A Vast Conspiracy (65 page)

The final wording of the provision for impeachment in the Constitution emerged from a brief debate among some of the greatest of the Framers, on September 8, 1787, in Philadelphia. The working draft of the document allowed Congress to remove the president only for bribery and for treason, but George Mason, fearing an unduly powerful chief executive, proposed that “maladministration” be added as another basis. His fellow Virginian James Madison objected, because “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Gouverneur Morris added a similar point, noting that “an election of every four years will prevent maladministration.” As an alternative, Mason offered instead to add a phrase that had been used in English law as early as 1386—“high Crimes and Misdemeanors.”

By the twentieth century, the word “misdemeanor” had come to suggest a minor or trivial offense, but the Framers had a different understanding. In eighteenth-century England, high misdemeanors referred to offenses against the state, as opposed to those against property or other people. In
Federalist No. 65
, Alexander Hamilton put forth the most famous explication of this view. Impeachable offenses, Hamilton wrote, “are of a nature which may with peculiar propriety be denominated
POLITICAL
, as they relate chiefly to injuries done immediately to the society itself.” In 1974, the Judiciary Committee rejected an article that sought Richard Nixon’s
impeachment for cheating on his income taxes. Even among most Democrats, the consensus had been that this kind of offense was too personal—and insufficiently
POLITICAL
—to merit the sanction of impeachment.

For all its august beginnings, the early history of impeachment unfolded largely by negative example. In 1805, Justice Samuel Chase, a Federalist on the Supreme Court, was impeached on politically motivated charges of judicial bias raised by his Jeffersonian adversaries; he then narrowly avoided conviction in the Senate. The low point in impeachment history took place in 1868, when a bitter Reconstruction Era political battle nearly drove President Andrew Johnson from office. Radical Republicans, who controlled the House and despised Johnson, had passed, over his veto, a plainly unconstitutional restriction on the president’s power to fire members of his cabinet. Johnson tested the law by firing his secretary of war, Edwin M. Stanton, and the House responded by voting to impeach the president. Johnson avoided conviction in the Senate by a single vote. The lesson of these failures was plain: the more that political imperatives, rather than actual high crimes, were seen to have driven the impeachment process, the more damning the judgment of history.

Still, as Lowell and everyone else who studied the subject came to recognize, it was impossible to conduct an impeachment in a kind of politics-free zone. For all that the labors of Congress would be guided by the text of the Constitution, there was also a rough-hewn truth in the most famous contemporary utterance on the subject. On April 15, 1970, then representative Gerald R. Ford took to the well of the House to speak in favor of the impeachment of Justice William O. Douglas, of the Supreme Court, on the ground of supposed financial conflicts of interest. “An impeachable offense,” Ford said, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” So, for better or worse, it was.

Still, in the hours leading up to the report to his superiors in the Capitol, Lowell did his best to judge the evidence against Clinton under the general standards set down over the previous two centuries. To do this, he spent those two days cloistered in the Democrat quarters of the impeachment suite in the Ford building. Like the rest of the world, Lowell could read the Starr report on the Internet or in the newspapers, but the lawyer wanted to examine the underlying evidence before reporting his conclusions. Working until the guards threw them out after midnight each day, Lowell and his colleagues started marking up the evidence with Post-it
notes—yellow for primary evidence against the president, blue for prosecutorial misconduct, and pink for exculpatory evidence.

In this process, Lowell discovered early what the rest of the world would see when the evidence was released over the next several weeks. Through leaks to favored journalists like Schmidt at
The Washington Post
, Starr’s team had oversold their case. The famous “talking points”—the supposed instructions from Lewinsky to Tripp about how to testify falsely—fizzled completely as an issue. Lewinsky said she wrote them without help, and in any event they called for truthful testimony. Lewinsky’s job hunt was a far more complex undertaking than the Starr leakers had led anyone to believe; most important, Clinton and Vernon Jordan had started helping Monica well before she was subpoenaed in the Jones case. Similarly, there was no direct evidence that Clinton had asked Currie to retrieve his gifts from Monica. Clinton’s lies, on the other hand, were real. In his deposition in the Paula Jones case in particular, Clinton had clearly given false testimony.

When Lowell made his report on Sunday morning, he didn’t resort to any cute legalisms to describe the president’s deposition. Surrounded by Gephardt, his staffers Elmendorf and Laura Nichols, the Democrats’ spokesman on impeachment, Jim Jordan, and Bob Bauer, an aide to Daschle, Lowell ran down each of Starr’s allegations against Clinton.

“Perjury in the deposition,” Lowell began. “No question that he lied.

“Perjury in the grand jury,” he said. “Closer call.

“The rest of it is not there,” Lowell continued. “Vernon probably lied through his teeth about what he knew, but there’s no way to prove otherwise. They can’t make the case on obstruction of justice. There’s no smoking gun.”

As far as the false statements were concerned, Lowell asserted that they were clearly not impeachable offenses. “It was all about sex,” he said. “It had no bearing on his public duties.” Lowell was applying the standard that Hamilton had set down in
Federalist No. 65
. With his lies about whether he had been alone with Monica Lewinsky, Clinton had done no injury to “society itself.”

