WASHINGTON — When onetime White House intern Monica Lewinsky broke her silence with a major speech this week, one subject brought her nearly to tears.
Lewinsky’s voice cracked as she recalled the moment in January 1998 when she was first confronted by FBI agents and lawyers working for Kenneth Starr’s Office of Independent Counsel, who threatened her and her mother with criminal prosecution if she did not agree to wear a wire against President Bill Clinton.
Lewinsky, now 41, has long felt that she was mistreated by authorities in the 12-hour marathon session, which began as an ambush at the food court at the mall at Pentagon City in Virginia and then moved to a hotel room at the mall’s adjoining Ritz-Carlton hotel.
As it turns out, so did government lawyers who conducted a comprehensive review of the incident in 2000, two years after the encounter. Their findings are contained in a report – recently obtained by The Washington Post – that key players had long believed was under court-ordered seal.
According to the report, a prosecutor who confronted Lewinsky “exercised poor judgment and made mistakes in his analysis, planning and execution of the approach.” The report, written by two lawyers appointed to investigate the matter by Robert Ray, Starr’s successor as independent counsel, concluded the “matter could have been handled better.”
The report also lays out the encounter in detail, suggesting that it quickly spun out of control as a shocked and hysterical Lewinsky asked to consult a lawyer or a parent – even as prosecutors grew increasingly determined to persuade her to agree on the spot to cooperate against the president.
The confrontation was one of many memorable elements of a scandal that remains a subject of fascination for many Americans 16 years after it threatened to bring down a president.
The existence of the report, as well as its general conclusions, were first revealed in the 2010 book “The Death of American Virtue: Clinton vs. Starr,” an exhaustive study of the Lewinsky investigation by Ken Gormley, dean of Duquesne University’s law school.
However, the report has not before been in wide circulation. Gormley quoted Ray and the report’s chief author, Jo Ann Harris, who had served as assistant attorney general, as indicating that the report was sealed from public view by a three-judge panel that oversaw Ray’s work.
The Washington Post obtained a copy of the report by filing a request under the Freedom of Information Act to the National Archives.
Its disclosure follows the release of tens of thousands of pages of records in recent months by the Clinton Presidential Library, which has renewed historical exploration of some of the most trying times of the Clinton presidency just as Hillary Rodham Clinton contemplates a likely run for president.
The report could also help Lewinsky’s effort to force a re-evaluation of her role in the scandal, as an unwitting and maltreated victim of events outside her control. She announced this week that she will use her experiences to launch a campaign against cyberbullying, and she wrote a first-person piece, published by Vanity Fair in June, declaring that it is time for her to take on a more public role as a way to move forward with her life.
Lewinsky declined to comment for this article.
Gormley said the report is one of the few key documents from the Lewinsky episode that had not been made public and that it is “an important piece of history” that “finally vindicates that 1/8Lewinsky’s3/8 version of events checks out.”
“One person people seem to forget a lot about during this crisis for our country was Monica Lewinsky,” said Gormley, who extensively interviewed Lewinsky, Starr, Bill Clinton and other key players for his book. “She was just this foil in the clash between Clinton and Starr… . I have observed that as more information has gotten into the public domain, that people grow more sympathetic with her position, which was unwinnable.”
Here’s how Lewinsky recounted the encounter this week at a forum sponsored by Forbes, her first public speech on the matter in a decade:
“It was just like you see in the movies,” she said. “Imagine, one minute I was waiting to meet a friend in the food court and the next I realized she had set me up, as two FBI agents flashed their badges at me.”
“Immediately following, in a nearby hotel room, I was threatened with up to 27 years in jail for denying the affair in an affidavit and other alleged crimes. Twenty-seven years. When you’re only 24 yourself, that’s a long time. Chillingly, told that my mother too might face prosecution if I didn’t cooperate and wear a wire. And, in case you didn’t know, I did not wear the wire.”
More than 100 pages long, the “Report of the Special Counsel Concerning Allegations of Professional Misconduct By the Office of Independent Counsel in Connection with the Encounter with Monica Lewinsky” provides a highly detailed account of Lewinsky’s first encounter with Starr’s lawyers, based on documents and interviews with those involved.
When first approached at the food court and told she that was the subject of a criminal investigation, Lewinsky immediately told an FBI agent to “go f—- yourself” and then told him to speak to her attorney, according to the report.
