Yale Bulletin
and Calendar

May 3-17, 1999Volume 27, Number 31

Former Clinton counsel says Starr went 'beyond ethical pale'

Yale alumnus Lloyd Cutler, who has served as counsel to Presidents Jimmy Carter and Bill Clinton, said he was so intrigued with the recent impeachment trial of the president that it was like an addiction.

"I couldn't stay away from it," Cutler told his audience in his lecture on "Ethics and the Impeachment Process" on April 26. Cutler's talk inaugurated the new Irving S. Ribicoff Fund for Professionalism and Professional Responsibility, named in memory of his Law School classmate and a noted Connecticut attorney.

But for all it held his interest, Cutler criticized the attempt to impeach Clinton as an entirely partisan process that has considerably weakened the office of the presidency.

"[I]t has opened all presidents to partisan impeachment activities when the opposition party has control of both houses of Congress," Cutler said. "It means that just the launching of an impeachment proceeding is now the way to go to attack a president."

While Cutler said he believes it was unethical for President Clinton to have lied under oath about his affair with Monica Lewinsky, he doesn't think that Clinton's conduct constituted an impeachable offense. Far more unethical, he claimed, was the attempt by the office of independent counsel Ken Starr to wire Lewinsky in order to tape her conversations with such White House insiders as Vernon Jordan, Bettie Currie and even President Clinton himself.

"The idea of sending someone in to surreptitiously overhear what the president or his chief of staff or his secretary might say went way beyond the ethical pale," said Cutler, who was Clinton's special counsel in 1994. "It's reminiscent of the KGB in its worst days. ... How do you conduct the business of the greatest democratic power on earth if there is someone loose in government who is wiretapping conversations in the Oval Office, or the West Wing or anywhere in the White House?"

Starr's huge report on his investigation of presidential wrongdoing also went beyond bounds, said the alumnus, because, unlike the report on Nixon's conduct during Watergate, it was not solely a presentation of facts. Instead, it details what conclusions can be drawn and argues for impeachment proceedings, noted Cutler, a partner in the Washington, D.C. law firm of Wilmer, Cutler & Pickering.

Despite the scandal, the answer to the question of whether the President should have resigned is "a very firm no," said the former White House counsel.

"The President made his confession; he suffered for his confession, and he's impaired in office. But he's the elected president, who is still supported by a majority of people and is still able to function effectively," Cutler said.

While he said he seriously considered whether the Cabinet officers to whom Clinton lied about his relationship should resign, Cutler said he tried to imagine what he would have done had he been in their shoes. "I decided that I would not resign," the Yale alumnus said. "I would tell him [Clinton] what I thought [about his conduct] and carry on, because in balance I think he's been a very good president." Furthermore, Cutler said, the President's lie was not about an issue within the scope of Cabinet members' responsibilities.

During his talk, Cutler praised the work of Clinton lawyers Bob Bennett, Charles Ruff, Greg Craig '72 J.D. and David Kendall '71 J.D., saying he would rate their performance near perfect if he were judging them as one would in a moot court. The team of attorneys for the opposition, however, would get a low score, said Cutler. Noting that Clinton and a couple of his legal advisers are Yale graduates, Cutler joked, "It would have been Yale 9 or 10 and the Rest of the World 2 or 3."

Cutler, who was counsel to President Carter from 1979 to 1980, lamented his decision to serve for only six months in the Clinton White House (he held the post of special counsel from March to September of 1994) because it caused him to miss out on the opportunity to defend the president. "I would have given my 'left one' to have been with Chuck Ruff and Greg Craig arguing that very great case," he commented.

-- By Susan Gonzalez

Longtime Washington insider
recalls how life there has changed

Lloyd Cutler '36 B.A., '39 LL.B., counsel to Presidents Carter and Clinton, took time out during his April 26 visit to his alma mater to meet with Lawrence Haas, director of public affairs and special assistant to the president, who was former communications director for Vice President Al Gore.

