Inside The Whirwind

Zoe Baird and her husband Paul Gewirtz, were sitting alone in a small conference room at the Washington, D.C., office of Melveny & Myers about 8 P.M., splitting a sandwich left over from lunch. Their “illegal alien” problem had burst onto the front page of The New York Times that morning, January 14. Another cold blast of bad press was on its way.

“They both looked white as sheets,” says a lawyer who saw them there that evening. “The were having a small conversation, a little chitchat, and the two of them mustered a smile. I was struck by how small they looked, with this huge tide about to roll over them, looking very white and very small and very sad. And there wasn’t a damn thing they or anyone else could do.

“You can’t know what it means until you have seen that happen to a human being,” this lawyer continues. “It just hit me in the stomach. These are good people who got hit with this thing, and they didn’t deserve it.”

The impossible dream – first woman attorney general! brightest new star in the Clinton cabinet! – was beginning to turn into a nightmare. It would unfold over the next seven days with all the cold, capricious cruelty of fate. And it would do lasting damage to our polity by unleashing furies of selective ethical puritanism that will disable or deter many people of integrity, like Baird, from pursuing public service. The casualties – Kimba Wood, Charles Ruff, and more – mounted rapidly as Bill Clinton’s search for an attorney general degenerated from tragedy to farce.

Just 20 days before, on Christmas morning, Baird’s nomination had dominated the news. There were glowing profiles and front-page pictures of her and President-elect Clinton beaming at each other. “You might as well resign right now,” a friend recalls telling Baird that day, “because it’s never going to get any better than this.”

This is the story of what went on inside the whirlwind as Baird, Gewirtz., the blue-chip lawyers advising them, and the Clinton team struggled to deal with a little wart that grew into a rapidly metastasizing cancer just as the new president and official Washington were celebrating his inauguration.

It is the story of how two decent and talented people seeking reliable child care decided it was okay to violate a noncriminal statute that the government itself treated as an inconsequential technicality not worth enforcing; how they saw themselves suddenly thrust to the giddiest of heights by a tragic miscalculation; and how they were then demonized by a political journalistic populist culture addicted to symbolic blood sport.

This story is based on dozens of interviews with friends and advisers of Baird and Gewirtz (who both declined to be interviewed) and other players in the drama – in Congress, in the Clinton White House, and on radio talk shows that reflected and amplified the popular fury against Baird.

Zoe Baird should never have been picked as attorney general. She was ethically fit for the job. But she was unfit for the symbolic role of ultimate champion of the rule of law, given the public perception – simplistic, half-wrong, but unavoidable – that she had scoffed at laws enforced by the Justice Department.

Baird certainly did not deserve, however, to be monstrously caricatured from coast to coast, on television and radio talk shows, and in press accounts – including a viciously unfairTime cover story – as the incarnation of the selfish, scofflaw, tax-evading, heartless, poor-person-abusing rich. Far from that, the evidence leaves the strong impression that Baird and Gewirtz are at least as ethical as, and probably more truthful than, most public servants and most Americans. Their hiring of two undocumented immigrants and delay of more than two years (on erroneous advice of counsel) in paying the required taxes were serious mistakes, but careful review of the circumstances testifies to their basic integrity.

What never got through in all the press attention is that, in hiring their nanny, Gewirtz (who was primarily responsible) and Baird were snared by a legal regime of mind-boggling irrationality and internal contradictions, run by a government that had a settled practice of not enforcing its own law against employing illegal aliens as domestics. The government told Gewirtz, in essence, that employing an illegal alien (a dehumanizing but perhaps unavoidable phrase) as a nanny was a technical violation, but that while doing so he could “sponsor” an alien’s application for legal status by identifying himself as the current (illegal) employer. When Gewirtz did all this, the government winked at him and facilitated the violation.

Little of this seemed to matter – not to the reporters who presented Baird’s violations in the most sinister and simplistic light, and who depicted this labor union official’s daughter as some kind of born-privileged malefactor of wealth; not to the preening senators who put her through two days of sanctimonious homilies; not to the populist masses eager to make her the villain in the latest Senate Judiciary Committee show trial. And because Baird – unlike Clarence Thomas or Anita Hill – stood for no ideological cause of the sort that would have mobilized a claque of blindly loyal supporters no matter how serious her sins, she could be immolated by acclamation.

Thus were Baird and Gewirtz put on trial in the hot glare of the national electronic kangaroo court, and sentenced to be consumed by the flames of envy of the rich, sexist animus against highly successful women, craven political pandering, and mass hypocrisy – the hypocrisy of applying to Baird a test of ethical and legal purity that few, if any, of us could pass if we (like she) were to confess our most embarrassing mistakes.

Just as some perfectly legal actions are immoral, some technically illegal actions are not. Yes, Baird broke “the law.” But everybody – at least every adult – has broken “the law,” if only by jaywalking, or exceeding the speed limit on a deserted country road, or driving home with two drinks under her belt, or missing the quarterly deadline for estimated tax payments. I, for one, may have violated the same immigration law that Baird did. And I may not have complied perfectly with the IRS rules (which I think unwarranted by the governing statute) levying Social Security taxes for every teenager whom 1 have ever paid more than $50 in a calendar quarter to baby-sit or cut the grass. How about you?

SEEDS OF NANNYGATE

In May 1990 Zoe Baird and Paul Gewirtz experienced a little crisis familiar to many working couples: Their six-month-old son Julian’s live-in nanny quit. (This one was legal, and Baird had paid all the taxes and done all the maddening paperwork required by law.)

Baird, then 38, was about to begin “the most challenging job of my professional career,” she later told the Senate Judiciary Committee, as the new vice-president and general counsel of Aetna Life and Casualty Company. So Gewirtz undertook to find a new nanny and handle the legal and tax issues. The search dragged on for week after frustrating week, into July, when Baird had to plunge into her new job, often working 12 hours or more a day.

