his future wife, a Jewish woman from New York named Alice Mundell.
By the time of his appointment as independent counsel, Starr’s conservatism had taken on a more sophisticated corporate tinge. His firm’s biggest clients were tobacco and auto companies seeking to minimize government regulation and avoid liability lawsuits, as well as the Republican National Committee and a host of wealthy right-wing foundations. Starr himself looked forward to a new Republican administration, as he told Time magazine, perhaps headed by his good friend from the Bush administration, former vice president Dan Quayle. Relatively young and vigorous, Starr still hoped to serve on the Supreme Court someday. Living in suburban Virginia, he remained active in Republican politics, cochairing the campaign of a GOP congressional
candidate and quietly promoting himself as a potential nominee for the U.S. Senate in 1994.
He was, in short, a respectable figure, still known around Washington by the honorific “Judge Starr.” At the same time he was an ambitious partisan, whose powerful personal interest in bringing down the Clinton administration, preferably in time for the next election, was bolstered by an equally strong ideological hostility to Clinton’s policies. In his own brief public comment about his appointment, Starr expressed confidence in his own “complete fairness.” Then he announced that while serving as independent counsel, he intended to continue as a partner at Kirkland & Ellis, drawing a million-dollar salary from a firm involved in litigation against the federal government and as counsel to the president’s political adversaries.
The New York Times found Starr’s evident conflicts of interest objectionable, particularly his advocacy on behalf of Paula Jones. So did many congressional Democrats, who bitterly protested the apparent influence-peddling by Faircloth and Helms that had led to Starr’s appointment. But as Justice Scalia’s 1988 dissent had predicted, the law left little recourse against such abuses. “An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration … ?” he had asked prophetically. “There is no remedy for that, not even a political one.”