High Crimes and Misdemeanors: The Case Against Bill Clinton Read online

  Table of Contents

  Title Page

  Dedication

  Chapter One - Just Do It

  VICTIM OR THE CRIME

  JOHNNY B. GOODE

  SUBSTANCE AND MEANING

  THE PROMISED LAND

  THE LAST TIME

  U.S. BLUES

  HIGH TIME

  PART ONE - “Kiss It”

  Chapter Two - You Can’t Prove I Lied

  THE UNDERLYING CASE: JONES V. CLINTON

  THE TAPES

  STARR STRUCK

  Chapter Three - Prevaricator in Chief: The President’s Deposition

  Chapter Four - The Monica Story Breaks: Clinton’s Legacy Is Formed

  RECIPE FOR PERJURY

  SUPER LAWYER VERNON JORDAN

  THE TALKING POINTS

  PRIAPUS’S PERJURY

  Chapter Five - Kathleen Meets Paula

  THE WILLEY DEPOSITION

  “I DID TO HER WHAT I HAVE DONE TO SCORES AND SCORES OF… WOMEN…”

  Chapter Six - The 60 Minutes Interview

  Chapter Seven - Blasting the Bimbos

  BIMBO ERUPTIONS DURING THE 1992 CAMPAIGN

  NO MORE FLOWERS

  PERDUE CHICK

  KEEPING UP WITH JONES

  WEE LITTLE WILLEY—INDUCING LARYNGITIS

  GOOD TRIPP

  EARNING HER PRESIDENTIAL KNEEPADS

  Chapter Eight - Persecuting the Prosecutor

  STARR’S REINCARNATION AS A HARDLINER

  CLAIMS OF “LEAKS”

  OUTING STARR’S DEPUTIES

  Chapter Nine - Starr Turn: The White House’s Secret Weapon

  Chapter Ten - A Cancer on the Country

  THE PRESIDENT LYING

  PERJURY “ABOUT SEX”

  OBSTRUCTION OF JUSTICE “ABOUT SEX”

  PART TWO - Abuse of Power

  Chapter Eleven - Job Creation, Clinton Style: The Travel Office Massacre

  THE FOBS

  FUTURE EX-CODIRECTOR OF THE WHITE HOUSE TRAVEL OFFICE

  THE PRESIDENT AND FIRST LADY’S FORGOTTEN ROLES

  “PUTTING PEOPLE FIRST”—THE PUTSCH

  THE SCRIPT REQUIRED CRIMINALS

  SMEAR

  ABUSE OF FBI FILES

  FBI INVESTIGATION

  THE TAX MAN COMETH

  ALL THE PRESIDENT’S FAULT

  Chapter Twelve - Filegate: A “Bureaucratic Snafu”

  THE “SNAFU”

  THE FILES

  THE MYSTERIOUS CRAIG LIVINGSTONE

  “HILLARY WANTS HIM”

  ANTHONY MARCECA: DIGGING IN LOW-GRADE DIRT

  SHAKY WHITE HOUSE EXCUSES

  FIGHTING BACK

  THE PRESIDENT’S RESPONSIBILITY

  Chapter Thirteen - Auditing the Enemy

  BILLY DALE

  CAN’T WIN IN THE SUPREME COURT? CALL THE IRS

  THE LIST GOES ON

  ASSIGNING RESPONSIBILITY

  PART THREE - Obstruction of Justice

  Chapter Fourteen - Whitewater

  OVERVIEW OF CLINTON CONNECTIONS TO MCDOUGAL’S CRIMES

  CASTLE GRANDE

  MRS. CLINTON DRAFTS THE FRAUDULENT OPTION AGREEMENT

  MRS. CLINTON ACTS LIKE A GUILTY PERSON

  THE GOVERNOR’S ALLEGED PARTICIPATION IN DAVID HALE’S CRIME

  Chapter Fifteen - Fostergate

  FOSTER’S ROLE

  THE TIMELINE

  “BERNIE, ARE YOU HIDING SOMETHING?”

