After the Tall Timber (62 page)
Read After the Tall Timber Online
Authors: RENATA ADLER
Since the chronology does not support Mr. Starr, the volumes contain no chronology. Since so much of the “evidence” is irrelevant, or contrived, or contradicted, or suspect in other ways, the Report simply buries it in disorganization and sheer mass.
Taking but one example, there are the famous Linda Tripp tapes. Generally no date or context is given when they are cited in the communication. There are two separate lists of them, neither of which prefaces the transcripts. They give the following order: Tape 18, Tape 19, Tape 1, Tape 2, Tape 13, Tape 3, Tape 8, Tape 7, Tape 15, Tape 11, Tape 16, Tape 26, Tape 16, Tape 9, Tape 5, Tape 23, Tape 6, Tape 17, Tape 27, Tape 10, Tape 12, Tape 14, Tape 20, Tape 21, Tape 24, Tape 25, Tape 28.
It does not take a high level of acuity to see that there is something anomalous about this list. It could be just a result of the order of transcription that Tapes 1 and 2 follow 18 and 19, and so on.
Ms. Tripp testifies at length, however, that she had only one tape recorder and that she did not label tapes by date. As soon as each tape was full, or even before it was full, Ms. Tripp says, she put it in a Spode china bowl at some distance from her tape recorder; she was so anxious not to erase or alter anything that she used tapes one after another, never more than once, and often did not even risk turning a tape over to side B.
There seems no plausible explanation, then, for the fact that Tape 16 is said to hold the conversations of November 8, 11, 13, 14, and 16, while Tape 26 contains conversations of November 11. November 11 falls inescapably between November 8 and November 13. Ms. Tripp would have had to remove Tape 16 after she had recorded the conversations of November 8 and 11, used Tape 26 to record more conversations on November 11, and then put in Tape 16 again to record November 13, 14, and 16—not quite the process she describes.
An FBI report, moreover, states that the taping was sometimes affected by “Tripp’s cats” having “activated the pause button.” Riveting as some of the recorded conversations are, it seems hard to justify a great reliance on them.
In the 1960s, J. Edgar Hoover and his FBI clandestinely made tapes of Martin Luther King Jr. engaged in various sexual acts in hotel bedrooms. The Bureau sent copies of those tapes to several public officials and members of the press, and to Dr. King himself, in order to humiliate him and either drive him to suicide or hound him into retirement. Judge Starr and his staff, in their failure to make a legal case, have resorted in the end to the same strategy. One difference is that their target is the President. Another is that in the 1960s public officials and the press refused to disseminate such tapes. In the late 1990s the press welcomes, broadcasts, and dwells upon them. The House rushes to publish them, with the congressional imprimatur, and to use them as the basis for an impeachment inquiry.
Even in his worst excesses, Senator Joseph McCarthy made at least the claim of constitutional issues: the alleged infiltration and subversion of the American government by a foreign power. In the Nixonian crisis of Watergate, the issue was also constitutional: abuse of power by the President in his official capacity. In 1974 the House Judiciary Committee specifically rejected as an impeachable offense Nixon’s cheating (and thereby lying under oath about it), in his private capacity, on his income taxes.
It is not often remarked that the Constitution protects not against the crimes of people against one another but against abuses by the state itself against its citizens. On January 16, 1998—and before and after—Kenneth Starr and his staff became precisely the governmental agents the Constitution guards against.
There is no question that the President was also very much at fault here: failures of judgment, failures of honor, failures of taste. It may be that each of us knows a Monica Lewinsky. Not every temperament finds it easy to escape from her. But Ms. Lewinsky, even if she turns out to have endearing qualities, is an extreme example. In his political life, the President has evidently found it easy to rebuff, even leave, people when he feels he needs to. Somehow, even when Ms. Lewinsky was at her worst—months after he had terminated any physical relations with her, when she would page Ms. Currie late into the night, with threats and abuse, when she would appear at the White House gate and “scream” until somebody (usually Ms. Currie) came and brought her in—he could not seem to say, or enforce, a decisive no. He seemed to have the same difficulty with the special prosecutor and the grand jury. To have a White House, moreover, that cannot control its interns, pantry stewards, guards—cannot control even access to the President’s person and his time—is a security risk and an administrative disaster. It seems, on the basis of these volumes, that the President is not only very nearly friendless but that there is something decidedly less than first-rate about the people with whom he surrounds himself. And, in spite of his intelligence, his interest in history, and concern with his “legacy,” there is also something fundamentally wrong with his conception of what the presidency is.