Gephardt had no love for Clinton—he was not at all surprised to hear that the president had lied under oath—but the minority leader was relieved to hear Lowell’s report. He did not want to have to call on a president of his own party, or of any party, to resign. Besides, Gephardt was a ferocious partisan himself—a true man of the House of Representatives, where
Democrats and Republicans live in a state of constant, rattling warfare. So Gephardt had recoiled at the notion of driving a fellow Democrat out of office.

Like everyone else, though, Gephardt was not beyond a certain bewildered fascination with the evidence. Well into his sixth decade, Gephardt retained his boyish looks (and his first wife), and his staff regarded him as an almost comically straight arrow—still the milkman’s dutiful son from St. Louis. Yet toward the end of the meeting, Gephardt couldn’t contain his curiosity about one subject.

“Abbe,” Gephardt asked, “is the cigar thing real?”

In the first weekend after the release of the Starr report, the Clinton presidency teetered. Far more than when he was actually impeached by the House or tried by the Senate, this brief period was the closest the president came to being forced from office. During these frantic couple of days, James Carville happened to make a speech in northern Virginia, where he ran into James Moran, a moderate Democratic congressman from the area. Moran was furious at Clinton, and he all but asked Carville to pass along the message that the president should resign. A stampede for resignation from within the president’s own party—the kind that finally drove Nixon to quit—seemed a real possibility. A disastrous appearance by David Kendall on the Sunday program
This Week
failed to halt the momentum against Clinton. Kendall’s lawyerly insistence that his client had not committed perjury further inflamed even the president’s defenders. Gephardt promptly denounced Kendall for resorting to “hairsplitting” and “legalisms,” but in fact, even with his critical comments, the House minority leader was beginning the counterattack.

The point, Gephardt believed, was to shift the focus from the president to his accusers. That was the way for Clinton—and more important, the Democrats—to win. Gephardt believed he couldn’t be seen as Clinton’s lapdog; thus his criticism about Kendall’s “hairsplitting.” But when Lowell came to him the following week to complain about how the Republicans on the Judiciary Committee were treating the Democrats unfairly, Gephardt replied with the words that would define his party’s strategy for the next six months.

“Abbe,” Gephardt promised, “we’re going to win by losing.”

Gephardt believed that Democrats would win the impeachment battle
by showing that the process was a partisan vendetta. By this reckoning, Democrats, the minority party in the House, could triumph in the wider public arena by being consistently outvoted, along party lines. Then, in theory, public opinion would drive the Republicans to retreat on impeachment. In this, Gephardt was taking a big chance. His adversaries could preempt this strategy at any moment, just by displaying a little flexibility. And if the Republicans wanted to try some political jujitsu, they quickly had their chance.

The gentleman from South Carolina had a motion.

Along the upper tier of the great wooden rostrum that dominated Room 2141 of the Rayburn House Office Building, Representative Bob Inglis of South Carolina sat to the extreme right of Chairman Henry Hyde. On September 18, the Judiciary Committee convened for the first time in connection with the impeachment of President Clinton, but the seats before them were all empty. Hyde had called his committee in executive session to address the one issue left open by the overwhelming vote in the House of the previous week. How much of the supporting evidence that Starr had sent over to Capitol Hill should remain secret from the public?

The Democrats had planned carefully for this moment. Lowell and Julian Epstein, who was Conyers’s chief aide, wanted to use this first hearing to test Gephardt’s strategy of winning by losing. The majority and minority staffs had met well into the previous night and come to some consensus on the material to be deleted from the documents—home addresses and telephone numbers, certain national security matters, details relating to Secret Service protection. From Lowell’s perspective, this era of good feelings was bad. He had to pick a fight—and lose.

Then, not long after the hearing began, Inglis asked to be recognized. Intelligent, articulate, and ferociously conservative, Inglis wore the contented smile of a rising star in his party. After two terms in the House, he was engaged in a close and spirited campaign for the Senate seat held for decades by the Democrat Ernest Hollings. Partisans on both sides looked to him as a bellwether of Republican thought.

As befit his self-confident manner, Inglis was the first Republican on the committee to make a motion about the evidence. As he began to speak, it became clear that he thought that Schippers and his colleagues had given away too much in their negotiations with Lowell. The two sides had agreed
to black out some of the most graphic sexual material, but Inglis thought that was wrong—about one sex act in particular. Instead of just redacting the material, Inglis thought that the committee should insert a message: “Reason for redaction,” the Inglis message would read, “description of oral-anal sexual contact between the President and Monica Lewinsky.”

The proposal evoked a kind of mute awe from Inglis’s colleagues on the committee. The idea was so mad, so completely deranged—the notion that the House of Representatives needed this information to fulfill its constitutional duty on impeachment—that not even Inglis’s Republican colleagues could summon the nerve to speak about it. (Lowell and Epstein had to flee the committee room in haste because they were laughing so hard.) Inglis himself muttered a few words on behalf of his proposal, asserting that disclosure of this detail would help evaluate Lewinsky’s credibility. But the proposal itself was voted down by the full committee, twenty-nine to five.

Still, notwithstanding his defeat, Inglis had set the tone for the committee’s deliberations. The Republicans would not give in on anything. By the day of this hearing, a week had passed since the disclosure of the Starr report, and a public backlash against the report was building. Starr had included so many gratuitous details about Clinton and Lewinsky’s misadventures that the prosecutor had generated a certain degree of sympathy for the president. Characteristically, the Republicans missed these signals from the public. In an odd way, the president’s accusers, like Clinton himself, were blinded by lust—in their case, for one man’s downfall.