  THE ODDITIES PILE UP

  THE WHITE HOUSE HIDES THE TRUTH

  Chapter Sixteen - Webb Hubbell: Friend of the Voiceless

  A FELON IN THE DEPARTMENT OF JUSTICE

  THE WHITE HOUSE ACTS SUPPORTIVE

  THE LIPPO GROUP CHIPS IN

  MONEY, MONEY

  THE PRESIDENT EXPLAINS EVERYTHING

  HELP ON THE WAY

  PRISONER BLUES

  PART FOUR - Corruption

  Chapter Seventeen - White House Coffees

  THE PLAN

  THE WHITE HOUSE EXPLANATION

  THE SHOPPING LIST

  “POLITICAL FUND-RAISING IS CRITICAL”

  WHITE HOUSE SPIN

  THE LAW

  MEDDOFF

  SLEAZE AND CORRUPTION

  Chapter Eighteen - Wampumgate

  THE CHIPPEWA CASINO

  THE LAWSUIT

  THE CASE AGAINST BABBITT

  THE INDEPENDENT COUNSEL

  Chapter Nineteen - The Manchurian Candidate

  THE LIPPO GROUP

  COMPANY MAN JOHN HUANG

  CHINA CAT JOHNNY CHUNG AND COSCO

  YOU GOT ME

  THOMPSON COMMITTEE

  LORAL

  Chapter Twenty - High Crimes and Misdemeanors

  VIRTUE MEANS MORE THAN NOT BEING A FELON

  IMPEACHMENT IS THE MOTHER OF ACCOUNTABILITY

  MASTERPIECE: THE CONSTITUTION

  HIGH CRIMES AND MISDEMEANORS THROUGHOUT HISTORY

  AMERICAN RIPPLE: NO KING

  THE IMPEACHMENT OF PRESIDENT JOHNSON: NOT POLICY

  THE NEAR IMPEACHMENT OF PRESIDENT NIXON

  THE OKIE FROM MUSKOGEE

  IMPEACHMENT OF A PRESIDENT FOR OBSTRUCTION OF JUSTICE

  IMPEACHMENT OF A PRESIDENT FOR LYING

  IMPEACHMENT OF A PRESIDENT FOR PERSONAL MISCONDUCT

  EYES OF THE WORLD

  Notes

  Index

  Copyright Page

  FOR MY PARENTS,

  who see virtues in the British system.

  The President, Vice President, and all civil Officers of the Unites States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

  —United States Constitution, Article II, section 4

  Chapter One

  Just Do It

  Compared to the long hours and amazingly tedious work of practicing law, political punditry has much to recommend it. In only one respect does practicing law compare favorably with practicing punditry, but it is an important one. In the law, there are standards, rules, and precedents that must be adhered to by everyone—trial judges, opposing counsel, jurors, appellate courts, even, in theory, the Supreme Court. The first principle of law is that like cases are supposed to be treated alike.

  Political commentary is completely different. Like cases are treated unalike with such alacrity as to make the head spin. No general principles can ever be adduced. If a pundit opines that there is no constitutional basis for President Bill Clinton’s claimed immunity from civil suit, that is assumed to be a political preference, rather than an attempted interpretation of the law… and half the time it is. Pundits left and right1 switch sides with barely a blush, depending on whose president is being gored.

  Nevertheless, there are standards and precedents and rules about the conduct of public men, presidents in particular. It cannot be the case, for example, that President Richard Nixon “shredded the Constitution” for inquiring about having the Internal Revenue Service (IRS) audit his political enemies (request declined), but that President Bill Clinton is an innocent victim of—in his wife’s words—“a vast right-wing conspiracy” when he succeeds in having the IRS audit his political enemies. The evidence for either claim may be disputed—to a point—but the answer to whether politically motivated IRS audits are right or wrong should not depend on who the president is, or who the enemies are.

