Former Deputy Atty. Gen. Philip B. Heymann, a key witness in the Senate Whitewater hearings, testified Wednesday that poor judgment by President Clinton’s top aides undermined the integrity of an inquiry into the suicide of White House attorney Vincent Foster in 1993.
Heymann, now a Harvard law professor who resigned in 1994 as the second-in-command at the Justice Department, recalled how he became upset when he learned on July 22, 1993, that then-White House Counsel Bernard Nussbaum had refused to allow Justice Department attorneys to inspect documents in Foster’s office.
In a shouting match with Nussbaum, Heymann recalled, he accused the White House counsel of having “misused” Justice Department officials by inviting them to be present when the office was searched but preventing them from deciding what documents were relevant to the police investigation of Foster’s death.
His criticism, against the backdrop of Republican allegations that the Clinton White House had obstructed justice, provided the most dramatic testimony in three weeks of hearings by the special Senate investigating committee.
But Heymann did not accuse the White House of violating the law.
In fact, he observed that, even though he insisted that law enforcement officials should see the documents, he had no legal right to make such a demand because it would compromise the confidentiality of presidential materials. “I don’t think we [the Justice Department] had any legal power to demand what I was insisting on,” he said.
Nor did he confirm GOP suspicions that White House officials were motivated by the desire to cover up something that law enforcement officials might find in Foster’s office. Instead, he attributed Nussbaum’s judgment to “clumsiness and paranoia.”
But at the time, Heymann admitted, he suspected a White House cover-up. As a result, he said, he asked Nussbaum directly: “Bernie, are you hiding something?” He said Nussbaum replied: “No, Phil, I promise you we’re not hiding something.”
Memories of Watergate, the scandal that brought down President Richard Nixon, were revived as Heymann described his thinking during the crucial days after Foster’s death on July 20, 1993. As with Watergate, the Foster suicide began as a small-scale police inquiry and mushroomed into allegations of a cover-up.
In fact, Heymann said, he first got to know Nussbaum during the Watergate investigation--when Heymann worked for Watergate special prosecutor Archibald Cox and Nussbaum worked for a House impeachment panel. Ironically, Nussbaum’s relationship with First Lady Hillary Rodham Clinton also stems from their work together on the House committee.
Heymann said that he knew from his experience investigating scandals that the American public would not accept the credibility of the Foster investigation if the White House controlled it. He noted that a player with a stake in the outcome cannot act as referee.
“What I was trying to do during the late days of July, 1993, was to develop a reasonable, fair and credible way to assure that, in an investigation of what seemed even then to be a suicide, the investigators had any information that might be important to their investigation, without disregarding legitimate claims of the White House to confidentiality,” he explained.
Heymann said he warned Nussbaum that the White House was making “a terrible mistake” that eventually would be the subject of Senate hearings if Justice Department officials were not allowed to at least inspect the cover and first few pages of every file in Foster’s office to determine what materials were relevant to their inquiry.
Although Nussbaum’s approach was not illegal, Heymann said, he worried that it would have the appearance of wrongdoing in the eyes of the American public and Clinton’s critics. “I don’t believe this process was acceptable or trustworthy.”
On July 21, he said, Nussbaum seemed to agree to Heymann’s proposal. But by the time Justice Department and other law enforcement officials went to the White House to conduct the search, Nussbaum had changed his mind. Instead, Nussbaum himself searched the files and described what he found for law enforcement officials.
The incident might have blown over if the White House had not found an apparent suicide note torn into many pieces at the bottom of Foster’s briefcase on July 26--four days later. Furthermore, he said, White House officials added to the suspicion by waiting 30 hours to notify the Justice Department.
At 7 p.m., July 27, Heymann recalled, he and Atty. Gen. Janet Reno were summoned to the White House, where they were shown Foster’s note for the first time. He said that Reno told them to turn it over immediately to the Park Police, who were investigating Foster’s death.
He said that White House officials delayed notifying the Justice Department about the note because they first wanted to notify Foster’s wife and give Clinton an opportunity to exert executive privilege over the note, keeping it private.
“I thought it was ridiculous to be concerned about executive privilege on that note,” he said.
Still concerned about appearances, Heymann said he then authorized an FBI investigation into how the note was overlooked during the search supervised by Nussbaum. The FBI found no evidence of wrongdoing.
He said that he decided on an FBI inquiry not because he thought there had been illegal acts committed; “I just thought, boy, we’d better get to the bottom of that.”
Heymann said he also arranged a conference call with top White House officials in which he demanded their cooperation with law enforcement officials. “I told them all that they had a major disaster brewing, that I wasn’t going to put up with it anymore.”