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Burden of Proof

The Clinton Scandal: A Vast Conspiracy?

Aired January 18, 2000 - 12:30 p.m. ET



JEFFREY TOOBIN, AUTHOR, "A VAST CONSPIRACY": Ever since the '50s, '60s, '70s, it was the Democrats, it was the left in this country that invented the idea of using the courts for political gain, for political advantage: civil rights workers, feminists, environmentalists. Eventually, when it came to Watergate, using the criminal law to advance Democratic causes.

What happened, in my view, in the 1990s, was that the Republicans finally learned the lesson, that the Republicans decided, basically from the day Bill Clinton took office, that some activists said: The way we're going to destroy this presidency is to use the legal system. First, using civil lawsuits, like the Paula Jones case. And eventually, trying to instigate criminal investigations as well, as in the Whitewater investigation.


ROGER COSSACK, CO-HOST: To the American people, it started with a civil lawsuit, filed by a former employee of the state of Arkansas. But the legal fallout from Jones vs. Clinton nearly brought down a presidency. Author and legal reporter Jeffrey Toobin defines the Clinton scandals as "A Vast Conspiracy." That's today on BURDEN OF PROOF.

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

For more than a year, what had become known as the Lewinsky matter captured the attention of our nation. The sordid details of an improper presidential relationship consumed the lives of journalists, congressional members, and prosecutors in the Office of the Independent Counsel.

GRETA VAN SUSTEREN, CO-HOST: What brought us to this historic investigation is a topic still under debate. Many say the president's own actions led to his legal problems of the past few years, while others maintain his opponents conspired against him. That's the premise of the book "A Vast Conspiracy," by author and legal reporter Jeffrey Toobin. COSSACK: Joining us today from Urbana, Illinois, is law professor Ron Rotunda, who also served as a legal adviser to independent counsel Ken Starr. And in Dallas, Wes Holmes, attorney for Paula Jones.

VAN SUSTEREN: And here in Washington, Kaylon Scott (ph), former Starr deputy Robert Bittman, and Kathryn Stover (ph). And in our back row, Craig Melvin (ph) and Tabitha Scarborough (ph).

Bob, let me start first with you. I'm going to play for you an exchange they I had with Jeffrey Toobin -- he was on our show yesterday -- about whether or not the president had technically violated the law. Let's listen.


VAN SUSTEREN: Did the president commit perjury and did he obstruct justice?

TOOBIN: I don't think he obstructed justice. I think perjury is a somewhat closer question. I think, on balance, in a slight -- in a technical legal reading of perjury, I would say he did not. But in layman's terms, he certainly lied in his Paula Jones deposition.

VAN SUSTEREN: Had you been assigned to this investigation, and had this not been a president of the United States, but someone making the same statements under oath, would that be something in your prosecutorial discretion you would have gone forward on in charging perjury?

TOOBIN: No, I don't think there's a chance in the world that an ordinary U.S. attorney's office would pursue a false statement in a civil case that was subsequently dismissed on an issue that was peripheral to the central issue in the sexual harassment case in any event.


VAN SUSTEREN: Bob, we have one prosecutor's view, what's your response?


VAN SUSTEREN: Whether or not there was obstruction of justice. Jeffrey Toobin, who is a prosecutor, says no. He says perjury is a closer question, but he thinks not, and he would not, had he been the prosecutor, gone forward and charged someone similarly situated. Your reaction?

BITTMAN: Well, of course, the president has not been charged. I think one of the things you have to look at in this case is what an independent judge, who frankly had a lot of favorable rulings for the president, what Chief Judge Wright said in her opinion, and that is that the president gave false, misleading and evasive answers for the purpose of obstructing the judicial process. So I think there you do have the lying, that is perjury because it's under oath, and you have the obstruction of justice.

COSSACK: I've always felt that it was the other way around. I have always thought it was a clearer issue, regarding obstruction of justice, and a much closer issue regarding perjury.

