• U.S.

The Big Face-Off

11 minute read
Richard Lacayo

Bill Clinton has been in a lot of tight spots in his political career, but probably none that felt as confining as the one in which he found himself Saturday. In the 11th-floor conference room of the Washington offices of his lawyer Robert Bennett, just two blocks from the White House, Clinton became the first sitting President to be questioned under oath as a defendant in a court case. There he momentarily set aside the noble task of searching for his place in history–part of his preparations for the State of the Union address–in order to answer questions more suited to a giggly teen’s game of Truth or Dare.

All the same, at the end of six hours of questioning by Jones’ attorneys, Clinton departed in what sources close to him say was an ecstatic mood. The President felt that the deposition had gone smashingly for him. Describing the mood Saturday night at the White House, one person close to the President said, “Everyone is going to sleep well tonight.” Clinton prepared to do just that, forgoing an evening at the Kennedy Center or a dinner with chief of staff Erskine Bowles to stay in for the night. Jones, along with her husband Stephen, her spokesperson Susan Carpenter-McMillan, and the hair stylist responsible for her new subdued look, retreated to the Old Ebbitt Grill for dinner, where Jones sipped white wine and, later, champagne, ate ravioli, smoked a string of cigarettes and invited three reporters to join her table. “I feel great,” she told TIME. (She autographed the napkins of three preteen girls who had just finished a tour of the White House. THANKS FOR YOUR SUPPORT. YOU’RE SO CUTE was her inscription.) Earlier in the day, Carpenter-McMillan had hinted that there might be a press conference after the deposition. When none transpired, Clinton’s team took it as a sign that the Jones side might feel deflated. In a case where public image is everything, spin to the media is everything plus.

If the day ended in smiles, it started in chaos. Carpenter-McMillan had promised reporters that Jones would make a brief statement on the way into Bennett’s office. That proved impossible: though police had cordoned off the front entrances to Bennett’s office, swarms of reporters and camera crews hovered at all corners of the building. The crush when Jones and her husband arrived at the back entrance was so great that they were swept indoors without a word. But Carpenter-McMillan managed a few solemn ones for the solemn occasion: Jones, she said, had told her she felt proud to know “that a little girl from Arkansas is equal to the President of the United States.”

Clinton entered Bennett’s offices more quietly, being driven to a basement parking lot that had an underground entrance to the building. During the lunch break, a takeout lunch arrived at Bennett’s suite of offices–teriyaki salmon, spring onion cakes and vegetable spring rolls from Oodles Noodles restaurant. The Jones team had sandwiches. But in this ill-fated case, even the small players can get hit. The Oodles deliveryman was arrested and handcuffed after parking illegally and then arguing with a police officer.

All week the White House had been taking pains to communicate a mood of studied indifference to the looming problem of the deposition. Carefully splitting hairs, Administration spokesman Mike McCurry said the President viewed the matter as “a distraction,” but “not a burdensome distraction.” The President’s inner circle was quietly denying any plan to form an in-house team to monitor developments in the suit, something that might give the impression the Jones thing mattered.

As the deposition neared, however, Clinton huddled twice with his lawyers last week, the second time late into the evening on Friday. Once again, he did not recall ever meeting Jones, or even much about the May 1991 conference at the Excelsior Hotel in Little Rock, the place where then Governor Clinton is supposed to have had his bumptious first encounter with Jones. The deposition offered the President a chance to repeat once again–this time under oath, with a video camera and Jones’ eyes trained upon him–that he did not recall ever having met Jones and that he had never sexually harassed her. The Washington Post reported on Saturday, however, that Clinton would not contest the claim by Arkansas State Trooper Danny Ferguson that Ferguson had brought her to Clinton’s hotel suite. With that, he would be effectively conceding that he may have met with Jones alone.

Even so, that is a concession he has long been willing to make. As early as 1994, both sides in the case were working toward a settlement in which the President would say he had no recollection of meeting Jones but did not challenge her insistence that they had met. Meanwhile, by also declining now to challenge Ferguson, Clinton does himself the favor of lending credibility to other parts of the trooper’s story that support the President’s case. In a deposition he gave last month, Ferguson said that after her meeting with Clinton, Jones came to him with an offer to be “the Governor’s girlfriend.” If true, that would undercut her claim of emotional distress.

And emotional stress is what much of this case is about, both hers and his. Depositions in particular can be an ordeal for the deposed. They are essentially fishing expeditions, and within bounds, a lot of wide casting is allowed. To referee the proceedings and decide which questions were permissible, U.S. District Judge Susan Webber Wright took the unusual step of flying to Washington from Little Rock, where she will preside at the trial that is set to begin on May 27. Sources told TIME that she also went to the capital to read both sets of lawyers the riot act over the persistent leaks to the press in violation of the gag order she imposed.

