Politics & Policy

A Cover-Up Without a Crime?

The origin of the argument over the CIA leak case.

Nearly eight years after the Monica Lewinsky scandal, a number of Democrats are expressing deep satisfaction with the prospect of the Bush administration running afoul of a criminal investigation of its own. “Those who thought investigations were a wonderful thing when Bill Clinton was president are suddenly facing prosecutors, and they don’t like it,” wrote E. J. Dionne of the Washington Post on October 18. “A process that was about ‘the rule of law’ when Democrats were in power is suddenly an outrage now that it’s Republicans who are being held accountable.”

”Now,” of course, means now that the Bush White House is at the center of the CIA leak probe. But commentators on the Left know full well that prosecutor Patrick Fitzgerald might not have enough evidence to seek charges based on the two difficult-to-prosecute national-security laws involved in the case, the 1982 Intelligence Identities Protection Act and the 1917 Espionage Act. But that still leaves the possibility that Fitzgerald might charge some Bush administration officials with perjury, making false statements, or obstruction of justice.

And that means the case could become a prosecution in which one or more administration figures are charged with lying about acts that were not in themselves crimes. “At the end of the day,” a former intelligence official told National Review last week, “this could end up being a situation where there wasn’t a crime until there was an investigation.”

So what? say the president’s adversaries. Isn’t that what happened in the Lewinsky scandal? “During the Monica madness, Clinton’s champions argued that lies about sex are not really lies–or, at least, don’t merit prosecution,” David Corn of The Nation wrote on his blog on October 14. But now, Corn argued, things are different. “What about lies about leaking classified information? No one should get a pass for that.”

It’s a common argument these days: Lewinsky was an investigation without a crime–lies about sex–but this CIA thing is something else entirely. Perhaps the people making the argument sincerely believe that, but they have, at best, a flawed recollection of what happened in the Lewinsky matter. Whatever else it was, it was without doubt an investigation with a crime.

In January 1998, when the Lewinsky affair broke, Kenneth Starr had finished most of the investigation collectively known as Whitewater. The Travelgate investigation was pretty much over, as was the Filegate probe, the Vincent Foster suicide review, and other parts of the investigation. But Starr was still looking into another aspect of the affair: the big-money, little-work consulting deals that Clinton crony Webster Hubbell received at the same time he was, in the eyes of Starr’s prosecutors, failing to cooperate fully with the investigation. Hubbell, the prosecutors suspected, was being paid not to talk.

Starr knew that one person who had arranged “work” for Hubbell was Clinton friend Vernon Jordan. “Prior to January 1998, the Office of Independent Counsel possessed evidence that Vernon Jordan–along with other high-level associates of the President and First Lady–helped Mr. Hubbell obtain lucrative consulting contracts while he was a potential witness and/or subject in the OIC’s ongoing investigation,” says The Starr Report. “This assistance took place, moreover, while Mr. Hubbell was a target of a separate criminal investigation into his own conduct. The OIC also possessed evidence that the President and the First Lady knew and approved of the Hubbell-focused assistance.”

Specifically, the report says, Jordan helped Hubbell receive assistance from MacAndrews & Forbes, the holding company for Revlon, for which Jordan served as a director. “Mr. Jordan introduced Mr. Hubbell to senior executives at New York-based MacAndrews & Forbes Holding Co.,” the report says. “The introduction was successful; MacAndrews & Forbes retained Mr. Hubbell at a rate of $25,000 per quarter. Vernon Jordan informed President Clinton that he was helping Mr. Hubbell.”

That was all known in January 1998. So when, in that month, Starr’s prosecutors received word that the president’s former girlfriend planned to lie to the judge in the Paula Jones case, and that at the same time she had received help in getting a job–at Revlon, among other places–from Vernon Jordan, there seemed to be a connection worth investigating. “Office of Independent Counsel investigators and prosecutors recognized parallels between Mr. Jordan’s relationship with Ms. Lewinsky and his earlier relationship with a pivotal Whitewater-Madison figure, Webster L. Hubbell,” the report says. “Based in part on these similarities, the OIC undertook a preliminary investigation. On January 15, 1998, this Office informed the Justice Department of the results of our inquiry. The Attorney General immediately applied to the Special Division of the Court of Appeals for the District of Columbia Circuit for an expansion of the OIC’s jurisdiction.”

So the investigation was underway. It had its beginnings in the effort to glean information from a convicted felon, Hubbell, about possible crimes stemming from the felony convictions of the president’s former business partners. (That is, Starr was seeking information from Hubbell and others about whether President Clinton had testified truthfully at the trial of Jim McDougal, Susan McDougal, and Jim Guy Tucker, in which all three were convicted of felonies.) Based on that criminal background, Starr’s prosecutors began a new investigation when it appeared that the main link, Jordan, was involved in similar activities in the Jones civil case.

“Sex with Lewinsky was not a crime,” says a former Starr prosecutor. “But I would think that the answer is that there was, at the core, an underlying crime, namely the Whitewater offense for which Tucker and MacDougal were convicted, and thus that the Hubbell cover-up stuff was a real crime.”

That was Lewinsky. So what about the current CIA leak investigation? Certainly there are no background crimes, like the convictions of Hubbell and the McDougals, from which any suspected crimes by Karl Rove, Lewis Libby and others could derive. If Fitzgerald charges that Rove or Libby or other officials violated the Intelligence Identities Protection Act or the Espionage Act, then there would be an allegation of an underlying crime, and all the discussion of lying about non-criminal activity would be moot. But if Fitzgerald does not bring any charges of betraying the identity of a covert agent or misusing classified information, but does bring charges of perjury, false statements, or obstruction of justice, then the case, unlike the Lewinsky matter, would be a classic cover-up without a crime.

As such, it would likely give rise to all sorts of bitter arguments about precedents in the Clinton investigations and accusations that hypocrisy abounds on one side or the other. People who in 1998 argued that lying under oath didn’t really matter, at least if it was about sex, will passionately argue that lying under oath really, really matters now. And people who in 1998 argued that lying under oath mattered very much will argue that it is not such a big deal today. Before anyone starts making such arguments, they should at least remember what happened in 1998.

Byron York, NR’s White House correspondent, is the author of the new book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President–and Why They’ll Try Even Harder Next Time.

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