A Vast Conspiracy (15 page)

The interviews that Jackson arranged for Hale succeeded in keeping the story alive in Washington. As Jackson knew they would,
The Washington Post, The New York Times
, and the
Los Angeles Times
spent the rest of the fall battling one another for preeminence in the story—which at this point consisted mostly of determining which investigative body was investigating Whitewater (the U.S. attorney or the Resolution Trust Corporation) and how much, if anything, Clinton administration officials knew about these investigations. Had the RTC—the government agency charged with examining bankrupt savings and loans—made a “referral” suggesting a criminal investigation of Whitewater? Who knew of it—and when? To be sure, the Clinton officials botched their handling of the inquiries in the winter of 1993 by acting unduly defensive. White House aides—at the direction of Bill and Hillary Clinton—refused to make public all of the first family’s documents on their investments. George Stephanopoulos protested the appointment of Jay Stephens, a prominent Republican, by the RTC to investigate Whitewater.

In light of these disclosures, the underlying events of the Whitewater transaction all but disappeared from the news coverage. By December, when news broke that White House lawyers had removed some documents about Whitewater from Vince Foster’s office after his death, Whitewater
had turned into a bona fide media frenzy. (The lawyers said they removed the documents because they believed they contained privileged communications between Foster and his clients, the Clintons.) Congressional hearings on the subject were planned for the spring. Through it all, the evidence against the Clintons bordered on the nonexistent. (This was true even after the Whitewater documents finally were released—and after Stephens made his report, which exonerated the Clintons.)

Throughout December, members of Congress began calling on Attorney General Janet Reno to appoint a special prosecutor in the case. The law governing independent counsels had expired in 1992, when Republicans who were upset with Lawrence E. Walsh’s conduct of the Iran-contra prosecution blocked its renewal. Reno wanted to wait to make any appointment of a prosecutor until the law was renewed, which was expected to be in mid-1994. But during the second week in January, when Clinton set off on a major tour of Central Europe and the former Soviet Union, virtually all the questions that followed him involved Whitewater and the appointment of a special prosecutor. On January 11, in the Ukraine, Clinton sat for a brief interview with Jim Miklaszewski of NBC News, who asked him only about Whitewater. Clinton waxed indignant, saying, “I’m sorry you’re not interested in this trip. My thinking is this is a situation without precedent in American history. I mean, all these people say, ‘We don’t believe this man’s done anything wrong. There’s no evidence that he’s done anything wrong. There’s never been a credible charge that he’s done anything wrong.’ ”

Still, that night, the president and his advisers bowed to political reality. In a conference call between the president’s party in Europe and his legal team gathered around the Oval Office in Washington, only one adviser spoke out against asking Reno to make the appointment. According to James Stewart, White House counsel Bernard Nussbaum warned that asking for a special prosecutor when there was no evidence of wrongdoing on the part of the president would amount to a historic blunder. “The frustration of finding nothing in Whitewater will make them investigate every one of your friends,” Nussbaum said. “They will broaden the investigation to areas we haven’t even contemplated.”

“But this is about Whitewater,” someone said to Nussbaum.

“No,” he replied forlornly. “This will be a roving searchlight.… They will chase you, your family and friends, through the presidency and beyond.”

Clinton’s political advisers overrode Nussbaum and persuaded Clinton to request the appointment of a special prosecutor. This was a tremendous victory for both David Hale and Cliff Jackson. Hale would achieve his goal of cutting a plea-bargain deal that would lead to lenient treatment for his crimes. Jackson accomplished even more. By the end of February 1994, Jackson had set in motion both the Paula Jones case and the Whitewater independent counsel—which would, in time, converge and then nearly consume Bill Clinton’s presidency.

On January 12, with the president still overseas, Stephanopoulos made the official announcement that the president would ask Reno to appoint a special prosecutor. He hoped that the appointment of a special prosecutor would bring the matter to “a speedy and credible resolution.”

In 1875, just five years after the Department of Justice was created, President Ulysses S. Grant appointed the first outside independent prosecutor (who was also the secretary of the treasury) to investigate the St. Louis Whiskey Ring, a scandal within his administration. Grant ultimately forced the prosecutor to resign because of his aggressive tactics. In 1952, President Harry Truman’s attorney general appointed a Republican special prosecutor to examine possible wrongdoing within the Department of Justice. Two months later, that prosecutor, too, was fired. In 1973, Attorney General Elliot Richardson appointed Archibald Cox, a Democrat, to investigate Watergate. On October 20 of that year, President Nixon fired Cox in what became known as the Saturday Night Massacre.

The need for and the problems with special prosecutors have long been a part of American history. The dilemma at the heart of the issue can be simply stated. In cases of possible wrongdoing by senior members of a president’s administration, or by a president himself, his subordinates may have a conflict of interest in conducting the investigations. But if “independent” prosecutors are appointed, who is to supervise them? Can any check be imposed on their power without creating the same kinds of conflict of interest that necessitated their appointments in the first place?

