Truth and ConsequencesPrint
In the Whitewater investigation, the biggest loser was the legal profession
By Lincoln Caplan
March 1, 2010
The Death of American Virtue: Clinton vs. Starr, by Ken Gormley, Broadway, 800 pp.
During the investigation of Bill Clinton by Kenneth Starr, prosecutors on Starr’s team called the pivotal attempt to get Monica Lewinsky to cooperate “the brace.” Confronting her in a Washington hotel room in January 1998, they presented what felt to Lewinsky like horrible choices: she could either give evidence against Clinton and others or “spend up to 27 years in jail” for having committed perjury in a sworn affidavit in the related Paula Jones case. “I have never had a sexual relationship with the President,” she stated while under oath.
At the Ritz-Carlton in Pentagon City, across the Potomac from Washington, D.C., the 24-year-old Lewinsky spent almost 12 hours with members of Starr’s team. Soon after the marathon session began, Lewinsky asked, “Should I have a lawyer?” Michael Emmick, a deputy to Starr, said to her, “If you want a lawyer, you can get a lawyer.” But he also said, basically, the fewer people who know about our deal, the better—if you decide to take it. Lewinsky told Emmick that she had hired a lawyer named Frank Carter to draft her affidavit, but Emmick didn’t call Carter or tell Lewinsky to. She turned her question into an assertion: “I want to call my attorney,” she said. Hours after Lewinsky first made the request and after she had repeated it at least five other times, an FBI agent finally called Carter’s office. He had left for the evening, his answering service explained, but could be reached if there was an emergency. The agent didn’t try to track him down.
According to Jo Ann Harris, a former assistant attorney general who was in charge of the Justice Department’s Criminal Division for two years during Clinton’s first term, there were “serious problems” with the efforts by prosecutors to steer Lewinsky away from calling her lawyer. To begin with, Lewinsky was a witness in a developing criminal matter, so it reflected “poor judgment” to have contacted her without first approaching Carter. Then, once she asked to call him, the prosecutors should have stopped questioning her. Harris’s judgment mattered because it was based on extensive scrutiny of the brace for Robert Ray, Starr’s eventual successor as independent counsel. Ray gave her the assignment as a result of an internal Justice Department inquiry, which, Ray concluded, left him “no choice but to investigate his own office” and determine whether “it had crossed the line in discouraging Lewinsky from contacting her attorney.”
The Harris report is one of the revelations in Ken Gormley’s 789-page account of the eight-year, $64-million investigation into alleged wrongdoing by Bill and Hillary Clinton and others. The inquiry began with a focus on business deals related to a bank called Madison Guaranty Savings & Loan Association, transactions made to recoup losses from a failed get-rich-quick purchase of 230 acres overlooking Arkansas’ White River. The land got shorthanded, infamously, as Whitewater. So did the inquiry, though it was vastly expanded to cover the death of deputy White House counsel Vince Foster; former Associate Attorney General Webster Hubbell’s defrauding of his Rose Law Firm partners of almost half a million dollars; Bill Clinton’s alleged misconduct in the civil suit against him for sexual harassment brought by Paula Jones; and, of greatest consequence among still other matters, alleged perjury, suborning of perjury, and obstruction of justice by Clinton and others about his sexual relationship with Monica Lewinsky.
Harris expected her findings to be published as part of Ray’s final report to Congress. He proposed including them as an attachment. But an unnamed lawyer in Ray’s office (presumably one Harris criticized for exercising “poor judgment”) convinced the three federal judges overseeing Ray’s work to keep Harris’s findings from the public by marking them “sealed.” Harris, now a scholar-in-residence at Pace Law School in New York State, disclosed them to Gormley anyway. She was convinced that “American citizens were entitled to know” about them because, in addition to being important, “the final bottom line” of her inquiry was “crystal clear.”
Except that it wasn’t.
