July 4, after nine days of self-congratulation in China, Bill Clinton returned to the United States, where for six months he has declined to respond — in public or under oath — to swirling evidence that he has committed felony crimes while president. He immediately addressed the nation by radio. He asked that we “rededicate ourselves to the work of responsible citizenship.” And he volunteered to make the first move. The president promised to provide bacteriological “warning labels” on “all prepackaged juice” so that we can all make “better decisions about the juice.” As responsible citizenship presumably requires.
Better decisions about the juice.
Some future generation of social historians may finally solve the mystery of why this generation of Americans did not long ago surround the White House, torches burning, to demand a proper, full accounting from our principal elected leader. Suffice it to say, for now, that it has not happened. Suffice it to say, too, that a preliminary explanation for this depressing non-development is already taking hold — even among the Whitewater/Lewinsky controversy’s closest and least Clinton-sympathetic observers. Kenneth Starr has blown it, Washington now mumbles into its phones and television cameras. Starr is losing on the law. He may be losing on the facts, as well.
Washington seems impressed by Starr’s recent series of “legal setbacks.” Washington seems impressed that Susan McDougal was released from incarceration for health reasons — though she will again face trial this fall for felony contempt of court. Washington seems impressed that the Supreme Court denied Starr’s request for access to notes taken by Vince Foster’s attorney — though that case was about the Travel-gate scandal, which does not involve the president.
Washington seems further impressed that the administration has so far blocked, behind imaginary “privileges,” the grand-jury testimony of two Secret Service agents and White House fixer Bruce Lindsey. The Supreme Court decided last month not to grant Starr an emergency hearing on this question. But has Starr yet “lost” a single substantive privilege ruling about Whitewater or Lewinsky? He has not. Two weeks ago, in fact, the D.C. Circuit Court of Appeals ordered both Secret Service agents to obey their subpoenas and tell the truth.
A one-day story, that. Washington seems more impressed — Washington seems most impressed, Starr’s critics and erstwhile friends alike — by what U.S. district judge James Robertson did on July 1. Robertson dismissed Starr’s recent 10-count indictment of Webster Hubbell for conspiracy, tax evasion, and tax, mail, and wire fraud. Mind, the judge did not determine that the charges were baseless. Instead, he rebuked the independent counsel for investigating those charges in the first place. And for trampling Hubbell’s Fifth Amendment rights — in a “quintessential fishing expedition” — while working to prove the charges.
Hours after Robertson’s ruling was released, CNN turned its airwaves over to former White House bag-man Harold Ickes, who announced that the judge had confirmed beyond dispute what has always been Team Clinton’s central theory about the president’s scandals: There are no scandals. There is only Kenneth Starr, a man of “McCarthyite” zeal and “Gestapo tactics.” Talk like that was all over the next day’s papers. And some of it appeared in the voice of objective reality. Robertson’s opinion was a “carefully” worded, “powerful critique” of the independent counsel’s methods and evidence, the New York Times reported. These are journalistic euphemisms for “persuasive.”
Except that the Robertson opinion is not persuasive. It is a joke. Ken Starr built his latest case against Hubbell on more than 13,000 pages of personal records. Hubbell delivered those records to the Whitewater grand jury in response to a subpoena. He did so under a Starr-sought, court-ordered grant of limited immunity. Which meant the fact that Hubbell was the source of the documents — his implicit testimony that they existed, were authentic, and belonged to him — could not be revealed to the grand jury or any subsequent trial court.
But the contents of Hubbell’s records were and are another thing altogether, as Judge Robertson only briefly acknowledges. The Supreme Court has clearly ruled, he spends one sentence whispering, that evidence gleaned from voluntarily prepared private documents is “never protected” by the Constitution. Robertson then skips merrily along, however, ignoring this central observation. Hubbell does seem to have been paid hundreds of thousands of dollars for no-show jobs — arranged by the president’s friends — at precisely the time he was refusing to cooperate with the Starr grand jury. He did not pay taxes on this money. His private records suggest as much. His private records, in other words, are incriminating. Therefore, according to Robertson, Starr was precluded by the Fifth Amendment from obtaining those records.