The two talked about the changes that Cutler has witnessed in Washington, D.C., over the last half century. The following is an edited transcript of that conversation.

When did you first arrive in Washington?

In 1942. Four of us, who were all young lawyers from New York law firms, decided to start a firm in Washington. Three out of the four were actually graduates of the Yale Law School.

What was Washington like when you got there?

Much smaller because it was a wartime town. ... Everything was very helter-skelter. And, of course, we did everything. ... One Sunday afternoon I got a call from [the Solicitor General's Office] wanting me to help them over there because these eight German saboteurs had just landed by U-boat and had just been seized by the FBI. ... I was the junior member of the military commission prosecution team trying these eight guys, and J. Edgar Hoover was controlling all the evidence, so that was my first big case.

So tell me what Hoover was like.

Hoover was pretty much as people have described him since, very foppish. ... He always wore tan-and-white or black-and-white shoes, very fancy gabardine suits, clean handkerchiefs pouring out of his pocket. You could smell the cologne. ... But he was as tough as nails and he operated on a sort of blackmail principle.

So there was a lot of intrigue in the office.

Yes. But nobody ever dared fire him. Then, finally, they figured out a way to get rid of him, which was to create a 10-year term for the head of the FBI -- which meant that at the end of 10 years you didn't have to reappoint him, you could appoint somebody else. But he died before anybody tested it. Probably nobody would have had the courage to do it.

As you look back over that past 60 years, what really sticks out in your mind in terms of the vast changes that have occurred in Washington?

Well, partly it's huge growth, the inevitable kind of growth that you must have seen yourself. Partly it is a change from a period in which whichever party won the presidency almost always won control of Congress until 1950 or '52. Only three times from 1800 did we have what we now call divided government. Now it happens almost all the time, so that there's been a huge increase in partisanship. As long as we had the Soviets and the Cold War to unite us it wasn't that bad, but once that ended, the increase in partisanship was enormous.

And partly [it was] because of the huge growth of the Congress -- 20,000 professionals now advise those 535 congressmen and senators. [The congressmen] hardly talk to one another; they're so busy dealing with their staff and being handed papers from their staff. ... The sort of cross-the-aisle friendships that build up are much rarer today; they still exist to some extent.

Do you think that's a reflection of how busy the congressmen are, or is it a reflection of a change in the way politics is conducted?

It's probably both. We now have all these negative ads, and also now being opposed to the president even if you're in his party more or less helps you at the polls...

Even with a popular president?

Even with a popular president.

Do you think that the amount of personal disdain for the President, which people have talked about a lot in recent years, is really that much different than the personal disdain that people had for Roosevelt?

There's no question that Roosevelt was hated by the business class of America, what we then called the "propertied class." But the war changed all that, and he had a great deal of respect.

Dislike of U.S. presidents goes all the way back to Thomas Jefferson. Jefferson was vilified in the press in ways that make everyone since then, like Bill Clinton, look very pale. But in those days, nobody ever saw the president. Very few people read this press -- these were little local papers in Philadelphia. Now we see the president all the time, and in a sense, his presence wears us out. It's like a sitcom; you just get tired of seeing the president. That's happened to almost every president in recent years.

Are we locked in to seeing presidents almost every day now because of all the different avenues of communication that they have to react to?

Communication has become so important. Images have become so important. There's a wonderful story about Leslie Stahl who did a piece on Reagan making a speech at the Old Opry house in Nashville, which was a very banal speech, with all the singers all around him. She got a call the next day from Mike Deaver, who worked for Reagan, saying, "Thank you for that wonderful report you made last night on CBS." Leslie said, "Wonderful?" She said, "I was panning Reagan." And she did; I thought it was terrible journalism. Mike's answer was "But those beautiful pictures. They were wonderful."

He understood that it's the image you're left with, as opposed to the words.


Tell me about Congress and the White House. Did you notice much change from the time of the Carter administration to the Clinton administration, when you were on the inside, in terms of working with Congress?

