A Vast Conspiracy (54 page)

February 1 marked the high point of his logorrhea. Yet Ginsburg didn’t just talk a lot, he seemed to go out of his way to offend the very prosecutors with whom he was trying to close a deal. For one thing, Ginsburg simply lied in the interviews about what Monica’s testimony would be—denying, for example, that she and the president had engaged in phone sex when he knew that they had. Sometimes he undercut his own client’s credibility. When the reporter Gloria Borger asked him, on
Face the Nation
, whether “your twenty-four-year-old client might have a tendency to exaggerate a bit,” he replied, “I’m saying that every twenty-four-year-old, and we were all once twenty-four, except for you—you still look twenty-four. Seriously, all twenty-four-year-olds … tend to embellish.” Altogether, it was a baffling performance. Worse still was what Ginsburg was saying off-camera. While his public posture was that Lewinsky told the truth in her affidavit, he was admitting to any number of journalists, off the record, that his client and the president had indeed had a sexual relationship. These remarks filtered back to the prosecutors, further enraging them about Ginsburg’s media campaign.

Still, on Monday, February 2, Emmick and Udolf pressed forward on closing the deal with Lewinsky. The heart of Starr’s planned case against Clinton was that he had obstructed justice by persuading Lewinsky to lie about their relationship. Udolf wanted to strengthen that portion of the
written proffer, so he and Ginsburg negotiated two new, final paragraphs for Monica’s statement. After several phone calls, the two lawyers settled on the following language, which Lewinsky approved and then wrote out in her own hand:

11. At some point in the relationship between Ms. L and the President, the President told Ms. L to deny a relationship, if ever asked about it. He also said something to the effect of if the two people who are involved say it didn’t happen—it didn’t happen. Ms. L knows this was said some time prior to the subpoena in the Paula Jones case.

12. Item #2 above also occurred prior to the subpoena in the Paula Jones case.

The statement, even with the additions, did not give the prosecutors everything they wanted. Lewinsky’s position all along was that Clinton always wanted her to lie about their relationship, not just when asked about it by the Jones lawyers. As Ginsburg and Lewinsky recognized—indeed, as a clear majority of the country came to recognize—lying is simply an integral part of such relationships, with or without a pending lawsuit.

In any event, Monica’s written proffer was enough for Udolf. “There does not seem to be any purpose in prosecuting this woman,” he told Ginsburg. “If you, Nate, and your client will sign and return it with the one change, we have a deal.… If that’s what it says, I think we have a deal.” (Udolf, Emmick, and Ginsburg have substantially identical recollections of what Udolf said on this occasion.) As Emmick later testified, he heard Udolf give “words of assent” to Ginsburg that they had concluded an immunity deal for Lewinsky.

In this conversation late on Monday night, Emmick asked Lewinsky’s lawyers when his team could start debriefing Monica. Ginsburg said that he was taking Monica home to Los Angeles, to see her father, on the following day, but that they could start talking out there on Wednesday, February 4. They even agreed on a schedule for her debriefings: ten in the morning to three in the afternoon for weekdays, eleven to three on weekends.

With that, Bob Bittman faxed a formal immunity agreement to Ginsburg. Written on OIC letterhead and dated February 2, 1998, the three-page document began, “This letter will confirm the agreement reached between Monica Lewinsky and the United States, represented by the Office
of Independent Counsel.” In the key provision, the agreement said that if Lewinsky testified truthfully, “the United States will not prosecute her for any crimes committed prior to the date of this agreement arising out of the facts summarized in [Lewinsky’s handwritten] proffer.” The agreement also stated that in return for Monica’s truthful testimony, the OIC would not prosecute Bernard Lewinsky or Marcia Lewis, either.

At the bottom of the last page were spaces for five signatures: Bruce L. Udolf and Mike Emmick, for the OIC; and Monica Lewinsky, William Ginsburg, and Nathaniel H. Speights III. Monica and her two lawyers signed their names, faxed the document back to Bittman, and completed their plans to fly west in the morning. Monica Lewinsky had every reason to believe that she was hours away from beginning her career as a witness for the prosecution.

“It’s a sign of weakness,” said Jackie Bennett.

On February 3, the prosecutors assembled around the big conference table for a postmortem on the negotiations that had led to the grant of immunity to Lewinsky. Bennett thought that his colleagues Bittman and Udolf had wimped out.

She was still holding back, Bennett asserted. They needed to get her in there and examine her themselves. The written proffer was inadequate. It was true that prosecutors, in general, rarely gave immunity without insisting on face-to-face proffers—that is, without “Queen for a Day” interviews with witnesses. Monica didn’t deserve any special treatment. They were giving away the store to Monica … and to Ginsburg.

The mention of Ginsburg set off a round of groans and denunciations around the table. His five-show television onslaught had enraged everyone on Starr’s team. On
Meet the Press
, Tim Russert had asked Ginsburg, “How is this all going to wind up?” In response, Ginsburg had waxed elegiac. “It’ll pass,” he said. “The president will remain in office. He’ll do a good job. We’ll all hopefully have a sound economy, keep our jobs, and I think everything’s going to be fine.”

The president will remain in office
. This guy was obviously in the tank to Clinton. The prosecutors should give him nothing.

