A Vast Conspiracy (56 page)

All of this misinformation had a distinct purpose—to persuade official Washington, and Lewinsky herself, that Starr had a strong case. At the very least, the reporters seemed convinced. “Starr’s decision to reject the proffer may reflect confidence in the rest of the case he is building,” Schmidt and Baker wrote. “In recent days, his office has moved to find witnesses who may have seen Clinton and Lewinsky together, including White House valets and Secret Service agents.” But these leaks would ultimately redound to Starr’s detriment, when his evidence failed to deliver on the implicit promises in news stories like this one. Lewinsky’s written statement was both internally consistent and exculpatory for Clinton on the issue of obstruction of justice; the talking points did not counsel Tripp to lie about anything, much less about the president and the intern; there were no eyewitnesses to a presidential grope, in the movie theater or anywhere else.

Notwithstanding the tone of news reports like this one, the failure to close an immunity deal with the former intern left Starr’s prosecutors—not Lewinsky’s team—with the real problems. The entire OIC investigation was based on the premise that Clinton and Lewinsky had been sexually involved with each other. In order to bring any of the possible charges against the president—including perjury and obstruction of justice—the Starr investigators first had to establish that the sex had taken place.

It was unusual enough to have a criminal case based on a consensual sexual relationship between two adults. But here the prosecutors had to prove the sexual liaison without the testimony of either participant in it. As of early February, thanks to the breakdown of negotiations with Ginsburg, Lewinsky would not be testifying anytime soon. No one in Starr’s office held out much hope that Clinton would be a witness in the immediate future, either. Characteristically, the Clinton forces made this position clear in a provocative, disdainful way.

On February 2, Bittman wrote the first of a series of letters to Clinton’s lawyer David Kendall “inviting” the president to testify before the grand jury. The word was chosen with care. Starr did not want, at this point, to set off a constitutional confrontation over the unsettled issue of whether a president could be formally subpoenaed before a grand jury. Knowing that Bittman’s letters lacked the legal force of a subpoena, Kendall replied by stringing him along. For months, Bittman and Kendall exchanged letters about Clinton’s possible testimony, their correspondence a symphony of passive aggression on both sides. Kendall carefully avoided saying anything that could be construed as Clinton taking the Fifth, which would have been a political disaster for him. But he didn’t say yes, either.

Instead, the defense lawyer sent replies to Bittman that radiated his client’s contempt for Starr. “I was unable to respond to your February 4 invitation by the Friday deadline you had indicated in your letter because I was in the process of dealing with prejudicial and false leaks of information about your investigation,” Kendall wrote in one such letter. “However, under the circumstances, it is impossible to accept this invitation. The situation in Iraq continues to be dangerously volatile, and this has demanded much of the President’s time and attention.” Bittman kept pursuing Kendall (“The situation in Iraq has, thankfully, eased,” the prosecutor noted on one occasion), but Kendall always came up with new reasons to say no. Notwithstanding his early promise of cooperation with the investigation—“more rather than less, sooner rather than later,” as Clinton had said at the Arafat photo opportunity—the president was not going to help make Starr’s case for him.

As always, the priority in Starr’s office was projecting toughness, even more so after the White House–sponsored attacks on the integrity of the prosecutors.
Jackie Bennett had handled most of the fallout from the press inquiries—the phone calls from reporters, the staffers weeping in his office, the offers to resign from nervous prosecutors—and he, as always, favored a direct response. “If the Gambino family was using contacts in the press to intimidate prosecutors, we’d go after them, and that’s what we should do here,” he told his colleagues. Bennett often used the metaphor of the White House as an organized crime family, and on those terms the prosecutors’ next move made a lot of sense.

On February 20, Bennett orchestrated a subpoena of Sidney Blumenthal, so the prosecutors could ask him about his opposition research strategy. Bennett meant the subpoena as a signal that the Starr team would not be cowed by Blumenthal’s leaks. But like so much the Starr team did to make public statements, the subpoena to Blumenthal backfired.

Starr himself explained the rationale for the Blumenthal subpoena during one of his morning strolls to deposit the garbage by the curb of his modest home in suburban Virginia. From the day the Lewinsky story broke, camera crews camped out on the front lawn of Starr’s house, and the independent counsel answered a few questions almost every day. If Starr had simply refused to talk, the networks would have pulled their crews after a few days. But Starr couldn’t resist trying to ingratiate himself with the Washington press corps, and he regularly commented on the day’s developments during these trash runs. For starters, these Hefty-bag press availabilities were simply a ludicrous way of imparting information on a matter of national importance; more important, Starr’s professorial style did not translate well in the curbside setting. For example, when asked about the Blumenthal subpoena, Starr said, “It’s not in the interest of the First Amendment for distortions, lies about civil servants to be spread about.… Lies and distortions have no place in our First Amendment universe.”

As a judge, Starr had written eloquently on the values underlying the First Amendment, so even his admirers found it baffling that he so mangled the freedom-of-speech issue. According to long-settled constitutional law, the First Amendment exists to prevent the government from deciding what the truth is, not to empower some prosecutor to determine what is true or false. To be sure, Blumenthal’s press offensive had been distasteful, but he had every legal right to conduct it; a White House communications aide, regardless of his motives, has the right to distribute newspaper clippings
to anyone he chooses. Jackie Bennett may have thought that Blumenthal was a gangster, but he was actually a White House aide whose job involved talking to reporters—whether the OIC liked it or not.

