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Burden of Proof

Authors of `Truth at Any Cost' Revisit Ken Starr's Investigation Into Bill Clinton

Aired May 1, 2000 - 12:30 p.m. ET

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

ROGER COSSACK, CO-HOST: For more than a year, amid charges of perjury and obstruction of justice, an independent counsel investigation of the president's involvement with a White House intern and efforts to cover up the relationship generated headlines and consumed the nation. Now, drawing on more than 150 interviews with people inside the White House, the Justice Department and the Office of the Independent Counsel, two award-winning journalists have teamed up to author a new book on the probe of the president and the unmaking of Bill Clinton.

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

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

On January 17, 1998, President Clinton was asked in a deposition about his relationship with White House intern Monica Lewinsky, also known in the Paula Jones case as Jane Doe number 6. That deposition touched off a new probe within the Office of the Independent Counsel and a year of legal drama centering on the White House, the Justice Department and the federal courts.

A new book promises an inside view of the controversial investigation. "Truth at Any Cost: Ken Starr and the Unmaking of Bill Clinton" was co-written by two veteran Washington journalists: "Washington Post" investigative reporter Susan Schmidt and "Time" senior correspondent Michael Weisskopf.

And joining us today are Brian Jones (ph), along with co-authors Susan Schmidt and Michael Weisskopf. And in the back, Luke Kulp (ph) and Jessica Peck (ph).

Well, thank you for joining us.

Let me give you my theory and then you tell me -- I can give you my theory. I didn't write the book, but you tell me in your book how you would respond to it.

I always believed that the Ken Starr prosecution team was made up of veteran prosecutors who saw this as a traditional prosecution, and the notion of being politically attacked was something that they were just simply uncomfortable and didn't know how to respond to as far as having a defendant attacked that way than rather traditional legal means -- Susan.

SUSAN SCHMIDT, CO-AUTHOR, "TRUTH AT ANY COST": I think you're right about that. The caveat I would add is that Starr and his top deputies, Jackie Bennett and Hickman Ewing, had been investigating the Clinton White House for four years. So they were -- they had been the recipients of attacks, albeit on a slightly lesser scale, for that period of time. So they knew and they had a pretty jaundiced view of the White House going into the Lewinsky investigation. They were incapable of fending the attacks off, but they -- and that actually contributed to their dim view of Clinton.

MICHAEL WEISSKOPF, CO-AUTHOR, "TRUTH AT ANY COST": Roger, your view, I think, is correct in one respect. And we believe that Starr was crippled by his failure to understand that part of the job, to understand the extent to which the investigation, the authority of his investigation, was tied to public support. After all, this was a twice-elected popular president.

COSSACK: Right. You write -- and I get to quote from your book here -- you say that -- you talk about after they indicted and convicted Webb Hubbell, they made a deal that Webster Hubbell would then help them out. And they made -- as you point out, they made a blunder. They didn't get a proffer. And for our viewers, what means is that you find out ahead of time what the man's going to say before you let him go ahead and say it. They didn't get a proffer from him, and therefore Hubbell never gave them the information they needed. And you say, from that time on, "Starr took from the encounter the same lesson he was learning in the Washington phase of his work: He should treat the Clintons and his associates as he would the subjects of any criminal inquiry."

WEISSKOPF: Indeed.

COSSACK: What about that?

WEISSKOPF: Indeed, and it became a big issue very early on in this investigation when they had a chance to make a deal with Monica Lewinsky within the first days, within certainly the first 10 days of this investigation. They wanted, demanded up front, a proffer, some guarantee of what she was going to say. Her lawyer at the time, Bill Ginsburg, said no deal until there is a deal, and this hung up the whole process. You look back historically at their experience with Hubbell, the idea that Hubbell stiffed them, they wanted to make darn sure it didn't happen again.

COSSACK: Susan, on the other hand, here's what was going on in the White House: And you quote about a conversation in which Charles -- Harold Ickes as the field marshal of the team, and he exhorts his colleagues on his Whitewater damage-control team, including lawyers Jane Sherburne, Mark Fabiani. He says about Starr -- he says, "This is a fight to the finish, he vowed. We have to damage this" -- and I won't say what the word is. "Everything is fair game, all guns up and loaded. He assigned Eric Burman (ph), opposition research chief at the Democratic National Committee, to dig up everything he could on Starr's personal background and legal work. Spare no expense." And he says, "Now, Kendall and Cutler, and some of the more traditional lawyers of Washington, were still worried about a frontal attack on Kendall -- frontal attack, but Kendall -- but behind the scenes, those lawyers also helped mount a relentless campaign to wound Starr and cast doubt on the fairness of his work."

