Too Many Clients

There is a Byzantine dance that goes on in this town," says Washington superlawyer Robert Bennett, "where the press is quick to crown you, and then they set about to tarnish the crown."

Bob Bennett-the chunky, scrappy, savvy, media-wise, onetime boys’ boxing champ; the tenacious trial lawyer with street-fighting instincts, and a lust for the limelight; the man who has honed his press-spinning talents while stalking the Keating Five on national television in 1990 and 1991, while massaging (and, some say, subtly threatening) the Bush White House to get former Defense secretary Caspar Weinberger a Christmas Eve pardon in 1992, while helping Clark Clifford and his protege Robert Altman beat state and federal prosecutions in 1993-has discovered the fickleness of the press.

Not to mention the hazards of falling out with a high-profile client-especially when the client is Congressman Dan Rostenkowski, who clearly has legitimate grievances.

This article will show that-at a minimum-Bennett inexcusably failed to consult adequately with the then chairman of the House Ways and Means Committee before taking on the representation of President Clinton in f the Paula Jones sexual harassment case. It also tells how Bennett’s representation of Clinton provoked tensions in the Rostenkowski camp, and raised concerns in the mind of the chief prosecutor. Bennett went on television to defend his new client, the president, at the most delicate stage in the Clinton Justice Department’s deliberations over whether to indict Rostenkowski. To outsiders, it looked like the president’s lawyer would now be lobbying the Justice Department on behalf of the congressman- who just happened to be a key ally in the administration’s push for comprehensive health insurance.

Since late May, when the headlines started reporting Bennett’s split with Rostenkowski, Washington’s most celebrated lawyer has suddenly become Washington’s most criticized lawyer, Washington’s most second-guessed lawyer, and-on being told that The American Lawyer had decided this would be a fine time to profile him-perhaps Washington’s most irritated lawyer.

On June 12, in Rostenkowski’s first interview on national television since his May 31 indictment on corruption charges, he implicitly (and very misleadingly) suggested that his former lawyer Bennett had failed to keep him even minimally informed about Bennett’s plea negotiations with the prosecution.

Privately, according to a friend who heard him say it, Rostenkowski has complained: "When I hired Bennett he was a pit bull. When the government said it was going to indict me, he turned into a lapdog."

The notion of the bare-knuckled Bennett as a lapdog seems preposterous to his many friends and admirers. But Rostenkowski confidants say that he thinks Bennett had become an advocate less for Rostenkowski than for the elegant plea bargain that Bennett had cut, and Bennett seemed to be trying to push Rostenkowski into taking the deal to avoid a trial so that Bennett could get on with more important business.

Rostenkowski friends, who asked that their names not be used, also accuse Bennett of subordinating the congressman’s interests to Bennett’s own ambition when he took on the Clinton representation, and of poisoning the Bennett-Rostenkowski relationship by failing to consult him in advance. They say this hurt Rostenkowski by bringing down ugly publicity about the possibility of conflicts of interest for Bennett and the Justice Department at the worst possible time for the congressman-thus possibly (if unprovably) spurring the prosecution to take a hard line to show it would not cave in to the president’s lawyer.

To this, Bennett responds: "I am very disappointed in the second-guessers and the cheap-shot artists who are tigers in their criticisms but are lambs in terms of being identified. These cases are replete with complexities, nuances, and subtleties, and unless one is on the inside in all aspects of these cases, they really should not second-guess, particularly in an anonymous fashion. I gave my client everything I had and fully complied with all of my professional and ethical obligations. I am constrained by the attorney-client relationship not to deal in specifics."

Plato Cacheris, a prominent Washington defense lawyer, dismisses the attacks more pointedly, saying that his friend Bennett had negotiated a terrific plea bargain for Rostenkowski, had kept his client fully informed, and had acted consistent with his client’s instructions and best interest. "Anybody that says Bob Bennett would sell out a client for any purpose is a false accuser," adds Cacheris.

What follows is a behind-the-scenes account of the falling-out between the Bennett and Rostenkowski. camps, based on interviews with more than 25 people who were involved in or were told by those involved about Bennett’s work for Rostenkowski and Clinton.

It shows that the trouble started because Bennett failed to tell Rostenkowski in advance about his agreement to represent the president. Rather, the congressman was stunned to learn from a radio report early in the morning on May 3- not from Bennett-that his lawyer would be handling the Clinton defense in the Paula Jones sexual harassment case.

The 54-year-old Bennett had previously given his client only a cursory notice, some weeks before May 3, that he hoped to be retained by Hillary Rodham Clinton (as Rostenkowski remembers it) in connection with some aspect of her legal problems, and would like Rostenkowski to put in a good word for him if needed. Rostenkowski had indicated that would be fine. By both sides’ accounts, Bennett never mentioned anything about defending the president against a sexual harassment claim.

Nor did Bennett discuss with Rostenkowski whether representing Clinton might hurt Rostenkowski, or whether it might be deemed inappropriate, as it later was by politicians, editorialists, and many lawyers.

The surprise news of Bennett’s agreement to defend the president caused resentment in the Rostenkowski camp that festered under the unrelenting pressure of an impending indictment, plea negotiations, and a deluge of press leaks (to which some in the Rostenkowski camp suspect Bennett contributed but which Bennett denies). Ultimately that resentment destroyed Bennett’s relationship with Rostenkowski.

GOING ON THE OFFENSIVE

The $475-an-hour Bennett, who earned roughly $1.5 million last year, clinched the media-given title of number one hired gun in America for "people in … terrible trouble" (in the words of a 1992 profile in The New York Times) in early May, when President Clinton tapped him for the Jones harassment claim.

The engagement began with typical Bennett fanfare. On May 6, the day Jones filed her lawsuit, Bennett called a press conference and eclipsed her complaint’s sordid allegations with one catchy sound bite: "tabloid trash with a legal caption on it."

Bennett’s talent as a spinmeister was one of the reasons the president hired him and his firm, Skadden, Arps, Slate, Meagher & Flom, rather than leaving his defense against Paula Jones to his tight-lipped lawyers at Williams & Connolly, who are handling the Whitewater investigation and issues involving Hillary Rodham Clinton’s miraculous success as a commodities speculator.