The separation of powers, for example, requires the President to insist that the only court before which he will appear is the House in a matter of impeachment. Even the lowliest suspect in a criminal proceeding is not required to appear before a grand jury or submit to a sworn (let alone a videotaped) deposition. The President, as is so often remarked, is not above the law. In this case, he behaved as though he were below it. The very fact that he consented to testify diminished the powers of his office. Let the Independent Counsel come in waving stained dresses as he liked, he has no authority whatever to summon the President, let alone to take an example of his DNA. The House would look pretty silly deliberating over stains on dresses. In a proceeding of this constitutional order, the President cannot prevail with charm, semantics, or persuasion. To any court other than the House in an impeachment inquiry, he must say, as he should have said to Ms. Lewinsky, simply: No.
The grand jurors, in spite of the evident reluctance of the prosecutors, had been able to elicit testimony—to name but one example—from Linda Tripp which the House needs to examine. In reply to the crucial question of why she taped, she answers, at first, relatively calmly, because she was “afraid,” because she needed “protection” against the enormous forces that were trying to “destroy her,” to push her, in spite of her integrity, into a “felony” and a “perjury trap.” A few questions more and she is talking about “the high level of drug use that was rampant in the White House when I was there,” which may extend to the President himself, and testifying that there was a “list of forty bodies or something that were associated with the Clinton administration. At that time, I didn’t know what that meant. I have since come to see such a list.” Surely a list of forty bodies is something that—unlike the rest of the groundless and inadmissible trash he elicited elsewhere—would have been well within the jurisdiction of the Independent Counsel. The House needs to evaluate for itself the testimony of such a witness, along with the wisdom and good faith of an Independent Counsel who would reduce that testimony nearly to the size of a microdot, and not publish it earlier than page 4,277 of the fifth volume of his text.
The more closely one looks, then, at this huge mass of unsorted, often irrelevant and repellent matter, the clearer it becomes that the intent is to confuse, obscure, and intimidate. The facts the prosecutors were hoping to find—a bribe or other financial inducement to a witness to commit perjury, or at least to remain silent about some underlying crime—did not exist. In the case of Ms. Lewinsky, there was no obstruction of justice. In fact, there was no underlying crime. So they tried to create one. They thought they needed perjury from the President, so they set out to make sure he would commit it. They sent their agent Ms. Tripp to brief lawyers in a civil case with the sort of damaging information that would make it virtually impossible for the President to answer truthfully. Even with untruthful answers (which were peculiarly clumsy and inept), they had no crime—still less, a constitutional high crime or misdemeanor. So they just amassed their sludge and hurled it at the President, and hoped to prevail through embarrassment and disgust.
In one respect, the strategy seems to derive not just from Mr. Starr’s staff of lawyers schooled in the prosecution of organized crime but also from Mr. Starr’s own experience in the field of antitrust litigation. In the 1970s, it became common for huge corporations in antitrust cases simply to overwhelm the opposition with a huge amount of material, in the discovery phase of the trial, in hopes that the opposition could not find its case. The sheer mass of Mr. Starr’s volumes goes even further. It nearly conceals that he unleashed not just the legal mechanism entrusted to him but also a process that violates the ethical and legal norms of the society, on the basis of the—unconvincing, often even internally inconsistent—testimony of one embittered and compromised informant, and one unusually persistent, and demonstrably unreliable, woman of twenty-four.
Mr. Starr likes to dwell, with the press, on his reading of the Bible. There is in the Bible, after all, just one commandment that squarely meets the case as it now stands. It has to do with False Witness, and the false witness in question is not perjury. It is False Witness against Thy Neighbor, and these documents, this compendium of partially false and almost entirely scurrilous testimony, with its accompanying report, is a case of false witness so egregious as to set a standard for the millennium.
Vanity Fair
December 1998
ADDENDUM
On December 30, 1998, Charles Bakaly of the Office of the Independent Counsel wrote a letter to
Vanity Fair
, saying that “While we do not habitually correct published misinformation,” he must dispute virtually every factual statement in my piece. On the very day the issue of
Vanity Fair
that contained Mr. Bakaly’s letter was published—by apparent coincidence—Mr. Bakaly, having improperly “leaked” information to the press, left the OIC. Mr. Bakaly admitted the leak. He was subsequently found innocent of any legal wrongdoing in the matter. In spite of Mr. Bakaly’s own admission that he
was
their source, the
Times
continued to protect his “anonymity.” The following piece, in any event, was my answer to Mr. Bakaly’s letter.
There can be no doubt that Mr. Bakaly and his colleagues at the Office of the Independent Counsel “do not habitually correct published misinformation.” Their enterprise consists so precisely in generating misinformation, in such confusing and lurid volume—before the grand jury, the House Judiciary Committee, the courts, the attorney general, and the press—that by the time the truth emerges about any particular matter the news will simply have moved on. The strategy has so far served the Independent Counsel very well. As recently as this morning (February 10, 1999),
The New York Times
is still reporting, for example, that Linda Tripp “found her way to the Office of the Independent Counsel through a group of private lawyers,” and that the Independent Counsel “first learned about the Lewinsky matter” on or about January 8, 1998—“four days before Linda R. Tripp contacted Mr. Starr’s office.” Ms. Tripp had testified that she contacted the OIC on January 12, 1998, and that her intermediary with Mr. Starr’s office, as with Paula Jones’s attorneys, was Lucianne Goldberg. Mr. Bakaly now repeats Ms. Tripp’s claim that Ms. Goldberg was responsible for the (in his words) “decision to start taping” as well.