So that battle lines were drawn.

SCHMIDT: The battle lines were drawn. And almost never do you have a situation -- does a prosecutor have a situation where the potential defendant is so powerful, has the apparatus of the White House...

(AUDIO GAP)

...legal teams to do this kind of damage to him.

WEISSKOPF: And you know, in a situation like this, prosecutors are often the subject of ridicule and attack. In this case, however, the White House looked at this with the intensity of a political campaign in a must-win district and they put everything into it: all energies, "all guns loaded," as Harold Ickes said.

COSSACK: All right, now, what -- in terms of drawing the battle lines, what did this mean for the fight, for the impeachment of the president? We now had the president saying, we are going to win this battle. We're going to win and we're going to do whatever it takes. Were the prosecutors at that time -- was that almost like the kiss of death for the prosecutors once they decided they would do -- once the White House decided they would do everything they could, was that the end for the prosecutors?

WEISSKOPF: It meant, Roger, they started out at a great disadvantage. They had credibility problems from the start. It meant that they had to work very fast because they realized the extent to which their own -- the character of the investigation was being undermined. It also meant that they had to protect witnesses very, very carefully because one of the strategies of the White House was to refer lawyers to some of the witnesses and then have those same lawyers report back to the White House and its lawyers what those witnesses were telling Starr. It was -- they were informal, joint defense agreements used in corporate cases often...

COSSACK: Right.

WEISSKOPF: ... not very often in a criminal case involving a president or somebody of that nature.

COSSACK: And which prosecutors absolutely hate these joint defense agreements anyway in criminal cases.

WEISSKOPF: Yes, yes.

COSSACK: Susan, was the big failure -- and I know that you interviewed Starr for several hours. Did Starr ever get it that what they were talking about here was sex and president's indiscretion and that perhaps this was a personal matter and therefore he could never seem to rally the American public?

SCHMIDT: Well, sure he gets it, but he and his prosecution team thought it was much more serious than that. I mean, they thought it was perjury and subornation of perjury and obstruction of justice. And they -- the Justice Department agreed with them at the outset of the investigation. The Justice Department, Janet Reno, commissioned Starr to investigate this. So it wasn't an unreasonable presumption.

WEISSKOPF: Starr would like to say that this was no more about sex than Watergate was a third-rate burglary.

COSSACK: But, nevertheless, at the end of the day, he had convinced the American public that the president had lied, but yet the American public still wanted the president to remain in office. What does that say about Starr's success or not?

WEISSKOPF: Well, it says a great deal about the White House success in spinning the issue that way. From the beginning, the president was led by pollsters who said that, look, if this is reduced to sexual issue, you can take yourself out of criminal liability from the public's standpoint. He was very successful, the president, in shaping this issue so that it would be seen primarily as a trivial love affair, albeit outside of his marriage.

COSSACK: All right, let's take a break. When we come back, all the president's men: how Bennett, Kendall and Ruff litigated Clinton's compartmentalized legal dilemmas. Stay with us.

(BEGIN LEGAL BRIEF)

Hillary Rodham Clinton has received a $32,250 campaign contribution from Ken Starr's law firm. One of the firm's partners went to high school with Clinton. Starr is on leave to write a book about his days as independent counsel.

Source: "The Journal News"

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: you can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to cnn.com/burden. 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. You can also interact with our show and even join our chat room.

As President Clinton's personal legal problems infected the White House, lawyers in his camp got marching orders for specific avenues.

Bob Bennett handled the Paula Jones lawsuit. David Kendall dealt with the impeachment issues. But where did that leave White House counsel Charles Ruff?

Where did that leave Mr. Ruff? WEISSKOPF: Ruff was at a disadvantage because of the court rulings that government attorneys don't have privileged communications with the government clients, such as the president. We found a secret meeting on February 3rd between Ruff and Lanny Breuer, his assistant. They marched over to Starr's office, snuck in through the back end, and sat down with Starr and his deputies, asking for permission, almost pleading for permission to have this kind of (UNINTELLIGIBLE) communications with the president.