But by the time of the press conference on the Jones suit, Bennett’s Clinton connection had already jeopardized his relationship with Rostenkowski, according to three close friends of Rostenkowski. By May 31, three-and-a-half weeks later, when U.S. attorney Eric Holder, Jr., in Washington, D.C., announced a 17-count indictment, Bennett was no longer authorized to speak for his client. Holder’s powerful, televised statement, accusing Rostenkowski of engaging in "betrayal of the public trust for personal gain," went virtually unanswered, for days, while Rostenkowski looked for a new lawyer.

Instead of going before the cameras to counterpunch, Bennett "was hunkered down in his office, waiting to be fired," claims one lawyer involved in the case. A Bennett defender puts it differently, saying that he did not want to continue with the representation because of the lack of control of the client, who had been listening more to uninformed second-guessing by his friends than to his lawyer’s expert advice.

Finally, on June 2, Bennett and Rostenkowski-who had previously fired two other lawyers-announced a "mutual decision" to pan company. By then Bennett was smarting under a barrage of negative reviews in the press, accusing him of everything from reluctance to spend his time on a long trial to betraying his client by leaking details of their confidential consultations in which Bennett pressured Rostenkowski to plead.

"I’m always amused by the press," says Bennett, seeming not especially amused, "that they go about creating super-lawyers, and once they create them, they try to write about controversies to bring them down. But this is just the price of being in a high-profile practice in Washington, D.C."

But while the press has publicized the attacks on Bennett’s performance, it has not originated most of them. In the clubby world of Washington law, second-guessing Bennett has been the sport of the town in the weeks since he and Rostenkowski parted ways. It was ironic that one so renowned as Bennett for spinning the media should now find himself on the receiving end of so much negative spin.

"What goes around, comes around," says James Brosnahan, a partner at San Francisco’s Morrison & Foerster, who was attacked by Bennett in the press when Brosna-han was retained by independent counsel Lawrence Walsh in 1992 to prosecute Bennett’s client Weinberger.

But the nastiest barbs aimed at Bennett have come from Rostenkowski confidants, and from the congressman himself, who of course now has every incentive to dump on his former lawyer. How else could he proclaim that "I haven’t done anything wrong," and protest his innocence on all 17 "false charges," in the face of massive leaks that Bennett had almost sold Rostenkowski on a felony guilty plea including resignation and six months behind bars? How else could he hope "to wash away the mud that has been splattered upon my reputation"?

DISOWNING A PLEA BARGAIN

On June 12, on the CBS Face the Nation program, Rostenkowski disavowed virtually all knowledge of Bennett’s plea bargaining: "I was not in the negotiations with respect to any plea bargain. I don’t know whether or not my lawyer was negotiating, and what the levels of those negotiations were, what in those discussions were [sic] taking place with respect to parameters." (Emphasis added.)

The first sentence was true, albeit misleading. The second was false, based on accounts by four sources with knowledge of the plea discussions. They say that Rostenkowski met regularly during May and fully discussed the plea negotiations with Bennett, his partner Carl Rauh, and Robert Leonard of Washington’s Oldaker, Ryan & Leonard, a Rostenkowski confidant who does some legal work for him. Rostenkowski was implicitly accusing Bennett of failing to have even the most minimal consultations with him about the plea negotiations-which, of course, would be grossly unprofessional.

(Calls to Rostenkowski’s spokesman and his new lawyer, Dan Webb of Chicago’s Winston & Strawn, about the statement were not returned. Rostenkowski had earlier declined to be interviewed for this story.)

Asked about Rostenkowski’s statement, Bennett says: "I don’t think it’s appropriate to respond to that, because of the attorney-client privilege, even though he said on national television that the matter should be discussed with me." (Rostenkowski had said, "You’ll have to take that up with Bob Bennett," in response to one question about the plea discussions.)

A sampling of other flak from the Rostenkowski camp:

ï Mayor Richard Daley of Chicago, a political associate of Rostenkowski, was quoted in the June 2 Chicago Sun-Times attacking Bennett’s agreement to take on the Paula Jones case: "It’s outrageous. I’ve never heard of that before. It’s the first of its kind. He [Rostenkowski] never knew that his lawyer was taking on another client who could present a conflict." Daley also accused Bennett of leaking details of the plea bargaining to the press (which Bennett emphatically denies): "You’re not supposed to tell the public, ‘I want my guy to plead guilty.’ That is a really serious thing. It’s unbelievable. Boy, what a lawyer."

ï Former congressman Marty Russo, a Rostenkowski intimate, has told reporters that Bennett’s representation of the president was a problem for Rostenkowski because any decision by the Justice Department not to prosecute him might be viewed as a favor to the president’s lawyer. Russo also said that in plea discussions, Bennett had pressed Rostenkowski to admit things that did not happen.

Bennett’s many friends and defenders in the legal world reject such criticisms as grossly unfair. One of them, Reid Weingarten, a respected white-collar defense lawyer at Washington’s Steptoe & Johnson, says, "It’s preposterous to suggest that Bob Bennett was afraid to go to court. It’s preposterous to suggest that he sold his client out to benefit President Clinton. The only issue is whether or not he was ahead of his client in the negotiation, whether he was offering to do things that his client hadn’t approved."

"If a guy’s up to his fourth lawyer," adds another Washington litigator who (like Weingarten) has litigated against Bennett and came away liking him, "my guess is, there’s a problem with the client, not the lawyer. He’s one of these celebrity clients who’s getting a lot of advice from a lot of people, and he’s not giving his lawyer the kind of control that a lawyer needs to represent him effectively."

Rostenkowski’s new lawyer, Dan Webb, says that he knows and has "great professional respect" for Bennett and his partner Carl Rauh, and would "never … join any criticism of them." Webb insists that Rostenkowski is not personally … doing anything to attack Bob Bennett or ask others to attack Bob Bennett."

Rosty, as most people call him, fired his first two lawyers in late July 1993, when he was being savaged by headlines identifying him as an alleged recipient of embezzled cash from House postmaster Robert Rota, who pled guilty and turned state’s evidence.