I don’t know about Ms. Tripp’s “decision to start taping,” or what time Mr. Bakaly means by (in his other carefully chosen phrase) “at that time,” but attempts to cast Ms. Goldberg as all-purpose motivator, intermediary, nexus, do not hold up. The fact, as I pointed out in my piece, was that, by January 1998, Ms. Tripp did not need intermediaries—Ms. Goldberg or any “group of private lawyers”—to contact the Office of the Independent Counsel, or to initiate taping for the OIC. By 1998, she had been Mr. Starr’s witness, and before that Robert Fiske’s, in various investigations, for almost four years.
Throughout the long volumes of the
Referral
, there is every evidence of a determination to conceal, and even falsify what the Office of the Independent Counsel actually knows about Linda Tripp. Nowhere in the
Referral
’s FBI reports, for example—which set forth, in considerable detail, both Ms. Tripp’s own history and her intended testimony before the grand jury—is there any mention whatever of the fact that she has been interviewed at least once before, on April 12, 1994, on behalf of the Independent Counsel, by the FBI. In my piece, I mentioned the FBI’s report of that April 12, 1994, interview—which I found, not in the Starr
Referral
but in documents that accompanied transcripts of the D’Amato hearings on Whitewater. Ms. Tripp was an enthusiastic witness. Her most sympathetic interlocutor was Lauch Faircloth, her fellow conspiracy theorist and one of two senators—the other was Jesse Helms—most directly responsible for the appointment of Kenneth Starr as Independent Counsel.
It is inconceivable that the FBI report of this interview is not in the files both of the FBI and of the OIC. In the whole Starr
Referral
, however, there is no mention of any such prior report, interview, or file. The almost inescapable inference is either that the
Referral
’s 1998 FBI reports were laundered to expunge any mention of the 1994 interview, or the FBI agents interviewing Ms. Tripp were instructed to omit any reference to it. An investigation of what became of these files, and why they were concealed from the grand jury, the House, and the Senate is surely overdue.
Similarly, when Ms. Tripp testified that, until January 12, 1998, she had “never even thought about the Independent Counsel in my wildest dreams,” and that she needed Ms. Goldberg to contact the OIC, the grand jury was being actively misled. It was the obligation of the prosecutor immediately to disclose to the grand jury that this testimony, as he knew, if not from his own memory, then from his files, was false.
As for Ms. Tripp’s tapes—which occupy literally thousands of pages of the
Referral
, but on which Mr. Bakaly now says the
Referral
“places no great reliance”—it is now clear that more than half of them exhibit doctoring (it is not clear by whom), which the OIC chooses to characterize as “duplication.” And it is quite untrue that any discrepancy in the sequence is, as Mr. Bakaly claims, “noted in an appendix to our Referral.” The pages that Mr. Bakaly cites are simply lists, without any comment whatsoever on the sequence: They are an
instance
of the lack of integrity, and not a notation of it. It is, in any event, not the “tape,” but the
conversation
that is out of sequence: An earlier conversation appears between two later ones—a metaphysical impossibility. The very extent of the deception in defense of the tapes, together with the rapidity with which the OIC granted Ms. Tripp immunity for them, make it clear whom Ms. Tripp was working for. Could the prosecutors in a single evening really have reviewed the contents of all those tapes, appraised their reliability, and phrased questions for Ms. Tripp to pose during an interview (at the Ritz-Carlton, with Ms. Lewinsky) the following day? Surely only Ms. Tripp’s prior work for the OIC can explain the speed and degree to which they understood and trusted her account, and the alacrity with which (without any legal authority) they wired her.
