This past year the importance of Supreme Court appointments returned with a vengeance.
Past Is Prologue in Ken Starr's Contempt
One of the most unsettling aspects of former independent counsel Ken Starr’s memoir about his 1990s investigation into the doings of Bill Clinton that led to the then-president’s House of Representatives impeachment and Senate trial for perjury over l’affaire Monica Lewinsky is the reappearance of many of the cast of characters and their salient features more than twenty years later.
The parallels are uncanny. Want a reprise of the “Whitewater” scandal of the 1980s? That was the name of the failed real estate development on a piece of rustic Arkansas property co-owned by Bill and Hillary Clinton and Clinton pal James McDougal, owner of a federally insured Little Rock-based savings and loan, Madison Guaranty that went under in 1989 in a tsunami of bad loans that cost taxpayers some $68 million. McDougal had funneled Madison assets ostensibly into a range of Whitewater-related and Whitewater-spinoff ventures but actually, it was alleged, via complex pay-for-play transactions, into his own pockets and those of the then-cash-strapped Bill Clinton, serving for peanuts as Arkansas attorney general and later governor, and the law-practicing Hillary Clinton, who needed some business from Madison, it was also alleged, to impress the senior partners at the Little Rock-based Rose Law Firm where she worked. Fast-forward three decades later to the Clinton Foundation—where, as far as can be seen, pay-for-play donations from foreign entities and ginormous speaker fees for the now-former president Bill Clinton allegedly greased the wheels for access to Hillary Clinton as Barack Obama’s secretary of state.
Then there is the matter of Hillary Clinton’s billing records for Rose, allegedly regarding a pie-in-the-sky future industrial park called Castle Grande. Castle Grande, like Whitewater, went nowhere in terms of actual development of the property, but it became notorious as one of the most allegedly fraudulent of the McDougal self-dealing ventures backed by Madison. Somehow Hillary’s Rose records turned out to have “disappeared” from the firm’s file cabinets after Starr, appointed as independent counsel in 1994 to investigate Whitewater and the Clintons’ possible criminal involvement in the loan scheme, subpoenaed them. Copies of the missing records—billing invoices to Madison—were discovered in early 1996 in a storeroom in the White House’s residential quarters occupied by Bill Clinton as president and then-First Lady Hillary. The records had been annotated by Vince Foster, a childhood friend of Bill’s and law partner of Hillary’s who became deputy White House counsel in early 1993 and fatally shot himself six months later. It takes little imagination to see the missing-records parallels to the 30,000 or so e-mails that Hillary Clinton deleted in 2014 from the home basement-based private server on which she had been illegally conducting State Department business before turning the rest of the e-mails on the server over to State.
Past as Prologue
Several figures in the Whitewater investigation have resurfaced as major figures in the current political landscape, where Hillary Clinton, if not Bill, remains a principal player as the Democratic presidential candidate whom Donald Trump defeated in 2016 and who seems unwilling to fade away. Among the now-almost too familiar names is Rod Rosenstein, now President Trump’s embattled deputy attorney general and the official who both fired James Comey as FBI director soon after Trump assumed office and appointed former FBI director Robert Mueller to investigate possible Russian influence on the 2016 election—a probe that has appeared to be directed solely at the Trump campaign team. In Starr’s book, Rosenstein is just “an up-and-coming courtroom litigator” in the Justice Department who joined Starr’s legal team not long after the latter’s appointment in 1994.
Glenn Simpson, co-founder of Fusion GPS, the opposition research outfit that produced the notorious “Steele Dossier” with its salacious claims about Trump ties to Russia that underlay the FBI’s court-approved surveillance of the Trump team in 2016, appears in Starr’s book simply as the Wall Street Journal reporter that he was back then. Starr asserts that left-leaning legal-journalism tycoon Steven Brill misquoted Simpson in a devastating 1998 profile of Starr that made it look as though he had manufactured the Lewinsky scandal to get at the Clintons. Democratic Rep. Maxine Waters and Democratic Sen. Charles Schumer prove to have been the same belligerent selves two decades ago that they are today.
And finally, there is Brett Kavanaugh, our newest Associate Justice of the Supreme Court. Back then Kavanaugh was just a former law clerk for now-retired Justice Anthony Kennedy who joined Starr’s independent-counsel team in 1997 and later became the chief author of the notorious “Starr Report” with its graphic details about Bill Clinton’s Oval Office sexual adventures with Lewinsky. According to some reports, Kavanaugh had argued unsuccessfully for omitting the explicit material—details concerning the oral sex Lewinsky had performed upon the president, with her stained blue dress as evidence—although they did seem relevant to Starr’s charge that he had lied about his involvement.