Starr sort of accepted his argument, nodded, a day later rejected it.

This, in Ruff's eyes and the eyes of White House counsel, was a kiss of death because it meant that only the private lawyer, David Kendall, would be in control of this case. Once they wouldn't be able to have this kind of privilege, it meant that only the private lawyer would. And Kendall pretty quickly made up his mind (a) that nothing would be said, nothing would come out of this building, he told political aides, and he also decided that the best strategy was to demonize the prosecutor.

COSSACK: Did that lead to, Susan, a conflict between, say, David Kendall and Bob Bennett? Bob Bennett represented the president in the Paula Jones matter. David Kendall was, I suppose, overall in charge. Was there a conflict? I think there was.

SCHMIDT: There was a conflict. But I'm not sure that was what set it off. There -- they had a longstanding rivalry, and Kendall thought Bennett had mishandled the Jones case and -- as did some of the other people in the White House. They thought that Bennett had sort of gotten them into this jam because he had not settled the case, he had not made it go away.

And Bennett had interviewed Clinton. He had interviewed everybody around Clinton and been assured that Monica Lewinsky was a nonentity. So you can't really blame Bennett, but Bennett was pushed to the side by -- early on in the Lewinsky investigation.

COSSACK: And this is a point that as a lawyer I find fascinating, because Bennett interviews his clients, his client. His client says: oh, don't worry about this Monica Lewinsky, doesn't mean a thing. I suppose you have to believe your client, the president of the United States at that time. It turns out that that isn't exactly true. I don't see how Kendall could then come back and say you mishandled it, if, in fact, he's relying on the truth of what his client told him.

SCHMIDT: Well, it goes back to other conflicts. I mean, earlier, you know, Bennett had tried to take over the entire Whitewater representation that Kendall was handling, the criminal investigation, and he got pushed back pretty hard by Mrs. Clinton and Kendall. And so there was this sort of personal rivalry going on.

WEISSKOPF: But Bennett was very set against this policy of character assassination, and he and others saw it in McCarthyite terms, believed that the way to handle this case was to negotiate: to try to reach a settlement of some sort with Starr; not to turn on the guns against an office that had the power to essentially indict and cause you criminal problems.

COSSACK: Right, but Bennett is coming from a point when he's making that -- those kinds of decisions of believing that Monica Lewinsky is a nonentity in this matter, believing that these allegations that have been floated out there, that there is perhaps some kind of a sexual relationship between the president and Monica Lewinsky doesn't exist. And if I'm that lawyer, why would I want to settle that case? I would want to win that case.

WEISSKOPF: Indeed, he always handicapped it, though. There was always a possibility. He did his due diligence. He talked to everyone, to Bruce Lindsey, others in the White House to find out did the president in fact have a sexual relationship. He was assured that they weren't.

He was very angry, as we report, when he found out in fact that not only did they have a sexual relationship, but even before then, that Vernon Jordan had helped procure a job or try to get a job for Monica, and he confronted Jordan. These two rain-makers, very powerful lawyers in Washington confronting each other across a desk in Jordan's office. And by coincidence, the president called about that time, and Jordan said to the president: "Well, looks like I've got a good lawyer" -- his was there -- "and you've got a good lawyer," meaning Bob Bennett, "and we're in good hands."

COSSACK: Well, listen, it's more than that. I mean, in some ways, as a lawyer, one could argue that the president hung Bennett out to dry. I mean, there came that time in the deposition where Bob Bennett picked up the affidavit of Monica Lewinsky and said: Look, this is true, we're going to put this in, this affidavit is going to be put into the record.

And if Bob Bennett would have known it wasn't true, he could be standed up in front of some bar committee right now arguing about his political -- his legal future. So in some ways this was a lawyer who -- I mean, certainly not the first lawyer who's ever been lied to by his client. But you can see that there was -- that kind of conflict would be there.

SCHMIDT: Absolutely.

COSSACK: Now let's talk a little bit about what -- peripheral players: William Ginsburg. What role did he play on this?

WEISSKOPF: Well, as the public knows by watching him on TV he was very erratic in his representation of Lewinsky. He probably made a big mistake by not taking an immunity deal from the start, when he was first offered it. The night that Starr first confronted Lewinsky inside the Ritz-Carlton, he was offered pretty much carte blanche, no strings attached, you don't even need a proffer. He passed that up. Starr's prosecutors who are dealing with Lewinsky couldn't believe it, and he allowed that opportunity to pass. Later on, he continued, as we report, to undercut her publicly and privately, suggesting at one point that she would talk and said she was like a pimple ready to burst, in the classic Ginsburg phrase.