There can really be no doubt, either, that on the night of January 16, 1998, when the OIC was trying to coerce Monica Lewinsky to cooperate in secret taping, the prosecutors were aware—contrary to the statements in Mr. Bakaly’s letter and to sworn testimony, before the House Judiciary Committee, by Kenneth Starr—that Ms. Tripp was going to meet Paula Jones’s attorneys that very night. In fact, as Ms. Tripp testified before the grand jury, the terms of her agreement with Jones’s attorneys
required
her to brief them “before the President’s deposition,” which was, of course, the following day. Aside from the certainty that Ms. Tripp, who was by this time incontestably their agent, would have told them, the whole alleged basis of her conversations with them was that
she was about to be a witness in the Jones case
. Moreover (a fact concealed by the prosecutors even in their representations to the court of Judge Norma Holloway Johnson), throughout most of the hours on January 16, 1998, when prosecutors Jackie Bennett, Michael Emmick, Bruce Udolf, and Stephen Binhak and FBI Special Agents Steven Irons, Patrick Fallon, and “other OIC attorneys and agents present at various times, mostly in an adjoining room” were detaining Ms. Lewinsky in one room of the Ritz-Carlton—one wonders how many prosecutors and FBI agents are required to detain an enemy spy, or a serial killer—Linda Tripp was waiting in another room of the same hotel. When Ms. Lewinsky declined to be wired, and it was clear the OIC would not be able to enlist her in one plan, Ms. Tripp needed to meet her deadline in setting up the President in another. Ms. Tripp left for her pivotal briefing of the Jones attorneys. Far from having “no inkling” where Ms. Tripp was going, the OIC sent one of their agents to drive her there.
The press, including the
Times
, has brought out some of the other extensive, manifestly illegal, contacts between the OIC and the Jones people, by way of partners in Mr. Starr’s law firm and of Mr. Starr himself. There is at least one further clue, in the very basis of the interrogation of Ms. Lewinsky, to the degree of collaboration between the Jones attorneys and the OIC. In fact, the incident cannot even accurately be called an “interrogation.” There is no evidence that the prosecutors and agents ever
asked
her anything. It was, rather, a protected exercise in threats, bullying, coercion, and intimidation, based not on inquiry but on what the prosecutors told Ms. Lewinsky they already knew. And the question is, How could they possibly have known it?
Ms. Lewinsky’s affidavit had been signed, and mailed, but would not arrive until three days later at the court. Ms. Lewinsky, it must be remembered, had actually lied to Ms. Tripp—to the effect that she was taking Ms. Tripp’s advice, and that she had not signed a false affidavit in the Jones case, and would not sign such an affidavit, until the President, through Vernon Jordan, had found her a satisfactory job. Ms. Tripp, in other words,
did not know
that the false affidavit was already signed. How, then, did the prosecutors know—not just that it was false but that Ms. Lewinsky had signed it? The answer is this: Francis Carter, Ms. Lewinsky’s attorney, had, five days earlier, informed the Jones attorneys, as a courtesy, of the contents of the affidavit. The Jones people told the OIC.
Finally, there is simply no question that, in this eleven-hour detention of Monica Lewinsky, OIC personnel were in flagrant violation of statutory and professional constraints on prosecutorial misconduct and of Ms. Lewinsky’s constitutional rights. It is simply untrue that a federal court “summarily rejected” (Mr. Bakaly’s phrase) any such claim, or that the court was ever presented a full and honest account of what occurred that night. The issue before Judge Johnson was whether to quash the OIC subpoenas not of Monica Lewinsky but of Francis Carter. Judge Johnson accepted the OIC accounts of what they actually did. Nonetheless, she wrote: “The Court expresses its concern that” the OIC “may have acted improperly.” “This Court’s supervisory power to control prosecutorial misconduct before grand juries,” she also wrote, “is quite limited. However, the Court is extremely disturbed” that the prosecutors might have disrupted Ms. Lewinsky’s relationship with her attorney, Mr. Carter. And that she would “consider referring this matter to the Department of Justice Office of Professional Responsibility for investigation.”
After a blizzard of affidavits from the prosecutors and FBI agents that there had been no misconduct on their part (and without having received sworn testimony to the contrary, given, at risk of their immunity, by Ms. Lewinsky and her mother), Judge Johnson withdrew her threat of sanctions. None of the allegations was “summarily rejected.” Subsequent testimony by Ms. Lewinsky and her mother made it absolutely clear that the prosecutors were in violation not just of the law but of Justice Department guidelines—by which the Office of the Independent Counsel is, in its authorizing statute, bound.
One has only to read the OIC’s own affidavits, In Re Sealed Case, before Judge Johnson, about what they did on the night of January 16, 1998. One constitutional standard for such detentions is whether a “reasonable man” would have known that he was free to leave. There were more than seven men, some, according to their affidavits, alternately in the room and “standing in the doorway,” while Ms. Lewinsky was alternately sobbing “hysterically” and staring “off into space.” They point out that they gave her permission to go to the bathroom and shut the door. They say that Ms. Lewinsky’s mother “thanked” them for giving Ms. Lewinsky “permission” (their word) to call her mother. They deceived her for hours with dire descriptions of what they said her legal situation was. Why did there need to be so many of them, if, as Ken Starr told the Judiciary Committee, they did not intend to “overbear”—another constitutional standard—“the will”? No reasonable person would have felt free to leave. Transcripts of the prosecutors’ own affidavits are chilling. In time, this conduct of the OIC will enter history and the law as precisely the conduct, on the part of public officials, that the Constitution was designed to protect citizens against.