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Burden of Proof

Author Jeffrey Toobin Discusses 'A Vast Conspiracy'

Aired January 17, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: It is the scandal which almost took down a presidency. A sexual harassment lawsuit filed by Paula Jones exposed an improper relationship between President Clinton and a White House intern. The legal aftermath led to the impeachment of a president and a permanent tarnish to the Clinton legacy. Was this a constitutional crisis? or, as author Jeffrey Toobin puts it, "A Vast Conspiracy"? or both?

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Two years ago today, President Clinton was deposed by Paula Jones' lawyers in the case of Jones versus Clinton. Under oath, the president denied having a sexual relationship with former White House intern Monica Lewinsky. The events of that day touched off an historic constitutional chain reaction which landed the case in the well of the United States Senate.

ROGER COSSACK, CO-HOST: Early in the Clinton scandal, the first lady discounted charges against her husband, calling the ordeal, quote, "a vast right-wing conspiracy." But author and reporter Jeffrey Toobin points to a different conspiracy, in which the legal system conspires to takeover the political arena.

"A Vast Conspiracy" chronicles the events and players surrounding the Clinton scandal, and behind-the-scenes drama from the White House, Capitol Hill, and Little Rock.

VAN SUSTEREN: Jeffrey Toobin joins us today from our Detroit bureau to discuss his new book. Also joining us here in Washington, Larry Iceler (ph), Noreen Quereshi (ph), and Sarah Kimball (ph). In our back row: Heather Caldwell (ph), Daniel Arnaudo (ph), and Kim Bloom (ph).

Jeff, first, you obviously are a lawyer, former associate counsel in the Office of Independent Counsel of Lawrence Walsh. Did the president commit perjury and did he obstruct justice?

JEFFREY TOOBIN, AUTHOR, "A VAST CONSPIRACY": I don't think he obstructed justice. I think perjury is a somewhat closer question. I think on balance, in a slight -- in a technical, legal reading of perjury, I would say he did not. But in layman's terms, he certainly lied in his Paula Jones deposition.

VAN SUSTEREN: Had you been assigned to this investigation and had this not been a president of the United States, but someone making the same statements under oath, would that be something in your prosecutorial discretion you would have gone forward on and charging perjury?

TOOBIN: I don't think there's a chance in the world that an ordinary U.S. attorney's office would pursue a false statement in a civil case that was subsequently dismissed on an issue that was peripheral to the central issue in the sexual harassment case in any event.

COSSACK: Well, Jeff, what you are saying is that criminal charges, if this was an ordinary individual, criminal charges would not have been brought for this kind of lying in a civil suit. That is probably true. In fact, no criminal charges were brought. But what I really want to get to, you call this a "vast right-wing conspiracy." Let's get right to the heart, what kind of vast right-wing conspiracy was it?

TOOBIN: No, no, I say it was "a vast conspiracy," not "right- wing." And I think it is an important distinction. Basically, what I try to do in the book is point out that ever since the '50s, '60s, '70s, it was the Democrat, it was the left in this country that invented the idea of using the courts for political gain, for political advantage: civil rights workers, feminists, environmentalists, eventually, when it came to Watergate, using the criminal law to advance Democratic causes.

What happened, in my view, in the 1990s, was that the Republicans finally learned the lesson, that the Republicans decided basically from the day Bill Clinton took office, that some activists said: The way we're going to destroy this presidency is to use the legal system. First, using civil lawsuits, like the Paula Jones case, and eventually trying to instigate criminal investigations as well, as in the Whitewater investigation.

Now, it's my view that this was an improper use of the courts by the right-wing during Clinton's presidency, but I also want -- think it's important to point out that the Democrats did it too. And in my view, it was wrong then as well.

VAN SUSTEREN: Jeff, your book, "A Vast Conspiracy," it is now on the "New York Times" best-seller list. It traces this conspiracy back essentially to two people, Cliff Jackson and Peter Smith seem to be at the bottom of the food chain to the conspiracy in some ways. Who are they?

TOOBIN: Well, Cliff Jackson is just a fascinating figure to me. He's really like a figure out of Faulkner. Cliff Jackson was a rising young Arkansas college graduate, who found himself at Oxford with Bill Clinton. And they were sort of friendly rivals in Oxford and -- but they went their separate ways, and Cliff Jackson went on to a modestly successful but obscure career as a lawyer in Arkansas and Bill Clinton went on to be Bill Clinton. Cliff Jackson nursed obsessions -- nursed his obsession with his hatred of Bill Clinton, as it turned out. Really just despised him. And when Clinton started to run for president, he actually went to New Hampshire to campaign against Bill Clinton.

