Did Bubba’s Tapes Break the Law?

October 11, 2009
by Michael Smerconish

The Daily BeastBill Clinton never told Ken Starr about his secret Taylor Branch tapes, a source tells Michael Smerconish. Was that legal? Ex-prosecutors will dig through old records to figure that out.

The lawyer in me had two recurring questions while reading all 668 pages of Taylor Branch’s new book, The Clinton Tapes: Wrestling History With the President.

How were the many interviews that gave rise to this tome able to be kept secret from all but a few Clinton confidants, and were the tapes of those interviews made known to the many investigators who looked into the Clinton presidency? The first of those questions is a matter of personal fascination over the ability to keep secrets in a fishbowl environment. The second raises a more serious legal question.

Having promulgated more than my fair share of subpoenas while in private practice, I find it hard to believe that no inquiry from an outside lawyer to President Clinton triggered a requirement to reveal the tapes.

Recall that President Clinton didn’t have an exemplary record for veracity when responding to legal discovery. His impeachment, suspension from the Arkansas bar and resignation from bar of the U.S. Supreme Court each arose from false testimony he offered in the Paula Jones case. And now comes the question of whether he again failed to fulfill an obligation to produce information.

The Clinton Tapes is fascinating for its context. Branch knew Bill Clinton when they worked together on George McGovern’s 1972 campaign before going their separate ways. Clinton pursued elective office; Branch earned a Pulitzer Prize. They reunited in the days before the president’s inauguration, when Clinton sought Branch’s advice on how best to preserve a record of his impending presidency.

A new chapter in their relationship thus ensued wherein Branch would travel, mostly on short notice, from his home in Baltimore to the White House. There he would set up two tape recorders in the residential quarter and interview President Clinton on all aspects of his presidency. Branch would then surrender the tapes to the president, who would store them in his sock drawer. The author, meanwhile, would record his own observations while en route home to Baltimore. This went on for 79 occasions covering the duration of both Clinton terms. Branch’s tapes are the source of his new book—Clinton maintained possession of the tapes they produced together and Branch did not hear them.

In The Clinton Tapes, we find Bill Clinton—sometimes eating dinner, doing a crossword puzzle, watching a ballgame, helping Chelsea with homework, responding to Hillary, and fielding calls from Congress—all while answering Branch’s questions about every issue of importance.

Those issues included the controversy over the White House travel office, Vince Foster’s death, Whitewater, Paula Jones, and Monica Lewinsky. Each of those matters was investigated. Subpoenas were a staple of the Clinton years.

Sporadically in The Clinton Tapes, Branch addresses the conundrum posed by recording the sitting president and the need to avoid certain subjects because of investigations. Still, their conversation continued, and one suspects that the likes of Ken Starr would have salivated upon knowledge of their occurrence.

Typical is the passage on page 143:

“‘By the way,’ said [Lloyd] Cutler, ‘are you the president’s diarist?’ His question struck me dumb. He was nodding already, as though I need not bother to lie. Cutler said the Whitewater special prosecutor had subpoenaed a broad range of materials on specified topics, and he had a professional duty to seek disclosure of all responsive items in the president’s knowledge or possession. This plunged me into nightmares of imminent exposure and ruin for the project. The president and I did talk from time to time, I replied evasively. Cutler should direct his specific question to Clinton himself, I said, but it would be a great loss to history if legal threats precluded any compilation of presidential notes.”

And this, from page 156:

“Then he [Clinton] said [David] Kendall had found out somehow about our history tapes—probably from Lloyd Cutler—and would be calling me about the special prosecutor’s subpoena. Did my notes indicate which tapes had ‘substantive’ remarks about Whitewater or the death of Vince Foster? He said Kendall may insist on listening to some of them. We sagged into a dozen ominous questions. If leaks from a legal submission revealed the existence of his diary, Clinton feared that Congress would demand all the tapes.”

On page 172:

“Only a few nights earlier, Clinton explained, he had taken David Kendall down to the Lincoln Bedroom so the lawyer could listen to selected tapes. Kendall worked there alone, making his own little transcripts, which he was incorporating into Clinton’s response to the subpoena from Special Prosecutor Fiske. The exposure would be nerve-racking, but we agree that Kendall’s punctilious compliance was wise. Without it, the tapes would become legally tainted. He would never have been able to open them for historical research without inviting charges that he should have surrendered the Whitewater comments under subpoena. Evasion or suppression would defeat our whole purpose. Instead we had to take our chances with disclosure.”

And, on page 511: “Gingerly I asked if he [Clinton] wanted to discuss Lewinsky on tape. He said yes.”

The reader of The Clinton Tapes is left believing that the tapes themselves were never produced, something Branch himself believes.

“I’m virtually certain that they were not. I don’t know, but what I’m saying is that David Kendall answered some subpoenas for material in the president’s possession and he listened to the tapes and I’m sure responded,” he told me when we spoke last week.

“But my guess is that he did it in a way that he didn’t tip off that these were from this larger enterprise, didn’t say this is from a tape recording, that he did it in a way that didn’t telegraph where it came from and maybe concealed it with a lot of other information, things that Clinton told him or whatever, so that the special counsel’s office never filed a subpoena saying, ‘Is there a tape project there involving Taylor Branch talking? Give us all the tapes, we want to listen.’ That was our dread.”

Having promulgated more than my fair share of subpoenas while in private practice, I find it hard to believe that no inquiry from an outside lawyer to President Clinton triggered a requirement to reveal the tapes. Subpoenas cast a very wide net for information that might be relevant to an investigation. And if their existence had been revealed, common sense dictates that there would have been a very public legal battle regarding their production.

Ken Starr won’t speak on the subject, at least not to me. His office said he was finished speaking about Clinton investigations. When I reached Robert Fiske, special prosecutor before Starr was appointed, he said he’d have to go back to his files before determining if the tapes should have been produced. David Kendall didn’t respond to my requests for comment.

But a source of mine—nobody named here—with knowledge of several aspects of the Starr investigation confirmed that the tapes were never provided, nor did investigators know of their existence.

Joseph diGenova, himself a former independent counsel and U.S. Attorney for the District of Columbia, told me the tapes contain “precisely the types of pieces of information that would be covered ordinarily by the language of a subpoena.” Moreover, they weren’t covered by attorney-client privilege, since Branch is a journalist. Nor could Branch claim any reportorial privilege since he was never asked about them. DiGenova also notes that the president—not Branch—was in possession of the tapes.

“One of the first things I thought of was, who had these tapes and were they ever produced to any of the investigations?” diGenova told me. “And I can only conclude at this point that they were not, because there appears to be no record of them in any of the investigations that I’m aware of.”

There is no way for an outside observer to know whether President Clinton was required to produce information that instead stayed in his sock drawer, but my legal instincts tell me that any number of attorneys who investigated the former president are requesting old files from storage to see how they worded their subpoenas.

Michael Smerconish is a nationally syndicated radio host. His latest book, Instinct: The Man Who Stopped the 20th Hijacker, was published last month.