POLITICS APRIL 26, 1999
Ordinarily, a witness who changes her story in a way that makes herself an object of ridicule or disgrace is viewed as more credible rather than more suspicious: the law of evidence calls this a statement against interest. But, in May, on the basis of just such a statement, Julie Hiatt Steele will become the first and perhaps the only person to be tried for crimes arising out of Kenneth Starr's investigation of President Clinton's relationship with Monica Lewinsky.
A peripheral figure in a tangential outgrowth of the Lewinsky investigation, Steele is one of several people whom Kathleen Willey claims to have told she was groped by the president in the Oval Office when she went to ask for a job on November 29, 1993. In March 1997, Steele told Michael Isikoff of Newsweek that Willey had come to her house to tell her about an unwanted advance on the night it allegedly occurred. Four months later, she recanted and told Isikoff that she had lied to him at Willey's request. She then repeated this recantation to FBI agents working for Kenneth Starr, before two grand juries called by Starr, and on "Larry King Live." Willey, meanwhile, continued to insist that she had confided in Steele at the time of the alleged advance, and Starr chose to believe her rather than Steele. In January, he indicted Steele on three counts of obstruction of justice and one of making false statements to federal agents. If convicted, she could be sentenced to 35 years in prison.
Now that a criminal indictment of President Clinton seems hard to imagine, it's easy to dismiss the trial of Julie Hiatt Steele as the puzzling but insignificant by-product of an exhausted investigation. But, in fact, the Steele case reveals one of Starr's most distressing legacies: the use of perjury and obstruction of justice laws to threaten tangential witnesses for giving testimony about President Clinton that Starr and his prosecutors choose not to believe. At her recent trial in Little Rock for refusing to answer Starr's questions about the president, Susan McDougal explained her willingness to go to jail by insisting that Starr wanted her to lie. Webster Hubbell, the former associate attorney general, whom Starr indicted for the third time last year, will be tried in June on charges of committing fraud and making false statements. Like Steele, McDougal and Hubbell claim that Starr is prosecuting them because they refuse to support his theory that President Clinton pressured them to lie. Indeed, Steele testified at McDougal's trial last week that Starr is guilty of something similar to what he accuses Clinton of doing: repeatedly threatening witnesses who refuse to give false testimony on his behalf.
Even if you assume, as Starr does, that Steele is lying, it's reckless to use the obstruction of justice laws to resolve swearing contests between tangential witnesses in civil cases. If the Paula Jones case had reached a jury, Kathleen Willey might possibly have been allowed to testify, to support Jones's theory that Clinton has a habit of rewarding employees who accept his advances and punishing those who do not. If Willey had been called to testify, Clinton's lawyers might have tried to undermine her story by introducing Steele's affidavit. Recognizing that memory is fallible and lies are rampant, our legal system ordinarily relies on juries to resolve contested questions of credibility. By presuming to decide for himself who is telling the truth and then threatening to imprison those with whom he disagrees, Starr is usurping the jury's central role. If prosecutors routinely indicted defense witnesses for perjury and obstruction of justice before a trial began, they would deny the accused the right to put on a defense, because the mere threat of indictment might silence witnesses with whom the prosecutor disagrees-- even witnesses who are telling the truth.
As Michael Isikoff makes clear in his new book, Uncovering Clinton, moreover, it was Paula Jones's legal advisers who arranged the initial contact between Linda Tripp and Starr's office--a fact that the prosecutors failed to disclose when they asked the Justice Department to authorize Starr to investigate the Lewinsky affair. In light of the collusion between Jones's lawyers and Starr's prosecutors, it's alarming to realize that Starr is using the powers of his office to try to imprison Steele, who might have challenged the credibility of one of Jones's corroborating witnesses if the case had gone to trial. But what makes the indictment of Steele even more troubling is that it's hard to identify any pending criminal or civil trials that her comments could, in fact, have obstructed. The discovery process in the Paula Jones case was already closed by the time Steele signed her affidavit, and she believed, correctly, that it would never be filed in the case. Ordinarily, perjury and obstruction of justice cases are brought against witnesses who are guilty of some other crime and then take steps to conceal it. By expanding the obstruction of justice laws to indict witnesses who have committed no crime other than testifying in a way that the Office of the Independent Counsel doesn't find convincing, Starr has managed to confuse justice with himself.