But what happened then was he was embarrassed. It didn't work out. So what he decided to do was, instead of going directly against Bill Clinton, he decided to use journalists like Michael Isikoff, friendly journalists with whom he could plant negative stories about Bill Clinton, and then to use the legal system he midwifed the Paula Jones case into existence, and even more amazingly Cliff Jackson was the person who brought David Hale to a lot of journalists. And he basically was responsible for the appointment of the Whitewater independent counsel as well. So this single embittered ex-friend of Bill Clinton is really almost single-handedly responsible for bringing on the Paula Jones case and the Whitewater investigation.

VAN SUSTEREN: Why did Cliff Jackson -- I also want you to tell us who Peter Smith is -- but why did Cliff Jackson hate the president?

TOOBIN: Well, I think this really goes to one of the themes of my book, and also one of the -- just the larger lessons of this story is that basically it had nothing to do with the issues of Bill Clinton's presidency, what he stood for or what he didn't stand for. It had to do, really, with the culture and the legacy of the '60s.

Cliff Jackson viewed Bill Clinton as fundamentally a phony, an inauthentic man, someone who got all the benefits of the '60s: the sex, the promiscuity, the free lifestyle, but none of the responsibility, that he dodged the draft. And I think this cultural critique that Cliff Jackson had of Bill Clinton, and it needs to be said, one that was shared by a lot of Americans, it was this anger and this resentment which really fueled Jackson's anger.

COSSACK: Jeff, you know, you talk about and you use the word "conspiracy."

TOOBIN: Right.

COSSACK: As a lawyer, you know what a conspiracy means, it's an agreement to do an illegal act. Are you saying that all of these people that you articulate about in the book all were in the same agreement?

TOOBIN: No, and I think that needs to be pointed out. I mean, a conspiracy, I use it in its colloquial sense, not that it was illegal, but that it was an agreement to do something mostly secretly, which I think it was, which was basically the use of the legal system.

But I do think it's important to point out, especially given some of the intemperate responses of the Clinton people to the Starr investigation and to the Jones forces, I don't think what they did was illegal. I think it was an abuse of the legal system, but I don't think there were any crimes involved.

VAN SUSTEREN: All right, Peter Smith, he also is prominent in your book, and we don't know much about him.

TOOBIN: Right, Peter Smith, again, he's a Chicago financier, who was the person who subsidized the Arkansas state troopers. If you recall, this whole story got started in December of 1993 when David Brock, a journalist, wrote an article in the "American Spectator" bringing forth the allegations of the Arkansas state troopers that Bill Clinton had been sexually involved with women while he was governor of Arkansas.

It was Peter Smith who paid those troopers, and then paid Cliff Jackson -- to bring -- and paid David Brock -- to bring those allegations to light. And he was also a big supporter of Newt Gingrich's. And again. it just shows how the Paula Jones suit, and by the way, Paula her name was first mentioned in that David Brock story. And that's Peter Smith's significance.

COSSACK: All right, let's take a break.

Up next: Was the investigation of President Clinton, the death nail of the Independent Counsel Statute? Stay with us.

(BEGIN LEGAL BRIEF)

According to the Justice Department, civil rights complaints doubled between 1990 and 1998. The 18,973 civil right cases filed in 1990 accounted for 8.6 percent of all federal cases.

In 1998, the 42,354 civil rights cases amounted to 16.5 percent of all cases filed.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto www.cnn.com and click your way to the BURDEN OF PROOF link. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand.

(BEGIN VIDEO CLIP)

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I had real and serious concerns about an independent counsel investigation that began with private business dealings 20 years ago; dealings, I might add, about which an independent federal agency found no evidence of any wrongdoing by me or my wife over two years ago. The independent counsel investigation moved on to my staff and friends, then into my private life. And, now, the investigation itself is under investigation.

(END VIDEO CLIP)

COSSACK: That was the president's statement to the American people just hours after his grand jury testimony on August 17, 1998. Was there an obsession in Ken Starr's office, and did it lead to the demise of the very statute which gave them power?

All right, Jeffrey, I want to go right back to your title of your book where you talk about the conspiracy: Was Ken Starr and his staff -- were they members of that conspiracy?

TOOBIN: Well, I think, in the colloquial sense that I used, absolutely. I mean, I do think that they receive a lot of unfair criticism from Clinton partisans for breaking the law, for violating Monica Lewinsky's rights.