As Gormley recounts, Harris concluded that, in trying to lure Lewinski as a cooperative witness, Starr’s team did something Harris would not have done: “I wouldn’t have touched her with a ten-foot pole.” In continuing to press Lewinski while not letting her call her lawyer, they had likewise failed to do what Harris would have done: “The minute she says, ‘Can I call my lawyer?’ you stop,” Harris instructed. “And when she says it for the sixth or seventh time, you really stop.” Yet, because the rules of the Justice Department applied to Starr’s investigation and were “all over the place” about whether his team should have confronted Lewinsky as it did, Harris found that no one made a “clear violation” of department policy during the brace.
Harris was moved to reveal her findings because, to her, it was profoundly unfair to federal prosecutors if the public got the impression that Lewinsky’s treatment reflected standard practice. Still, while her conclusion, like that of the internal Justice Department inquiry that preceded hers, was “none too kind,” she didn’t find that the “professional misconduct” was bad enough to amount to “wrongdoing.” Harris could point to no official rule or standard that lawyers had breached that warranted official sanction.
This element of the Monica Lewinsky sting—“the biggest moment in the history of the Starr investigation,” by Gormley’s reckoning—puts in a nutshell not the death of American virtue, which seems an overcooked title for this book, but another major passing that the Clinton-Starr battles confirmed: the dominance of a way of practicing law that allowed lawyers to believe they were members of an honorable profession.
Louis Brandeis championed this ideal a century ago, when he defined legal advocacy as being an independent buffer between the interests of a client and of society that fulfills an obligation to both. But Brandeis was pushing back in vain against the classic conception of advocacy that England’s Lord Henry Brougham articulated in 1820. It reigned in Brandeis’s era and prevails emphatically today: “An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” The premise of our adversary system is that justice emerges from legal encounters most often when opposing parties are each vigorously represented. Zealous advocacy is a bulwark of our system. The legal scholar Stephen Gillers has explained about the American bar: “Lawyers lull the public into a view of the lawyer’s role as less client-centered and as more public-interested than it really is.” But, he went on, “the client is the center of the lawyer’s universe.”
In advocating for their clients, American lawyers can be conscientious about following rules of practice yet operate with a zeal that strikes non-lawyers as excessively confrontational and relentless. As a result of a series of revisions in the past generation that made them less stringent, the main rules governing lawyers require little of them not already laid out by the existing law that applies to everyone. According to Robert Gordon, the leading historian of American lawyers, the model of advocacy that now prevails in this country can be reduced to these scorched-earth tenets: “Lawyers should not commit crimes or help clients to plan crimes. They should obey only such ethical instructions as are clearly expressed in rules and ignore vague rules. Finally, they should not tell outright lies to judges or fabricate evidence. Otherwise they may, and if it will serve their clients’ interest must, exploit any gap, ambiguity, technicality, or loophole, any not-obviously-and-totally-implausible interpretation of the law or facts.”
In Gormley’s account, the Clinton-Starr saga serves as a case study in just how low American lawyers have sunk in their race to the bottom. That’s largely because of what the lawyers involved did or failed to do. But it’s also because of who they were. Independent Counsel Starr was a former federal-appeals-court judge, a former solicitor general of the United States, and, as a partner at the respected firm of Kirkland & Ellis, one of the most prominent lawyers who stood up for private clients in the Supreme Court. Robert Bennett, who represented Bill Clinton in the Paula Jones case, was a major partner at the Skadden firm, a behemoth of corporate practice and among the most successful firms in the world. David Kendall, Bill and Hillary Clinton’s personal lawyer, was a widely admired partner at Williams & Connolly, the country’s premier litigation firm. They were and remain among the best of the best, so it is impossible to write off as outlier behavior the fierce and, for those on the receiving end on both sides, frightening antagonism that marked their lawyering.