The fired lawyers were Stanley Brand of D.C.’s Brand & Lowell, a former House of Representatives counsel with expertise on congressional rules and processes, and Judah Best, a partner in the D.C. office of New York’s Debevoise & Plimpton, who negotiated the plea bargain that enabled Spiro Agnew to escape prison by resigning the vice-presidency in disgrace.

Brand and Best were both known primarily as negotiators, not courtroom gladiators. Brand did not have the kind of access at the U.S. attorney’s office that some criminal defense specialists do, and Best and Rostenkowski never really hit it off, according to friends of .Rostenkowski. Rostenkowski and his supporters wanted someone who would attack the prosecutors more aggressively, both about the many damaging leaks about the investigation and charges that had been spilling out for months and about the weakness of those charges.

So the word went out that Rostenkowski wanted a gunfighter who could beat the government to the draw at very step-from press conference to trial.

On July 23, 1993, while Bennett was at a college orientation in Boston with one of his three daughters, the call came from a friend of Rostenkowski. By that night Bennett was back in Washington, meeting with the congressman. By midnight he was on the case. And the next lay, Bennett took his new client on the offensive. Flanked by Bennett and his partner Rauh at a Capitol Hill press conference on July 24, Rostenkowski proclaimed his innocence and vowed to fight.

The beefy Chicago ward boss and the Flatbush boxer-turned-litigator hit it off immediately, says a source close o Rostenkowski. For his part, Bennett was heard to remark: "At last, here’s a guy I can eat red meat with." It seemed a perfect fit: Two regular guys, tough, no-non-sense, down-to-earth, big-hearted.

"Bennett is a tough trial lawyer who’s not going to make a deal," a Rostenkowski friend toldTime magazine.

But one source close to the defense team says it was always understood that if the government was determined to indict, the option of pursuing some kind of plea bargain should be explored. And the landscape was changing.

Instead of the indictment that had been forecast for October, that month brought the appointment of a new U.S. attorney, Holder, a respected D.C. superior court judge who had spent 12 years prosecuting corruption cases in the Justice Department’s public integrity section.

Holder came into the job in the wake of President Clinton’s decision early in 1993 to fire all 93 U.S. attorneys across the nation. At the time, Jay Stephens, Holler’s Bush-appointed predecessor, had accused the president of trying to derail the case that Stephens’s assistants lad been building against Rostenkowski, whose indictment could be fatal to the president’s ambitious health; are proposals. Thus Holder knew-long before Bob Bennett was retained by the president-that his every move in the Rostenkowski case would be watched by Re-publicans eager to cry that the fix was in.

Holder’s first move was to broaden the investigation of Rostenkowski. He thought the case he had inherited needed shoring up, according to two sources involved in the investigation. The key witness, House postmaster Rota, was trying to save his skin by pointing fingers, had changed his story several times, and could be torn to pieces by a lawyer with Bennett’s cross-examination skills.

What had started as a relatively narrow investigation into the alleged scheme to disguise cash payments as postage stamp purchases at the House Post Office had already broadened, spurred by reports in the Chicago Sun-Times that Rostenkowski had put ghost employees on the congressional payroll and used taxpayer funds to acquire ownership of three cars. Holder stepped up the probe on these fronts.

Meanwhile, Rostenkowski had a primary election to worry about in February. He had considered retiring, but felt that prosecutors would be less likely to pursue a weak case so long as he was still a sitting congressman, and he was worried that he wouldn’t be able to raise the money for his defense if he left office. President Clinton showed solidarity with his most important legislative ally- notwithsta…

There is a Byzantine dance that goes on in this town," says Washington superlawyer Robert Bennett, "where the press is quick to crown you, and then they set about to tarnish the crown."

Not to mention the hazards of falling out with a high-profile client-especially when the client is Congressman Dan Rostenkowski, who clearly has legitimate grievances.

Since late May, when the headlines started reporting Bennett’s split with Rostenkowski, Washington’s most celebrated lawyer has suddenly become Washington’s most criticized lawyer, Washington’s most second-guessed lawyer, and-on being told that The American Lawyer had decided this would be a fine time to profile him-perhaps Washington’s most irritated lawyer.

GOING ON THE OFFENSIVE

The $475-an-hour Bennett, who earned roughly $1.5 million last year, clinched the media-given title of number one hired gun in America for "people in … terrible trouble" (in the words of a 1992 profile in The New York Times) in early May, when President Clinton tapped him for the Jones harassment claim.

DISOWNING A PLEA BARGAIN

On June 12, on the CBS Face the Nation program, Rostenkowski disavowed virtually all knowledge of Bennett’s plea bargaining: "I was not in the negotiations with respect to any plea bargain. I don’t know whether or not my lawyer was negotiating, and what the levels of those negotiations were, what in those discussions were [sic] taking place with respect to parameters." (Emphasis added.)

A sampling of other flak from the Rostenkowski camp:

ï Mayor Richard Daley of Chicago, a political associate of Rostenkowski, was quoted in the June 2 Chicago Sun-Times attacking Bennett’s agreement to take on the Paula Jones case: "It’s outrageous. I’ve never heard of that before. It’s the first of its kind. He [Rostenkowski] never knew that his lawyer was taking on another client who could present a conflict." Daley also accused Bennett of leaking details of the plea bargaining to the press (which Bennett emphatically denies): "You’re not supposed to tell the public, ‘I want my guy to plead guilty.’ That is a really serious thing. It’s unbelievable. Boy, what a lawyer."

So the word went out that Rostenkowski wanted a gunfighter who could beat the government to the draw at very step-from press conference to trial.

"Bennett is a tough trial lawyer who’s not going to make a deal," a Rostenkowski friend toldTime magazine.

What had started as a relatively narrow investigation into the alleged scheme to disguise cash payments as postage stamp purchases at the House Post Office had already broadened, spurred by reports in the Chicago Sun-Times that Rostenkowski had put ghost employees on the congressional payroll and used taxpayer funds to acquire ownership of three cars. Holder stepped up the probe on these fronts.

By the beginning of this year, the Skadden team were pressing to learn what the government had and to build a defense, meeting with the prosecution team and filing de ailed written submissions challenging the factual and legal bases for the allegations. Bennett got the prosecution to narrow its case in some respects: The government dropped charges concerning Rostenkowski’s use of congressional funds to lease apartments, according to four lawyers close to the case.