It had already changed by the time of Carter. I can remember writing lend-lease legislation and postwar relief legislation, when you'd go sit down with the chairman of the committee, and he'd tell you what he wanted, and he'd say to us, the administration, "Sonny, you write this up." It wasn't the way it is today; now the staff writes all these things. Because of the additional layer that has caught on, it is a much more remote process.

How has the community of lobbyists changed in Washington over the years?

Well, we like to think of ourselves primarily as lawyers rather than lobbyists, although we write legislation and make arguments ... The profession of lobbying has become much more sophisticated, elaborate and, I'd say, respected than it used to be. It's probably more honest than it used to be, in the sense that in those days, contributions were made in hundred and thousand dollar bills in sealed white envelopes. It was probably better that we didn't know what was going on. Now everything gets reported. It's essentially aboveboard in that sense, and there's less quid pro quo and bribery.

And yet isn't the image just the opposite? Because of how it's reported?

Exactly. I've written something about that -- that as the average member of Congress has become brighter, better-educated, more affable, more willing to undergo the constraints of public service, we think they're all rogues or knaves or fools.

How worried are you about money in politics? I mean the numbers ...

It's terrible. Soft money, which Congress invented and this do-nothing FEC tolerated, is a disgrace. The year 2000 race, counting members [of Congress], will cost well over $600 million dollars.

People always complain about money, but what is it about it that bothers you?

Well, number one, the enormous distraction on the members, especially the congressman. The day he's elected, he has to start raising money for the next race. And number two, the quid-pro-quo access has really evolved. And, the cynicism of the public, because when the public reads that the head of Loral, who's a genuine Democrat and a very decent fellow, gave $700,000 in soft money -- as he's done for years -- the immediate inference is he did that to get licenses to launch satellites on Chinese launch vehicles. We're all very cynical, and that's the money.

I argued the Buckley case in the Supreme Court, which dealt with the constitutionality of that statute, and we were able to sustain the limits on contributions and also this public fund, the presidential campaign fund, where if you took public money, you could not take any private money --this is of course after the nomination. And you could not spend anything other than the public money that you got. Even presidents who could raise much more money decided to accept the government money so it wouldn't look as if they'd bought the election. George W. Bush Jr., I take it, is actually thinking of not accepting the government money because he can raise $100 to 200 million dollars.

At a certain point, it would be a little absurd for almost any candidate to say that they hadn't bought the election because they're all going to raise huge sums of money. It's just a question of how much in the tank you are, in a sense.

Well, that's certainly true in congressional elections where there's no public financing. All of it, especially in the big states these days, gets spent on negative advertising which is very, very counter-productive. I was Diane Feinstein's lawyer in the Huffington challenge. He made a floor challenge to the election result which was resolved by the Senate in her favor, but he spent over $30 million dollars -- this is the California Senate campaign -- and she spent $14 million. Most of that money went into negative ads, one way or the other. On election day, they both had negative ratings, so Diane came into office with negative ratings.

Would it be fair to say that we should expect big money and negative advertising if the First Lady runs in New York? Particularly against Giuliani?



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The homes of many older people are rife with easily eliminated hazards . . .
Gelatin gladiators
Three named to Endowed Professorships
Former Clinton counsel says Starr went 'beyond ethical pale'
Baryshnikov's White Oak Dance Project to perform on campus
A Conversation with an Acclaimed Actress
Talk by noted biochemist will highlight Student Research Day
Memorial service held for former trustee David C. Grimes
Lecture series will explore whether Yale and New Haven share . . .
Art Gallery expands its exhibit offerings on the theme of Asian art
Campus will be the site of the annual meeting of the American Law and . . .
Institute's first resident scholars to pursue projects on race and religion
Winks honored by Oxford, National Parks
Campus Notes

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Lloyd Cutler (left) chats during his April 26 visit to Yale with Law School student Josh Galper. The former counsel to presidents also took time during his visit to talk with a former Washingtonian, Office of Public Affairs Director Lawrence Haas, about life in the nation's capital.