In a case study revealing one hard-hitting practice after another, it was almost too perfect to have Bennett and Skadden centrally involved. Corporate takeovers helped transform American business and finance in the decade and a half before the start of the Clinton years. In the longest wave of mergers and acquisitions since the turn of the 20th century, they played a big part in creating the new era of finance-driven capitalism to which there has been such a backlash. Skadden’s development mirrored the change. It grew from a 75-lawyer firm with an outsized chip on its shoulder in 1975, into a 1,000-lawyer firm in 1990, with a style of lawyering so conspicuous that the firm’s name was used by other lawyers as a verb: to “Skaddenize.” Takeovers were powered by litigation. The litigation often involved using the process of pretrial discovery to embarrass adversaries and to play other forms of hardball. Skadden pioneered the use of these belligerent tactics in corporate mergers and acquisitions, and its prowess fueled the firm’s phenomenal growth. That colossal success led other major firms to follow its lead. Skadden did more than any firm to make rough lawyering respectable and the accepted standard for the American bar.
In the Clinton-Starr saga, however, while Bob Bennett was digging up dirt on Paula Jones, adding to his reputation as a master of hardball, Clinton was also Skaddenized by lawyers for Jones. They used their pretrial subpoena powers to gather allegations about Clinton’s sex life and evaded a gag order imposed to keep this material private. After Clinton finally admitted that he had sex with Monica Lewinsky, the legal writer David Margolick in The New York Times criticized Bennett for being too lawyerly, for having too much “faith in precedent, logic, and the primacy of winning in court,” when winning the case on the merits mattered much less than minimizing the mud that got slung at the president of the United States. In general, Margolick chastised the president’s lawyers for putting on a “highly legalistic defense” (Clinton and Lewinsky didn’t have sexual intercourse, so they didn’t have sex) that turned on “a tortured definition of sex” (“knowingly” engaging in or causing “contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person”). Yet Gormley’s book underscores that, while Clinton’s lawyers, Starr and his team of prosecutors, and lawyers for Jones and others all churned up a maelstrom in their bitter contest about this and other key points of disagreement, it was the clients who created the most havoc, despite the efforts of their lawyers.
Had Jones taken her lawyers’ advice and settled her case when Bennett offered to do so on Clinton’s behalf months before the Lewinski drama began and on all of the terms Jones had asked for in court, Lewinsky and her blue dress would not have become relevant to Starr’s investigation. Had Clinton not split hairs, dodged questions, and carefully lied in his deposition in the Jones case, his epic troubles would almost certainly have been less. They include his impeachment by the House of Representatives and the unsuccessful impeachment trial in the Senate; his extended struggle to avoid being forced to resign in disgrace, even after his victory in the Senate; and the acute strain on his marriage.
Were the plaintiff Jones and the defendant Clinton emboldened by their lawyers’ no-holds-barred advocacy to feel unbridled themselves? Mindful of legal rules that barely restrained their advocates, did the clients discount counsel that they restrain themselves in the legal process? Whatever the causes, the consequences were devastating. That seems especially so for Clinton, because he was president but also because he had sworn an oath as a lawyer. If he followed his own counsel, as Gormley is convinced, he tragically misled himself as a client. At the end of the investigation, Clinton admitted that he “knowingly gave evasive and misleading answers” in his deposition in the Jones case and agreed to have his law license suspended for five years.
As for Kenneth Starr, according to Benjamin Wittes in Starr: A Reassessment, the independent counsel viewed himself as the leader of a truth commission rather than a special prosecutor with a responsibility to apply the same standards the Justice Department is expected to use in any case where its job is to make a recommendation about whether the targets of an inquiry should be indicted. The truth, in his eyes, was his client, more so than justice. In Wittes’s view, Starr’s approach, based on an elementary misreading of the independent-counsel statute, was devastating in the extreme. Wittes summarized his conclusion in Legal Affairs magazine: “Starr’s interpretation of the independent-counsel statute burned into an inquisitorial fire that helped consume not only Clinton’s presidency, but also the law that Starr once hated and then remade in his own image. In the wake of Starr’s investigation and the Clinton impeachment, Congress allowed the independent-counsel law to lapse. Truth, it turned out, was not worth the consequences.”
This account of American lawyering is embedded in The Death of American Virtue rather than explicit. Gormley had the different ambition of capturing the sprawling Clinton-Starr saga in a historical narrative, which, despite the book’s reproving title, stops well short of reaching an overarching judgment. Given his book’s massive heft and notable attention to detail, he has succeeded in his aims more comprehensively than anyone else to date.