COSSACK: But, wait, you described -- let me just interrupt you one second -- you described the colloquial use of the word "conspiracy." You said, look, it's not -- I don't mean it, Roger, in that traditional sense, but I mean it as a group of people who really didn't -- you know, were out to get Clinton and didn't like Clinton. And I'm saying: Was Ken Starr part of that? Did they have a personal obsession of not to like Clinton and to get him?

TOOBIN: Defined that way, absolutely, absolutely, especially when it came to 1998 and the Lewinsky investigation. You have to remember how long this investigation went on for. Ken Starr was appointed in 1994. By the time it was 1998, almost all of the really good people had left that office. And as I write in the book, the office was mostly populated by the unemployable and the obsessed. And I think that's really who was in charge in the Lewinsky investigation. And time after time, they made miscalculations; not illegal acts, but just incompetence as prosecutors.

VAN SUSTEREN: Jeff, when we started the show, I asked you if whether there had been perjury and obstruction of justice, I think your answer was, no, that there'd been some lying, but neither perjury or obstruction of justice. Was part of the problem, as you stated on page 190, that, for instance, Hickman Ewing, one of Starr's deputy, presumed a crime had been committed, that he required, almost, the accused to prove that he didn't do it, as well as the fact that, in your book, you say that he took this very personally?

TOOBIN: Absolutely. I mean, again, you have this long period -- and, again, this shows how unhealthy the independent counsel statute is. I mean, one of the things I was lucky enough to do is I worked in an independent counsel's office in the Iran-Contra investigation, but also in a wonderful U.S. attorney's office in Brooklyn. And I got to see the difference between how criminal law was practiced in those two place.

In a regular federal prosecutor's office, you have a wide variety of cases to choose, you have lots of crimes out there to investigate, you don't have this obsessive, endless focus on a single target, and that one reason why I think it's a wonderful development that the independent counsel law is gone.

VAN SUSTEREN: Speaking of sort of the obsessive aspect of it, turn your attention to the Paula Jones case and the law firm that represents Paula Jones. What was there motive? What is to be old- fashioned lawyers pursuing a case, or was it something else? TOOBIN: Well, see, again, the time value here is very important. Paula Jones was represented through the early years of her investigation -- of her case by two lawyers from the Washington area named Gil Davis and Joe Cammarata. And they were both Republicans, to be sure, but they were decent, honorable people who tried to get a good result for their client.

And in the summer of 1997, they worked out this great settlement for Paula Jones for $700,000, which is far more, after legal fees, than she ever would have gotten even after her later settlement. But what happened then was that Paula Jones, who was a naive woman. I mean, in a memorable moment, she once said to me, the Republicans: Are they the good ones or the bad ones? I mean that the -- I mean, that's Paula Jones for you.

What happened in 1997 was a woman named Susan Carpenter MacMillan, with a big head of blond hair -- I'm sure people remember her. A dedicated political adversary of the president's took control of Paula Jones' case, and she basically mandated -- she got -- she rejected the settlement and got a new group of highly political lawyers from the Rutherford Institute and the Dallas law firm of Donovan Campbell involved, and that was the moment that Paula Jones' lawyers shifted from people who had Paula Jones' interests at heart and the people who had the interests of the political opposition to Bill Clinton at heart.

VAN SUSTEREN: And what was -- I mean, was that the motive, simply a political opposition by the law firm in Dallas, or was there something more beyond that?

TOOBIN: Well, I think there was something more. I mean, one of the -- I mean, again, this is a media story as well as a legal story. And one of the extraordinary facts about this is how book deals were a tremendous incentive. In one of the sort of comic aspects of my book, is you see how many of the players, in addition to pursuing political agendas against the president, were simultaneously negotiates for book deals: Paula Jones is one, Linda Tripp, famously, as everyone knows, with Lucianne Goldberg, was another. The Arkansas state troopers who got involved with David Brock in order to get a book deal, and the journalist Michael Isikoff. I mean, those four all were motivated by book deals, and it had a big impact on how this story unfolded.

VAN SUSTEREN: All right, we're going to take a break.

Up next: In the aftermath of an independent counsel investigation and the congressional trial, who are the heroes and who are the villains? Stay with us.

(BEGIN Q&A)

Q: How many states forbid former felons from voting?

A: Fourteen.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back. We're talking to Jeffrey Toobin, the author of a new best seller "A Vast Conspiracy."

Jeff, I asked before we leave it, whether there are any heroes or villains, How about Judge Susan Webber Wright, hero or villain?

TOOBIN: Big hero, only hero in my view.

COSSACK: Spoken like a true lawyer, he praises the judge.

TOOBIN: Come on, I don't practice anymore, I don't need these people.