Most fascinating, though, are the consistencies of personality that both Clintons displayed during the 1990s that foreshadowed precisely their character traits some twenty years later. If Hillary Clinton struck you as chilly, unlikable, and politically flat-footed in her campaign denunciations of “deplorables,” her refusal to press any but the most carefully vetted flesh, and her high-handed overriding of her own grassroots staffers—Starr assures us she was the same person twenty-odd years ago. He describes an icy Hillary who “made no effort to be cordial” during her Whitewater depositions—in contrast to her natural-pol husband who joked and aw-shucked his way through questioning even as he insisted that he “just” couldn’t “remember” key incidents involving McDougal transactions that were indelibly stamped on other witnesses’ brains.
Hillary likewise couldn’t “recall” having done virtually any legal work for Madison Guaranty, much less that she had brought the insolvent thrift to her firm as a client, even though McDougal had told a newspaper reporter that Bill Clinton had jogged from the governor’s mansion to his office in 1984 to ask him to throw some legal work Hillary’s way in order to help out with the Clintons’ then-floundering finances. It helped that the Rose billing records were nowhere to be found at the time. If you think that the Clintons’ relationship with each other was less like a marriage and more like a long-running quasi-criminal enterprise, you’ll be forgiven.
Kenneth Starr got into the Whitewater controversy after a career of extraordinary professional success. Growing up a minister’s son in small-town Texas and a lifelong evangelical Christian, he graduated near the top of his class from Duke University’s law school in 1973 and clerked for the late Chief Justice Warren Burger. From there it was partner at the prestigious Los Angeles law firm of Gibson, Dunn & Crutcher, counselor to Ronald Reagan’s attorney general, William French Smith, and appointment as judge on the D.C. Circuit Court of Appeals in 1983. He served as solicitor general under George H.W. Bush from 1989 to 1993 and was on the short list for a Supreme Court nomination in 1990 (Bush picked David Souter instead). Starr’s book reflects his lawyerly skills: The prose is more workmanlike than riveting (chapters have titles such as “Follow the Money”), but Starr ably guides his reader through a huge cast of Arkansas characters and complex transactions involving paper profits, inflated property valuations, and such telling oddities as McDougal’s covering some of Bill Clinton’s gubernatorial campaign debts with Madison Guaranty cashier’s checks.
The Whitewater investigation, triggered by the Madison Guaranty failure and running under various official auspices from 1992 through 1999, was in some ways a success. Prosecutors secured guilty pleas or convictions of several key players in the complex loan transactions. Among the biggest fish was McDougal himself, convicted in 1997 of eighteen counts of felony fraud and conspiracy stemming from various bad loans, some connected to Castle Grande; and Webster Hubbell, a Rose partner who became President Bill Clinton’s associate attorney general in 1993. Hubbell resigned in 1994 and later that year pleaded guilty to wire fraud and tax fraud in connection with overbilling Rose clients and went to prison. In 1999 Starr managed to secure a guilty plea from Hubbell for failing to acknowledge a prior conflict of interest; he was placed on probation. McDougal’s estranged wife, Susan McDougal, who had allegedly used a $300,000 Madison Guaranty loan for home renovations, went to federal prison—but only for contempt of court for refusing to testify against the Clintons (Bill Clinton pardoned her on his last day in office in 2001).
Starr never did manage to snag the Clintons themselves, who maintained that they had been mere passive investors in Whitewater with no knowledge of McDougal’s doings. Even the lately discovered Rose records did not pin down exactly which McDougal transactions Hillary Clinton had worked on. Both Clintons stuck to their stories of exceedingly faulty memories, and Starr’s office never succeeded—although not for want of trying—in flipping the witnesses necessary to gainsay them.