"Bennett seemed to be planning to fight to the death," says a Rostenkowski friend. "He was making all the right moves."

THE PRESIDENT’S NEW LAWYER

Meanwhile, Bennett’s talents had also been noticed at the White House. Harold Ickes, the deputy chief of staff, had hired Bennett and Skadden to help him get through his grand jury testimony in connection with independent counsel Robert Fiske, Jr.’s investigation into questionable contacts between White House officials and regulatory agencies looking into Whitewater-related issues.

Ickes suggested to the Clintons that they consult Bennett, according to White House special counsel Lloyd Cutler, and in one or more conversations in March or April Bennett discussed generally with one or both Clintons his views on how to handle their mounting legal problems, including any congressional hearings on Whitewater. There was no discussion at first of Paula Jones, who "was just a cloud in the sky" then, recalls Cutler. (It was these discussions that Bennett had mentioned to Rostenkowski, according to a source close to the matter.

At the time, according to two administration sources, there was grumbling by some Clinton aides that Williams & Connolly’s David Kendall-who heads the team representing the Clintons with respect to the Whitewater investigation and the commodities trades-was merely a lawyer’s lawyer at a time when the Clintons needed someone who could help with spin control, too, as the Clintons were clobbered in the media about Whitewater and the commodities trades. "He may be a superb lawyer; he has not done a good job on the public relations front," says one of the administration sources.

Lloyd Cutler dismisses the notion that the White House was dissatisfied with Williams & Connolly and says that the Clintons have great confidence in Kendall. But he says, "David was fully engaged and … you needed at least in my judgment a different personality" to handle the sensationalistic Paula Jones lawsuit.

Noting Bennett’s "particularly good press instincts," Cutler says that he recommended him to the president because "it just seemed to me to be a good fit."

Bennett makes no bones about his view of the media as a forum for legal advocacy: "When you are dealing with a Clifford or a Weinberger, your case and your client are in the press, and … it’s important for their own reputations that they have their day in the press court," he says. "The press places unbelievable faith in the allegations made by law enforcement people, so advocacy must not only be in the courtroom but also in the court of public opinion."

In the end, the president thus needed three legal teams. As The Economist, the highbrow British magazine, explained it: "Mr. Kendall is the president’s private lawyer, Mr. Cutler is the lawyer for the presidency, and Mr. Bennett is the lawyer for the president’s penis."

MEDIA MASTERY, MEDIA MAGNETISM

While the White House sought out Bennett precisely because of his media talents-which he displayed at his debut press conference with his "tabloid trash" line-the incremental publicity generated by Bennett’s fame was not especially good for either Clinton or Rostenkowski.

The mainstream press had previously been gun-shy about reporting Paula Jones’s allegations, which she had first made at a February 11 session sponsored by the Conservative Political Action Conference. But now The Washington Post, which had bottled up for months reporter Michael Isikoff’s long article detailing Jones’s allegations and related evidence, finally published it on May 4-to gether with a long article about Clinton’s hiring Bennett to defend against Jones.

The filing of the Jones suit on May 6 would have been a major news event no matter who was representing the president. Still, some lawyers think that Bennett’s prominence brought more attention to the Paula Jones story than there would have been if the case had been sent to some unknown lawyer in Arkansas.

"It would have been a good one for a legal services lady from Texarkana-give it to her and smother it in silence," rather than giving it to a man noted for "dealing with terminal criminal tumors," says Leonard Garment, who was counsel to President Richard Nixon and is a friend and admirer of Bennett’s. (Garment is also a regular in a monthly poker game that includes Bennett, his brother William-the former Bush drug czar-Chief Justice William Rehnquist, Justice Antonin Scalia, and others.)

Lloyd Cutler disagrees. "I have heard that argument," he says. "It is total baloney. There was no way of keeping this from being the hottest press story around."

EMPTY DISCLOSURE

However content the White House may have been with the president’s new lawyer, at least three people in the Rostenkowski camp say they were boiling mad when they heard the news.

First, there was concern that the Clinton engagement might hurt Rostenkowski: It might put conflicting demands on Bennett’s time, and it might generate bad publicity (as it did) about the seeming incestuousness of the president’s lawyer negotiating with the president’s appointees at the Justice Department on behalf of the president’s political ally Rostenkowski. That, in turn, might increase the already enormous political pressure on U.S. attorney Holder to indict Rostenkowski, and foreclose any chance Bennett might have of going over Holder’s head.

Second, there was the fact that Rostenkowski had learned from the radio about Bennett’s representing the president, when he got up at dawn in Chicago on May 3 to catch an early flight back to Washington, according to a Rostenkowski friend.

In a story where much is disputed, there is relatively little dispute about the cursory nature of the one prior conversation that Bennett had with Rostenkowski about the possibility of a Clinton engagement. According to a Rostenkowski confidant, Rostenkowski recalls Bennett saying something like, "You may get a call from Hillary or someone representing her on the commodity trade issue. If you do, I hope you put in a good word for me." Rostenkowski was agreeable.

"There may have been some reference to possible representation on commodity trade issues, certainly no discussion of possible representation of the president on this Paula Jones issue," says the Rostenkowski confidant.

A source more friendly to Bennett counters, saying that the discussion wasn’t limited to Hillary or commodities, and that Bennett had told Rostenkowski that he hoped to end up representing the President or the First Lady or both, as part of the Whitewater team. But even this source doesn’t contend that the Jones case was ever mentioned, pointing out that the conversation took place before Bennett had ever been consulted about Jones.

Thus both sides agree that Bennett neither initiated nor invited any advance consultation with Rostenkowski (a nonlawyer) as to whether, with Clinton-appointed U.S. attorney Holder moving toward a decision on whether to indict, anyone might question whether Rostenkowski should be represented by the same lawyer as the president.

"There was certainly no discussion where there was any elaboration or any amplification of possible conflicts vis-a-vis the president, vis-a-vis discussions or possible discussions with Eric Holder," one Rostenkowski confidant says. "It was certainly cursory at best…. From the congressman’s standpoint, he does not feel there was adequate discussion of potential conflicts."