VAN SUSTEREN: What was the obstruction?

COSSACK: Well, if you believe what in fact was alleged it was telling people not to tell the truth in depositions.

VAN SUSTEREN: But that was never -- Roger, that was never ever established. And even Bob will say, there was never evidence that the president of the United States told someone to lie. Is that right?

COSSACK: No, I don't think Bob would say that.

BITTMAN: Well, I don't think I would say. I think the message that Monica Lewinsky got was clearly that she was not to tell the truth. This was a relationship that had gone back years, and that throughout the relationship Miss Lewinsky was told by the president: This is what you are supposed to say. These are the false stories you are supposed to give if you are asked about this.

VAN SUSTEREN: But that is a far cry -- I mean, you are talking about two people who are having an affair, something that people typically try to keep quiet. It is very different to take that jump and say, essentially, lie under oath when you are asked about it under oath. That would be something very vastly different, and that was never established.

BITTMAN: Well, I don't agree with that Greta. Here, throughout the relationship, the president had reiterated this, give these false stories if you are ever asked. Then, when Monica Lewinsky got a subpoena to appear in the Paula Jones case for a deposition, he reiterated to her: This is what you are supposed to say. These are the false stories. Stick with the script; that is the lie.

COSSACK: Whether you believe it or not, I mean, those were the allegations. You may choose not to believe that that is actually what went on.

BITTMAN: I think, by the way, Greta.

VAN SUSTEREN: I got to jump ahead though, because when Monica Lewinsky testified under oath before the grand jury, and not in response to questions asked by the Office of Independent Counsel, but actually volunteered at the end. She said: Nobody asked me to lie. So that's why I disagree to both of you.

COSSACK: But that's sort of what part of the plot is. I mean, you either believe it or you don't. Part of the plot was that she got...

VAN SUSTEREN: But your main witness, but wait a second...

COSSACK: ... up and said: Look, no one asked me to lie. But the implication all along was: This is the story we are going to tell.

VAN SUSTEREN: Wait a second. You got to stop. I mean, who is your main witness on that? That would be Monica Lewinsky. What is your main witness saying? It never occurred. So you two can jump to these conclusions.

COSSACK: No, no, no, that is not what she said. I'm sorry, go ahead.

BITTMAN: That's not what he said. First, she said that he never explicitly told me to lie. Do I agree with that? Yes, I am sure that the president of the United States, who is an intelligent man, never explicitly told her to lie. I think, quite frankly, it is less credible that the president, who had throughout the relationship had said: These are the false stories you are supposed to give. I'm giving false stories. That all of a sudden he says: Oh, well, we're going to abandon the false stories and we are going to tell the truth. No, I don't think that's what he did.

I think he wanted her to keep with this script. He wanted to do everything in his power to make sure that this relationship was not uncovered, including lie under oath.

VAN SUSTEREN: And you and I would debate that forever and draw vastly different inferences based on...

COSSACK: What about you and me, too? We can debate it forever.

VAN SUSTEREN: You and I will talk later about it when we are off the air.

Wes, let me go to you for a second. In the book that Jeffrey Toobin has written, he talks about that the, sort of, the origin of what he sees as a conspiracy is some actions by Cliff Jackson, an old Arkansas acquaintance of the president, as well as Peter Smith. Did you, or any of your intermediaries or anyone associated with your law firm, ever have any direct contact with either Cliff Jackson or Peter Smith?

WES HOLMES, PAULA JONES' LAWYER: I talked to Cliff Jackson once, and I don't believe I've ever heard the name Peter Smith before right now.

VAN SUSTEREN: And when did you talk to Cliff Jackson in relationship to this timeline of investigation in Paula Jones' civil suit, and what was the context?

HOLMES: It was after we had been retained by Ms. Jones and made an appearance, and the context I frankly don't recall. But it was a very brief conversation, and he basically said: Good luck to you guys, but I'm not going to help you at all. And see you later.