Congress tried to answer these questions with the Ethics in Government Act of 1978, which created the modern independent counsel system. Passage of the law served in many ways as the unofficial beginning of the era when the legal system took over the political system. The idea behind the law was to use judges to depoliticize high-profile investigations; the
role of the judges, the theory went, would protect everyone involved from charges of conflicts of interest. The experience of Watergate was still fresh in the legislators’ minds when they wrote the law, and the Saturday Night Massacre was the danger they most wanted to avoid. They worried more about abuses of the prosecutor than by the prosecutor.

In this one respect—avoiding more Saturday Night Massacres—the law was successful. In virtually all others, however, the law failed, and it expired, unmourned, in 1999—a monument both to the law of unintended consequences and to the cost of good intentions. The structure of the law changed little over two decades. When the attorney general found “reasonable grounds to believe that further investigation is warranted” of the president and certain other high-ranking officials, she was required to apply for the appointment of a prosecutor to a panel of three senior federal judges, who were, in turn, preselected by the chief justice of the United States. The three judges, known as the Special Division, then selected the prosecutor and defined his or her jurisdiction. To guarantee their independence and to prevent their targets from waiting them out, the prosecutors themselves would determine how long their investigations should take. (A midcourse change in the nomenclature offered a hint of the more substantive problems with the law. In 1978, the law used the title “special prosecutors,” the designation that had been used for Cox. But in 1982, worried that “prosecutor” sounded too accusatory, Congress changed the name of the office to “independent counsel.”)

In one of many ironies surrounding the law, it actually hastened the politicization of the legal process it was designed to combat. In part this was an inevitable by-product of a more skeptical age. It became more difficult to present any decision by anyone, including a judge, as neutral or apolitical. Still, the law itself seemed designed almost willfully to make these problems worse. All of its attempts to depoliticize decision-making seemed only to inject more politics into the process. The press, of course, with its zeal for confrontation and investigation, served as an important constituency in favor of the law. The prospect of politicians in jail always made a better story than the usual work of the federal government, so the news media could always be counted on to provide a forum for those who wanted investigations begun and prosecutors appointed.

Still, even on its own terms, the law never worked. For example, notwithstanding the hopes of the authors of the law, there was nothing self-evident about how to determine when an independent counsel should be
appointed. The Whitewater controversy in late 1993 was only the first of many times during the Clinton administration when Republicans charged that the attorney general was ducking the appointment of an independent counsel to protect her boss, the president. Instead fomenting arguments about the propriety of the underlying behavior, the law encouraged this kind of proxy politics—endless, enervating debates about whether prosecutors should be appointed. Again contrary to the naïve hopes of the bill’s framers, the method for appointing independent counsels also politicized the process, for judicial participants in the independent counsel process could scarcely be seen as Olympian neutrals. Chief Justice William H. Rehnquist served as a Republican political operative before he came on the bench, and there he opposed Clinton’s agenda in almost every way he could. Therefore it was not surprising that he named, as head of the Special Division, a judge named David B. Sentelle, an even more avid anti-Clinton partisan from North Carolina. Decisions made by Sentelle had no greater claim to political neutrality than those made by Clinton’s attorney general. And the biggest fallacy of all behind the law was that independent counsels themselves would perform better—and earn more public respect—than the prosecutors they replaced.

None of these flaws in the independent counsel law were secrets in 1993 when the Clinton administration began to weigh whether to apply the law to itself. At that moment, Lawrence E. Walsh, who had been appointed by the Special Division to investigate the Iran-contra affair, was finally winding down his seven-year investigation. By the time it concluded, Walsh’s probe offered a primer on the ills of the law—undue length, unwise prosecutions, excessive zeal on the part of the prosecutors. (I served as an associate counsel on Walsh’s staff for the first three years of his investigation.) In the politicized environment of independent counsel investigations, few Democrats protested Walsh’s excesses. Similar excesses by a Republican prosecutor would lift the scales from Democratic eyes. At that point, however, their protests drew little sympathy from the other side of the aisle.

So, on January 12, 1994, the president announced that he wanted a special counsel appointed in the Whitewater affair. It was up to Attorney General Janet Reno to name the prosecutor.

The situation was analogous to that which faced Attorney General Elliot Richardson in 1973. Because the independent counsel law had
expired—it would be reauthorized six months later—Reno had complete freedom to select a Whitewater prosecutor. Richardson chose Cox. Whom would Reno select?

She convened her top advisers, and the list was narrowed to a familiar list of big-shot lawyers and ex-prosecutors. Reno asked her deputy, Phillip Heymann, to sound out the leading candidates. He spoke to former senator Warren Rudman, former FBI and CIA director William Webster, former deputy attorney general Donald Ayer—and Kenneth Starr and Robert Fiske.

There was never any real contest for first choice. Fiske was the class of the field. Under President Ford, he had been named the United States attorney for the Southern District of New York, and he was kept in that sensitive position by President Carter. In recent years, he had worked as a white-collar criminal defense attorney at the New York law firm of Davis Polk & Wardwell. Fiske was a throwback to another era, when lawyers dipped in and out of public service and maintained some independence from the political process. He was sixty-three years old, prosperous, and content. He was not gunning for another job in the future. In a press conference to announce his selection on January 20, Reno called him “the epitome of what a prosecutor should be.” Reno had made the perfect selection—and she had done so without the cumbersome superstructure of the independent counsel law.