Many lawyers and others later did question the propriety of the Bennett-Clinton-Rostenkowski triangle, after the May 3 announcement that Bennett was taking on the Paula Jones defense.

One who did so privately was Eric Holder. According 5 to one source involved in the investigation and another who followed it closely, Holder expressed concern that he might be put in an awkward position by this new wrinkle in a case that already carried enormous political baggage. Among other things, Holder said, there might be political flak and bad publicity about the web of connections among Clinton and Rostenkowski, Clinton and Holder, and-now-the Rostenkowski-Bennett-Clinton-Holder rectangle.

"Eric viewed it as an irritation," adds one of these sources, who stresses (as does Bennett) that it had no effect on Holder’s approach to the Rostenkowski case. (Holder won’t comment.)

Holder was right about the political flak and bad publicity. House minority whip Newt Gingrich (R-Georgia) later said: "The spectacle of the president’s lawyer negotiating with the president’s Justice Department on behalf of the president’s health care spokesman has got to say to most Americans everything that’s wrong with Washington." Editorialists for The New York Times and The Washington Post used "incestuous" to describe what the Times called "the potential conflicts of interest" in the Ros-tenkowski-Bennett-Clinton-Holder connections.

Bennett-without contradicting the Rostenkowski friend’s account of his cursory consultation with his client before agreeing to represent the president-says that there was "absolutely no conflict," and that "appropriate disclosures were made" to Rostenkowski, but that "because of the privilege I can’t get into the nature and extent of those discussions."

SEEDS OF MISTRUST

When the news broke on May 3 that Bennett was representing the president in the Paula Jones suit, says former congressman Marty Russo of Chicago, a Rostenkowski intimate, "I called the chairman to say, ‘Why’d you let him [Bennett] do this?’ His response was that ‘Bennett never talked to me about it.’"

Another friend says Rostenkowski was "stunned" when he heard the news on the radio, if only because it came as such a surprise. This source says that the news "sowed seeds of mistrust" in the Rostenkowski camp, although some of the congressman’s friends-especially the lawyers among them-came to the conclusion more quickly than he himself did that he might be hurt by the Clinton engagement.

By mid-May, two of his friends say, Rostenkowski had a strong sense that Bennett’s connection to Clinton was bad for Rostenkowski, and it colored his relations with Bennett as other developments caused him to question whether fighting hard for Rostenkowski was still the lawyer’s top priority.

There is a dispute about whether Rostenkowski ever voiced any concern about the Clinton engagement to Bennett. Two Rostenkowski friends say that he did so repeatedly, albeit not in a confrontational manner, beginning with a phone conversation between the two men within three days after the Bennett-Clinton news broke on May 3. One of these sources gives the following account of the conversation:

"Rosty, puzzled by Bennett’s decision to take on this representation, asked Bennett, ‘How will this affect me?’" In responding, Bennett said he had told Rostenkowski that he might represent the president. Rostenkowski disputed this, saying that only Hillary, not the president, had been mentioned, and only as a possibility. Rostenkowski ended the conversation feeling uneasy and dissatisfied with the situation and Bennett’s responses.

In later discussions, according to one Rostenkowski friend, "it became increasingly clear to everyone, as these meetings [between Bennett, Rostenkowski, Rauh, and others regarding the plea discussions] became more frequent and more emotional, that the relationship between Bennett and Rostenkowski had deteriorated … and Carl [Rauh], being very uncomfortable with that, wanted to get the [Clinton] issue on the table for discussion, and there was some emotional discussion. I think that Rostenkowski was expressing a lot of concerns that he felt, and a lot of concerns that he had heard from friends and associates. [And] they [Bennett and Rauh] kept saying that they wanted him to be comfortable; they used that word a lot. The congressman never became comfortable. He continued to express discomfort."

Moreover, this source adds: "Bob said that he felt [Bennett’s retention by Clinton] would be helpful…. The congressman let the comment pass because he didn’t see how it would help him at all."

A Bennett defender gives a different account, saying that Rostenkowski had never, at any time, indicated to Bennett any displeasure about Bennett’s representation of the president. This source says that when Rauh had asked at one meeting (in Bennett’s presence) whether Rostenkowski really had a problem with the Clinton representation, Rostenkowski’s answer had been no, and that that had just been some talk by one of his friends. The lawyers then explained why they saw no conflict, and Rostenkowski agreed.

Bennett defenders also say that the stories corning out of the Rostenkowski camp now are revisionist history, and are part of a concerted effort by some in that camp to distance Rostenkowski from the plea negotiations by painting Bennett as a traitor pursuing his own agenda

TENSE TIMES FOR ATTORNEY AND CLIENT

The tensions in the Rostenkowski camp over Bennett’s new client, the president, could hardly have come at a more stressful time in the Bennett-Rostenkowski relationship. For on Friday, May 6-the same day as Bennett’s Paula Jones press conference-The Washington Post reported that Holder had sent a memo to the Justice Department’s criminal division concluding that Rostenkowski should be indicted and detailing the charges. Bennett began to explore in earnest a possible plea bargain either that day or the following week.

Plea bargaining puts great strain on the attorney-client relationship in any case. "You are often the messenger of the prosecutor’s theory and the prosecutor’s views of the defendant and what he or she did," explains E. Lawrence Barcella, Jr., a former federal prosecutor and leading Washington white-collar specialist. "It’s very emotional for a lot of clients to be confronted with that view and what it’s going to cost you."

In this case, there were tense meetings including Bennett, his partner Rauh, their colleague Edward Ross, Jr., Rostenkowski, and Robert Leonard about whether to cop a plea. And beginning May 19, there were massive leaks to the press, from unknown sources, about Bennett’s negotiation of a tentative plea bargain with prosecutors; about Bennett’s efforts (ultimately unsuccessful) to sell it to his client; and about the details of the proposed plea and what a great deal it would be for Rostenkowski: a felony guilty plea, six months in jail, resignation, a fine, and the assurance that his aides would not be prosecuted for any testimony the government disbelieved.