The book is full of compelling material. With a vote of 9–0, the Supreme Court allowed the Jones case to go forward by ruling that the U.S. Constitution’s separation of powers doesn’t require federal courts to delay all private civil lawsuits against a president until the end of his term of office. The unanimous bench rejected the president’s request that the suit be postponed so it wouldn’t be a distraction from his public duties. Writing for himself and seven other justices, John Paul Stevens, jestering with an adverb to emphasize his certainty, asserted that the case was “highly unlikely to occupy any substantial amount” of Clinton’s time.
Here’s what Gormley writes about that:
The night before the oral argument in the Supreme Court, Acting Solicitor General Walter Dellinger was pulling into his driveway after another grueling night of preparation, when his beeper sounded. The text message read: “Urgent, urgent, urgent.” When Dellinger called the Justice Department Command Center, an officer told him, “The president wants to talk to you. Immediately.” From inside his home, the solicitor general dialed the secret land-line number. He was instantly connected with President Clinton, who began discussing cases he had been reading concerning a governor’s immunity from civil suit—he wanted to make sure that Dellinger had every possible argument at his command. The president and his solicitor general spoke long into the night.
Dellinger later fell into bed, dreaming about the moment when he would stand up at the lectern to argue the historic Clinton v. Jones case, and wishing he could shout out to the justices: “You think this stuff isn’t distracting? You know what the president was doing last night into the late hours? He’s worrying about this litigation!”
Still, the book’s generally distasteful and often repellent subject—its necessary preoccupation with the dark side—sometimes makes for unpleasant reading. In addition, despite the intelligence, fortitude, and mastery that Gormley demonstrates, the subject sometimes seems an overwhelming choice for him. Gormley’s 1997 biography of the Watergate special prosecutor Archibald Cox helps explain why: While not free of criticism about its subject, Gormley’s Archibald Cox: Conscience of a Nation is largely warm and enthusiastic, a celebration of a noble hero. There is much less to celebrate in The Death of American Virtue, which may have been a source of discomfort for Gormley. In the Cox biography, his fair-minded treatment of the man’s shyness, rectitude, and sense of propriety contributed nicely to the overall portrait of a lawyer-statesman who believed in the need for old-fashioned restraint in the practice of law. In the Clinton-Starr book, although Gormley’s manifest fairness is similarly admirable, it led him to adopt an uneasy voice as a writer. The tone of evenhandedness he strives for is at odds with the wild gyrations of the story he recounts and the repeatedly offensive lack of restraint among characters of his who are lawyer-rogues. The book conveys confidence in what it has to report, but not in how.
As a result, it regularly goes on at length with comments from interviews that are meant to let the book’s main subjects speak for themselves (with the exception of Hillary Clinton, whose voice is noticeably absent) yet are usually predictable and self-serving. Gormley leaves the impression that he likes to be liked by the people he writes about. He is better suited to paying tribute to his subjects than holding them accountable or lacerating them, as some lawyers in the book deserve.
Gormley’s decision to tell the Clinton-Starr story and yet not to judge it parallels the choice that Starr made as independent counsel to emphasize the pursuit of truth rather than the quest for justice. Gormley’s job was different from Starr’s, and truth about history is invariably a source of light. Still, by stopping short of making an overarching judgment about the events it chronicles, The Death of American Virtue does not fully come to terms with its many-sided subject.
On the other hand, the book is plenty good enough to allow readers to reach some of their own conclusions. A critical one is this: Kenneth Starr’s insistent effort led him to the verge of bringing down the Clinton presidency, in large part because of Bill Clinton’s lies under oath about his relationship with Monica Lewinsky. Indefensible as the lies were, the stress on truth exaggerated their importance in Starr’s protracted investigation. More than any other element, that fixation was responsible for the long, costly spectacle that, again and again, made zealous advocacy seem a disgrace to our legal system rather than a bulwark of it.
Lincoln Caplan is a senior research scholar at Yale Law School and a member of the Scholar's editorial board. He is the author of The Political Supreme Court, to be published this fall, and five other books about the law.
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