A Vast Conspiracy (35 page)

This view came to be reflected in the law of sexual harassment. The law to a great extent drew little distinction between consensual sex and actual sexual harassment. Indeed, evidence that a defendant had engaged in consensual sex in the workplace came to be seen as evidence that he also engaged in sexual harassment. The distinction that Clinton emphasized so strongly in his grand jury testimony—that he had engaged in consensual sex, not sexual harassment—scarcely even existed under the law relevant to his case. The law virtually compelled Judge Wright to allow the Jones lawyers to ask the president about his history of consensual sexual affairs with women he met at work. It would be up to the women to say if they had “consented” to sex with the boss. And even if the women in these affairs “consented,” they could be seen as evidence of a pattern of sexual harassment. Indeed, in the years leading up to
Jones v. Clinton
, the trend had been toward more, not less, disclosure of the sexual history of defendants. For that, in some measure, Bill Clinton could blame … Bill Clinton.

In 1991, in the first of the major televised criminal trials of the decade, William Kennedy Smith was acquitted of raping an acquaintance in Palm Beach. During the trial, the rape-shield law offered the accuser only a limited defense from questions about her sexual history and behavior. But
the judge in the case barred the prosecution from putting forth evidence that purported to show that Smith had assaulted three other women in social settings. The perceived imbalance—open season on the woman’s past and cover-up of the man’s—generated calls for change. The Clarence Thomas–Anita Hill hearings that same year played out some of the same themes and added to the momentum for reform.

As is so often the case, however, the legal cure may have been worse than the disease. In Congress, Susan Molinari, then a Republican representative from New York, introduced changes to the federal rules of evidence to allow juries in civil and criminal sexual misconduct cases to consider evidence that the accused had engaged in such misconduct in the past. But Molinari proposed such a broad definition of “sexual assault”—which included any attempted contact, “without consent, between any part of the defendant’s body or an object and the genitals or anus of another person”—that it would apply to mere fanny-pinching as well as rape. But the criminal defense lobby was no match for the women’s groups on this issue. When Clinton’s crime bill stalled in the House, in 1994, the president called Molinari to see what he could do to win her vote. She agreed to vote for the bill if Clinton would accept her amendments on admitting the evidence of previous offenses in sex trials. “He told me that he was shocked that it wasn’t part of the bill, and he supported it,” Molinari recalled to Jeffrey Rosen of
The New Yorker
. “Clinton basically assisted me in passing that legislation.”

The Molinari law referred to sexual relations “without consent,” but as far as the questioning of defendants was concerned, many judges simply read those words out of the statute. It was up to women to decide whether they had consented or not; the men had to answer whether there was any sexual activity of any kind. Indeed, for better or worse, the law was so clear that Judge Wright’s decision turned out to be more important than it was difficult. In a ruling that was released to the lawyers in the case at 5:33
P.M
. on December 11—the time of day would later prove important—Wright held that “the plaintiff is entitled to information regarding any individuals with whom the President had sexual relations or proposed or sought to have sexual relations and who were during the relevant time frame state or federal employees.” The judge drew no distinction between consensual sex and sexual harassment; the plaintiff was entitled to know about it all.

Altogether, then, as with the independent counsel statute, sexual harassment law became a monument to the cost of good intentions. Each half
step in the law seemed rational at the time. Some employers did harass their subordinates, and men generally did have more power than women in the workplace. Defendants sometimes did succeed in withholding relevant evidence about their past conduct from juries. But the system that had been jerry-built in response to these problems created new ones. Evidence of consensual sexual activity was presumed to be relevant to what was, in fact, the totally unrelated question of sexual harassment. And in any event, because of the Molinari “reforms” to the rules of evidence, the line between consensual sex and harassment scarcely existed at all.

In practical terms, the ruling meant that President Clinton would have to answer questions, under oath, about his relationship with Monica Lewinsky.

The same day as Judge Wright’s order—December 11—Monica Lewinsky had a lunch date: turkey sandwiches and Diet Cokes in Vernon Jordan’s law office in Washington.

Prodded by Linda Tripp, Lewinsky had asked the president to reach out for Jordan’s help in her job search during the first week in November. Lewinsky first went to Jordan’s office on November 5, described her interest in finding a job in New York, and received his assurance, “We’re in business.” But after that promise, nothing much had happened. Jordan was out of town for the last three weeks of November, and Monica, in the meantime, had received a job offer from Bill Richardson at the United Nations—a position she didn’t want. Anxious to find something in the private sector in New York, Lewinsky nudged Betty Currie during the first week in December to remind Jordan to help her. Currie did, and on December 8, Jordan and Lewinsky set up their lunch for three days later.

Who did Vernon Jordan think Monica Lewinsky was? Why was he helping her—and, more important, why did he think the president wanted him to help her?

