James K. Galbraith

No Witnesses


So now we come to the trial. Late in the game last December, David Schippers accomplished what Kenneth Starr had failed to do. He assembled a coherent theory of the case. And he backed it with evidence not before seen: videotapes of the Jones deposition. Schippers’ statement was a milestone, key to understanding Republican anger. It surprised me: there is a case, there, that President Clinton committed both perjury and obstruction of justice.

Yet the fact that Schippers waited so late raises a dark question. Normally, charges come first. This is followed by the fact witnesses, for and against. Debate and vote come last. In the House Judiciary process, the debate came first, the formal charges at the end. And neither side insisted on fact witnesses. Why not?

Here’s my theory. Democrats did not want fact witnesses – not Monica Lewinsky, Vernon Jordan or Betty Currie, certainly – because their testimony might have supported Schippers’ theory. Clinton could survive having lied about sex in the civil deposition. But a pattern of witness tampering and lies to the grand jury would have been, and indeed is, harder to defend.

Yet Republicans also did not want fact witnesses and still do not want them at the Senate trial. Because then the truth about Starr’s inquiry might be exposed. Renata Adler’s analysis in Vanity Fair showed that Linda Tripp had been in contact with the special prosecutor’s office as far back as 1994. She had previously taken information to Starr, concerning Kathleen Willey. And when pressed by the grand jury to explain why she chose to tape her conversations with Monica Lewinsky, she bobbed and weaved in such a way that strongly suggested a reason she could not disclose: Kenneth Starr’s office told her to.

Linda Tripp, the “Bush holdover,” was thus an agent. Her assignment (from whom?) in the Clinton White House was to watch the President’s sex life. It was to befriend and betray anyone who might have taken part in it. When she delivered up Monica, she did so to Starr’s office and also to the Paula Jones attorneys, who then trapped the President on his deposition. At that moment, faced with those questions, the President could only choose between vast political embarrassment and the legal struggle that would ensue if he lied. He chose to lie, to fight a legal battle he might eventually win, rather than to face the political battle that he could only lose.

Thus the scandal in a nutshell. A conspiracy to perjure and perhaps to obstruct developed in self-defense against a larger, darker, deeper conspiracy to entrap and destroy. Paula Jones’ case, itself based on a perjured affidavit (alleging sexual harassment that did not occur), led through an illegal intelligence operation to Monica Lewinsky, whose activities came to fall, after false representations to the Attorney General, under the jurisdiction of Kenneth W. Starr. And the investigation itself stank of misconduct, in its treatment of witnesses, illegal leaks, and perhaps most of all in its failure to present a clear case that could be fairly cross-examined.

Congresswoman Maxine Waters thus stated the strongest argument for the defense. This prosecution comes to the bar with unclean hands. No prosecution should be tolerated unless it respects the rights of the accused. No prosecution should be tolerated, where the evidence is rigged by the prosecutor, to “get” the defendant. Even if the defendant is guilty.

Sound familiar? A guilty man, framed by the police? Leading to an unending marathon on cable TV? While part of the public passionately demands conviction, and another part passionately argues that abuse of process must lead to acquittal?

This case is O.J. East.

And in the Senate trial, will bipartisan conniving be able to block a full examination of Linda Tripp, Starr’s subordinates, and the Jones attorneys? Let us hope it cannot. Even the most coup-minded Senate Republicans would probably rather see Clinton acquitted, than to allow those fact witnesses to be forced to tell the full story. Let me quote, for a second time, from my column in this space last February:

“There is thus a possibility that the House Republicans will eventually vote, strictly on party lines and over vociferous opposition, to impeach. In that case, the issue goes to the Senate for trial. At that point, forget it…. In the end, this isn’t Watergate. The coup faction would need sixty-seven votes and they won’t come close.”

Bring on the cross examination of Linda Tripp.

James K. Galbraith teaches at the LBJ School of Public Affairs, U.T.-Austin.