Appendix: the long road to the impeachment of Bill Clinton
Whitewater and Vince Foster
Whitewater was a failed real estate venture in Arkansas, a partnership between the Clintons and James McDougal (a political backer of Bill Clinton) and his then wife Susan, dating to 1978. An investigation by The New York Times[^65] revealed (a) irregularities in documents and tax filings detailing the Clintons’ stake in the venture; (b) the possibility that as governor of Arkansas, Clinton gave favourable treatment to McDougal’s savings and loan association,[^66] a venture that subsequently failed; (c) that the savings and loan was exposed to the Whitewater venture and made payments to reduce the Clinton’s exposure; (d) that as a partner at the Rose Law firm, Hillary Clinton drafted advice to the struggling S&L to help it avoid closure by the state of Arkansas.
The New York Times article was published on 8 March 1992, well before Clinton had secured the Democratic nomination for the election to be held in November of that year, which Clinton of course won. Clinton was inaugurated on 20 January 1993. On 20 July 1993, Deputy White House Counsel Vince Foster committed suicide. Foster had been a partner at the Rose Law Firm and a colleague of Hillary Clinton and had handled Whitewater-related matters on behalf of the Clintons.
Foster’s suicide — later ruled a result of depression — renewed interest in Whitewater and the role of the Clintons. Political pressure continued to mount. Claims of a conspiracy mounted, fuelled by speculation about the circumstances of Foster’s death and the propriety of financial dealings between the Clintons and business figures in Arkansas.[^67] Of particular interest was the fact that Foster was in possession of Whitewater-related documents at the time of his death (held at his White House office) and that those documents were transferred to other parties in the White House. The White House acknowledged the presence of the documents at the White House on 20 December 1993.
On 12 January 1994, President Clinton asked Attorney-General Janet Reno to appoint a special counsel, taking over a Justice Department investigation of the financial dealings of parties in Arkansas, including the Clintons’ associates. Reno appointed Robert Fiske on 20 January 1994,[^68] with a mandate to investigate if crimes had been committed relating to the Clintons’ relationships with McDougal’s S&L and the Whitewater venture. Fiske also re-examined the death of Vince Foster. On 30 June 1994, Fiske issued an interim report, finding no improper ties between the Clintons and McDougal’s S&L and that Foster’s death was a suicide.
The Office of the Independent Counsel
President Clinton signed the Independent Counsel Reauthorization Act of 1994 on 1 July. In large measure this Act revived the Ethics in Government Act of 1978, which created the Office of the Independent Counsel and had been originally passed by a Democratic Congress under the Carter administration in response to the Watergate crisis. The Act had been amended in 1983 and 1987, but allowed to expire in December 1992; Republicans had not been eager to renew an office that had vigorously pursued the Iran-Contra matter under the Reagan administration and the constitutionality of the Act’s provisions had been vigorously challenged before the Supreme Court.[^69] Clinton had previously voiced his support for reinstating the OIC, and now, with Whitewater firmly on the national agenda, Republicans enthusiastically agreed.
An independent counsel was designed to operate at arm’s length from the executive branch, to undertake investigations where the Justice Department would have a clear conflict of interest; the contemplated locus classicus would be a la Watergate, where it was necessary to undertake an investigation of allegations of criminal wrongdoing by a close political associate of the attorney-general, such as the president or persons close to the president.[^70]
Under the Act, the attorney-general would request a panel of three judges — a “Special Division” of the DC Circuit of the Federal judiciary[^71] — to choose an independent counsel. A president could not dismiss an independent counsel, who enjoyed a high degree of autonomy and secrecy with respect to the conduct of the investigation, resources and staffing. Independent counsel were obliged to report to Congress at least annually on their progress and had discretion on what and when to disclose to the public. The independent counsel had the authority to transmit to Congress any information he or she deemed relevant. Importantly, the Act required the independent counsel to “advise the House of Representatives of any substantial and credible information… that may constitute grounds for an impeachment”.[^72]
Reno asked that Fiske be reappointed as independent counsel under the revived Act, an “upgrade” of sorts from his appointment as a special counsel under the Justice Department.[^73] The Special Division disagreed, stating that Fiske’s reappointment “would not be consistent with the purposes of the [Independent Counsel Reauthorization] Act”.[^74]
The Special Division appointed Kenneth Starr to take over as independent counsel of the Whitewater matter. Starr had served as counsellor to President Reagan’s attorney-general and then as solicitor-general in the Bush administration. Almost immediately, Democrats raised questions about Starr’s independence, along with that of the judges appointing Starr in place of Fiske.[^75] Starr requested and was granted authority to examine the death of Vince Foster, the first of several expansions of Starr’s investigation.