There is literally no federal case law to sustain this argument. Nor is there any logic to Robertson’s additional ruling that Hubbell’s tax crimes are “factually unrelated” to Starr’s underlying Whitewater investigation. A three-judge, appellate-level panel has already decided otherwise. Robertson will be overruled. Hubbell will be tried and convicted.
What, then, can account for the commentariat’s easy judgment that the independent counsel has been sidetracked and embarrassed by this incident? Boredom? Laziness? What, for that matter, can account for Washington’s new willingness to entertain the possibility that even basic suspicions about Bill Clinton — far short of the question of criminal culpability — may no longer be warranted?
The city is abuzz with fresh, speculative analyses of the famous “talking points,” which appear to instruct Linda Tripp on how to change her memory about Kathleen Willey and Monica Lewinsky. For weeks now, White House aides have been advising reporters to check out the work of John FX. “Jack” Gillis and Willard “Skip” Fox. Fox teaches poetry at the University of Southwestern Louisiana. Gillis is a graduate student there. The two men have performed what they call a “bit of textual bibliography” on the talking points. “Let’s assume this is a text,” Gillis says, “and let us explicate it.”
They have assumed and explicated to a fare-thee-well, and they have published the resulting conspiracy theory on the Internet. Gillis/Fox Essay #1, “Newsweek’s Lies,” concludes that Newsweek reporter Michael Isikoff’s scoop on the talking points was a “deliberate, knowing falsehood.” Why? Because the talking points were not, pace Newsweek, “typed.” They were produced on a computer keyboard. Aha! The second and third Gillis/Fox exercises examine the talking points in further, mind-numbing detail. There are minor inconsistencies among various published versions of the document. There is “aspectually anomalous” language. There are “repeated third-person references without antecedent.” There is the “present-perfect tense” at one point.
All of which proves, according to these two geniuses, that “neither Lewinsky nor ‘the president’s men’ could have drafted the document.” The talking points were instead likely prepared by Linda Tripp herself, with help from Lucianne Goldberg, an unknown lawyer, and . . . Michael Isikoff, who “might be considered a contributor.” And nothing in the talking points necessarily implicates President Clinton or any of his friends in untoward behavior of any kind.
Messrs. Gillis and Fox, too, have now been granted an audience by CNN. Salon and Slate and U.S. News & World Report and even Newsweek itself have published critical reexaminations of the talking points. Maybe they’re not what they seem.
But maybe they are. The University of Southwestern Louisiana English Department has not answered and cannot answer the Whitewater/Lewinsky scandals’ cardinal questions. No such question has yet been answered, however eager the country has become to “put the matter behind us.”
It cannot be, for instance, as the D.C. Circuit’s quickly overlooked privilege ruling explains, that the administration is withholding the testimony of Secret Service agents purely to protect the intimate bond between a president and his lifesaving bodyguards. It cannot be, because no such absolute confidentiality now exists, and because the administration has never before taken action to create such a rule of silence. Former agents, for example, may say anything they like, whenever they wish. It is only for these two Secret Service agents, with knowledge of this particular president’s activities in the White House, that the administration has invented “protective function privilege.” Legally unacceptable, according to the court.
And highly suspicious, as is so much else of the Whitewater/Lewinsky evidence. No major question raised by that evidence has yet been resolved in Bill Clinton’s favor. No major issue of relevant law has yet been resolved in his favor, either. So how can anyone yet conclude that Kenneth Starr has “blown it”?
Unless, that is, they have decided that the “it” in question — the cloud of felony accusations that still hangs over our president’s head, and our president’s obstinate refusal to help us penetrate that cloud — simply doesn’t matter.
It does matter, of course. It matters even more than “better decisions about the juice.” In the final analysis, it is not some single prosecutor’s job to hold an American president accountable. It is America’s. If our current president escapes such accountability, if he somehow manages to skate free of his current controversies, it will not be Kenneth Starr’s fault. It will be ours.
David Tell, for the Editors
