{"id":50860,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/close-but-no-cigar.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"close-but-no-cigar","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/close-but-no-cigar.html","title":{"rendered":"Close But No Cigar"},"content":{"rendered":"\n
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CLOSE BUT NO CIGAR<\/h1><\/td>\n <\/tr>\n

By SOL WISENBERG<\/h2><\/a><\/td>\n <\/tr>\n <\/table>\n \n\n\n\n\n
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As William Jefferson Clinton’s presidency winds down, books on his impeachment \n continue to pile up. Jeffrey Toobin’s A Vast Conspiracy<\/i> is among the \n most prominent in the literature. Toobin adopts the strategy of many of the \n President’s supporters in concluding that Clinton was “the good guy” \n in this whole mess. Still, even in this crowd, the facts are not really in dispute. \n As Toobin details, the President had an extramarital affair with a woman less \n than half his age, lied about it under oath, and then violated a court order \n by discussing his testimony with his secretary — who was likely to become a \n witness in any proceedings related to his misconduct. Nonetheless, according \n to the President’s supporters, he is innocent of any major wrongdoing because \n his relationship with Monica Lewinsky was a private matter (Clinton is an alpha \n male, after all). Further — according to the pro-Clinton view — because the \n President was hounded by political enemies, including a zealous, misogynistic \n prosecutor, his misdeeds pale in comparison to those of his pursuers. <\/p>\n

In telling the impeachment story from this perspective, A Vast Conspiracy<\/i> \n does not present any new evidence or insights. More importantly, Toobin’s book \n fails on its own terms. As a narrative of the events culminating in the President’s \n impeachment, it contains numerous factual errors. As a summary of the laws governing \n the President’s conduct, its discussion of what constitutes obstruction of justice \n is flawed. And its characterization of the President as “the good guy” in the \n scandal is incorrect — and inconsistent.<\/p>\n

Before I proceed any further, let me disclose that I was a Deputy Independent \n Counsel in the Office of the Independent Counsel (“OIC”) under Kenneth \n W. Starr. I participated in some of the proceedings described by Toobin, and \n worked with the attorneys whose judgment he calls into question. Despite his \n sharp attacks, I have no doubt that we acted honorably, competently and well \n within the law enforcement mainstream in investigating President Clinton’s misdeeds. \n The same cannot be said about Toobin’s work in A Vast Conspiracy<\/i>. <\/p>\n

Let’s start with Toobin’s command of the facts. Having been on the front lines \n of the investigation, I can tell you from direct personal experience that there \n are enough misstatements in his book that sometimes I felt like I was reading \n a work of fiction. While preparing this review, I began writing up a list of \n inaccuracies. There were dozens when I gave up trying to keep track of them \n all. Rather than bore you with the whole catalogue, I’ll give you a sample of \n some of Toobin’s most obvious mistakes — mistakes that, taken singly, might \n be excused as the occasional reporting error, but that, taken collectively, \n are far more troubling.<\/p>\n

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  1. In depicting Starr as insensitive (and worse) to women, Toobin reports: \n “After the convictions in the Whitewater trial, Starr called all the \n members of the prosecution team to congratulate them except for the one woman, \n Amy St. Eve” (p. 322). This simple sentence contains a double falsehood. There \n were two excellent female prosecutors on the Whitewater trial team, LeRoy \n Morgan Jahn (who did not question witnesses or appear in court) and Amy St. \n Eve, and they both received congratulatory calls from Starr. (In fact, Toobin \n has deleted this reference from subsequent editions of A Vast Conspiracy<\/i>.) \n Toobin commits other errors in his effort to portray Starr as anti-female. \n For example, he erroneously states that our office’s female prosecutors only \n led the questioning of six grand jury witnesses in the Lewinsky matter (p. \n 322). The correct count is 25, as even a cursory review of the public record \n reveals, and Mary Anne Wirth handled more witnesses than any other prosecutor, \n male or female, on the Lewinsky team. Toobin also states that no women helped \n write the impeachment referral (p. 329). This too is just wrong. Julie Myers \n participated extensively in writing the referral. These may seem like minor \n points, but they add up. Take them away, and Toobin’s case for Starr’s insensitivity \n begins (quite properly) to crumble.<\/li>

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  2. Toobin criticizes Wirth for asking Navy Steward Glen Maes about “eighteenth-hand” \n rumors (p. 292). He even devotes a chapter title to this “tendentious” \n question. But Wirth never asked the question — I did. Errors of this kind \n abound. Toobin identifies Catherine Davis as the witness who initially revealed \n the infamous cigar to the grand jurors, under questioning by me. (p. 289). \n Wrong again. In fact, it was Neysa Erbland, under questioning by Wirth, who \n first disclosed this information.<\/li>

