The Curious Case of Richard Ben-Veniste

View this article at The Weekly Standard

The Washington lawyer is the quintessential Washington type. He has the huge house in Wesley Heights or Potomac; the million-dollar partnership bonuses; the Rolodex with everyone’s private number; the squad of young associates who do the grunt work and call him Godfather; the easy intercourse with pols and corporate chieftains seeking free advice or high-priced counsel — and, of course, the ego to go with all of the above. He slips and slides in and out and around government, usually making his reputation through political work he can then sell on the open market.

The Washington lawyer comes in a number of shapes and sizes, from the avuncular Bob Bennett, now representing Bill Clinton in the Paula Jones matter, to the cerebral Ted Olson, everybody’s favorite Republican litigator. Perhaps the most interesting iteration is the attack dog — an in-your-face, take-no-prisoners type best represented these days by Richard Ben-Veniste.

A partner in the firm of Weil, Gotshal & Manges, Ben-Veniste did a recent tour of public duty as minority special counsel to the now-shuttered Senate Whitewater committee. There he served up enough disdain, contempt, and indignation to fortify the Democratic contention that the whole investigation was an overblown load of partisan hooey. By any measure, he did a good job. It was hardly his first star turn. BenVeniste made his reputation in his early thirties as a prosecutor working for Archibald Cox and Leon Jaworski on Watergate. In the course of the legal wrangling over Richard Nixon’s secret tape recordings, Ben-Veniste often turned up on the front pages and the evening news.

After such a prominent role in what was one of the titanic legal battles of American history, the rest of a legal career might seem something of a letdown. But Ben-Veniste has never been shy about stepping into the lights, and he may be getting ready for another goround. His latest high-profile client is Truman Arnold, who was the chief money man at the Democratic National Committee for a critical five-month period in 1995 when the DNC was deeply in debt and reeling from the historic 1994 defeat at the polls. Arnold is also one of the select group of people who put Webster Hubbell on the payroll in 1994 between Hubbell’s resignation as the Clintons’ man at the Justice Department and his subsequent guilty plea to charges that he had defrauded clients and law partners. Ben-Veniste and his client thus find themselves at the red-hot center — the point where the Whitewater investigation of independent counsel Kenneth Starr and the unfolding Democratic fund-raising scandal are converging.

Ben-Veniste’s causes from Watergate onward have been overwhelmingly liberal and Democratic. Indeed, he folded his own private practice to join Weil, Gotshal in 1990 because he was frustrated that the small size of his operation had kept him from taking on a client he really wanted to represent: Jim Wright, the Texas Democrat whose pocket-lining corruption in office cost him his House speakership and political career.

In the lawyering trade, it’s considered bad form to judge an attorney by his clients. It’s the quality of the representation that counts. By reputation, Ben-Veniste is nothing if not vigorous in that regard — tough and willfully abrasive, a pitiless interrogator, a bold strategist. But certain rules apply even to Washington lawyers. Some of those rules are enshrined in law, some by the canons of the profession, some by convention. And the same quality of representation that has elevated Ben-Veniste into the Washington pantheon — one of the Top 50 lawyers in town, in Washingtonian’s reckoning — has also left a distasteful trail of ethical flotsam stirred up in the wake of his confrontational style. There are questions about the propriety of his conduct toward those who come up against him — and even toward those on his side. And his representation of Arnold raises questions about his compliance with a tough D.C. bar rule regulating government and private employment.

Ben-Veniste would not be interviewed for this article. In a letter, he said he had reached “the conclusion that the article will reflect a preconceived bottom line, regurgitating the sore-loser whining that certain former (and some present) participants in the Whitewater feeding frenzy have put forward from time to time.” The rhetoric is vintage Ben-Veniste. Despite his talk of ” regurgitation,” however, Ben-Veniste’s own conduct has gone remarkably unscrutinized — particularly given his own unquestioned ability and willingness to scrutinize his political opponents.

