Bill Clinton becomes President , and you find yourself returning to the
Department of Justice. How did that happen? How did you get the call?
I had not met President Clinton or Mrs. Clinton. In a real sense I've never
met them to this day.
You weren't an old [friend of Bill].
It's not only I wasn't that. I wasn't actually ever interviewed by them, nor
did I see them afterwards except on public occasions. They early on
picked Chuck Ruff as their preferred Deputy Attorney General. I think that
that slot was intended to be someone who had a long experience in the criminal
justice world... and somebody who had sort of a reputation, preferably going
back to Watergate. I mean [it would be] nice if it went back to Watergate, but
a reputation that would look like something other than the friend of the
Like Charles Ruff?
Like Charles Ruff. After a few weeks, it became clear that Ruff had a nanny
problem of such insignificance - absolutely ridiculous, a person over 72 who he
thought was drawing social security. But at any rate, this scared off the
administration. At that point, I gather that Janet Reno asked Chuck Ruff who
he would recommend as deputy. Ruff strongly recommended me. I knew
Attorney General Reno a little from the time that she was Dade County State's
Attorney. Chuck called me and asked me if I would be interested. I
said sure. I came up and met with Bernie Nussbaum, Vince Foster, Webb
Hubbell..., and Janet Reno, about a half an hour a piece. Seemed to be totally
pro forma and shortly got a call saying "Would you like to be Deputy Attorney
General?" Never interviewed with the President and never really met
Deputy Attorney General of the United States Department of Justice. The
number two guy at Justice, and you still hadn't met the President ?
Only on formal occasions. I've never met him otherwise.
Did you ever have the urge to introduce yourself?
I did introduce myself to him on a couple of occasions, and he would say, "I
know that." Since he is supposed to be very good with names, I assumed that
maybe he did know that.... It's a bad mistake. It's an innocent mistake, but
it's a bad mistake. The number two person in the department has to have met
the President for an hour, or for a half an hour or long enough that there is
some set of relationships. The President just has to spend that much time,
otherwise it's a bad mistake.
But, [also]... it wasn't just you. It was an Attorney General whom he had
never met until two days before she came became the Attorney General of the
United States of America. [Is it true that Clinton was relatively indifferent
about the staffing of the Justice Department?]
I don't know. There have been a number of missteps in the appointment of
Attorney General. I am sure they were anxious to move ahead quickly. I doubt
very much if a lawyer President and a lawyer First Lady thought that the
Attorney General was the most difficult and important position for them to
Plus they had Webb Hubbell over there.
They had the number three person, whom they knew very well, who was Webb.
What does that mean Professor, "knew very well?" In the day to day
practical reality of it, having Webb Hubbell over there, the President 's
golfing partner, one of [the First Lady's] best friends and law partner. What
was the practical reality of that?
...I felt, and I think everybody else in the Justice Department felt, that
whatever Webb's problems before or after, [that he] behaved in the Justice
Department like people behave when they put on black robes and become a judge.
Suddenly they are something different. I think Webb believed deeply in the
Justice Department, was deeply committed to doing everything he could for the
Justice Department.... And [he] was very well-regarded by me and by people in
the institution, unanimously and without disagreement.
On the other hand, the Attorney General didn't know the President or the
White House staff. I hadn't even met the President or many of the White House
staff. I certainly met them over time. So Webb became the ambassador from the
Justice Department to the White House. There is a lot of business that has to
be done between any cabinet secretary and the White House, and that business
was carried [out] always by Webb. That was a bad situation not because Webb
was too partisan or too personal, but it was a bad situation because the White
House has to be able to deal with the Attorney General, the Deputy Attorney
General and the Associate Attorney General.
I wonder if you could describe to me please Webb Hubbell....
He reacts well to pressure. I mean, he eventually ended up under
incredible pressure and got convicted, [but] if there was a pressure event in
the Justice Department, he would react well to it. He wouldn't panic or go
wild. He was very supportive of the Justice Department career people. Every
new administration comes in suspecting that career people... really belong to
the party of the last administration, when they've been there for 40 years,
Webb was very supportive of them. He was good to talk to. If there was
anything wrong, he may have been too reluctant to say no.