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  3. Toobin states that neither Lewinsky nor Betty Currie, the President’s secretary, \n “had a clear memory on the critical subject of who initiated the gift pickup.” \n (p. 183). But let’s go over the facts. As everyone knows, the President gave \n Lewinsky some small gifts, such as a copy of Walt Whitman’s Leaves of Grass<\/i> \n and various trinkets. Nine days after Lewinsky was subpoenaed in the Jones<\/i> \n case, she met with the President for the final time, and asked him if she \n should “put the gifts away” or “give them to someone, maybe \n Betty.” The President said, “I don’t know” or “Let me \n think about that.” Hours later, Currie came to Lewinsky’s apartment to \n retrieve the gifts. Currie took them home and hid them under her own bed. \n How did this come to pass? In her testimony, Lewinsky was crystal clear that \n Currie raised the issue with her, saying “I understand [or “The \n President said”] you have something to give me.” Toobin ignores \n this, as well as the fact of Currie’s trip to Lewinsky’s home and subsequent \n stowing of the gifts beneath her own bed — a sequence of events consistent \n with Currie initiating the pickup. Lewinsky’s testimony supports the conclusion \n that the President, through Currie and Lewinsky, could have been involved \n in obstruction of justice by hiding his gifts to Lewinsky.<\/li>

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  4. In discussing the aborted February 1998 immunity deal between the OIC and \n Lewinsky, Toobin reports that prosecutors Michael Emmick and Bruce Udolf “refused \n to put their names to the letter informing [William] Ginsburg [Lewinsky’s \n lawyer at the time] that the immunity deal was off” (p. 278). This is \n incorrect. Neither Emmick nor Udolf was asked to write this letter. That task \n fell to Robert J. Bittman, the Deputy Independent Counsel in charge of the \n Lewinsky investigation. Toobin also errs in stating that Starr chose Bittman \n to head up that inquiry only after Starr rejected the immunity deal. Bittman \n was already at the helm of the Lewinsky matter before the final negotiations \n between our office and Ginsburg began.<\/li>

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  5. According to Toobin’s chronology: “In exchange for a promise of immunity \n from prosecution, Monica Lewinsky meets with prosecutors in New York and discusses \n her relationship with President Clinton” (p. XXI). There he goes again. Lewinsky \n was not given immunity from prosecution in exchange for the New York proffer \n session. The whole purpose of the proffer was to determine whether to grant \n her immunity. It was only after we were satisfied that Lewinsky was telling \n the truth at the proffer session that our office signed an immunity agreement.<\/li>

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  6. Toobin writes of a chart on which “each prosecutor was supposed to \n rate the chances that Clinton would survive in office and the reasons why” \n (p. 281). Though a chart on which prosecutors made fun of each other did exist, \n it never contained such information.<\/li>\n<\/ol>\n

    So much for the facts. What of Toobin’s understanding of the law, specifically \n the crime of obstruction of justice? Consider the President’s conversations \n with Betty Currie following his deposition in the Jones<\/i> case. After inviting \n the plaintiff’s lawyers, during his deposition, to “ask Betty” certain questions, \n the President asked Currie to come to the White House, even though Judge Wright \n had just ordered Clinton not to discuss his testimony with anyone. Currie came \n the next day, and the President told her he had been asked about Lewinsky at \n his deposition. He then offered several false statements or questions to Currie \n about Lewinsky’s Oval Office visits, including, “You can see and hear everything, \n right?” But as the President well knew, Currie did not “see” Lewinsky have oral \n sex with him. This “question” thus potentially constituted witness tampering \n and obstruction of justice.<\/p>\n

    Going over the evidence, Toobin agrees with the President’s lawyers that Clinton’s \n conduct “did not amount to a crime” (p. 235). Toobin’s reasoning: \n Currie was not yet a witness; Currie did not feel coerced; and, some of the \n statements may have been true. None of these points holds up under minimal research. \n Federal law does not require that Currie have been a witness as long as Clinton \n contemplated that she might be — which Clinton apparently did, since he repeatedly \n mentioned Currie in his testimony and even invited Jones’ lawyers to question \n her. Nor does it matter that Currie claims she wasn’t coerced. Encouraging a \n witness to lie is a crime even if the witness is a willing listener. Finally, \n if even one of Clinton’s statements to Currie was false, that is enough to constitute \n a crime, if he was trying to influence her testimony.<\/p>\n\n