A special counsel to a congressional investigative committee is supposed to be a fact-finder first and foremost. But Richard Ben-Veniste’s curiosity about the facts of Whitewater seems to have been a bit selective. In particular, he seems to have gone into overdrive to try to shut down what may have been the most potentially damaging line of inquiry Republican investigators were pursuing.

On February 7, 1996, majority counsel Michael Chertoff posed a series of eerily prescient questions to Webster Hubbell in a televised hearing before the Senate Whitewater committee. Chertoff asked Hubbell, who had been brought up from prison in Maryland to testify, about his employment prospects following his release from prison.

“Are you familiar with a group called the Lippo Group?” Chertoff asked. This was the first public inquiry into a matter that would, seven months later, break out into the Clinton campaign-finance scandal. In February 1996, no one outside the financial community knew much about the Indonesian conglomerate run by Mochtar Riady and his son James. And no one outside the Clinton Arkansas circle knew much about the many, many connections between Lippo and the Clinton crowd — connections apparently based on the flow of Lippo-linked cash into Democratic political operations and rewards for it from the Clinton team in the form of access and influence.

Hubbell responded that an affiliate of the Lippo Group had been a client of his between his resignation from Justice and his guilty plea.

“Did you have other clients?” Chertoff asked.

“Yes,” Hubbell replied.

When Democratic senator Paul Sarbanes asked Chertoff what the relevance of all this might be, Chertoff said he was interested in knowing whether the money Hubbell received “may have had an impact on your degree of cooperation with the independent counsel or with us.” (At Hubbell’s sentencing after his plea agreement, Whitewater independent counsel Kenneth Starr had asked for no leniency — a clear signal that Starr didn’t believe Hubbell was cooperating fully with his investigation.)

Hubbell protested vigorously, and committee chairman Alfonse D’Amato ruled that any further questions along these lines would be addressed in private depositions.

Who knew any of the details of Hubbell’s financial arrangements? As we have since learned, a lot of people knew, and a lot of people were involved. Former White House chief of staff Mack McLarty and current chief of staff Erskine Bowles had called around to their friends in 1994 to try to find work for Hubbell. White House official and longtime Clinton fixer Bruce Lindsey knew Hubbell was working for Lippo. Now it appears the president and Hillary Clinton may have known as well. Hubbell even visited them at Camp David in this period, and he also met with another longtime Clinton insider working at the White House, Marsha Scott. Then, of course, there were all those (starting with the president himself) who knew just exactly how important the Lippo Group was.

Some Democrats may have had an inkling, but Republican staffers on the Whitewater committee, sources say, had no idea what a gold mine Chertoff had stumbled onto. Which is where Richard Ben-Veniste comes back in.

It wasn’t until June 1996, about a week before the Whitewater committee’s authorization would run out, that Republican investigators returned to the question of Hubbell’s employment. Ben-Veniste put on an extraordinary show during a deposition of Bruce Lindsey in which he acted more like a defense counsel than an investigator, trying to run out the clock on an inquiry due to close up shop a week later.

Robert Giuffra, Jr., the committee’s chief counsel, wanted to ask Lindsey what conversations he might have had with Lippo officials or others about Hubbell’s financial circumstances and his employment in 1994. According to deposition transcripts (neither Giuffra nor Chertoff would comment for this article), Giuffra began by asking, “Which members of the Lippo Group have you had discussions with since January 20, 1993?”

Minority counsel Neal Kravitz instructed Lindsey not to answer the question. He argued that the question was outside the scope of the committee’s mandate. Giuffra said Kravitz was seeking to narrow the mandate unfairly. “The committee is trying to ascertain whether the business relationship in some way has impacted upon what [Hubbell] has testified to before both the Senate and perhaps other forums,” Giuffra said. “But to ask the simple question who he spoke, who Mr. Lindsey spoke to hardly seems to be going into a giant fishing expedition.”

At this point Ben-Veniste stepped in. “Now there is a substantial difference of opinion as to the relevance of this matter, even as regards to Mr. Hubbell,” he said. “To now expand this into some general inquiry inviting everyone who comes here to be questioned about this wholly collateral matter is inappropriate.”

