Hillary Rodham Clinton is not getting much support these days from those close to her, especially on Travelgate, the abrupt, harsh dismissal of seven career government employees from the White House Travel Office in May 1993. The dismissals were followed by FBI and IRS investigations designed to smear the employees' reputations and cover up the real purpose of the purge: getting them out so the Clintons could get their people in. A recently released memo from David Watkins, the former White House director of administration, places Hillary directly in the middle of the decision to fire the Travel Office employees and makes her previous statements of non-complicity look like less than the complete truth. Instead of threatening the nose of New York Times columnist Bill Safire for calling her on this, a really loyal husband ought to be out there saying, "Look, my wife had nothing to do with it. If any of my staff thought they felt pressure from her, they're wrong. She was simply conveying my wishes, nothing more. It was my call all the way."
The fact that President Clinton has not said this, indeed had previously gone out of his way to distance himself from Travelgate, is...disturbing. There may be any number of explanations for allowing his wife to twist slowly in the wind, but we prefer to believe that, preoccupied as the Clintons are with their criminal exposure before the Whitewater special prosecutor and the political risks associated with the Senate Whitewater Committee, no one has paid much attention to the first lady's very real exposure to substantial civil liability over her role in Travelgate and its aftermath.
With no one else around to volunteer, REASON asked us to look into the problem on a pro bono basis and come up with a legal plan to protect her against any civil suits by the Travelgate Seven. We do this in the same spirit as REASON's efforts in the summer of 1994 to offer President Clinton sound legal advice on how to quickly and expeditiously dispose of Paula Jones's sexual harassment charges so they would not be lingering around to haunt him in his re-election campaign ("Defending the President," August/September 1994). He spurned our advice in favor of the stall-and-delay strategy engineered by his $400-an-hour Washington lawyer, Robert Bennett, the brother of the nationally prominent Republican William Bennett. Today, Paula Jones's embarrassing sexual harassment case is still in the headlines while she inches toward the Supreme Court, fresh from her victory in the Eighth Circuit U.S. Court of Appeals, which laughed Bennett's immunity defense for Clinton out of court.
We trust that Mrs. Clinton--who finished higher in her class at Yale Law School than the president and actually made a living for a while in private practice--will maintain a more healthy skepticism toward legal advice from high-priced Washington lawyers with Republican connections. So let's get to it. What is Hillary's civil exposure in Travelgate, and how can we get her off without a messy jury trial that would further deplete the Clintons' dwindling resources?
The first point--one often lost in the scandal's serpentine turns--is that the seven Travel Office employees could have been fired at any time for almost any nondiscriminatory reason. As at-will employees without contracts, they served solely at the pleasure of the president. This means that if he wanted to blame any or all of the seven for, say, his $200 haircut on the California tarmac in 1993, they could have been fired during the evening news. The first lady's exposure lies not in the fact that the employees were fired but in the role she played to bring this about, the manner in which they were fired, and her subsequent statements about the reasons for the firings.
Mrs. Clinton could face tort liability for her instrumental role in encouraging the firings. No outsider to a contractual or business relationship may intentionally interfere with that relationship unless he (or she) has a privilege to do so. Hillary had no such privilege. As first lady and someone beyond the management structure of the White House, she had no right at law to injure the employment relationship between the seven employees and their employer, the Clinton administration. Any direct pressure by her to fire the seven is a potentially tortious act. And with torts come punitive damages, something the Clintons can ill afford. By dismissing people in a humiliating manner, employers have been found liable for inflicting emotional distress on workers whom they had every right to fire. Thus, any extreme or outrageous conduct on the part of people acting on Hillary's directions in the course of termination or its aftermath which caused severe emotional distress to any of the seven could also make her liable as a tort-feasor.
Finally, Hillary and the White House broke a cardinal rule for employers in termination situations: Don't bad-mouth your employees, even after their terminations. Let your actions--and the employee's personnel file in a formal proceeding--do the talking. In scurrying about for a cover story to justify the firings, the White House told America that the seven had been sacked because of financial mismanagement in the Travel Office. That, of course, turned out to be a lie. Unfortunately, Mrs. Clinton continues, to this day, to push the party line. Now, after all seven have been cleared of any financial misconduct, Hillary may have to defend a defamation action for continuing to drag their reputations through the mud.
Clearly, as her lawyers, we have our work cut out for us. (Of course, we also have the easy part. We don't pay the judgment if she loses.) Trial lawyers will tell you that a useful tool in analyzing the strengths and weaknesses of an opponent's case, especially a fact-intensive one, is to develop a timeline of all relevant facts. Frequently, isolated facts which look good or bad for your client may take on a different light when viewed in juxtaposition with what happened before and after. As we construct the timeline, we will work with the most unflattering version of events and all the negative inferences that come with it. This is the only way to come up with a strategy that avoids a jury trial.
Hillary's first known involvement in Travelgate did not occur until early May 1993. Despite his subsequent attempts to distance himself from the decision, the president was directly involved much earlier. By the time it hit the first lady's radar screen in early May, there was arguably under way a two-pronged conspiracy to smear the reputations of the employees in the White House Travel Office and, in the guise of privatization, replace them with friends of the Clintons.
December 1992. The first prong in the conspiracy appears. Catherine Cornelius, a Clinton cousin who worked on the campaign, sends Administrative Director David Watkins a detailed memo on December 31 urging that the White House Travel Office be privatized. Cornelius will later be uncharitably described by Watkins as a "24-year-old blond with one year's experience."
January 1993. On January 26, Cornelius sends another memo to Watkins on taking over the functions of the White House Travel Office. Later that month, the second prong of the conspiracy appears when Darnell Martens sends a memo to Hollywood producer Harry Thomason, his partner in the aircraft consulting firm TRM and a close Clinton friend, laying out a plan for a large-scale consulting project involving all nonmilitary government aircraft.
February 1993. Martens attempts to insinuate himself into the White House charter business by approaching Billy Dale, director of the White House Travel Office. Dale turns him down flat. The president's fingerprints first surface on February 10, when he remarks at a Cabinet meeting that he has been advised that lots of money could be saved by reviewing the operation of all government aircraft. The next day, Martens writes a second memo to Thomason, proposing a $500,000 inventory of the nonmilitary government air fleet to be conducted by TRM. Thomason gives it to Clinton, who notes on the memo that "these guys are sharp" and forwards it to Chief of Staff Mack McLarty and David Watkins for action. Meanwhile, on February 15 Cornelius gives Watkins a third document on taking over the Travel Office.
March 1993. Martens complains to Thomason about being rebuffed by Billy Dale and also passes on rumors of corruption in the Travel Office. Thomason, in turn, passes them on to Clinton and Watkins. Acting on the rumors, Watkins assigns Cornelius to the Travel Office with orders to report back by May 15 on what she observes.
April 1993. Cornelius removes files from the White House Travel Office and takes them home. Martens meets with presidential aide Bruce Lindsay and sends a memo urging him to have the president issue an executive order on the audit of nonmilitary planes and give the job to TRM.
So far, so good. They can't lay a glove on Hillary. By contrast, the president's fingerprints are all over Thomason's prong of the conspiracy. Thomason, in turn, can be seen supporting the Cornelius prong of the conspiracy to put more friendly faces in the Travel Office and give him and Martens a shot at brokering the White House charter business. Watkins is just following orders. As the president already told him, Thomason is "sharp," and Watkins knows that Thomason and his wife are old-time Arkansas FOBs. Hillary, by contrast, is nowhere to be seen.