A Vast Conspiracy (3 page)

PROLOGUE

“This Is Danny”

“T
his is Danny.”

Every caller to the law office of Daniel M. Traylor received this greeting from the proprietor and sole employee of the business. There was no secretary, no receptionist, no other lawyer, and, technically speaking, no law office at all. Traylor operated out of a converted two-bedroom suite in a bedraggled apartment building on an unlovely corner of downtown Little Rock, Arkansas. Plywood panels had replaced the glass in many of the window frames at the Courtyard Apartments, and a few pieces of lawn furniture rusted on the wilted grass by the door. Across the street, “Poor Man Used Cars” had been out of business for years, but the sign—and a few battered hulks—remained.

“Thizz Danny.”

That was how Traylor answered the phone on January 13, 1994, his thirty-eighth birthday, to hear the voice of an old friend and client. A few years earlier, Traylor and Debra Ballentine had worked together at a hazardous waste disposal company called ENSCO. She was a secretary and he was an in-house lawyer, and Traylor had handled Ballentine’s divorce. He was the only lawyer she knew. She was calling on behalf of a friend.

“Did you see that article in
The American Spectator?
” Ballentine asked.

Until recently, few people in Arkansas had even heard of the magazine. At the time, its national circulation was about 200,000, but only a handful of copies of the conservative monthly ever made their way outside the nation’s big cities. But in December 1993, the
Spectator
published an article entitled “His Cheatin’ Heart,” by David Brock, and at the time of Ballentine’s call, the piece was still the talk of Little Rock. By coincidence, a few days before Ballentine’s call, a friend in Buffalo had faxed a copy to Traylor.

The “heart” in question belonged to Bill Clinton, who at the time the article was published had been president of the United States for less than a year. Before that, he had served as governor of Arkansas for twelve years, and during his long tenure, his personal life had provided endless fodder for local gossips. There were rumors of affairs and girlfriends, but the news media in the state never followed up. For the most part, the local newspapers and television stations played by informal journalistic conventions that limited their coverage to Clinton’s public life. But as the
Spectator
article illustrated, those rules were changing.

The bulk of the twelve-thousand-word article was devoted to interviews with two Arkansas state troopers, Larry Patterson and Roger Perry, who had served on Clinton’s protective detail. “Over the years,” Brock wrote, “the troopers have seen Bill Clinton in compromising situations with dozens of women.” It was one story in particular that drew the attention of Debbie Ballentine—and her unnamed friend. Brock recounted, “One of the troopers told the story of how Clinton had eyed a woman at a reception in downtown Little Rock. According to the trooper,… Clinton asked him to approach the woman, whom the trooper remembered only as Paula, tell her how attractive the governor thought she was, and take her to a room in the hotel where Clinton would be waiting.… On this particular evening, after her encounter with Clinton, which lasted no more than an hour as the trooper stood by in the hall, the trooper said Paula told him she was available to be Clinton’s regular girlfriend if he so desired.”

Traylor remembered the passage after Ballentine pointed it out to him. “That girl, that’s my girlfriend, Paula Jones,” Ballentine explained, “and she’s just crying her eyes out because of what they wrote about her. Paula told me she was going to run down that David Brock, leave him a message, and give him a piece of her mind. But I said she should go to a lawyer instead.”

“Tha’s right,” Traylor told Ballentine, in his soft mid-South drawl.

“Would you mind talking to her?” she asked. Ballentine thought there
might be a lawsuit in it. Danny Traylor had handled her divorce, Ballentine thought, so why couldn’t he take care of the president of the United States?

“You just tell her to give me a call,” Traylor replied, “and I’ll see what I can do.”

That brief telephone conversation led—indirectly, improbably, but inexorably—to the first impeachment of an elected president in the history of the United States. Five years and one month after Ballentine’s call, the events she set in motion concluded with a vote by the Senate that fell short of the two-thirds required to remove Bill Clinton from office. If Paula Jones had chosen any of a hundred different routes—if she had called Brock directly, or approached another lawyer, or sued the magazine rather than the president, or if she had done nothing at all—an extraordinary chapter in American history might have unfolded very differently or not at all. But instead, Paula called Debbie, who called Danny. In a simple sense, then, the root of this story is easy to trace.

But, of course, the real origins of this epochal crisis are more complex. The most famous explanation for the president’s near downfall came from his wife. In an interview on NBC’s
Today
show, on January 27, 1998—just a few days after news broke of her husband’s relationship with a former White House intern named Monica Lewinsky—Hillary Rodham Clinton ascribed the president’s difficulties to a “vast right-wing conspiracy” that had been pursuing both of them for years. Much evidence supports this view; the president’s political enemies devoted enormous energy to bringing him down. At the same time, however, the first lady’s explanation neglected the president’s own very considerable culpability in the matter. Still, in retrospect, it does seem that there was a vast conspiracy behind the Jones and Lewinsky cases—just not the one that Mrs. Clinton had in mind.