Lindsey went on to answer several narrower questions about Hubbell, but when Giuffra asked about any conversations Lindsey might have had about Hubbell’s financial difficulties, Ben-Veniste shut the line of questioning down again.

Giuffra: After Mr. Hubbell left the Department of Justice, did you ever have any conversations with anyone about financial difficulties he was experiencing?

Ben-Veniste: Let me suggest this —

Giuffra: Let him answer the question before you — Ben-Veniste: Let me suggest this. If you want to go into this area, you will get a ruling from the chairman. . . . I’m simply going to ask the witness not to involve himself in answers to questions where the subject matter is totally collateral to what he was advised he was coming here for. If you want to get the chairman to make a ruling on that, I’m prepared to discuss it.

Giuffra: We have had testimony elicited that with regard to the Lippo Group that Mr. Lindsey had various information. The questions I’m asking go directly to that testimony. The whole subject of the Lippo Group is clearly relevant. The chairman believes it’s relevant. The majority believes it’s relevant. The minority may have a different view. We can get a ruling from the chairman. I want to have it on the record that Mr. Lindsey, you will be available to answer more questions about this once we get the ruling.

Ben-Veniste: We will take the ruling first, scheduling second.

Giuffra: No, I want to make sure he is available to answer the question. I know you want to —

And so on, for six more pages of transcript.

The transcript is altogether a remarkable document — not because of anything Lindsey said, but because it shows Ben-Veniste doing everything he could to shut down Giuffra’s line of inquiry. Says a Democratic staffer who professes admiration for Ben-Veniste’s performance in general, “When the administration was on the ropes, he’d throw them a life raft.”

After the wrangling, D’Amato ruled that the four questions Giuffra tried to ask were indeed relevant. That afternoon Lindsey answered Giuffra’s questions, and it turned out that Giuffra had hit pay dirt. Among the people with whom he had discussed Hubbell, Lindsey reported, was one John Huang. This was the first time Huang’s name had come up, and, in a few months’ time, the Lippo executive turned Commerce Department official turned Democratic National Committee fund-raiser would become the hinge figure in the Clinton campaign- finance scandal.

The depositions took place on June 8, 1996. The Senate Whitewater committee went out of business June 15. The relevance of the payments to Hubbell is no longer a matter of dispute. Nor is the relevance of the Lippo Group or John Huang. They have been the subjects of front-page headlines in all the major newspapers for months. They might have been so in June 1996 had Ben-Veniste devoted half as much energy to the pursuit of this line of inquiry as he did to shutting it down.

In their 1977 book about Watergate, Stonewall, Ben-Veniste and co- author George Frampton, Jr. described Ben-Veniste’s previous brush with celebrity by noting that Leon Jaworski and others

were troubled by the fact that Ben-Veniste . . . had reaped such a huge amount of personal media coverage. Ben-Veniste’s direct and irreverent personality was unlikely to assuage the special prosecutor’s concern, particularly given the not inconsiderable ego possessed by Leon himself. Jaworski did not doubt our abilities; he just didn’t fully trust the maturity of our judgment.

It takes an interesting sense of self to write autobiographically in both the third person and the first-person plural. A Democratic staffer describes Ben-Veniste’s ego as “well in the mainstream of high-profile Washington lawyers.”

Opposing counsel usually aren’t so kind. They think his behavior toward witnesses and others betrays a bullying manner bordering on abuse. Says one: ” The way he comports himself is obnoxious and unprofessional.”

Ben-Veniste’s most outspoken critic is Mark R. Levin, the president of the Landmark Legal Foundation; Levin charges that Ben-Veniste’s conduct toward one of Levin’s clients, Jean Lewis, was outrageous. And Levin is right.

Lewis was the federal banking investigator who first started looking into the connection between the Clintons and a failed savings and loan whose owner was their partner in the Whitewater real-estate development. She filed criminal referrals mentioning the Clintons as witnesses and “possibly more than” witnesses. Democrats maintained that her investigation was driven by her political bias against Clinton. As one piece of evidence, they produced a February 1992 letter that predated her investigation in which she referred to candidate Clinton as a “lying bastard.”