VAN SUSTEREN: Why did you call him or why did you have contact with him?

HOLMES: I don't remember. We had a large number of leads to follow up on that the prior attorneys had generated. And my recollection is that it was a part of that. We had a long list of people to contact for a lot of different issues, and he was on that list, and we called all of them.

VAN SUSTEREN: All right, we are going to take a break. One second, Roger.

At the end of the century, it was billed as a constitutional crisis. Find out what went on behind the scenes of the Clinton scandal, when we come back.


Ten years ago today then-Mayor of Washington D.C. Marion Berry was arrested and charged with drug use and drug possession. The bust was the result of a joint FBI-D.C. police sting operation.

Barry spent six months in jail. After his release, he was elected to the D.C. City Council and then re-elected as mayor.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to and click your way to the BURDEN OF PROOF link. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern Time. If you miss that live show, the program is available on the site at any time via "Video On-Demand."

VAN SUSTEREN: The impeachment trial of President Clinton placed a permanent scar on this administration. A new book by legal reporter Jeffrey Toobin takes a unique view at the origins of the Clinton scandal.

Bob, throughout the book, Jeffrey Toobin suggests that there are some people sort of behind the scenes beside the Paula Jones lawyers and the Office of Independent Counsel, but names like Cliff Jackson, Peter Smith, Richard Porter, Paul Rosensweig, if I pronounced his name right. Do you know if your office was having contact with any of these people either indirectly or directly during this investigation?

BITTMAN: Well, certainly Paul we had contact with. Paul is...

VAN SUSTEREN: Paul Rosensweig?

BITTMAN: Paul's in our office, he was one of our attorneys, and he apparently had contact with his longtime friend, one of the people that you mentioned.

VAN SUSTEREN: Richard Porter?

BITTMAN: Yes, Mr. Porter.

VAN SUSTEREN: And Richard Porter was in -- was writing briefs, or at least ghost writing some aspect of the Paula Jones case, is that right?

BITTMAN: I'm not sure about that.

But let me say, I think where you're going with this and where Jeff goes in his book is, just because people participate and give information doesn't necessarily mean that there's a conspiracy, of course. You wouldn't expect that people who love President Clinton are going to give information damaging to the president.

VAN SUSTEREN: Right, and I don't think that in the book, when he says conspiracy, I don't think he's suggesting anything criminal when he uses the term. I think he just -- is that there's sort of behind the scenes, people getting together with a motive that may not be so apparent until you...

BITTMAN: Well, there is no question that we got information relating to Monica Lewinsky through Paul, through a friend of Paul's, and that we told that person that, look, the only way we will investigate this is if the person who has the information directly comes to us, we are not going to deal through any back channels; it has to be through, colloquially, the front door, and that's what we did.

COSSACK: Wes, was there any contact between you as a lawyer, or your group as lawyers, or through the use of an intermediary with the independent counsel's office?

HOLMES: No, other than after the case was dismissed. And after the summary judgment had been granted and after the -- their investigation had become public, they called us. I think they interviewed everybody once and they subpoenaed some documents from our office.

COSSACK: And did you ever voluntarily give them information?

HOLMES: When they came and said, we'd like to interview you, I answered the questions truthfully, and I think all of the lawyers in my office did the same thing.

COSSACK: The feeling that Jeff Toobin, I think, gives in his book is that there is almost a personal vendetta among people who -- lawyers and independent counsel, if you will, the people who went against Clinton. How did you feel in terms of your prosecution of the Paula Jones case against Clinton?

HOLMES: Well, it wasn't a personal vendetta at all by us or anyone at our office. I think without a doubt there's a lot of people out there who hate Bill Clinton and they may have been rooting for us because they hated Bill Clinton. But the reason we did it was because, number one, we thought Paula Jones' case was meritorious, and number two, we thought it was an historic opportunity. We thought that it was a once-in-a-career sort of opportunity, we thought it would be a lot of fun, and it turns out we were right.