The law is a surprisingly clumsy instrument for ferreting out the truth, but it seems especially at a loss when faced with sexual harassment allegations like Kathleen Willey's, where all the parties have changed their stories and where the line between legal and illegal activity turns on subjective reactions that are nearly impossible to verify. Everything about Willey's story is in dispute: what, precisely, transpired in her meeting with the president, how she felt about it, whom she told, and what she told them. Willey's claim that she was upset by her meeting with the president on the day her husband killed himself has been contradicted by at least two of the people she talked to about the meeting on the day it occurred. Linda Tripp encountered Willey as she was leaving the Oval Office, and, in her grand jury testimony, Tripp insisted that Willey welcomed the advance and later consulted Tripp about ways she might pursue an affair with the president. Willey called another friend, Harolyn Cardozo, after her meeting at the White House. According to an account by Thomas Oliphant in The Boston Globe, Cardozo told Starr's grand jury last April that Willey was pleased by the meeting and eager to see the president as much as she could, allegedly saying at one point that, if she played her cards right, she could be the Judith Exner of the 1990s.
As for Steele, she has a flighty, talkative manner that makes her shifting stories sometimes hard to follow. But it's hard to fathom any motive she would have had to turn her life upside down unless she believed, on some level, that she was telling the truth. "My own personal belief is that she was pressured," Kathleen Willey announced when she appeared on "60 Minutes" in March 1998. "I think that the White House wanted to try to discredit me, and they found a pawn in her." According to Steele, Willey told producers for "60 Minutes" that Steele was especially sensitive to charges that she had illegally adopted her eight-year-old son, Adam. Soon afterward, journalists and prosecutors began to investigate the theory that the White House had threatened to undo the illegal adoption unless Steele changed her story.
The rumors turned out to be unfounded as well as malicious. After her four- day-old son, Ben, died in 1990, Steele went to Romania, where she adopted the three-month-old Adam. To be especially meticulous, she formalized the adoption in Romania and Virginia. "As any idiot who's ever been to Romania or anybody knows--you tell me how you could get out of there with a child illegally," Steele says. "To suggest that anybody could possibly think of leaning on me, threaten me, is absolute nonsense. It didn't happen."
Nevertheless, after the "60 Minutes" interview, Starr began to dispatch FBI agents to ask Steele's neighbors repeated questions about the adoption. He subpoenaed Steele's phone records, bank records, tax accountant and tax returns, her former lawyer, and former friends from around the country. In June, the associate independent counsel in charge of her case, David G. Barger, invited Steele to testify before a grand jury in Washington, D.C., and she agreed to do so after Barger assured her in writing that she was "not a target or a subject of this grand jury investigation" but was viewed instead "as a witness with potentially relevant information to provide to the grand jury." But, after Steele's grand jury appearance, she received another letter from Barger on August 3 informing her that her status had been changed from witness to subject. A few days later, Steele retaliated by going on " Larry King Live" to explain her position and to attack Starr. She also set up a legal defense fund to defray her mounting legal bills and a website to encourage contributions. Four days after her "Larry King" appearance, Barger summoned Steele to testify for a second time in Virginia rather than Washington. When she appeared before the Alexandria grand jury on August 18, she repeatedly asserted her Fifth Amendment right against self-incrimination on her lawyer's advice, but she couldn't resist replying "yes" when Barger asked her whether her previous testimony about Kathleen Willey had been true. Barger relied on this response to support his decision to indict her for misleading a Virginia grand jury and to try her in the Virginia "Rocket Docket," where juries are far less forgiving than they are in Washington.
After the second grand jury appearance, Barger went into high gear, summoning Steele's brother and daughter and questioning them about the legality of Steele's adoption. On November 4, Steele's lawyer, Nancy Luque, filed an ethical complaint with Janet Reno and with Starr, accusing Starr and Barger of "prosecutorial misconduct" based on, among other things, their questioning of Steele's daughter before the grand jury for more than five hours, their sending FBI agents door to door in Steele's neighborhood, and their forcing Steele to repeat her story in Virginia rather than Washington. (A spokesman for Starr's office refused to comment on Luque's allegations or on any aspect of the Steele case, citing a local rule in the Eastern District of Virginia prohibiting defense lawyers and prosecutors from making public statements that might "interfere with a fair trial.") Four hours after receiving the fax, Barger replied, "Do not assume that my failure at this time, to address your recent personal attacks on me suggests, in any way, that I believe those attacks have merit. They do not." He then demanded that Steele show cause why she shouldn't be indicted.