As a balmy month of May unfolded in Washington, Bennett’s relationship with Rostenkowski soured. It did not help (according to two sources close to Rostenkowski) that Rauh, whose relationship with the congressman remained more friendly, was in Europe on business for some time in early May.

Nor, says one of these sources, did it help that going into the plea discussions, "the congressman was told rather consistently, including by the Skadden team, that this was a weak case…. The congressman heard a lot about how there were indications, back channel indications, that Eric Holder was uncomfortable with the case, uncomfortable with his trial team." And he hoped that his lawyers might convince Holder that no criminal prosecution should be brought, that perhaps some matters could be referred to the House ethics committee, but that this was not a solid criminal case.

Then, recalls this source, "all of a sudden we’re talking about a plea which involves resignation, which involves six months [behind bars]. It was a huge leap."

Another source says that the whole concept of a plea ran counter to Rostenkowski’s nature. "Rosty is not a person who is likely to back out of a fight," says this source. "He wants to take his reputation as a stand-up guy to the grave with him, and he would have lost that if he had taken the plea. It was a lack of respect-Bennett treating him like any other defendant, negotiating the best deal he can for him and trying to push him into it."

BARGAINING BY PHONE

The plea bargain discussions between Bennett and Holder got into gear on the telephone about May 6, and continued for ten days to two weeks. One purpose of this unusual, one-on-one phone discussion was to avoid public disclosure, according to a knowledgeable source. Some on the defense team also thought the talks would go better without a room full of people.

But Rostenkowski-who in his capacity as a legislative baron considers himself to be a master negotiator- did not like this approach to discussions with Holder and told Bennett that, according to two lawyers familiar with his discussions with Bennett.

"He felt uncomfortable with telephone discussions rather than eyeball to eyeball, [where] you can read a person not only by what he says over the telephone but by body language and so forth," recalls one of these lawyers.

This source adds: "The negotiations themselves, in terms of the lengths to which Bob Bennett took them, far exceeded the congressman’s expectations."

Later, after Rauh’s return from Europe, the plea bargaining sessions moved to a conference room at the Justice Department’s public integrity section, where the opposing teams of prosecutors and defense lawyers met en masse. But by then, according to one lawyer in the Rostenkowski camp, the terms of the deal were already congealing.

And whatever the reason, there is such a residue of ill will in the Rostenkowski camp toward Bennett that almost every move he made during the month of May has come under anonymous attack (including by people who were interviewed and cross-examined for many hours for this article), amid dark theorizing as to his motives to push Rostenkowski into a bad plea bargain that the congressman’s friends say he never wanted.

For example, while a Bennett defender says that everything Bennett did was fully authorized by Rostenkowski, and while a Rostenkowski friend acknowledges that "Rostenkowski authorized Bob to explore the options, to see what kind of deal Eric Holder had in mind," another Rostenkowski friend says the congressman, as a nonlawyer, did not really understand what was going on: He was not told specifically enough at the outset that a plea bargain would mean he would have to admit he had done something criminal, and he wanted his lawyers to be fighting rather than focusing on what kind of deal they could make. "Bennett is talking plea and Rostenkowski is saying, ‘You guys have got to stop talking on the phone and get in there and fight for me,’" this source recalls.

Another Rostenkowski friend recalls that Rostenkowski "wanted Bob Bennett to be his advocate, and I think he feels there was some reverse advocacy here, where Bennett became an advocate for the deal. And I think that was a core problem with the relationship."

Bennett defenders dispute all this, saying that until late in the game, Rostenkowski seemed comfortable with the terms Bennett was negotiating with Holder.

The reason some Rostenkowski friends have such animus against Bennett, suggest Bennett’s defenders, is that Rostenkowski has been misleading the friends, lest they discover something that he was too ashamed ever to admit even to his own wife: that he was on the verge of copping a plea and admitting guilt.

Bennett defender also suggests that the views of some Bennett critics may be skewed by economic self-interest because their jobs-and in some cases their value in the lobbying marketplace-depend on Rostenkowski’s continuance in office, and therefore on rejection of the plea bargain.

BENNETT CANCELS A MEETING

Another irritant for Rostenkowski’s side was Bennett’s decision not to go to the Main Justice Department to attack the draft indictment prepared by Holder’s office-a decision that fed doubts among Rostenkowski’s allies that Bennett was giving the case his all.

As is routine in such cases, Bennett had notified Holder’s office long beforehand that he wanted the option of going up the Justice chain of command if Holder’s office decided to prosecute. Shortly after Holder had informed Bennett that his office was prepared to go forward with the indictment, such a meeting was scheduled-at the initiative of one of Holder’s assistants-for May 16, between Bennett and his partner Rauh on the one side and Jack Keeney, the senior career person in the Justice Department’s criminal division, and his politically appointed boss, Jo Ann Harris, on the other.

But then Bennett abruptly canceled the meeting, offering no explanation, according to a Main Justice source. The move puzzled some in the Rostenkowski camp. "Why did they tell Rosty right from the beginning that they were going to fight this thing all the way to the top for him, meaning to the attorney general?" asks a Rostenkowski associate close to the investigation.

Why, this source and others wonder, did Bennett pass up a chance-albeit a long shot-to knock off all or part of the proposed indictment by getting Holder’s office overruled? "It’s one of those ‘why the hell not, what have you got to lose’ issues," says a lawyer close to the case.

Perhaps, suggests a Rostenkowski sympathizer-as does one government lawyer-Bennett feared that critics would exploit his role as the president’s lawyer to cry that the fix was in.

Bennett scoffs at such talk, saying that any political sensitivities about the Rostenkowski case would be attributable to the congressman’s role as a vital political asset to the president, for whom the president had recently campaigned, and to Holder’s role as a Clinton appointee-not to the identity of the congressman’s lawyer.

Bennett defender also stresses that a meeting at Main Justice could not have made things better for Rostenkowski and might have made things worse. This source says that it had become apparent that Holder, with whom Bennett was involved in delicate discussions, was Rostenkowski’s best hope for a reasonable plea bargain, and that going to trial would be a very big risk. And if Main Justice were brought in before Holder’s position had gelled, there was some risk that Reno might push Holder toward a tougher stance.