    And what of Toobin’s legal judgment? That, too, is not sound. Working with the benefit of hindsight, Toobin concludes that Starr was incompetent because he failed to cut a deal with Lewinsky and her first attorney, William Ginsburg, in early February 1998. With a deal, this theory goes, OIC could have obtained the infamous blue dress, and Clinton would have headed into the history books.<\/p>\n\n\n

    But all of this speculation misses a more basic point. Based on \n my experience as a prosecutor (and I served as an Assistant United States Attorney \n for ten years before joining the OIC), it is plain bad practice to immunize \n any target of a criminal investigation unless she will give an in-person proffer \n and genuinely cooperate in the investigation, with the help of a professional \n criminal attorney. Lewinsky would not submit to an in-person proffer, was not \n ready to cooperate, and had a loose cannon for an attorney. Contrary to Toobin’s \n assertions, I believe that most of us would have been more than ready to cut \n an early February deal with Lewinsky had we trusted her. The ensuing seven months \n of attacks on Starr by President Clinton and his allies, noted by Toobin, undermined \n our efforts. But it seems to me that the fault for that lies squarely with the \n President and his entourage.<\/p>\n

    I have not even reached what I think is Toobin’s most serious offense — his \n hypocrisy. As I’ve already said, no one seriously disputes the events giving \n rise to the President’s impeachment. From November 1995 through March 1997, \n the President had a number of sexual encounters with Lewinsky. The first occurred \n when she was a 22-year old intern at the White House. Then, under oath in Jones \n v. Clinton<\/i>, he lied about this relationship, specifically about whether \n he had ever been alone with Lewinsky, and whether he had ever engaged in sexual \n relations with Lewinsky. <\/p>\n

    \n\nWe explained this in our report to Congress. Judge Susan Webber Wright reached \n the same conclusion about Clinton’s deposition testimony on these two subjects \n when she held President Clinton in contempt of court. (In fact, she wrote that \n “there are a number of aspects of the President’s conduct that might be characterized \n as contemptuous,” but limited her consideration to the President’s deposition \n testimony on those two topics.) Even so, Judge Wright still concluded that “the \n President’s contumacious conduct in this case, coming as it did from a member \n of the bar and the chief law enforcement officer of this Nation, was without \n justification and undermined the integrity of the judicial system.” <\/p>\n

    Toobin praises Judge Wright for this “cool final assessment” (p. 398) of the \n Clinton affair. Yet he also condemns Starr and his staff for investigating insignificant \n infractions of the law. Judge Wright held President Clinton in civil contempt \n for giving false testimony to the court in an effort to obstruct the judicial \n process. But that misconduct also is a crime. In fact, Judge Wright said she \n did not consider criminal contempt charges against the President because, among \n other things, she did not want to create potential double jeopardy issues for \n the Independent Counsel. To elevate Judge Wright while chastising the Independent \n Counsel — even though we reached the same conclusion — is a glaring contradiction. \n Nowhere does Toobin discuss or even acknowledge this fundamental inconsistency \n in his book. <\/p>\n

    A final contradiction by Toobin. In the prologue, in the same paragraph in \n which he describes President Clinton as the “good guy,” Toobin accuses the President’s \n adversaries — including our office — of trampling the Constitution and misusing \n the law and the courts to “destroy Bill Clinton” (p. 9). I strongly disagree \n with that conclusion. But even Toobin’s own book supports my view. Later in \n the book, when Toobin discusses Starr’s testimony before the House Judiciary \n Committee, he describes the Democrats’ failure on cross-examination to establish \n that Starr was “a lawbreaker.” Indeed, Toobin even agrees with Starr’s statement \n that his office conducted itself “professionally” (p. 348) in dealing with Lewinsky \n at the Ritz-Carlton in January 1998, well before she agreed to testify before \n the grand jury. <\/p>\n

    Here, at last, is one portion of the book with which I concur. But that is \n not enough for me to persuade you to spend your time or money on A Vast Conspiracy<\/i>. \n We are still waiting for the definitive account of the events leading to the \n President’s impeachment. <\/p>\n\n<\/span>\n\n

    \n\n\n<\/a>Solomon Wisenberg<\/a> is a partner in the law firm of Ross, Dixon & Bell<\/a>. From 1997 to 1999, he worked in the Office of the Independent Counsel<\/a>.\n

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