COSSACK: Historic opportunity in what way, to take down a sitting president? HOLMES: No, sir. To be involved in the first-ever civil lawsuit against a sitting president of the United States. I mean, it went to the Supreme Court, and I think that it was right. It's one for the history books.

VAN SUSTEREN: Wes, did your firm in anyway, directly or indirectly, have any contact with Richard Porter, and if so, what was it?


VAN SUSTEREN: Did you have any contact with the people who Jeff Toobin sort of refers to in his book as "elves," lawyers who were in private firms who were sort of, quote, "ghost writing" or behind the scenes?

HOLMES: Well, I haven't read Mr. Toobin's book, number one. But number two, I can tell you this: There were some lawyers who we consulted with, we bounced legal ideas off of, we talked to them about strategy and things of that nature, which is very common in any sort of a lawsuit. As far as ghost writing, there was exactly one thing that was written by someone other than our office, and that wasn't even all written, it was just -- a part of it was written by someone other than in our office, and that was right at the very, very outset. After that, once we got on the ground and got running, all of the work product that came out of our office was a result of lawyers in our office.

VAN SUSTEREN: Who wrote that? Who was that person?

HOLMES: I don't -- I'm trying to think. That was George Conway.

VAN SUSTEREN: And George Conway is who? He's a friend of Richard Porter's, am I right?

HOLMES: I don't know.

COSSACK: Bob, it took you a long time to get a statement out of Monica Lewinsky. Are you convinced that at the end of the day, when she finally testified and gave you the statement, that she told you the complete story and the complete truth?

BITTMAN: Well, rarely, as you know, Roger, have been a prosecutor and a defense attorney, do you ever get the total information, and I'd rather, since this case is still being investigated, not comment on that.

But I will say, and one of the things that Jeff brings up in his book, is that he doesn't think that the deal we worked out was very good in that he thought we should have worked the deal out earlier. And I really reject that, as do all of my colleagues. The fact is, we could not have worked out the deal with Monica earlier on, because we had no reason to believe, no reliability, that she was going to tell us the truth at that time. She had a defense attorney who was lying to us, who actually said on national television that there is no dress, when in fact obviously it turns out there was a dress, and we just simply couldn't trust Mr. Ginsburg and couldn't rely on his representations to us.

COSSACK: All right, let's take a break.

The people involved in the Clinton scandal have become household names, but did others conspire behind the scenes to topple a presidency? We'll have more when we come back.


Q: According to Ohio prosecutors in the Sam Sheppard case, what was learned from a state-ordered DNA test on the fetus Marilyn Sheppard was carrying at the time of her death?

A: Nothing. The test, performed on the fetus 45 years after it was buried, was inconclusive. The Sheppard's son, Sam Reese Sheppard, has been trying to prove his late father's innocence for a decade. A civil trial is scheduled to begin January 31.



COSSACK: It's been two years since President Clinton's deposition in which he denied a sexual relationship with Monica Lewinsky. Just one week later, he forcefully repeated that denial on camera from the White House.

Well, Bob, we -- you criticize Ginsburg, but yet, Toobin points out that the deal you made with Cacheris and Stein some eight or nine months later was, in effect, the same deal that Ginsburg wouldn't take.

BITTMAN: It really wasn't. It, frankly, wasn't even close to the same deal. We -- as I said earlier, we needed assurances that Monica Lewinsky was going to tell us the truth. And the way federal prosecutors do that is they get what's called a proffer. That is, you sit down with her and you get from her basic information about what she knows to gauge whether or not she is going to tell you the truth. That was the single biggest thing that we held out for, and I'm glad we held out for. And that was the main difference. The other difference was...

COSSACK: But at that time, did you really have a choice eight months later? You had to pretty much take what she told you at that stage of the game.

