A Vast Conspiracy (24 page)

Isikoff’s story also included one more significant, if garbled, passage. Isikoff quoted the then obscure Linda Tripp as saying she remembered seeing Willey after her alleged encounter with the president, and she looked “disheveled. Her face was red and her lipstick was off. She was flustered, happy and joyful.” Tripp wanted “to make it clear that this was not a case of sexual harassment.” In this instance, Tripp’s comments both help and hurt the president—suggesting that Willey was lying but also that some consensual sexual activity might have occurred. But Isikoff quoted Bennett as saying only that Tripp “is not to be believed.” Tripp later cited this comment as turning her from a loyal soldier in the administration to a determined enemy. It was a debatable claim—for example, Tripp had already planned an anti-Clinton book—but the Bennett comment gave her the pretext she needed to turn against Clinton completely.

In any event, Isikoff had his scoop, albeit with an annoying postscript. In his last report on the Willey story, Matt Drudge had added a characteristically provocative kicker.
ISIKOFF BOOK BLOWUP
, Drudge’s headline screamed. “Was investigative reporter Michael Isikoff holding back his wild Kathleen Willey White House sex tale for a book? Talk around the
NEWSWEEK
offices has Isikoff compiling stories on various Clinton scandals for a collection—Willey was to be one of the ‘newsworthy’ sell points of the project.” It was not true that he was holding back, but just the same, Isikoff and Glenn Simpson decided to put
All the President’s Women
aside for a while. As it happened, however, two other book projects in the case were just then coming to life.

7

Their Tabloid Hearts

B
ob Bennett could not put off the Paula Jones case forever. He had accomplished his primary goal of postponing depositions and other fact-finding until after the 1996 election, but even the most skillful stalling tactics could only delay, not prevent, the inevitable showdown in the Supreme Court. When that day came, Bennett would have to be ready for one of the great constitutional confrontations of the era.

Bennett had never before argued a case in the Supreme Court, and he wondered if he was the right man for the job. Bennett knew that to the extent the justices regarded this case as about the presidency—not about the current occupant of the job—he had a better chance of winning. Perhaps he should let a law professor argue the case for Clinton, to emphasize the broader stakes of the issue. Bennett made this point to Walter Dellinger, the acting solicitor general, who would be representing the Justice Department in arguing that the Jones case should be put off to the end of Clinton’s term in office.

Dellinger, himself a professor on leave from Duke Law School and a savvy politician in his own right, told Bennett he had it wrong. Bennett was what the case needed, a savvy trial lawyer who could explain to the Court just how vicious and time-consuming a modern lawsuit could be for a defendant.
I’ll handle the Constitution, Dellinger told Bennett. You tell them about the real world.

The Jones forces prepared with similar care. The brief had been written principally by the chief “elves,” George Conway in New York and Jerome Marcus in Philadelphia. Conway arranged for Gil Davis, the easygoing Virginian who would argue the case, to be subjected to a moot court by two of the most distinguished conservative lawyers in Washington. In a prep session downtown, Robert Bork, the former appeals court judge and defeated Supreme Court nominee, and Theodore Olson, a top Justice Department official in the Reagan administration, grilled Davis in the manner that he could expect from the justices. It’s common in Washington for politically plugged-in lawyers to prep their allies for battle in the Court. In one way, though, it was unusual to see Bork and Olson arguing against presidential prerogatives, since in other circumstances they invariably sided with the executive branch. But this case was different, because Bill Clinton was the defendant.

A tingle of anticipation ran through the Supreme Court chamber when the case was finally called for argument on January 13, 1997. The justices themselves, primed for the historic moment, scarcely let a lawyer on either side complete a sentence without jumping in with questions. Dellinger at least had a chance to make his core argument, that “the public’s interest in the president’s unimpaired performance of his duties must take precedence over a private litigant’s interest in redress.” But he took a drubbing from the Court. Justice Scalia: “We see presidents riding horseback, chopping firewood, fishing for stick fish, playing golf … really, the notion that he doesn’t have a minute to spare is, is just not credible.” Dellinger parried that attack gracefully, quoting President Reagan (who appointed Scalia) to the effect that “presidents don’t have vacations; they have a change of scenery.” Dellinger warned that litigation can be “all-consuming and all-absorbing,” but Chief Justice Rehnquist scoffed, “Surely that may be true of an individual with an ordinary job, but with all the pressing concerns that the president has, one would think it would be less true of him.”

On May 27, 1997, the Supreme Court ruled unanimously that Clinton had no right to delay the lawsuit. Paula Jones was immediately entitled to return to the district court for the case to proceed. There is, in retrospect, something almost endearing about the obtuseness of Justice John Paul Stevens’s opinion. Despite the political differences among them, the nine justices shared a hard-won disengagement from the ways of the real world,
and their opinion in the Jones case sang out their collective ignorance. It had been decades since any of them had tried a case as a lawyer. Despite Bennett’s and even Dellinger’s warnings, they knew nothing of the hurly-burly of modern trial practice, much less in a politically charged environment.