He made it clear that I was number two, and that he was number three. I
wanted it that way. I understood it that way, too. But we never had any
problem about that, although the person who deals with the White House is
automatically in a very special position. Anyway, I would have thought that I
couldn't have had in many ways a smoother relationship. He stayed out of
criminal business; he should have. We divided it up. I had the whole criminal
world. He had the civil world. He stayed out of it. I remember when Vince
Foster's suicide took place, we kept Webb away from him but [that] didn't take
a lot of pushing and shoving. He knew how to do that.
And it is that late July evening, a hot Washington summer night when you
hear that Vince Foster has committed suicide. What are the Department of
Justice's implications that first strike you...? What do you think is the
appropriate course at that moment?
Without going back and looking at my testimony..., I just know that my reaction
to anything that involves the White House, whether the travel office is
behaving legally or illegally or whether Vince Foster has killed himself or has
been a victim of a crime, is to try to keep it in regular channels. If we move
it out of regular channels, there is immediately going to be immense suspicion
that something is being covered up. Here, the regular channels I check, and
the regular channels [we] have are park police because Vince Foster's body was
found on park land.
The trouble with that is the park police have no familiarly at all with an
investigation that is going to take them into the White House, and they need
help. So right away I bring in the FBI to work with them.... I believe that I
have to intervene, or the Justice Department has to play a role... [for] the
people who are in charge of finding out, to make sure that they have the access
that they need in the White House. The Justice Department's role is not to take
over investigation - that should be carried out by investigators - but to be
sure that they are met with the right investigators who are there. That means
bringing the FBI too. Be sure that they get the cooperation they need from the
Was there any sense early on when you were going through these steps making
sure that it is in channels, going to the next level if that is what is
required, which it was. Was there any sense that there would be any difficult
in that regard?
I'm worried as to whether I am remembering right, Peter, but I think there is
always difficulty in investigating anything in the White House. It's true, by
the way, in the Senate and the House, too. If this had been a suicide in one
of the leadership's offices, there would be a lot of problem investigating.
They would say that they wanted their attorneys present when the FBI arrived
and this and that. We are dealing with that type of figure. If you want to
give independence to investigators, you have to give them some support.
Which is why presumably you and Bernie Nussbaum would have been having that
meeting in the first place, discussing the ground rules. "This is how we'll do
it. There will be cooperation." And you had no doubt then and have no doubt
now that you had been assured that there would be...
This is an oft-told story, so I'm a little reluctant to tell it for the 51st
time. I thought that two career prosecutors would be allowed to take part
fully in a review of files... in order to see whether there was anything [that]
bore on suicide as the most likely cause of death or anything else. The
signals were changed. I didn't think I had been promised that, but I thought
that we had agreed that that was the way it would be done. I thought that was
necessary for the credibility of the investigation, that the files not be
reviewed by White House counsel alone. The signals were changed. They were
reviewed by White House counsel alone. That started a tiff between me and the
Justice Department and the White House counsel's office - not terrible - but a
They found some evidence a few days later, a torn up note. That of course
creates more suspicion.... If you're in the Justice Department and you're
smart, you try to make sure that things don't happen that feed suspicions.
Both because you want it to go straight, and you want it to be clear that they
are going straight.
And in fact, you had that bit of seed of suspicion, other seeds of
suspicion. Torn up notes found. When were they found? Found by whom? Were
they really in the bottom of this briefcase? Where was the briefcase? Was
that something that was not examined by the FBI? And so on... until within
months after Vince Foster's death the press began to report stories about
papers being shuffled in and out of his office, suspicious activities. That
breathes fire; it breathes life into the smoldering embers of the by then
forgotten Whitewater scandal... into calls for a special prosecutor.... Help me
to understand where they were at that moment. There was still no independent
counsel act renewal. Janet Reno had testified for renewal of the act but had
said no to the appointment of the special prosecutor. Why?
I don't know the reason because she didn't tell me the reason.
Did you have a position on it?
I thought that Whitewater was a story with legs, and I thought it would never
go away, and I thought that we would need a special counsel, and I thought that
it would be wise to appoint a special prosecutor before the story ran away with
us. I thought there were wonderfully honorable people out there like Bob Fiske
who would be fair. Fair to the President and fair to the facts.
As eventuated, the President himself came to realize that, politically at
least, this story needed to be dealt with. Just out of curiosity, how did that
process actually occur? Did you go in and finally win an argument with the
Attorney General? Did the President pick up the phone and call you or call
I don't know exactly what the phone call was, but the Attorney General was told
that the President would prefer that there be a special prosecutor. At that
point, she appointed a special prosecutor....