COSSACK: Right.

WEISSKOPF: And it eventually ended up turning her off, because she realized how he was, as the president's lawyer was doing, antagonizing the prosecutor, and this guy had a loaded gun to her head.

COSSACK: All right, let's talk about Monica Lewinsky. Here's Monica Lewinsky going to visit her friend Linda Tripp at the mall, shows up. Linda says: By the way, we're not going to be having dinner, you're going to be meeting with these FBI agents.

Tremendous pressure. Michael Emmick of the prosecutor's office is there. He sits down with her. They pick him because he's a good guy. They think that he can talk to her. He sits down and says: Monica, you're in a lot of trouble, but tonight's your golden way out. Just sit down and talk to us, give us this information, and you're out of this thing.

She doesn't do it. Why not?

SCHMIDT: Well, she was still smitten with the president, certainly. I mean, that's -- during the course of this evening she slips off and calls Betty Currie and alerts Betty Currie to the fact that she has been corralled by these prosecutors. So she was trying to get out of her jam and alert the president, but this went on, the prosecutors thought they would have her cooperating within a half an hour. Eleven hours later she was -- she had turned the tables on them. They were left gasping. She was sort of...

COSSACK: She ended up in control.

SCHMIDT: She did.

COSSACK: All right. Let's take a break.

Up next, President Clinton's White House burdens end later this year. But will his legal worries intensify once he leaves the Oval Office? Stay with us.

(COMMERCIAL BREAK)

COSSACK: The president's legal woes didn't end with his impeachment and subsequent acquittal in the Senate. He later settled the sexual harassment lawsuit with Paula Jones, and the independent counsel investigation continues today.

You write in your book, "Truth at Any Cost," you say that Robert Ray, who is the independent counsel, will face some of the same challenges his predecessor endured. As soon as he was appointed, for instance, he came under fire from Carville. You mention all of that. And then you end by saying: "However, during his first four months in office, the new independent counsel gave no indication of nailing the door shut. He hired four new lawyers, and three of them have backgrounds in investigation or prosecution."

Now, that sounds to me like a prosecutor who is gearing up for the possibility of indicting the president of the United States after he leaves office.

WEISSKOPF: He's made some public soundings recently, Roger, that the door is not shut, he will consider an indictment.

We sort of paint a picture earlier on, when he was first getting into Starr's office, right about the time of the president's impeachment process in Congress, Starr decided let's see what an indictment will look like. And he had Mike Emmick, one of his chief prosecutors you mentioned earlier, draw up a prosecution memo and a sample indictment of the president. There were four charges, including perjury and obstruction of justice.

Emmick presented this material in October: a final summit meeting for Starr before he was leaving his office, called together all of his counsels, people who had left the office, from around the country, and they talked about it. And Emmick presented the charges, and the room was pretty divided. Some people thought the president had paid enough. You mentioned the settlement in the Paula Jones case. Even later a federal judge found him in contempt of court, pretty serious charges.

Others felt that the impeachment process and the politics of this case short-circuited the rule of law. To vindicate the rule of law, we need to indict him.

Ray was in the meeting at the time. Kept his counsel. We don't know where he is at this point. But he has this legacy.

COSSACK: Susan, again, I would argue that bringing the prosecution of the president of the United States after he leaves office would be another example of they just don't get it, and I go back to that statistic I quoted, which was at the end of the day most people, about 60 percent, believe that President Clinton had lied, and yet that same number, if not more, believe that he should finish his term as president of the United States and not be impeached.

Isn't that the same problem that they would have in going back and trying to indict him after he leaves office?

SCHMIDT: Well, there's a tension there: Should a prosecutor be responsive to public opinion? Does a prosecutor do his job by poll?

Starr told us a number of times, if Abraham Lincoln had taken polls about the Civil War, he never would have fought it.

COSSACK: Susan, I've got to interrupt you, because that's the last word.

That's all the time we have for today. Thanks to our guests. Thank you for watching. Stay tuned to CNN today for "TALKBACK LIVE" and talk to White House secretary Joe Lockhart. That's at 3:00 p.m. Eastern Time, noon Pacific. And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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