Perjury and Poor Judgment
The Lewinsky matter, centering around more Clinton prevarications, was yet another ultimate failure—although it did result in the suspension of Bill Clinton’s law license in Arkansas for giving misleading testimony, and his voluntary resignation from the rolls of lawyers licensed to practice before the Supreme Court just before his anticipated disbarment. There remains to this day some question as to whether Starr should have involved himself as independent counsel in the Clinton-Lewinsky episode, which didn’t spring directly from Whitewater but rather, from Paula Jones’s highly-publicized but completely unrelated sexual harassment suit against Bill Clinton over an alleged 1991 hotel-room assault when he was Arkansas governor and she a state employee. That case eventually resulted in an $850,000 cash settlement to Jones after much delay and legal maneuvering, but not before Jones’s lawyers had gone on a search for other women on government payrolls with whom Clinton had allegedly been involved.
One was, of course, the heartbroken 24-year-old Lewinsky, by then exiled to an office on the other side of the Potomac after Hillary allegedly got wind that her husband’s former intern was spending too much time with him. Lewinsky confided her romantic woes to her tape-recorder-armed office pal Linda Tripp, including the fact that she had been induced to file a sworn affidavit in the Jones case denying any sort of relationship. In a deposition in the Jones case, Clinton, too, denied having “sexual relations” with Lewinsky, a claim he reiterated to the television-watching public in his January 1998 State of the Union Address. Tripp turned her tapes over to Starr, who smelled the perjury he had been unable to nail down in the Whitewater matter and obtained authorization from then-Attorney General Janet Reno to extend his investigation to the Lewinsky allegations as a “related” matter. Lewinsky, facing her own perjury problems and also depressed by the president’s public spurning of her (she seemed to have hoped to become the second Mrs. Clinton), turned government witness after many months of tergiversation. In grand jury testimony in August 1998 Clinton admitted that he had indeed engaged in “an “improper relationship” with Lewinsky, although he denied having lied during his deposition. He later said that had hadn’t believed that the Oval Office oral sex he had received from her really counted as “sexual relations.”
Going Down with the Ship
We all know what happened after that. In December 1998 the Republican-dominated House of Representatives voted to impeach Clinton on grounds of perjury and obstruction of justice. A Senate trial followed, but even though the Senate also held a Republican majority, there was an inevitable comic aspect to the adulterous hijinks of a sitting U.S. president, and it didn’t help that the presiding judge, the late Supreme Court Chief Justice William Rehnquist, wore a gold-banded, Gilbert & Sullivan-inspired robe that he had designed himself. The Senate Republicans failed to muster the necessary two-thirds vote to convict and unseat Clinton. The mainstream media, meanwhile dubbed Starr the president’s “tormentor.” Clinton accused him of having gone on a “witch hunt” and engaged in a campaign of “personal destruction” and “prying into private lives.” Hillary Clinton made her famous “vast right-wing conspiracy” statement. The Starr Report, which Starr had expected Congress to redact before releasing its salacious details, was labeled pornography by its critics. “The Clinton spin machine had transmogrified the puritanical Starr into a hyperobsessive Inspector Javert,” Starr writes.
It was a sad affair. True, as Starr writes, that chuckle as we might over the philandering Commander in Chief and his long-faced wife, “[t]he case was not about sex….It was about the president flouting the rule of law,” and the Clintons left behind them a “legacy of contempt.” Still, we might ask whether it was worth it for Starr to entangle himself in the Sargasso Sea of Clinton financial dealings in the first place, and especially in the quite tangential Lewinsky matter. Starr’s career seems to have been unusually unlucky. After a successful post-Clinton academic career culminating in his becoming president and chancellor of Baylor University as well as a law professor there, he was removed as president in May 2016 amid a scandal over the university’s handling of sexual-assault charges against members of the Baylor football team (two players were convicted of rape). He voluntarily resigned from his other two positions: “Captains go down with the ship.”
One of the lessons to be learned from Starr’s book—and also from the ghastly spectacle of the Kavanaugh confirmation hearings, in which a blameless and respected lawyer and federal appeals judge was tarred on the basis of no evidence as a rapist, drunkard, and liar—is that character assassination is the modus operandi of Democrats when cornered and their media allies. Bill and Hillary Clinton practiced it ruthlessly, and not just upon Ken Starr. The hapless and hopelessly infatuated Monica Lewinsky was another, although she was not alone among the women subjected to intimidation and discrediting attempts by both Clintons after being drawn voluntarily or involuntarily into Bill Clinton’s sexual orbit. Starr’s book includes a mid-1990s photo of Lewinsky and the Southern charm-oozing president, taken while she was still a White House intern. Her face beams with joy. She was perhaps the only person in the world besides his mother to have truly loved Bill Clinton—and she paid a great price for that.