Congressional investigations of Whitewater continued at the same time. In early 1994, after the Clinton administration appointed Fiske, congressional Republicans were clamouring for more action from congressional committees with Democratic majorities. According to a media report at the time:
Republicans had hoped for separate hearings into Whitewater, but those hopes faded when a special prosecutor was named to look into the affair earlier this month. Many legislators worried that a formal inquiry with immunized witnesses could impede a criminal investigation, just as 1987 hearings on the Iran-Contra affair hamstrung subsequent trials in that scandal.[^76]
Republicans won control of both houses of Congress in the 1994 midterm elections. On 17 May 1995, the US Senate established the Senate Whitewater Committee[^77] chaired by Republican Senator Alfonse D’Amato (NY).[^78] The Senate Whitewater Committee would sit for hundreds of hours over 13 months and produce a report of more than 600 pages on 17 June 1996, issue many subpoenas and demand (with mixed success) documents from both the White House[^79] and the Starr investigation.
In the summer of 1995, Monica Lewinsky graduated from college and joined the White House staff as an unpaid intern, accepting a paid position in November. Lewinsky left the White House in April 1996, but was a frequent visitor to the White House through to the end of 1997. Starr, the Congress and the media were focused on Whitewater and other matters up until late 1997.
Charges of bank fraud were brought against the McDougals and Arkansas Governor Jim Guy Tucker[^80] in August 1995. They were convicted in May 1996.[^81] Starr first interviewed both Clintons in April 1995. Long missing documents[^82] detailing work done by Hillary Clinton at the Rose Law Firm for McDougal’s S&L surfaced in January 1996; Starr subpoenaed Hillary Clinton to determine if the documents were intentionally withheld. A second Whitewater trial began in June 1996, this time ending in acquittals.[^83]
In early 1997 Starr announced he would resign as independent counsel[^84] and many thought the saga of independent investigations into the Clinton White House was winding down. Within days, and after “heavy criticism from some prominent Republicans”,[^85] Starr reversed his decision.[^86] Starr postponed taking up a deanship at Pepperdine University, finally declining the Pepperdine appointment in April 1998.[^87]
Paula Jones and Monica Lewinsky
On 6 May 1994, Paula Jones filed a civil suit against President Clinton in the US District Court in Arkansas, seeking damages for (a) sexual harassment and assault by Clinton, alleged to have taken place in May 1991, (b) defaming Jones by denying the accusations. Clinton’s defence included a claim that a private litigant could not sue a sitting President. This claim worked its ways through the courts over almost three years; in May 1997 the Supreme Court which unanimously rejected the Clinton claim. Jones vs Clinton was set for trial in May 1998.
Part of the Jones legal strategy was to demonstrate a pattern of behaviour by Clinton, that the allegation of Clinton’s harassment and assault of Jones was credible because other women had similar episodes to report. To this end, Jones’ legal team deposed Dolly Kyle Browning, Gennifer Flowers and Kathleen Wiley in October 1997.
By July 1997, Lewinsky had confided her relationship with Clinton to her co-worker, Linda Tripp. Tripp began taping her phone conversations with Lewinsky in September 1997. In October 1997, the Jones legal team received anonymous tips about a sexual relationship between Lewinsky and Clinton.[^88] Tripp was subpoenaed in the Jones case in November and Lewinsky in December 1997. It was later revealed that Lewinsky was regularly visiting or communicating with Clinton and Clinton adviser Vernon Jordon about Lewinsky’s relationship with Tripp, and securing employment and legal representation for Lewinsky. On 7 January 1998, Lewinsky filed an affadavit — later revealed to be knowingly false and conceived in concert with Tripp — denying any sexual relationship with Clinton. On 12 January 1998, Tripp turned over her taped conversations with Lewinsky to Starr.