BITTMAN: Oh, I don't agree with that at all, Roger. I think we had built up in those intervening months substantial evidence. We knew what the facts were. We knew the fact from the tapes from all the corroboration that we were able to obtain from Linda Tripp; we knew that facts from the movement records at the White House from what Monica Lewinsky's friends had said. We knew, basically, what the facts were.

VAN SUSTEREN: Ron, not only did you work with the investigation with Ken Starr, but you're a law professor. The thesis in Jeff Toobin's book includes that the legal system kidnapped the political system, so to speak. Do you agree with that?

RON ROTUNDA, LAW PROFESSOR: No, I don't think so. We have to realize that this was a system that was supervised by two judges, one in Washington, D.C., Judge Norma Holloway Johnson, and then the grand jury supervisor in Arkansas, Judge Wright. The -- we've had an amazing success both in the trial and the appellate courts. I don't think there was any capture of the legal system at all.

I will say, one of the things I thought about Toobin's book, it reminded me of a kind of review of the Super Bowl from the view of the water boy. Toobin goes into some interesting issues but doesn't get inside of them, and he could have. What Bob didn't mention...

VAN SUSTEREN: For instance? For instance?

ROTUNDA: ... earlier with respect to the Lewinsky deal is that she had told us in her initial proffer a whole bunch of things, and we spent a few months trying to verify that they're true. She said -- and we said: If you really had an affair with the president, you're not making it up, did you exchange gifts? She said, yes, I bought him a book on phone sex, I think, from Barnes & Noble. So we subpoenaed the record from Barnes & Noble. We here about the dress -- and we find out, in fact, she did buy the book. We hear about the dress, we subpoena the mother, she took the fifth amendment. We found out later she was the one that had custody of the dress.

So we did a lot of things to see if she was telling the truth because some of us didn't believe her. We knew that she suborned perjury for Linda Tripp. She says that on the tapes. But her implicating the president may be just a fantasy of one of these 21- year-old valley girls.

VAN SUSTEREN: Ron, James Carville has said repeatedly that, essentially, this is about sex, this issue, this investigation, and that much has been made of two people having an affair, immoral as it may be. What's your reaction to that?

ROTUNDA: Well, I think, you know, people say it got way out of hand. It would have been a lot simpler if the president, in January 17 of 1998 instead of August 17, would simply told the truth. What happens is that the attorney general instructed Ken Starr to shift his focus from the original Whitewater deal to the Lewinsky deal.

VAN SUSTEREN: Which was on request by the office of independent counsel, and there's been criticism that...

ROTUNDA: Not quite true.

VAN SUSTEREN: ... there's been criticism -- let me stop you for a second -- is not that all information was necessarily disclosed to the Justice Department in that request?

ROTUNDA: No, no. Actually, if you look at the Justice Department notes, they coincide with ours. We told her: Here's what we have; you can do, we can do, you can appoint a new independent prosecutor, you can decide to do nothing. She told us to do it and she's never come out publicly or privately and said, I made a mistake. I wouldn't have given it to Starr. I think, in retrospect, she shouldn't have given it to Starr, then we wouldn't have to worry about this kind of stuff.

But she made -- she gave us the marching orders. And it's a little hard to say that if the president tells us the truth immediately, that would be fine. But if he puts up a fight, we're supposed to back off to show that we're not tough. I mean, that's not the way prosecutors operate.

And when Toobin says a prosecutor wouldn't have prosecuted civil perjury, you know how often the Department of Justice prosecutes civil perjury in the United States? Last year, about once every business day. California did much -- one state, on the state level, did much more than the Department of Justice did. It is prosecuted. But when we convict these people, we don't hang them by their toes. We wouldn't send President Clinton or, let's say, the president of GM -- wouldn't go to jail.

VAN SUSTEREN: And let me, unfortunately -- Ron, let me, unfortunately, cut you off there and bring you back later to discuss it another time because that's all the time we have for today.

Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE," a very controversial view on rape by two researchers. You can weigh in at 3:00 p.m. Eastern time, noon Pacific.

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.


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