VAN SUSTEREN: Why is she a hero? What did she do that is so great?

TOOBIN: Well, she did a couple of thing. The most important thing, she tried to control this lawsuit. She tried to keep it focused on employment discrimination, which was really the focus of the lawsuit. And in a wonderful opinion on April Fool's Day in 1998, she threw the case out because it should have been thrown out. It was not a valid lawsuit.

But at the same time, when it was all over, she found Bill Clinton in contempt of court for lying in his deposition and fined him $90,000, and i think that was appropriate too because Bill Clinton did not deserve to get off Scot-free because of what he did, he just didn't, in my view, deserve to be impeached.

COSSACK: All right, Jeff, what about my favorite in all of this, Bill Ginsburg. You see, I always had this theory that if they had left Ginsburg on this case it would have eventually pretty much worked out the same way, only the independent counsel law would have been gone a lot sooner.

TOOBIN: That's right. Well, you know, whenever I think of Bill Ginsburg I think of a great line from "Monty Python," which is, you know, "I may be an idiot, but I am no fool."

You know, basically, Bill Ginsburg understood one big thing, which was that Ken Starr had no case against Bill Clinton without Monica Lewinsky. And he held out for immunity, and he got ready to make a deal. He was ready to deal with Starr in February just days after the story broke, but because Ken Starr was blinded by his hatred of Ginsburg, and blinded by his desire to uncover some conspiracy that never -- you know that somehow we could never find the evidence of. He pulled away from that deal at the last second and waited until July to give Lewinsky immunity. And those seven months were the months that allowed Bill Clinton to survive in office.

COSSACK: It was a pretty -- it was almost the same deal that Ginsburg offered that they ended up making with Plato Cacheris and Jake Stein; isn't that true?

TOOBIN: It wasn't almost, it was identical. It was transactional immunity. Monica Lewinsky said exactly the same things. It is just that Ken Starr was more comfortable dealing with the button-down and very prim, proper lawyers Plato Cacheris and Jake Stein. But the fact is, Ginsburg, for all his eccentricity, had the keys to this case to Starr, and Starr didn't have the wit to take them.

VAN SUSTEREN: All right, Jeff, villain or hero, Ken Starr?

TOOBIN: Ken Starr, I think, is definitely going to be viewed very harshly by history for this story. I mean, his lack of judgment in how to bring this case. The Starr Report was this banquet of excess. it was written, you know, with real personal venom, and with the desire to embarrass the president and really humiliate him out of office.

I think some of the criticism of him, as I say, for the breaking the law was overstated. But I do think ill-judgments will pursue him forever.

VAN SUSTEREN: Was it an accident or was it deliberate that he waited until after the midterm elections to reveal in his testimony before the House Judiciary Committee that he had cleared the president in I think Travelgate and Filegate.

TOOBIN: Travelgate and Filegate. I mean there was a wonderful exchange between Barney Frank and Ken Starr about that very question. You know, one of the problems with the independent counsel law is that there isn't a good mechanism for clearing people, and Starr...

VAN SUSTEREN: What was the motive though? But what was the motive for waiting until after the vote? Was that legitimate or was that deliberate political overstepping?

TOOBIN: I mean, I have to say that, you know, I like to try to limit myself to what I know, and I don't know that the motives there were political for limiting that. It is certainly more than passing strange that he waited that long to clear him, but I don't know what I can't prove.

COSSACK: OK, Jeff, Ken Starr, if he was here, would say: Look, you criticize me for what I did, but I had no choice. I received this evidence, and I went to the three-judge panel and they told me to go ahead and investigate. How do you answer that?

TOOBIN: Well, that is absolutely. I mean, it is true that he was obligated to investigate. he was not obligated to, you know, subpoena Monica Lewinsky's mother, to subpoena Sidney Blumenthal, to hold those ridiculous garbage pale press conferences. And he certainly was not obligated to subpoena Bill Clinton on the eve of the midterm elections and videotape the testimony, which I think was designed to embarrass him. And most of all, he was not required to write that extremely excessive, intemperate, unfair, embarrassing report, which he ultimately did.

COSSACK: All right, that's all the time we have for today. Thanks to Jeff Toobin and thank you for watching. Today, on TALKBACK LIVE; Should South Carolina remove the Confederate flag from its state house? You can weigh in at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And join us tomorrow for some reaction to Jeffrey Toobin's portrayal of the Clinton scandal with a legal adviser from Ken Starr, Ron Rotunda; former Starr deputy Robert Bittman; and minority chief counsel to the House Judiciary Committee Julian Epstein. We'll see you then.

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