  There are even standards for evaluating the evidence of such misconduct. And these standards, too, must be applied evenhandedly if the rule of law is to survive. It cannot be the case, for instance, that, when a Republican president st
ands accused, he is to be held accountable for the actions of his subordinates, even in the absence of proof that he directly ordered those actions, and that a Democratic president is assumed to be innocent, no matter what the evidence, unless we catch him with a smoking gun in his hand. On videotape.

  With each new revelation about President Clinton’s apparently corrupt and sometimes illegal behavior, paid and unpaid Friends of Bill (FOBs) take up the public relations gauntlet to announce that previously abhorred conduct is now considered wholly excusable conduct. “In the end the party would announce that two and two made five, and you would have to believe it…. [T]he logic of their position demanded it…. The heresy of heresies was common sense.”2 Oceania is at war with Eastasia. Two plus two makes five. We’re “waiting for the facts to come out” to decide if President Clinton has lied,3 and Mrs. Clinton is confident the allegations will “evaporate and disappear if they’re ever given the light of day.”4

  The only coherent epistemology at the moment is that once Clinton is caught doing it, it’s okay. At this rate, the entire country will soon be molesting interns, lying under oath, buying witnesses, flashing subordinates, and rifling through confidential FBI files. The only thing American citizens must never, ever do is tape a friend—even to expose government corruption. Free John Gotti! And those Floridians who secretly taped Newt Gingrich go to prison for life.

  Everyone is entitled to his own opinion; everyone is not entitled to his own facts. Precedents, like Watergate, are facts. If a president’s “cutting corners or hoarding dirty little secrets” is enough to impeach him, as Nixon’s attorney general, Elliot Richardson, said, because “honesty is the best politics,”5 then a president’s bald-faced lies under oath in a citizen’s constitutional case against him have to be enough. If it is wrong to talk about pornographic movies to female subordinates, it is wrong to drop your pants and say “kiss it” to female subordinates. If the woman’s statement plus one corroborating witness was enough evidence yesterday, it’s enough evidence today. Although, ultimately, one might have a preference for one rule or another, at least we should all know what the rules are.

  There are pretty clear rules and standards for what constitutes a “high Crime and Misdemeanor,” or an impeachable act. Certain types of conduct have been accepted as valid grounds for impeachment throughout American history, and under the British constitutional precedents the Founding Fathers had in mind when they wrote the impeachment clauses of the Constitution. The grounds, and even more important, the purposes of impeachment, reach back with remarkable consistency more than six hundred years.

  VICTIM OR THE CRIME

  When the framers of the Constitution chose the phrase “high Crimes and Misdemeanors” to complement treason and bribery as grounds for impeachment, “they adopted a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history.”6

  That statement comes from the report assembled by Representative Peter Rodino’s House Judiciary Committee, which framed the Articles of Impeachment against Richard Nixon. The so-called Rodino Report, entitled “Constitutional Grounds for Presidential Impeachment,” was the work of, among others, Bernard Nussbaum, who would serve as President Clinton’s first White House counsel, and Hillary Rodham, who would serve as first lady to President Clinton—the next president for whom impeachable offenses would be an issue.

  Here’s some history:• In 1666 Viscount John Mordaunt was charged with impeachment for the high crime and misdemeanor of making uncivil addresses to a woman.

  • In 1680 Sir William Scroggs, lord chief justice of the court of the King’s Bench, was impeached on account of “his frequent and notorious excesses and debaucheries” bringing “the highest scandal on the public justice of the kingdom.”7

  • In 1701 Edward, Earl of Oxford, a member of the king’s council, was impeached for procuring an office for someone “known to be a person of ill fame and reputation.”8

  • In 1881 the Minnesota legislature impeached Judge E. St. J. Cox for “frequenting bawdy houses and consorting with harlots.”9

  Quite noticeably, all but presumably the last of these are not crimes—even misdemeanors—under the criminal law.