By the time the meeting began, everyone in Starr’s office had seen a front-page story in
The Washington Post
, written by Ruth Marcus and Bob Woodward. Under the headline
AS GINSBURG BROADCASTS
,
COLLEAGUES
AIR DISBELIEF
, the story catalogued the attorney’s extraordinary media offensive. “The airwaves have become a virtual Ginsburg News Network, with up-to-the-minute bulletins about the progress of his negotiations with Starr over whether Lewinsky should receive immunity from prosecution in return for cooperating with Starr,” the story noted. “Ginsburg’s media whirlwind has astonished and perplexed those with more experience in criminal matters. It has also—by Ginsburg’s own admission—infuriated prosecutors in Starr’s office.”

Indeed it had. Bennett, joined by Bittman, challenged Starr, who sat through the commentary of his subordinates in silence. Were they going to let this clown push them around?

Emmick and Udolf, who had negotiated the immunity deal with Ginsburg, said little at first. Then, gradually, they began to defend their work. Emmick, the smooth Californian, spoke of the need for them to keep their eye on the ball. Monica would be a good witness for the prosecution. She would prove conclusively that Clinton had lied under oath about the sex—and, in time, she might turn into a valuable witness on obstruction of justice as well. Forget Ginsburg, Emmick urged. The point was how best to help their investigation, and Lewinsky was the witness who could do the most for them.

Udolf, in contrast to his glib ally, was so angry he could barely speak. He loathed the macho posturing of his colleagues, most of whom had a fraction of the experience that he and Emmick did. So what if they hated Monica’s lawyer? How in the world were they proposing to make a case against Clinton without Lewinsky’s testimony? It was foolish to pretend they didn’t need her. And anyway, they had a deal. They had sent her the immunity agreement, and she and her lawyers had signed it.

That may be, someone pointed out, but the agreement had only been signed by the defense. The spaces for Emmick’s and Udolf’s signatures were still blank. There was no contract until both sides signed.

Udolf was incredulous. As a technical matter of contract law, it might have been true that no formal contract existed. But in U.S. Attorney’s Offices around the country, when a prosecutor faxes an immunity agreement to a defense lawyer on government letterhead, that’s a deal.

“I gave my word as a man and as a lawyer,” Udolf said.

In the end, of course, the decision was up to Starr. He said he was going to go with the clear majority view on his staff: he would veto the immunity deal with Monica. Ginsburg was behaving horribly, Starr said. He thought
Bennett was right. Monica should have to give an oral proffer. She was probably holding back information damaging to Clinton. In short, the independent counsel wasn’t yet ready to authorize an immunity deal.

Starr’s decision on February 3 marked the precise moment when Bill Clinton’s survival in office became assured. It was made just seven days after Bill Clinton gave the American people his finger-wagging denial of a sexual relationship with Lewinsky. If Starr had agreed to the immunity deal on that day, he would have had the ammunition—in testimony and in conclusive genetic evidence—to prove that Clinton had lied. He could have had an impeachment report for Congress in a month or less. Instead, Starr’s obsession with toughness and devotion to the Washington conventional wisdom led him to disaster. In attempting to punish Ginsburg, he merely damaged himself. In believing the reports about Ginsburg’s incompetence, he only established his own.

The Lewinsky immunity debacle in February illustrated a larger truth about Clinton’s enemies, too. Starr and his team rejected the deal for Lewinsky because they were convinced she was withholding additional evidence of Clinton’s criminality. This belief was pervasive among those who tried to drive the president out of office—that some grander conspiracy was sure to be uncovered, just over the horizon. Of course, this evidence was never located because it didn’t exist. The persistence of this myth proved more about the fanaticism of those who believed in it than about the evidence against the president. And it was to such zealots that Starr increasingly turned to direct his investigation.

Emmick and Udolf refused to put their names to the letter informing Ginsburg that the immunity deal was off. Indeed, after he had humiliated Emmick and Udolf, Starr made it clear that he now preferred someone else to run the Lewinsky investigation. So it fell to the new boss to inform Ginsburg and Speights that their client was not getting immunity after all. On February 4—the day that Lewinsky’s debriefing was scheduled to begin in Los Angeles—Ginsburg instead received a fax from Washington. (Speights had even traveled to Los Angeles to assist in the prosecutors’ first interviews with Monica.) “Dear Messrs. Ginsburg and Speights,” the letter began. “Thank you for your proposed modifications to the draft agreement and the amendments to your client’s written proffer,” it said, employing an Orwellian redesignation of the signed government contract that Ginsburg had returned to the OIC. “After carefully considering them,” the letter continued,
“we must respectfully decline to enter into an agreement on the proposed terms.” The letter was signed “Robert J. Bittman.”

In her famous appearance on the
Today
show, Hillary Clinton had goaded journalists to explore the “vast right-wing conspiracy” that was out to get her husband. Less than forty-eight hours after Starr voided Lewinsky’s immunity deal, the fax machine whirred to life next to Sidney Blumenthal’s office in the former White House barbershop. The messages he received would help Blumenthal assist his former colleagues in the news media to find the “great story” that he and the first lady had touted. Blumenthal would focus on Starr’s staff.

The faxed message was a clip from the front page of the
Los Angeles Daily Journal
, a newspaper that serves the legal community in Southern California.
STARR AIDE NO STRANGER TO SEX TAPE INQUIRIES
, the headline read, and the story mentioned Mike Emmick. A little while later, Blumenthal received another fax, this one an op-ed piece in the
Atlanta Constitution
.
STARR
’
S TAINTED LIEUTENANT
, the headline to Martha Ezzard’s story read. “Georgians remember Bruce Udolf as a man who trampled a citizen’s rights; now he’s investigating the President.”