Rostenkowski and Bennett were "scared to death of Janet Reno," says a Bennett defender. "She wants to look like the independent queen of Justice," this source says. Bennett thought Holder would render "a less political judgment" than Main Justice and "wouldn’t feel Rosty was an evil guy."

Another complaint-voiced by three sources close to Rostenkowski, one of whom says a prosecutor expressed similar views-is that Bennett was not aggressive enough in May in trying to get a copy of the draft indictment and to attack its substantial legal and factual weaknesses point by point. This would have helped both in getting more leverage in plea discussions and in seeking to narrow the indictment that would be returned if the discussions failed. One of these sources complains that Bennett went into "disposition mode" right from the start, adding that one of the prosecutors had expressed surprise at this.

For example, these sources note, eight of the original 18 suspected ghost employees had worked for Rostenkowski so long ago that their alleged wrongdoing arguably fell beyond the statute of limitations. Yet Bennett did not vigorously press this argument with the prosecution, according to three informed sources. James Cole, of counsel in the D.C. office of Cleveland’s Squire, Sanders & Dempsey, who represented several of the alleged ghost employees, got four of them excluded from the final indictment by advancing both the statute of limitations argument and evidentiary claims. This reduced the amount of money Rostenkowski was charged with misappropriating by more than $100,000.

This line of attack on Bennett is emphatically dismissed as all wrong, however, by a government lawyer. "Bennett was very vigorous and detailed in his raising defenses on behalf of Rostenkowski" at every stage of the investigation, this lawyer says.

A CASCADE OF LEAKS

The plea negotiations may have been tense, but at least up to May 19 they were secret. That morning, however, The New York Times led its front page with a report by David Johnston that Rostenkowski’s lawyers were seeking to negotiate a plea bargain. This was the first in what became a cascade of leaks about the plea discussions over the next two weeks.

Although Mayor Daley and many others have assumed-perhaps because of Bennett’s reputation as a press schmoozer-that these leaks must have come from him, Bennett and his partner Carl Rauh vehemently deny this. Rauh says that "I’m absolutely convinced that the Justice Department was leaking it." Two lawyers in the Rostenkowski camp say they suspect that government officials started the leaking, but that Bennett then joined in, for his own purposes.

While it’s impossible to be sure, history (including that of the Rostenkowski probe), common sense, and one aspect of Johnston’s story suggest that the initial leak probably came from the government. The Justice Department, with its trial-hungry assistant U.S. attorneys, its Main Justice press kibitzers, and especially its loose-lipped FBI agents (some of the most notorious leakers in town), has long been the most prolific source of leaks detrimental to targets of criminal investigations. There were copious damaging leaks about Rostenkowski long before Bennett was on the case.

In addition, Johnston’s May 19 article reported that "some prosecutors, along with federal agents who worked on the case, are resisting any settlement." Therein lies a possible motive for leaking: One of the best ways lo derail a sensitive negotiation is to blow the secrecy surrounding it. It’s hard to imagine why Bob Bennett would have wanted to do that. It’s not so hard to imagine why an FBI agent or a prosecutor anxious to put Rostenkowski on trial might.

Later-after Bennett had had some tense, sometimes angry meetings with Rostenkowski over the proposed deal he had worked out-it began to leak that Bennett was recommending a plea bargain lo Rostenkowski that included a felony guilty plea, resignation from Congress, and six months behind bars.

Those who suspect Bennett of these leaks theorize that he was trying publicly to pressure his client into the deal. But that presupposes monstrous perfidy on the part of Bennett, who is described by many acquaintances as a lawyer with a healthy sense of ethics. Other possible suspects include government officials and talkative Rostenkowski friends with whom the congressman consulted about the advice Bennett was giving him.

hatever the original source, a lawyer close to the Rostenkowski camp complains, "we were shocked by Bennett’s lack of attention to the harm these leaks were causing his client. His client’s getting killed, and there was no formal complaint to the [Main] Justice Depart- ment…. There was no effort to deny to the press that the stories were accurate, and some were not."

Bennett dismisses this as nonsense, asserting that "we did complain to Holder, who was equally concerned about the leaks, and who we felt could have much more control over the situation [than Main Justice], and we requested that there be an investigation," and that the leaks be stopped.

ROSTENKOWSKI WON’T PLEAD

In late May, Bennett and Rauh held a series of tense meetings with Rostenkowski, which ended with him rejecting the deal. Accounts of these meetings, as of virtually everything else in this representation, agree on some key points but differ dramatically on others.

Both accounts have Bennett raising his voice and talking much tougher to his client than Rostenkowski is accustomed to. One account has Bennett and Rauh warning him that he faces over five years in prison if he is convicted-pushing, pushing, pushing Rostenkowski into a deal that he repeatedly says he doesn’t want, because he thinks he has done nothing wrong. Another account has Rostenkowski readily agreeing to resign and to do six months in prison and then inexplicably balking in late May by nitpicking about details that seemed inconsequential to Bennett, such as what the government would say about Rostenkowski in the papers filed with the plea.

By May 30, when Rostenkowski had made a final decision to fight, not plead, stories had begun to appear about severe strains developing in Bennett’s relationship with Rostenkowski. In any event, the leaks of the plea discussions would have given Rostenkowski a strong incentive, after they failed, to rehabilitate his presumption of innocence by dumping the lawyer whom the whole world now knew to have recommended the deal.

"Bennett wanted him to take this deal more than Joe Isuzu wanted you to buy a car," says one Rostenkowski friend.

"Bennett was insistent that he felt that the deal that he was negotiating was the best deal that the congressman could get," recalls another Rostenkowski friend with detailed knowledge of these discussions. "He was quite emphatic about that. There were elements of the deal that the congressman was uncomfortable with…. Bob became increasingly aggressive, increasingly intense as time went on here…. There was certainly display of emotion on several occasions on both his part and the congressman’s part, anger expressed both ways-quickly retrieved but nevertheless expressed….

"Bob Bennett clearly wanted to dispose of the case. Bennett would on occasion say that he felt it was a very triable case, a very winnable case, but his actions were certainly oriented toward a disposition rather than a trial resolution."