  Though it will come as a shock to people who acquire their legal knowledge from TV pundits, the phrase “high Crimes and Misdemeanors” has nothing to do with criminal law. The “somewhat startling” proposition that high crimes and misdemeanors need not be crimes at all is, nonetheless, an indisputable fact demonstrated by the “great preponderance of authority.”10

  In fact, there is no such thing as a “high Crime and Misdemeanor” in the criminal law. Just as a sea lion is something completely different from a lion, and a mongoose completely different from a goose, the “high Crimes and Misdemeanors” mentioned in the Constitution are completely different from crimes and misdemeanors. Attaching “high” to “crimes and misdemeanors” creates an entirely different animal. And, as Rodham and Nussbaum once explained to the nation, the framers knew that.

  Impeachment is not a criminal procedure; the acts that justify impeachment are not necessarily criminal acts; and the purpose of impeachment is not punishment.

  Indeed, impeachment is not directed exclusively or even primarily at violations of criminal law: Supreme Court Justice Joseph Story in his great Commentaries on the Constitution was especially eloquent on this point. Not only “crimes of a strictly legal character” are impeachable offenses, but also political offenses, growing out of “personal misconduct… so various” that they “must be examined upon very broad and comprehensive principles of public policy and duty.”11

  First used for an impeachment in 1386, the phrase has always referred exclusively to conduct that could lead to an impeachment. Impeachable offenses encompass “a great variety of circumstances… which do not properly belong to the judicial character in the ordinary administration of justice and are far removed from the reach of municipal jurisprudence.”12

  JOHNNY B. GOODE

  A “high misdemeanor” refers not to a criminal offense just short of a felony, but to misbehavior, bad demeanor. As the Rodino Report explained, “From the comments of the framers and their contemporaries, the remarks of delegates to the state ratifying conventions, and the removal power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly.”

  Impeachment for misbehavior is not, however, as unlimited as it sounds: the behavior at issue is moral behavior, not Emily Post polite society behavior. According to historical precedent, impeachable misbehavior “means (a) [misconduct] in the execution of office, or (b) scandalous behavior in his private capacity.”13 Or, as Alexander Hamilton put it, the impeachment power is addressed to “the misconduct of public men” or the “violation of some public trust.”14

  In the course of prosecuting one of the greatest impeachment trials in Anglo-American history—the impeachment of Warren Hastings—Edmund Burke said: “Other constitutions are satisfied with making good subjects; [impeachment] is a security for good governors.”15 Burke did not mean that statesmen were supposed to be “good” in the sense of competent, but “good” in the sense of moral: “It is by this tribunal that statesmen [are tried] not upon the niceties of a narrow jurisprudence but upon the enlarged and solid principles of morality.”16 It seems it’s the president’s principles of morality that are supposed to be “enlarged and solid.”

  Statesmen who merely transgress “the spirit of the law,” Burke said, “can never hope for protection from any of its forms.”17 Other presidents being investigated by independent counsels have understood this and have waived even legitimate legal privileges. President Clinton has invoked every legal stonewall in the book, and even some that aren’t in the book.

  Although Burke explicitly ruled out trying impeachments “upon the niceties of a narrow [criminal] jurisprudence,”18 almost any serious crime will evidence a sufficiently diminutive morality as to constitute a “hi
gh Crime and Misdemeanor.” Still, the standard is morality, not the technicalities of the law. Crimes that are malum in se, or wrong in themselves, such as murder or bribery, would certainly fall within the ambit of “high Crimes and Misdemeanors.” Crimes that are malum prohibitum, or wrong only because the law makes them so—Occupational Safety and Health Act (OSHA) violations for example—would not.

  The moral underpinnings of the impeachment clause can be understood by considering the framers’ purpose in crafting a Constitution in the first place. James Madison said the “first aim” of the Constitution was to ensure that men with the “most virtue” would become the nation’s rulers. The Constitution’s impeachment power was for “keeping them virtuous whilst they continue to hold their public trust.”19