Three days later, Starr requested that his investigation be expanded; Attorney-General Reno petitioned the Special Division accordingly. On 16 January 1998 the Special Division granted Starr authority to investigate:
- “whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law… concerning the civil case Jones vs Clinton.”
- “related violations of federal criminal law… including any person or entity who has engaged in unlawful conspiracy or who has aided and abetted any federal offense.”
- “any obstruction of the due administration of justice, or any material false testimony or statement in violation of federal criminal law.”[^89]
The next day, Clinton was deposed in the Jones suit. Clinton testified that he did not have sexual relations with Lewinsky, according to a specific definition of “sexual relations” handed to him by Lewinsky’s attorneys.
Finally, on 21 January 1998, news of the Lewinsky scandal broke in mainstream media.[^90] Clinton denied encouraging Lewinsky to lie in her Jones affidavit and denied any affair with Lewinsky.[^91] Clinton famously issued a televised denial on 26 January.
On 29 January, in response to a motion from Starr, the judge presiding in the Jones suit ruled that all evidence relating to Lewinsky be excluded in deference to Starr’s investigation. In April 1998, the Jones suit was dismissed. Starr’s investigation continued.
In July and August, Lewinsky was questioned by Starr and his staff over 15 days, after an agreement was negotiated granting her immunity. Lewinsky admitted to the Starr investigation that she did have a sexual relationship with Clinton.
On 18 August 1998, Clinton testified to a grand jury convened by Starr that he had had an intimate relationship with Lewinsky. In a televised address that evening, Clinton conceded that his testimony in the Jones case was “legally accurate” but that he “did not volunteer information”. Clinton further conceded that he “did have a relationship with Miss Lewinsky that was not appropriate”. Clinton went on to attack the (dismissed) Jones lawsuit as “politically inspired” and that he had “real and serious concerns” about Starr’s inquiry that began with “private business dealings 20 years ago” and had since “moved on to my staff and friends, then into my private life”.
Starr submitted a lengthy report on the Lewinsky matter to the House of Representatives on 9 September 1998,[^93] which came to be known simply as the “Starr Report”. With the possible exception of the US Constitution, it is perhaps the most widely read document ever produced by the US government and dominated best-seller lists in the weeks after its publication.[^94] Details of Clinton and Lewinsky’s sexual encounters saw the document flagged with cautions about its “explicit content” and were no doubt key to the report’s popularity.[^95] Starr sought — and was granted — permission from the courts to release Clinton’s grand jury testimony[^96] and some four hours of video of Clinton’s grand jury testimony — in which he conceded having an inappropriate, intimate relationship with Lewinsky — aired on national television on 21 September 1998.[^97]
Kenneth Starr submitted a lengthy report on the Monica Lewinsky matter to the House of Representatives. With the possible exception of the US Constitution, it is perhaps the most widely read document ever produced by the US government.
As for the timing of his report to Congress, Starr noted that he had wished to complete his investigations before deciding whether to submit to Congress information (if any) that might constitute grounds for impeachment. But, said Starr, “events and the statutory command of Section 595(c) have dictated otherwise”:
As the investigation into the President's actions with respect to Ms. Lewinsky and the Jones litigation progressed, it became apparent that there was a significant body of substantial and credible information that met the Section 595(c) threshold. As that phase of the investigation neared completion, it also became apparent that a delay of this Referral until the evidence from all phases of the investigation had been evaluated would be unwise. Although Section 595(c) does not specify when information must be submitted, its text strongly suggests that information of this type belongs in the hands of Congress as soon as the Independent Counsel determines that the information is reliable and substantially complete. (p9, H.D. 105-310)
Starr’s inquiry did not conclude with the submission of the report on the Lewinsky matter to Congress, nor did it preclude Starr from bringing criminal prosecutions. Starr ultimately decided not to prosecute any of the parties named in his report on the Lewinsky matter.