On November 19, Kenneth Starr appeared before the House Judiciary Committee. The only point in his testimony where he seemed to lose his composure was when he defended the investigation of Julie Steele in response to questions raised by the president's lawyer, David Kendall. "There is an enormous amount of misinformation and false information that is being bandied about with respect to Steele and the circumstances of questioning, and I will look for it at the appropriate time to be able to demonstrate that to any fair-minded person beyond any reasonable doubt," Starr told the Judiciary Committee. " Some of Steele's claims are ... utterly without merit and utterly without foundation, utterly without factual foundation." The day after Starr's appearance, Barger sent Steele a letter threatening to indict her.
Soon after, Steele met with Barger. "By the end of the meeting I was just sobbing," she told me. "'My God, what in the world could you be thinking?' I asked him. 'Could you tell me what possible motive I would have? Where is the upside of this? I guess I'm missing it. Could you explain to me what is my motive and exactly where do I come out with anything positive in this entire nightmare? Where would that be? And you're threatening me, my child, who means more to me than life itself. I mean, what in God's name are you thinking?'" Steele says that, as she tried to leave the room, in tears, Barger pulled on her arm and tried to stop her. "Don't leave like this," he said. "I have children, too." "That's the only glimpse of a human being that I've seen," Steele told me. "But then they turn right around and indict me."
There is an Alice in Wonderland quality to the indictment, which was issued on January 7. "Defendant steele affirmed in the grand jury that certain statements she made in her 'Larry King Live' interview ... were true when she knew they were false," the indictment declares. "In truth and in fact, as Defendant steele well knew and believed, Kathleen Willey told Defendant steele about the alleged sexual advances." Initially, the indictment seemed to identify Steele's statements to journalists, such as Michael Isikoff and Larry King, as separate examples of obstruction of justice. Barger denied that this was his intent, but, at the end of February, "in order to avoid any confusion on this point," as he put it, he asked Judge Claude M. Hilton to strike the disputed sections of the indictment. In its amended form, the indictment continues to list Steele's decision to provide the Virginia grand jury with a videotape of her "Larry King" interview, which she believed was covered by Barger's subpoena, as an example of obstruction of justice.
Even if Steele was mistaken about the scope of the subpoena, it seems irresponsible to prosecute her for obstructing justice on the grounds that she proclaimed her innocence on national television and then provided a videotape of her remarks to grand jurors. Traditionally, obstruction of justice prosecutions are reserved for those who destroy relevant evidence of their guilt rather than simply deny their guilt, as in the case of an American navigator whose plane severed ski lift cables in the Italian Alps and who was recently dismissed from the Marine Corps for obstructing justice after he burned his personal videotape of the flight.
The historical roots of the Fifth Amendment right against self- incrimination are shadowy and complicated, but there was a deeply held belief at the time of the American Founding that it was a form of moral torture to interrogate suspects under oath about their own guilt. Recognizing that all suspects are tempted to tell self-protective lies in their own defense, it was viewed as unacceptable to force them to choose between the "cruel trilemma" of self-incrimination, perjury, or contempt, each of which would send them to prison. This is what made the grand jury interrogation of President Clinton so unusual and unsettling--unlike other suspects, he wasn't free in practice to plead the Fifth--and what makes the indictment of Julie Steele unsettling on a different scale.
Because Kathleen Willey had already been granted immunity from prosecution at the time Steele was called before the Washington, D.C., and Virginia grand juries, it's not clear what Steele could illuminate for those grand juries, except whether or not Steele herself had lied. But, if that was what the prosecutors really wanted to know, they had no business encouraging Steele to repeat her story under oath and then indicting her for doing so. When historians look back on the Starr investigation, perhaps they will identify this as its most troubling legacy: placing people under oath, forcing them to discuss their most intimate thoughts and feelings on pain of perjury, and then threatening to imprison them for the compelled testimony that results. This, after all, is the central evil that the Fifth Amendment was designed to prevent.
Julie Hiatt Steele's story is so irrationally complicated that it seems presumptuous to suggest that the truth can be known beyond reasonable doubt. This is yet another reason why prosecutors are traditionally reluctant to use the perjury and obstruction of justice laws to plumb inconsistencies in the stories of marginal witnesses to hypothetical legal proceedings. "I thought I was on the periphery," Steele says. "I've never been to the White House. I don't know any of these people. It never crossed my mind that I was being followed or threatened. It's silly. It would make for a great comedy if it weren't for the fact that they're trying to put me in jail."