We know what to do when the statute is alive with an independent counsel.
There is a certain procedure that is followed. What do you do in this case?
Does she have a ready existing pool of [candidates]?
She turned to me and the head of the Criminal Division working with me, Jo Ann
Harris, and a couple of other people, and we started producing names....
A list of what sort of people?
The first thing, I guess, was a set of criteria. My criticism is that the
court doesn't seem to do this very well - the court that does it under the
independent counsel statute.... The selection of person has to satisfy skeptics
that there will be a serious investigation. After all, the reason we are doing
it is to satisfy skeptics who are otherwise concerned about the Attorney
General who works for the President being in charge of the investigation. So
the person has to in some way, either by reputation for independence or by
being of the opposite party, satisfy that problem. Number two, you don't want
anybody who is partisan. You want somebody who is going to be fair....
There is something about the job itself that makes it hard to be fair. We
want to try to get someone who will be very fair.... You try to get somebody
who will handle it like a prosecutor and do whatever investigations necessary
and make a call. You worry a lot that they won't be willing to make a call and
say "prosecute" or "don't prosecute."
And among the people you all considered... potential nominees was Warren
Yes, Robert Fiske, who had been a U.S. Attorney, a highly respected U.S.
Attorney, Republican in the 7th district of New York in Manhattan.
And Ken Starr?
Ken Starr, William Webster.
Should the Ken Starr piece of it surprise me?
Well, it surprised me a little.
Have you known him at all?
I have not known him at all. I don't think I've ever met him to this day.
Maybe I have, but it would only be once....
Is it possible for you to retrospectively recollect his reputation [at the
Yes. I talked primarily with the people who knew him in the Justice Department
at that time. They said he was a perfectly straight and very honorable person.
They said "He isn't the prosecutor." This worried me.... I'm not worried that
he's not a prosecutor, but they said that the people he will hire to compensate
for that are likely to be highly partisan. Now I don't know the people who he
has hired, so I don't know if that's true or not, but that is what worried me.
But someone who is not a prosecutor who is charged with the prosecution
would in fact hire the aggressive prosecutorial types that we talked about
Well, it was more than that. I was worried by people I talked to that the
people he hired... would turn out to be politically partisan, not just
aggressive. I'm not at all sure that he hired those people, whether that's
In the event, you all chose Robert Fiske.... He is named. His jurisdiction
is decided how? There is no law deciding it. There is no charter deciding
The Attorney General said to me, "You sit down with Bob Fiske and write his
jurisdiction and make sure that he has everything that he could possibly want."
And what did he want?
Nothing unusual. I think he always wanted to be able to bring cases that are
related to the major case. He's a wonderful and reasonable person. But I
remember sitting down with him and saying to him, "Bob, the Attorney General
wants you to have everything you could possibly want. So let's talk about what
you would want."
And together you two drew up what basically became his charter and what
served as a charter for Ken Starr subsequently, and I guess to some degree
[for] Don Smaltz. You find him a building; you find him the staff; you find
telephones. Eventually it gets up and going, and one of the places his
investigation leads him is straight to the number three man at the Justice
Department, Webb Hubbell.... Here, we had an independent counsel, Robert Fiske,
an honorable man, certainly within his charter, investigating the President 's
- then Governor Clinton's - long ago Whitewater land deal. What in the world
does Webb Hubbell's billing of clients have to do with that?
That's part of what it is to be an independent counsel and the special
prosecutor. It's part of the problem. It's not a big part, but it's part of
the problem.... The independent counsel wants to be able to prosecute people
who may be witnesses against the subject of independent counsel's
investigation.... I can't remember what was Ken Starr and what was Robert
Fiske, but they believed that Webb Hubbell has crucial information about
whatever they are investigating at Whitewater so they want to prosecute him if
he has committed a crime in order to get the leverage that will give them on
the information that they really want about Whitewater.
To put it more crassly, put the squeeze on.
Absolutely....We want to put the squeeze on them.
It was in fact Fiske who built the case essentially against Webb Hubbell,
and then he was removed by the court. Ken Starr came in, and they basically
prosecuted it. So Starr essentially gets credit for the convictions..., but it
was Fiske who did it. But in your mind was [that] an inevitable or even
appropriate course to follow... by Fiske and subsequently by Starr?