The thesis of Stevens’s opinion was that since the Jones lawsuit related entirely to Clinton’s unofficial conduct, the case had no bearing on his presidency and accordingly he should enjoy no special right to delay it. Besides, Stevens went on, the trial of this matter would be no big deal. “As for the case at hand,” the justice wrote, “it appears to us highly unlikely to occupy any substantial amount of [Clinton’s] time.” This was all, of course, precisely backward. It is
because
the case related to Clinton’s personal life—and a sexual matter, no less—that it would receive much
more
attention than if it concerned the mere operations of government.

With a naïveté that in other circumstances might be seen as admirable, they decided simply that Clinton was not above the law and that this plaintiff deserved her day in court. The case was the perfect vessel for both the prurience of the media (which led, among other things, to the proliferation of book plans) and the efforts of the president’s political adversaries (which led everyone from Robert Bork to Lucianne Goldberg to latch on to the Jones cause). Davis and Cammarata had filed the case in part because they knew how distracting it would be for Clinton—and because they hoped to leverage the president’s discomfort into an advantageous settlement. In a political culture where the “character issue” was ascendant, the Court failed to recognize that nothing could be more distracting to a president than a sexual harassment lawsuit.

At the time of their victory in the Supreme Court, Gil Davis and Joe Cammarata had represented Paula Jones for more than three years. All in all, they had enjoyed remarkable success. True, they had benefited from the secret assistance of the elves, but Davis and Cammarata had managed to take the case from near-joke status to a Supreme Court triumph and the brink of trial. And now, they decided, it was time to parlay their legal victory into an advantageous settlement for themselves and their client. As they knew better than anyone, their prospects for victory at trial were small. Jones had waited three years to file her case, she had no proof of any damages, and it was far from clear that an Arkansas jury would believe her, as opposed to
the president of the United States, about what happened at the Excelsior Hotel. It was time for the Jones team to cash in.

With the case back before a trial court, the plaintiffs now had the right to issue subpoenas for witness depositions. In a classic demonstration of the triumph of the legal system over the political system, the two Jones lawyers began using subpoenas to illustrate the political costs of a trial to the president. Davis and Cammarata subpoenaed David Maraniss, Clinton’s biographer, for all information he had about several women rumored to be romantically linked to Clinton. They subpoenaed Betsy Wright, Clinton’s top aide during his governorship, for “the list of the names of women William Jefferson Clinton had allegedly had affairs with and the places where they were said to have occurred.” And, of course, thanks to the mystery phone call to Cammarata in January, both the lawyer and Mike Isikoff had tracked down Kathleen Willey, who was also subpoenaed. In truth, several of these subpoenas were poorly drafted, and Judge Susan Webber Wright might have quashed them at some point later in the case. But Wright probably wouldn’t quash all of the subpoenas, and these early efforts sent a clear signal to Bob Bennett. Settle—or else.

Bennett got the message. He and his partner, Mitch Ettinger, an earnest and clean-cut former Air Force lawyer, played bad cop/good cop with their adversaries, but they sent out clear signals that they were willing to deal. On August 5, 1997, the two lawyers invited Davis and Cammarata to a secret late-night negotiating session to see if they could settle the case before any more damage was inflicted on either side.

In the conference room eleven floors above the deserted streets of downtown Washington, Bennett played the heavy. “This case is bullshit,” Bennett announced near the start. “We’re wasting our time even talking to you.” In fact, though Bennett called himself a trial lawyer and often spoke of how much he looked forward to cross-examining Paula Jones, he hadn’t conducted a single jury trial since he joined Skadden Arps in 1990. Lawyers in large firms almost never go to trial; it costs too much to pay them, and besides, the risks of gambling with a jury usually run too high. Notwithstanding his bluster, Bennett wanted to settle.

Ettinger had responsibility for making that point. “Maybe there’s some way we can work this out,” he said.

Davis and Cammarata hoped so. At the time of the meeting, they had done hundreds of hours of work for which they had not yet been paid. The fund-raising efforts for the Paula Jones legal fund had generated more attention
than money. The first efforts in this area had been started by the Reverend Patrick Mahoney, the antiabortion activist, shortly after he first spoke to Jones in Little Rock, just after her ill-fated press conference with Danny Traylor and Cliff Jackson. Davis preferred to have someone he knew run the fund, so he asked Mahoney to yield control of the effort to a veteran Washington fund-raiser named Cindy Hays, who directed the fund for the next three years. Hays raised a little more than $200,000, but most of that money had been spent on expenses—printing, transportation, travel, and the like. The meeting in Bennett’s conference room came at a propitious time for the Jones lawyers for another reason. Just two days earlier, Isikoff’s story on Kathleen Willey had broken in
Newsweek
, giving the Clinton lawyers a taste of what was in store if they allowed the case to go to trial.

In a first round of halfhearted settlement negotiations in 1996, Jones’s lawyers had asked for $1.4 million. Still hopeful that the Supreme Court would put the case over until the end of Clinton’s term, Bennett had rejected the request out of hand, and Davis and Cammarata had come back with $1.2 million. Bennett again said no. But things quickly got serious on this August night in 1997. When Davis and Cammarata indicated a willingness to accept a six-figure settlement, Bennett started to pay attention. Bennett had tested out various settlement possibilities on some of his contacts in the news media. The consensus seemed to be that the lawyer could portray any payment of less than $1 million as a legitimate effort to dispose of a distraction to the president.