Ironically, there was a perfectly legitimate, independent reason for Starr to call Blumenthal before the grand jury. Blumenthal’s conversation with Clinton on the day after the story broke constituted important evidence about the president’s state of mind. But by defending the subpoena in the inept way he did, Starr succeeded only in making the White House aide a martyr for the First Amendment. Out of all the options available to Starr—which included defending the subpoena as a way to gather relevant evidence, or better yet, saying nothing at all, or, better still, hiring prosecutors who did not send subpoenas out of macho posturing—the independent counsel made the worst choice. Here, Starr’s obsession with toughness, and with the press, led to more self-inflicted wounds.

Blumenthal took advantage of this blunder by Starr—and then some. In a press conference on the courthouse steps after his grand jury appearance on February 26, Blumenthal said, “Today, I was forced to answer questions about my conversations, as part of my job, with—and I wrote this down—
The New York Times
, CNN, CBS,
Time
magazine,
U.S. News
, the New York
Daily News
, the
Chicago Tribune
, the
New York Observer
, and there may have been a few others I don’t remember right now. Ken Starr’s prosecutors demanded to know what I had told reporters and what reporters had told me about Ken Starr’s prosecutors.”

This was a considerable distortion of what actually went on in the grand jury. Blumenthal was asked generally about his contacts with reporters, but it was he, not his interrogators, who volunteered the names of the news organizations. Moreover, before they turned to Blumenthal’s press contacts, prosecutors first asked him in the grand jury about his conversation with the president about Lewinsky on the day the story broke in the news media. On February 26, Blumenthal refused to answer questions on that subject, citing executive privilege. Blumenthal did not choose to mention that subject on the courthouse steps.

The Blumenthal controversy, which occupied much of late February, was not only a public relations disaster for Starr; it also gave the Starr team no assistance at all in proving the sexual relationship between Clinton and Lewinsky. As it turned out, Starr’s task was much like that of a matrimonial
lawyer, hired in a divorce case, who needs to prove adulterous conduct. So, first, the prosecutors began to look for admissions—people in whom Lewinsky might have confided about her relationship. Drawing on names taken from her computer, her e-mails, and her phone book, they made some good progress in this area. They started with her mother, of course, but then moved on to her friends. FBI agents fanned out around the country to interview these young women, and the prosecutors brought some of them back to the grand jury.

The first one they found was a woman named Neysa Erbland, a friend of Lewinsky’s from Beverly Hills High School. Sol Wisenberg put her before the grand jury, and she introduced the jurors to the kind of sexually explicit testimony that they would be hearing over the next several months.

“She told me that she had given him a blow job,” Erbland said, “and that she had had all of her clothes off, but that he only had his shirt off and that she had given him oral sex and they kissed and fondled each other and that they didn’t have sex. That was kind of a little bit of a letdown for her.” (In retrospect, it is amazing that the secret of this relationship held for as long as it did. Erbland testified that even though Lewinsky swore her to secrecy about the affair, she had told her husband, her parents, her mother-in-law, and a friend named Charles, who was “a booking agent on a TV show.” Other friends of Lewinsky’s had similar difficulty in refraining from sharing what was, admittedly, very good gossip.)

Shortly thereafter, the Starr investigators located Catherine Davis, a college friend of Monica’s, and she was brought from Japan, where she was living, to testify before the grand jury. Like Erbland, Davis recounted Lewinsky’s version of the relationship, but this time the indefatigable Wisenberg had new details he wanted to impart for the record.

“When Monica was describing the physical relationship with the president,” the prosecutor asked, “did she ever mention any objects that were used as an aid to that physical activity?”

“Yes,” said Davis.

“All right. Tell us about that.”

“She mentioned the use of a cigar.”

“All right,” Wisenberg went on. “And what did she say was done with the cigar?”

“She said that he used it and put it inside of her.”

The statements to friends corroborated what Lewinsky had told Tripp on the tapes. Given Lewinsky’s emotional instability, however, Clinton’s
defenders had enough ammunition to dismiss the young woman as an obsessed fan, a fantasist, or a stalker. Starr needed Lewinsky herself—or, better still, eyewitnesses.

Here the prosecutors took the investigation into the White House itself. They worked meticulously, identifying all of the people who kept track of the president’s whereabouts. They ranged from former top advisers like Leon Panetta, Evelyn Lieberman, and George Stephanopoulos to his secretary, Betty Currie, and her supervisor, Nancy Hernreich, whose title was director of Oval Office operations. They questioned Stephen Goodin, the president’s personal aide, whose job it was to make sure Clinton had the papers he needed and that he made it to meetings on time. (In her conversations with Tripp, Lewinsky immortalized Lieberman, Hernreich, and Goodin as the “meanies” who did their best to keep her away from Clinton.) The investigators tracked down two of the Navy stewards, Bayani Nelvis and Glen Maes, who served Clinton his food and took care of his clothes. In the early part of 1998, Starr’s investigators also talked to some of the uniformed Secret Service agents who controlled access to the Oval Office. In all, the prosecutors proved the wisdom of the adage describing the White House as the crown jewel of the federal prison system. The picture of Clinton was of a man monitored, probed, scheduled, coddled, catered to, and controlled virtually twenty-four hours a day.