Wright was especially furious over news reports that lawyers for Jones had deposed Kathleen Willey, a former White House volunteer who they hoped would characterize as a sexual advance an encounter she had with Clinton in November 1993. Sources told TIME that Willey’s lawyer attempted to quash the subpoena, but the judge ruled against him, leaving open the possibility that Jones’ lawyers could introduce Willey’s deposition at trial as evidence of a pattern of sexually aggressive behavior by Clinton that continued even into the White House.

Over the next several weeks, it is up to Wright to determine just how much of Clinton’s and Jones’ pasts can be dredged up before a jury. The stakes are high for both sides: the worst-case scenario has the President facing a parade of the blond and the jilted, former mistresses spoiling for payback (or worse, mistress wannabes yearning for attention or a book deal). So lawyers for both sides have been taking depositions from people who claim to have had sexual relations with Clinton, including Gennifer Flowers. At the deposition, Jones’ lawyers were also in a position to ask questions of Clinton about his sexual history. But none of this may be admissible in court. When the Supreme Court ruled unanimously last year that the Jones case could go forward while Clinton was in office, the Justices also indicated that the trial judge could make decisions that take into account the fact that the defendant is the President. For instance, questions that seem designed just to embarrass him politically could be ruled out of bounds.

That’s a tricky distinction in the Jones case, in which just about everything is embarrassing to the President. In any normal lawsuit, right about now would be settlement time–when all the main parties have been deposed, and each side can assess the other’s chance of persuading a jury. But in Jones v. Clinton, winning or losing may have nothing to do with what a jury decides and everything to do with how much pain each side can inflict on the other in public. Clinton would probably win the customary agreement that neither side divulge the details once the case is settled. But given all that has leaked already under the current gag order, that kind of deal isn’t worth much. So why settle?

More to the point, both Clinton and the First Lady are adamantly opposed to a settlement. Both feel that they have already borne the brunt of the bad publicity. As lawyers looking at the strengths and weaknesses of the case, they also expect to win. In a case that essentially boils down to Clinton’s word against Jones’, the burden of proof is upon Jones. Much will also depend on whether she can convince the jury that she suffered setbacks in her job as a state government clerk because she rebuffed Clinton or that his attentions to her created a “hostile work environment.”

Evidence of Clinton’s encounters with other women will only be admissible at trial if Jones’ lawyers can show that it demonstrates a pattern of behavior on his part–for instance, if women told stories of an encounter with him that had details closely paralleling the hotel-room meeting that Jones describes. The encounters could also be used as evidence if the women can be shown to have suffered or prospered in their jobs because of how they responded to Clinton. That would help Jones make the case that she suffered harm as a consequence of refusing Clinton’s advances.

“Even if she’s successful in proving her allegations,” says Debra Katz, a sexual-harassment and employment-law litigator in Washington, “she has to show she’s been harmed. That’s an essential element.” Evidence there is weak. Jones wasn’t fired, demoted or apparently punished in any way. But if she finds other women who responded positively to Clinton’s advances and were rewarded, her lawyers can try to invoke a line of cases in which courts have ruled that a plaintiff can prove harm by demonstrating that those who submitted to the sexual advances of a supervisor were favored at work, while those who did not were held back.

It was a significant procedural victory for Clinton that in pretrial maneuvers his lawyers got Judge Wright to approve a jury of 12 in his case instead of the six-member panel more typical in civil suits. The larger jury will make it harder to reach a unanimous verdict against him.

As might be expected, former Clinton adviser Dick Morris, who knows something about public embarrassments involving women, looks at the matter from the coolest possible perspective. “About 90% of the American people believe Bill Clinton has committed adultery, and I don’t think they care,” Morris concludes. “I think he’ll win the case. And that will deal a crippling blow to the cottage industry of anti-Clinton forces.” Clinton attorney Bennett has previously said that nothing short of the President’s legacy is at stake: “And his legacy will be preserved,” says Bennett, “by showing this case to be the sham that it is, and by showing the politics that are involved.”

The deposition is probably Clinton’s last personal appearance in the case. If, as now seems likely, it does go to trial, Clinton cannot be compelled to testify, though portions of his deposition may be entered into evidence. To prevent the tape from leaking to the press, Judge Wright took the unusual step of putting it in her personal custody.

White House officials spent part of Saturday trying to decide whether to step up their reaction to Jones or let her charges go unanswered. They chose the latter, taking heart from public-opinion surveys showing that Jones’ approval rating was sinking. In a new TIME/CNN poll, for instance, 42% of Americans believed Clinton; just 28% thought Jones was telling the truth. That level, said a White House official, is “roughly akin to Yasser Arafat’s.” Maybe so, but as the O.J. Simpson case proved, the court of public opinion is very different from the court of law.

–Reported by Jay Branegan, Margaret Carlson, Michael Duffy, Chandrani Ghosh and Viveca Novak/Washington

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