In the years since the Second World War, there has been a conspiracy within the legal system to take over the political system of the United States. Describing his travels in America during the 1830s, Alexis de Tocqueville made the famous observation, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” In fact, Tocqueville’s observation would begin to come true only a century later. The process was set in motion shortly after the war, when Thurgood Marshall and a small group of lawyers at the NAACP Legal Defense and Education Fund entered upon the first sustained and
successful attempt to use the courts to achieve political change. Their reasons were simple. Because it was difficult if not impossible for most African-Americans to register to vote, they lacked access to the political system; the judiciary was their only hope for ending legalized segregation.

Marshall’s extraordinary success had unforeseen consequences. Court cases became a central part of any organized political activity—even for those groups who could have used the ballot instead of the subpoena. As activists quickly discovered, lawsuits had many advantages over traditional politics. They required just a few people, and they moved quickly, at least compared to biennial or quadrennial elections. Lawsuits allowed civil rights workers, feminists, environmentalists, and other activists of the political left a perfect shortcut. They didn’t have to do the expensive and labor-intensive work of persuading the masses to support their views; instead, they enjoyed prestige and intellectual challenge in this new field, which they dubbed “public interest law.”

This legal activism eventually extended even to criminal law. Marshall and his immediate political heirs used the courts to target and change laws; the next generation of activists used the courts to target and prosecute individuals. The liberal triumph over Richard Nixon in Watergate led the Democratic Party to seek to institutionalize its gains. To this end, Democrats created the independent counsel law, which gave the successors to Archibald Cox virtually unlimited power and tenure. And because of this obsession with ethics, not to mention their unpopular policy agenda, liberals fought their most successful political battles in the seventies and eighties in courtrooms rather than legislatures. In Watergate and then Iran-contra, the pursuit of Republican officials became a central obsession of the political left. When the independent counsel law came up for reauthorization early in President Clinton’s first term, more Democrats than Republicans wanted him to sign it, and to his enduring regret, he did.

Then, of course, the inevitable occurred. The political right discovered that it, too, could use the courts to advance its agenda. Groups like the Federalist Society, the Landmark Legal Foundation, and the Rutherford Institute modeled their efforts on the work of their ideological adversaries at places like the NAACP and the American Civil Liberties Union. Conservatives used many of the same legal concepts that their adversaries had pioneered—freedom of speech, equal protection of the laws, and even, eventually, sexual harassment law—to achieve their aims. They copied the liberal rhetoric, too; the Republican prosecutors in Clinton’s impeachment
trial in the Senate took pains always to refer to the Paula Jones case as a “federal civil rights action.” Toward the end of the century, it was extremists of the political right who tried to use the legal system to undo elections—in particular the two that put Bill Clinton in the White House.

In a similar way, Clinton’s election prompted conservatives to put aside their misgivings about the criminalization of political disputes. With a Democrat in the White House, Republicans required only the barest of pretexts to demand that prosecutors be appointed. And once these prosecutors were installed, Republicans insisted that they pursue their Democratic targets with inventiveness and zeal. The Clinton years abounded in purported scandals that offered much in the way of colorful names—Whitewater, Filegate, Travelgate, to name only the best known—but little in the way of actual criminal offenses. The futility of the endless searches for criminals in the White House only spurred the zeal of the pursuers. Once again, the prosecutors were political heroes—this time for the other side.

The legal system’s takeover of the political system steered a great deal of partisan conflict from legislatures to courtrooms. But in terms of the substance of those disputes, the Clinton presidency took place at a paradoxical moment in American political history. It was, at one level, a time of remarkable consensus between the major parties. The presidential election of 1996, between Clinton and Bob Dole, which took place at a critical point in the scandal, may have featured smaller differences on policy issues than had any other such contest of the postwar era.

But at the same time that Washington basked in an era of relative good feelings on the issues, the city experienced partisan rancor on a titanic scale. This had its roots in cultural, rather than political, ferment. Two of the great social movements of the late twentieth century, feminism and the Christian right, were ordinarily seen as ideological opposites. But in one critical respect, they pushed the country in precisely the same direction, toward the idea that the private lives of public people mattered as much as their stands on issues. The feminist insistence that “the personal is the political” meant that private conduct, particularly when it came to sex, served as a useful metaphor for a politician’s public acts. Yet conservatives, too, under the motto “Character counts,” began to weigh personal behavior as heavily as did their ideological rivals.