The Clinton representation was "the most critical event that contributed to the deterioration of the relationship," but, he adds, it "was two old bulls in different professions, but in many respects cut from the same cloth- two very strong people." And, this source concludes, Bennett "never got to know his client as a man."

ROSTY FACES A BROAD INDICTMENT

On May 31 Holder announced the broad, 17-count felony indictment, charging Rostenkowski with stealing money from the government by buying gifts for friends with official funds, by misappropriating over $500,000 over two decades to pay "ghost employees" who did little or no official work, and by embezzling money from the House post office in the guise of buying stamps, and with witness-tampering by asking an associate to withhold information from the grand jury.

With Bennett on his way out, the silence from the congressman’s corner that day was deafening.

And on June 6-when Bennett and Skadden scarcely needed any new embarrassment-there appeared in the Chicago Sun-Times (and all that day on Chicago television and later in other publications) photos that had been taken at Skadden’s behest of some of the hand-painted wooden armchairs and crystal vases that Rostenkowski allegedly had bought with taxpayer funds from the House stationery store to give to friends and use himself. They were photographed in the basement of an apartment building owned by the congressman’s family.

Adding insult to injury, the photographer-hired by another Skadden lawyer on the recommendation of the Rostenkowski organization-told the Sun-Times: "I couldn’t believe it. It was like King Tut’s Tomb." The photos were taken for possible use at trial to rebut the prosecution’s claims that Rostenkowski had given the stuff away to friends; the defense planned to argue that Rostenkowski had intended to use it for lawful purposes.

According to a Rostenkowski friend, the day the pictures appeared, Rostenkowski saw them used "over and over and over" on television together with the King Tut’s Tomb quote. "His feeling at that point was, ‘What are these people doing to me?’" the friend says. Lawyers close to Rostenkowski were furious that Skadden hadn’t gotten the photographer to sign a confidentiality agreement.

One anonymous Bennett defender’s answer is that Bennett "shouldn’t get tagged because some scumbag clearly breaches an [oral] agreement" with his law firm.

A lawyer close to Rostenkowski says that Rostenkowski’s "deep resentment" of Skadden’s role in the "King Tut" photos may have sealed Rostenkowski’s determination to resist paying some or all of the $1 million still outstanding of Skadden’s total bill of over $1.5 million.

HOW BENNETT BLEW IT

While there are many disputed facts in this story, at least this much seems clear: Bob Bennett badly failed his client Rostenkowski in the basic human-and, we believe, professional-obligation to consult him fully, to outline any foreseeable problems, and to explore any concerns that Rostenkowski might have had before Bennett took on President Clinton as a client.

It also seems relatively clear that it was Bennett’s failure to tell Rostenkowski about his Paula Jones assignment-perhaps motivated by Bennett’s understandable lust to take on the biggest client of his remarkable career-that has now given him the biggest black eye of his career, by eroding Rostenkowski’s trust.

Whether Bennett let down Rostenkowski in other respects-whether he put all his eggs in the plea-bargaining basket when Rostenkowski says he wanted to fight; got ahead of his client in the bargaining; passed up chances to attack the draft indictment at the U.S. attorney’s office and Main Justice; made an unduly intense effort to sell the deal to a client who wasn’t buying; or leaked to the press at his client’s expense-is far harder to judge.

Some well-informed (but anonymous) Rostenkowski friends complain that Bennett did some or all of these things. They have articulated their suspicions to us with a cogency that bespeaks genuine conviction. Their extraordinarily detailed version of what happened behind the scenes is hard to reconcile with the version given by Bennett defenders.

But while these Rostenkowski loyalists are apparently sincere, they may have a bias: The worse Bennett looks, the better Rostenkowski looks. And they don’t know everything about the case-including many of Bennett’s conversations with Rostenkowski-that Bennett knows. Especially when one considers the ethical constraints that Bennett says prevent him from answering these anonymous accusers in detail, his long record of vigorous representation for his clients entitles him to some benefit of the doubt.

Two questions remain: Suppose that Bennett had given Rostenkowski the kind of full disclosure he should have before taking on the president’s case. Suppose further that Rostenkowski had objected. Would Bennett have been right to say that he was going to do it anyway, and invite Rostenkowski to fire him?

We don’t think so-not when one considers the critical stage that the Rostenkowski investigation had reached, and the huge effort and expense required for Rostenkowski’s new lawyers to duplicate Skadden’s $1.5 million worth of work.

Alternatively, what if, after full advance consultation, Rostenkowski had consented to the Clinton representation? Would it have been okay then?

Among those who have so concluded are White House special counsel Lloyd Cutler; the two lawyers who now serve as President and First Lady of the United States; and legal ethics experts including Stephen Gillers, a professor at New York University Law School.

There is obviously no conflict in the usual sense here, experts say, because the president’s Paula Jones case and the Rostenkowski case have nothing to do with one another. Bennett says the same: "I dotted the i’s and crossed the t’s and the bottom line was, there was absolutely no conflict at all."

But there was at least the appearance of a conflict-or, let’s say, the perception of a problem. If nothing else, Rostenkowski was hit by a lot of bad publicity when the president’s lawyer sought to cut a deal for the congressman with the president’s Justice Department. What did Rostenkowski need that for?

Perhaps more important, there is the nagging possibility that concern about the incestuousness of the Bennett-Clin-ton-Rostenkowski arrangement might have made it harder for Eric Holder and others on the prosecution side to resolve any doubts about the case in the congressman’s favor.

Bennett asserts: "While I do believe that there’s a lot of political hype in this case, Eric Holder, right or wrong, was in no way affected by my representation of the president."

Perhaps not. But how can anyone, even Holder himself, be sure? Is it inconceivable that Holder’s analysis of the strengths and weaknesses of the case that he had inherited might have been subtly skewed by the news that Rostenkowski’s lawyer had-presumably with Rostenkowski’s full blessing-become the president’s lawyer?

Many other lawyers might have been as quick as Bennett to brush aside such niggling concerns and seize the opportunity of a lifetime. After all, says one Bennett friend, "Even a Bob Bennett can’t turn down the president of the United States."

But he could have. And he should have

Stuart Taylor, Jr.

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by Stuart Taylor, Jr & Daniel Klaidman