Jordan would later answer these questions with a careful vagueness. He said he enjoyed helping young people find their way; he was always happy to be of assistance to the president; he was not aware that Lewinsky was sexually involved with Clinton; he thought she was just a “bobby-soxer who was mesmerized by Frank Sinatra, who was quite taken with this man because of his position.” There has never been any way to disprove Jordan’s answers, but his professed ignorance about his new protégé strained
credulity. Both Clinton and Currie had called him on Lewinsky’s behalf, something they had never done for any former aide, much less a former intern.

Jordan’s ignorance about the true nature of the Clinton-Lewinsky relationship was even more unlikely after his conversation with her over lunch on December 11. According to her grand jury testimony, Lewinsky told Jordan she “didn’t really look at him as the president,” and instead saw him “more as a man … and a regular person.” She was upset “when he doesn’t call me enough or see me enough.” Jordan replied, “You’re in love, that’s what your problem is.” When he said that, Lewinsky recalled, I “probably blushed or giggled, something like that.” (In his own testimony, Jordan corroborated Lewinsky’s general outline of their conversation.) In any event, after their lunch, Jordan went to work for the president’s lovesick young friend, making introductions for her at American Express, Young & Rubicam, and MacAndrews & Forbes, the parent company of Revlon.

Vernon Jordan was not the only person who was monitoring the progress of Lewinsky’s job hunt. Tripp, Goldberg, Isikoff, and the Dallas lawyers were speaking to one another almost every day in this period. Thanks to Tripp, of course, the Jones lawyers knew the details of the president’s relationship with Lewinsky, and in mid-December, they began to tip their hand. On December 15, they subpoenaed Clinton for all “documents that related to communications between the President and Monica Lewisky.” (The Jones team was still relying on the misspelling in Richard Porter’s e-mail to George Conway.) This subpoena, in turn, appears to have prompted a late-night call from Clinton to Lewinsky the following night. In her obsessive way, Monica kept tabs on the first lady’s schedule, knowing that the president called only on nights when Mrs. Clinton was traveling. Lewinsky knew that Hillary happened to be in town this week, so Monica was especially surprised, at around 2:30
A.M
. on December 17, to receive a call from Clinton.

This phone call, which lasted forty-nine minutes, later served as a centerpiece of the obstruction of justice case against the president. According to Lewinsky, Clinton began their conversation by giving her a piece of sad news: Betty Currie’s brother had been killed in a car accident. After they commiserated on that topic for a while, the president let Monica know of another unfortunate development: Lewinsky’s name had appeared on the plaintiff’s witness list in the Jones case. “It broke my heart when I saw your name on the list,” Clinton said.

The question of what Lewinsky should do about it naturally arose. First, Clinton said that her name on the list didn’t necessarily mean that she would be subpoenaed; this was true. But if she was, the president went on, she could file an affidavit in an attempt to avoid testifying. This, too, was true; she could say that she had no evidence relating to sexual harassment—as indeed, in any real sense, she did not—and perhaps the judge would excuse her on that basis alone. In any event, Clinton said, if she did get a subpoena, she should let Betty Currie know about it.

At some point, the conversation turned to the “cover stories” that Clinton and Lewinsky had discussed in the past to explain her visits to the Oval Office. They discussed their old tales that Monica was visiting Currie, or delivering papers to Clinton. But—the critical legal question—did Clinton tell Lewinsky to put these cover stories in her affidavit? Lewinsky testified on several occasions that the president did no such thing. Moreover, the cover stories were not technically false; she had visited Currie and delivered papers. Of course, the cover stories were monumentally incomplete, but that is sometimes how attorneys use affidavits. Sworn statements that are misleading but literally true cannot be criminal. An affidavit can disclose what one side wants to disclose—and no more. Clinton and Lewinsky agreed that their relationship had nothing to do with harassment, the subject of the Jones case. So, in an understandable effort to spare both of them tremendous embarrassment, they struggled to come up with a way that they thought could excuse Monica from testifying. (In passing, Lewinsky mentioned that it would be a pretty good idea for Clinton to settle the Jones case—which was probably the best advice she ever gave him.)

Toward the end of their call, Clinton mentioned that he had some Christmas presents for Monica. Perhaps, he said, he should summon Betty Currie over the following weekend, and she could arrange for Monica to visit him. In other words, Clinton considered dragging his secretary away from mourning her brother to arrange another rendezvous with his twenty-something friend. Even Lewinsky had the compassion to say that they ought to leave Currie alone with her family. Lewinsky concluded with a promise to keep him posted—and then burst into tears as soon as she hung up.

Obstruction of justice by the president? Not even close. Lewinsky could have filed a truthful, if limited, affidavit that might have gotten her out of testifying in the Jones case. Suggesting that she do so was no crime. But
sleazy, selfish behavior by Clinton? Absolutely. The costs of his affair with Lewinsky—in political, legal, and moral terms—were becoming clearer all the time. The president could have chosen candor, squarely facing the consequences of his personal misbehavior. Instead he hedged, equivocated, waffled, misled—and urged his former girlfriend to do the same. The president had the right to do what he did—which did not mean it was the right thing to do.