Levin says the way Ben-Veniste’s minority staff developed this particular evidence of bias was tainted. The committee had issued a subpoena for “all records, regardless of format” related to Lewis’s investigation. But the subpoena did not encompass everything Lewis may ever have said or written about Clinton, and so she deleted some material she deemed irrelevant from a computer disk before she turned it over to the Whitewater committee. Among the deleted material was the “lying bastard” letter, which was not a lengthy dissertation on Clinton, but a letter to a friend.

Producing such a disk was highly unusual in itself. Most people faced with similar subpoenas, staffers say, turned over only paper records, not electronic records. Says one majority staffer, “We asked the White House for disks, they laughed at us.” Lewis’s scrupulousness in turning over materials ” regardless of format” would cost her.

Minority staff, by means that have yet to be explained, restored the letter Lewis thought she had erased — and did not tell majority staff what they had found or how they had found it. Instead, Ben-Veniste sprung the “lying bastard” remark on Lewis at a hearing. At first, she couldn’t even place it, but when she did, she was alarmed; the letter featured derogatory remarks about a family member’s veracity, which Ben-Veniste forced her to talk about on national television.

At the end of the hearing, Lewis had to be rushed off to a hospital; the stress had caused her blood pressure to skyrocket. Ben-Veniste had previously shown Lewis he would not be shy about inquiring into her private life. In one deposition, he had asked her the following questions unrelated to Whitewater: “Was there a fraud trial associated with some business matters in which you or your former husband was involved? . . . Were there any allegations made in connection with that general matter that you had made false or misleading statements?” Lewis said no.

Levin claims that Ben-Veniste’s efforts to restore the deleted letter were a violation of Lewis’s Fourth Amendment rights and an abuse of the subpoena process. He got nowhere with the Senate Ethics Committee, whose membership is equally divided between the two parties. “The Senate Ethics Committee obviously couldn’t muster a majority vote to condemn the conduct,” Levin says, “but I don’t need the Senate to tell me when a lawyer is conducting himself in a sleazy manner.”

The Ben-Veniste style may not be directed only at adversaries. In 1993, a young female associate left the Well, Gotshal litigation department Ben- Veniste runs after only eight months with the firm. She went on to file a sex discrimination and harassment suit naming Ben-Veniste as a defendant, citing the hostile environment toward her in the litigation department. Sources say the case was settled about two years later for an undisclosed sum. As part of the settlement, the entire case has been placed under seal, and the parties are bound to remain silent. (“I can’t talk about that,” the lawyer who filed the case says; she is now an associate in the Washington office of a large New York firm.) The details of the allegations involving Ben-Veniste have essentially been obliterated from the public record, consigned to a part of the U.S. justice system that remains secret.

Pushing the envelope is nothing new for Ben-Veniste. In Stonewall, he describes the tense environment in the week before Nixon ordered the firing of Watergate special prosecutor Archibald Cox (the “Saturday Night Massacre,” as it came to be known). Lawyers on Cox’s staff were very much uncertain what their future held. They were quite certain, however, that Nixon had engaged in a criminal conspiracy to cover up the Watergate break-in. To their minds, the question was how far a president and an administration that had come unmoored from the Constitution and the rule of law would go to stay in power.

Then, the hammer came down: Cox was out, and the FBI arrived at the special prosecutor’s offices to confiscate documents. Either Nixon didn’t think to order that Cox’s staff be fired as well, or the order got lost in the chain of command; in any case, the junior prosecutors who were working on the case stayed on.

But had they been fired, Ben-Veniste and his coauthor note, they were ready: “Actually, copies of all potentially explosive documents had . . . been removed for safekeeping several days before. On the previous Thursday evening, members of the Watergate Task Force had made copies of key prosecution summaries and memoranda and spirited them away.” Desperate times evidently require desperate measures, even if what you are doing runs the risk of violating rules governing grand jury secrecy and other prosecutorial conduct.

Ben-Veniste’s decision to represent Truman Arnold, the former DNC finance chairman, in matters relating to the campaign-finance scandal raises questions about the lawyer’s compliance with a key rule of the Bar Association of the District of Columbia.

