WASHINGTON — Prosecutors for independent counsel Bob Ray recently
turned over 57 pages of documents to a federal court, offering a rare
window into their active criminal investigation of President Clinton and
his aides for possibly obstructing justice in the Jones-Lewinsky
scandal.
But the documents, disturbing as they are, don’t scream for
indictments. If anything, they show Ray’s case, so far, hasn’t gotten
much traction.
Despite a lot of circumstantial evidence that at least one White
House lawyer tried to hide evidence under subpoena, it’s still just
circumstantial. It’s plain that prosecutors haven’t found any smoking
guns.
Why else would they refer much of their case against former associate
White House counsel Shelly Peterson to a federal judge hearing a related
civil suit against the White House? And why else would they
resort to griping to her personal attorney in a four-page letter about
her “unethical” conduct?
Sad part is, Peterson’s actions look worse than just “unethical.” In
letters to the White House, her lawyer and the court, prosecutors have
accused her of:
- “Hiding” an internal White House memo about Lewinsky critical to
former independent counsel Ken Starr’s case. - Lying under oath in claiming she made a good faith effort to
comply with every subpoena. - Denying Starr e-mails about Lewinsky — even though Peterson
recently swore otherwise.
Rather than seek an obstruction indictment, however, Ray’s deputy,
Jay Apperson, is merely seeking to set the record straight. He’s sent
Peterson’s own lawyer a rather cordial letter asking that Peterson
revise her testimony.
Why the gentle treatment? More than likely, he and his investigators
can’t prove she intentionally hid the memo, or
intentionally lied under oath or intentionally withheld
subpoenaed e-mail.
Peterson is a central figure in the investigation but she didn’t
operate in a vacuum. If they want to nail higher-ups in the White House
for obstruction — such as former senior lawyer Cheryl Mills, or special
counsel Lanny Breuer, or former chief counsel Chuck Ruff, or Clinton
himself — they’d better find a way to squeeze Peterson.
When it came to complying with Starr’s subpoenas, Peterson was the
hands-on contact in the White House counsel’s office in 1998. She (as
well as associate counsel Dimitri Nionakis) told the records-management
and computer people in the White House what to search for. And she
filtered what she got back from them for relevance.
Was playing hide-and-seek with documents her idea? Or did she take
orders from Mills, Breuer and Ruff? How does Clinton’s chief of staff
Erskine Bowles fit into the picture?
It’s hard to believe Peterson was acting on her own. She pulled off
some pretty brazen stunts.
On Jan. 21, 1998, Starr deputy Bob Bittman issued a subpoena to
Breuer at the White House for all Lewinsky-related documents. A week
later, Peterson turned over a batch of documents.
Only, a key memo was missing — one that would help Starr prove
Clinton lied under oath about Lewinsky during his Jones deposition. In
it, a senior Clinton aide tells another aide: “We got rid of Monica” by
transferring her to a Pentagon job, because of her “extracurricular
activities.”
Starr and a criminal grand jury in Virginia were denied the memo for
another two-and-a-half months. Not until then did Peterson sneak it
into a stack of 970 pages of documents in response to another subpoena
issued by a grand jury in Washington.
And she never alerted Starr to it and never explained why it hadn’t
been found before. Yet this August, Peterson testified in a civil case
brought by
Judicial Watch that she always explained delays in producing evidence.
The original January 1998 subpoena also asked for “any and all e-mail” related to Lewinsky. The White House came up short in producing those documents, too.
Really short.
In June 1998, as the Lewinsky crisis heated up, Northrop Grumman computer contractors noticed the White House’s computerized archiving system wasn’t capturing in-coming e-mails to West Wing staff.
Some 246,000 e-mails hadn’t been searched for compliance with subpoenas. It’s significant because Lewinsky, at the time, was sending messages to Clinton aides from the Pentagon. And Clinton lawyer pal Vernon Jordan, who met with Mills and Bowles during the Lewinsky crisis, also may have sent e-mail to them.
A whopping 3,061 e-mails sent to Mills are missing and have never been searched (and those are just the ones through June 1998 — the archives bleeding wasn’t fixed until November 1998). Bowles is missing at least 161. Breuer, 187. Ruff, 5. Peterson, 156. And Nionakis, 151 (another “glitch,” tied to the letter “D” in the first name of e-mail users’ accounts, prevented Nionakis’ e-mail from being archived well into 1999).
On June 19, 1998, Ruff was briefed on the e-mail archiving “glitch.” He says he ordered a test of the affected server, where the e-mail still resided, to see if any Lewinsky e-mail hadn’t been searched. A Northrop Grumman technician was able to print out some 1,000 pages of Lewinsky-related e-mails by viewing just a few files.
Cheryl Mills got the stack and turned it over to Peterson for review. Peterson has testified that every page in that stack matched what had already been turned over to Starr.
By maintaining that the e-mails produced from the Lewinsky test were merely duplicates, Ruff has been able to justify not telling prosecutors about the e-mail problem.
But it turns out they weren’t all duplicates.
The Northrop Grumman technician saved the batch of Lewinsky e-mails on a Zip disk. Congress earlier this year had him print it out. Ray’s prosecutors got a copy of the 1,000-page stack and sifted through the e-mails to see if they were in fact merely copies of what Starr’s team had gotten in 1998.
Oops. The stack included 69 pages of “additional materials,” including names of White House aides to whom some e-mails were “CC’d,” and the index of all e-mails in the June 1998 test run.
“The fact is that the index, like the e-mails, was required to have been produced to this office,” asserted Apperson this month in his letter to Peterson’s lawyer.
Peterson now says, “I may have been mistaken.”
The admission unhinges the White House excuse for not telling investigators about the gaps in e-mail. And it raises suspicions that Ruff and others intentionally left investigators in the dark in an effort to deny them the evidence they sought to prosecute the president.
That’s also called obstructing justice, a felony.
But Ruff, in-between bouts of amnesia, swore under oath before Congress and the court that it was all an honest mistake. (Add it to the list of innocent “mistakes” and “snafus” in this White House.)
He also claims he didn’t know anything about White House aides Mark Lindsay and Laura Crabtree Callahan threatening the Northrop Grumman contractors who found the “glitch” with jail if they didn’t keep it a secret. Lindsay and Callahan denied under oath making any threats even as the contractors testified in detail how they threatened them.
But until someone comes forward with a memo, or a tape, to confirm the threats, this part of the obstruction case will remain at a stalemate. As with Peterson, any prosecution of Lindsay and Callahan appears to be a non-starter at this point.
Until it can come up with material proof of obstruction — like for instance, something probative in those missing e-mails to Clinton’s legal staff — it looks as if Ray’s team will have to settle for writing letters of grievance to civil courts and defense lawyers about what they no doubt suspect to be an orchestrated cover-up involving several White House lawyers, including a prominent ex-Watergate prosecutor who should know better.