She agreed to go with the agents to a room at the adjoining Ritz-Carlton only after she was told she would learn more about the situation without a lawyer present.
For hours, according to the report, Lewinsky tried “in various ways” to consult with, speak to or visit Frank Carter, a lawyer she had hired to assist her when she was deposed in the Paula Jones sexual harassment case against Clinton.
The report says Lewinsky spent those hours “crying, sobbing, regaining her composure, screaming.” One prosecutor told investigators that Lewinsky’s demeanor had an “unsettling effect on his own state of mind.”
Lewinsky was repeatedly told that she could speak with whomever she wished, but was then warned that her cooperation would become less valuable if she consulted with anyone, including Carter, before agreeing to assist prosecutors, the report says.
In exchange for her cooperation against Clinton, prosecutors offered her immunity from charges that she had lied in a sworn affidavit in the Jones lawsuit by falsely claiming she had not had an affair with Clinton.
The confrontation began when Lewinsky showed up for what she thought was a lunch date with Linda Tripp – the colleague who had been secretly recording conversations with the young intern – and it did not end until 12:45 a.m., after Lewinsky’s father hired a new lawyer for her to deal with the matter.
Department of Justice guidelines generally prohibit prosecutors from having direct contact with people under investigation who have hired lawyers, particularly while negotiating their cooperation in a criminal matter. The purpose of the restriction is to prevent ordinary people from being taken advantage of by prosecutors and their superior knowledge of the law.
The report takes up the issue of whether Office of Independent Counsel lawyers and FBI agents erred in confronting Lewinsky without Carter present.
The report finds that the ethics of the situation were somewhat murky: The guidelines required that contact with Lewinsky be limited only if prosecutors knew she had hired a lawyer to deal with the same subject matter as their investigation. They argued that she had hired Carter to help her deal with the Paula Jones harassment civil suit, not a criminal investigation into Clinton’s actions.
Although the two cases became intertwined, the report concludes that nothing in the Justice Department’s guidelines provided a “clear and unambiguous” answer to whether the matters were so similar as to make it unethical for the prosecutors to approach Lewinsky without Carter present.
Nevertheless, the report says the Office of Independent Counsel lawyers, notably Michael Emmick, the lead prosecutor on the scene, “failed to appreciate the closeness of the call as to whether Lewinsky was represented.”
“We find that OIC conduct was influenced, and indeed largely driven, by the poor judgment Emmick exhibited in his formulation and execution of the approach to achieve Lewinsky’s cooperation,” the report concludes. “The Department requires far greater respect for an individual’s choice of attorney, for attorney-client relationships, and for the role of defense attorneys in the process than that exemplified in this case.”
The report says prosecutors’ actions did not amount to “professional misconduct” but were more serious than mere mistakes.
Emmick, who served for 25 years as an assistant U.S. attorney in Los Angeles and is now a criminal defense lawyer, declined to comment, as did Starr. Ray did not respond to a request for comment.
Ray ultimately accepted the finding that there was no professional misconduct, but he formally rejected the conclusion of bad judgment, deciding that it was unfair to single out one lawyer for decisions that had been made jointly. Over Harris’ objections, Ray declined to include the report as an appendix to his final published report on the Lewinsky matter, released in 2002.
Harris’ granddaughter indicated that she is ill and could not comment, but Harris told Gormley that she was “stunned” when the report was not made public after its completion. She believed that citizens concerned with the conduct of Starr and his prosecutors might feel reassured if they saw an allegation of misconduct thoroughly reviewed and addressed.
“You do investigate, and you let it hang out when you find that there’s been bad judgment,” she told Gormley. “That just makes so much sense to me in a context like this, where it’s so public to begin with.”
Why the report remained out of sight for nearly 14 years is something of a mystery. Gormley said the central players – including Lewinsky – believed that it had been sealed by the court. Lewinsky told Gormley that she had long wished to read the report but believed that it was hidden from public view.
An archivist at the National Archives said three copies of the report are contained in the files of the independent counsel, none marked as sealed.
The Washington Post sought the report after being contacted by Jim Lichtman, a writer and lecturer on ethics who obtained a copy this year through a public records request.
“This is one piece of the whole Clinton-Starr battle that had remained a mystery,” Gormley said.
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