...The symptoms that we've got that something is going wrong with the
independent counsel statute is that we have very long investigations.
Whitewater has been going on since early 1994, and it's now spring of 1998.
The Iran-Contra investigation cost 40 million dollars. This one has cost 25 or
30 million dollars already. Independent counsel seem to be [bringing] in
charges that other people might not bring in....
Closely related is that the independent counsel seem to go after other
people, trying to make a case against the main target. Cisneros' girlfriend
and her friends...it looks like a very rough business.... They look to many
people like "We've got somebody out there with a hunting license who is going
to shoot at other people along the way to get at the target, who is one of the
75 high level officials."
What's the problem? The individual, the independent counsel, has only one
case - Starr has three cases but only one defendant - [he] has none of the time
pressures or the money pressures or the traditions that keep an ordinary
prosecutor, as aggressive as they are, somewhat in line because there are other
cases out there. There are more serious matters out there. There are other
defendants out there.
But another way of putting it is we've come to expect the independent counsel
to get to the bottom of the facts. That's just a mistake. What the
independent counsel is supposed to be doing is supposed to be making the
prosecutorial judgment that will be made if it was anybody else, if it wasn't
the President, wasn't the First Lady, wasn't the secretary of HUD. The
independent counsel is supposed to be deciding, "Is this a case that an
ordinary prosecutor would prosecute?" An ordinary federal prosecutor.
No tougher, no easier, no favors, no penalties. You can't penalize high level
officials by treating them more severely than anyone else, especially with
matters that have nothing to do with office. But what we are getting is a
sense that scandal, if it has any criminal angle to it - Monica Lewinsky,
inducing perjury - scandal has to be gotten to the bottom of.... Here's what
we haven't gotten. We haven't gotten any independent counsel who has received
one of these grants of power from the court who will look at what he got, say,
within a week [and say], "Even if this is true, it's not a federal case.
Which might well happen to an ordinary prosecutor?
Now if you are going to get officials treated no better and no worse than
anyone else, particularly with regard to crimes that don't involve office in
any way, somebody has got to exercise the same discretions, the same judgment,
the same decision. "Is this worth a federal prosecution? Is it worth the
disruption of lives and the cost? Is it worth fighting this investigation?"
Somebody has got to exercise the discretion that a prosecutor normally
exercises. In reality, the Attorney General doesn't do it, and the independent
counsel doesn't do....
The guy who is going to have the next crucial moment like Archie Cox's moment
when Archie Cox said, "I am just doing my duty" is the person who is appointed
independent counsel and within a week says "I'm closing this case without
resolving the scandal because it doesn't deserve an expensive federal
prosecution, and it wouldn't be fair because we wouldn't do it to anyone else."
That person will be the next hero of the independent counsel.
About Fiske/Starr going to Webb Hubbell. It seemed that after that, some of
these dangerous risks of a wide ranging, never ending [investigation by a]
special prosecutor became apparent with the Justice Department. Subsequent
charters were written much more narrowly, and as we've seen, the process that
the Attorney General herself went through in deciding whether or not there
should even be independent counsel became much more tortured, [with] the
result, at least in the case of campaign finance scandals, that... one wasn't
appointed. Do you have a sense that that is going on? That Justice in fact on
its own, procedurally [in the] appointment of independent counsels, is trying
to kind of rein in the institution?
Justice Departments have never liked independent counsels. It's a little bit of
an offense to the department, and to the career service [people], particularly
when you are dealing with people less than the President , less high status,
and when you are dealing with events that are not the biggest crimes in the
world.... Sure, I think they will try to pull him a little. But the Attorney
General gave the Monica Lewinsky thing with a fairly broad charter to Ken
Starr. I think we would all be better off if it had been given to someone
Is there any chance at all, just a guess of course, Professor, but any
chance at all that the independent counsel statute as stands will be renewed
next year in this political climate?
The question is how devious the political figures want to be. If it looks like
it would still be useful to go after democratic administrations, the
republicans would be in favor of it. If it was a republican administration,
the democrats would be in favor of it....
But I actually think [what's] likely to happen [is] a narrower statute that
applies only to President and the vice President and applies only to crimes
in office. That would pick up Watergate, which is the most serious by far, and
that would get rid of Whitewater as a crime not in office, as an old crime....