Rule 1.11 of the D.C. Bar Association’s Rules of Professional Conduct governs “successive government and private employment.” It reads in part: “A lawyer shall not accept other employment in connection with a matter which is the same as, or substantially similar to, a matter in which the lawyer participated personally and substantially as a public officer or employee.” The rules also note that this “absolute disqualification of a lawyer from matters in which the lawyer participated personally and substantially carries forward a policy of avoiding both actual impropriety and the appearance of impropriety.”

Recall what happened when the Senate Whitewater committee’s majority counsel began making inquiries into the money received by Webster Hubbell. Ben-Veniste worked to block inquiries into Hubbell’s employment on the grounds that they were beyond the scope of the committee’s investigative jurisdiction. Now Ben-Veniste is representing Arnold, who did employ Hubbell. Is Ben-Veniste in violation of the D.C. bar code because he has accepted “employment in connection with a matter which is the same as, or substantially similar to, a matter in which the lawyer participated personally and substantially as a public officer or employee”?

This is a serious matter. In fact, the D.C. bar counsel recently came down like a ton of bricks on former Bush State Department counsel Abraham Sofaer in relation to his conduct following the bombing of Pan Am Flight 103. At the time Sofaer served in the State Department, the chief suspect was Iran. Sofaer was not much involved in the investigation. After he left office, the focus of suspicion shifted to Libya, which then retained Sofaer. Washington Post columnist Jim Hoagland wrote damningly about the matter, and though Sofaer quickly dropped his Libyan client, the bar counsel took his representation of Libya as a clear violation of its rule. Sofaer’s appeal is still pending.

Edwin Williamson, a former legal adviser to the State Department who has filed an amicus brief in support of Sofaer, says Ben-Veniste’s representation of Arnold gives rise to far more serious questions. The bar has set three conditions to establish a violation. First, the matter in question has to involve a specific party. “An investigation into Hubbell’s legal fees for possible wrongdoing,” says Williamson, a partner in the law firm of Sullivan and Cromwell, “would clearly be a matter involving a specific party or parties.”

Second, it has to involve the personal and substantial participation of the lawyer. “If Ben-Veniste played an important role in deflecting the committee’s further investigation into the source and purpose of Hubbell’s fees,” Williamson says, “that would clearly constitute personal and substantial participation in the ‘particular matter.'” Third, the subsequent matter has to be substantially related. “His representation of a payer of Hubbell’s fees,” Williamson says, “would be the same as or ‘substantially related’ to the ‘particular matter’ in which he ‘personally and substantially participated’ while he was minority counsel.”

Stephen Gillers, a professor of legal ethics at New York University, emphasizes that nothing so far constitutes proof of a violation of the bar rule. On the other hand, he notes, “If Ben-Veniste’s work as a government lawyer encompassed payments to Hubbell, then [the bar rule] wouldn’t allow him to represent someone being investigated for payments to Hubbell.”

But, Gillers notes, the involvement in the first instance “has to be hefty,” not just a matter of something crossing a desk or, as perhaps in this case, a manifestation merely of a general effort to circumscribe the majority’s exposure to information by interpreting the committee’s reach narrowly. “The conclusion depends on the minutiae,” Gillers says. One would have to know whether Ben-Veniste strategized with others on the question of how to deal with payments to Hubbell.

Given that the bar counsel moved decisively to investigate Sofaer, don’t the circumstances of Ben-Veniste’s representation of Arnold warrant an inquiry? “That’s the bar counsel’s decision,” Gillers says.

So it is. And it will, indeed, be interesting to see whether the liberal, overwhelmingly Democratic D.C. bar comes down on liberal Democrat Richard Ben- Veniste with the same fury as it came down on conservative Republican Abraham Sofaer. Or if that old pattern going back to the Watergate days will continue to assert itself — with Richard Ben-Veniste as a force unto himself, the righteous doer of partisan Democratic deeds, and never mind such petty concerns as fair play or appropriate conduct.