Gewirtz advertised for a legal nanny, getting not one response. He went to as many as five employment agencies. He paid to fly a woman from Texas to New Haven for interviews, only to have her declare she would not be comfortable working for Jews. He and Baird turned down a nanny who smoked out of concern for their baby’s health. They found two women they liked only to lose them to other employers, and briefly hired one from Texas who got homesick and left.

Meanwhile, they flew in a baby nurse from Washington who had worked for the family before to fill in; Baird’s mother came from San Francisco to help; ; and Gewirtz., on summer break from his job as a Yale Law School professor, spent some time as Mr. Mom.

Finally, in July, Gewirtz found 30-year-old Lillian Cordero through an agency. She seemed just right: experienced, loving, and reliable. Her husband, Victor, also needed a job. While that doubled the cost, Baird could get another two hours’ work done while Victor drove her to and from Aetna, freeing up time for her baby when she got home.

But there was one problem: The Corderos were Peruvians without “green cards” authorizing them to live and work legally in the United States. And Baird and Gewirtz were sophisticated lawyers with ambitions for high office. (Gewirtz had been touted in the press, by me among others, as potential Supreme Court material.) So Gewirtz “began in his usual compulsive fashion calling lawyers,” says a friend, looking for the best immigration specialist he could find. He spoke to at least one lawyer before hiring the Corderos and at least three others afterwards. (He kept no notes, and his recollections are fuzzy.)

All the lawyers gave the same advice: Hiring the Corderos would be a technical violation of civil sanctions that the Immigration Reform and Control Act of 1986 provides for employing illegal aliens. But insofar as domestics are concerned, this was not a crime; it was only a civil offense, with a maximum fine of $2,000. And as a matter of official practice, no fine had ever been assessed against a domestic employer in Connecticut (where Baird and Gewirtz live), because the government did not consider such violations to be serious enough to warrant enforcement action.

What really swayed Gewirtz, friends say, were the government procedures under which he could (and later did) “sponsor” Lillian Cordero’s “application for alien employment certification” : Gewirtz could file documents with the Labor Department and the Immigration and Naturalization Service, fully disclosing her name and status as an illegal nanny currently working for him, and explaining why no U.S. citizen was available to do the job.

Gewirtz learned that, on receiving these documents, the government will not warn you that you are violating the law. It will not levy fines. It will not deport your nanny. Rather, it will facilitate your ongoing “violation,” by putting her on a waiting list for a green card.

Given all this, says a transition team lawyer who has discussed the mailer with them, “Zoe’ and Paul didn’t believe fundamentally that they were violating the law. … They thought that by disclosing the ‘ illegal’ status of this woman, and where she was, and that she was working for them, and what they were paying her, both to the Labor Department and to the INS, that if they received approval from both agencies, the technical violation would be cured.

“And in this crazy fucking system, the INS and the Labor Department send back letters [to Gewirtz, among others] saying, ‘ We approve,’ ” this lawyer continues. “What people should have been outraged about is the idiots who wrote this law and who put people into this crazy system.”

So Gewirtz concluded, and told his wife, that the government did not treat this as a serious violation. They hired the Corderos in July 1990, at a combined salary of $2,000 a month, plus free room and board. Thus did they light the slow-burning fuse that, two-and-a-half years later, would blow Baird’s nomination to bits and riddle their professional reputations with shrapnel.

“CRIME OF THE RICH”

Did they knowingly break the law? Well, sure, in the sense that they knew there was a statute on the books that says you are liable for a civil penalty if you hire an illegal alien. But they had every reason to believe that their actions were condoned by the government and blessed by immigration law experts. And this might have constituted a valid defense in the almost inconceivable event (until after Nannygate hit (the front pages) of an enforcement action.

It’s also worth noting that the Baird-Gewirtz “violation” was utterly devoid of moral turpitude. It was a victimless noncrime. It involved no lying. It was motivated by a desire to put their child in good hands. It benefited two people – two “aliens” – who needed work. And it did not offend the purpose of the 1986 law, which was to preserve jobs for citizens willing and able to do them. (The Labor Department would ultimately agree that no U.S. citizen was available for the job.)

Baird and Gewirtz also violated laws requiring them to pay Social Security and unemployment taxes. This was later to send journalists and citizens into paroxysms of self-righteous rage. Baird and Gewirtz – with a household income of $660,000 (mostly her salary, which was $507,000 in 1992) – deserve “special contempt” as “rich people who cheat,” Time said in its February I story demonizing Baird, with a half-face cover photograph seemingly designed to give her some kind of Leona Helmsley look. “The tax evasion alone,” said Time, “should have been enough to disqualify Baird.” Jerry Knight of The Washington Post accused Baird and Gewirtz of being “too cheap and heartless to do right by their baby-sitter.” He smugly announced that “lots of us play by the rules not only because it’s the law but because it’s the least we can do for the people who care for our kids.”

Tax evasion, Time should know, is a crime – one that Baird and Gewirtz did not commit, the IRS told FBI background checkers in early January. And the facts support Baird’s contentions that she and Gewirtz always intended to pay the taxes as soon as they could, and were not seeking to chisel anyone.

Gewirtz was advised by two lawyers – Antonio Robaina of New Haven and, later, Thomas Belote of Ridgefield, Connecticut – that it would be impossible to pay the taxes until the Corderos had gotten green cards, because “any such filings are kicked back [by the IRS] for lack of a valid Social Security number,” as Belote wrote in a January 5, 1993, letter to Gewirtz recapitulating his advice.

This advice proved mistaken, apparently because Belote (a former Justice Department and INS lawyer) had been misled by the IRS’s own actions in previous cases. But it was not so transparently wrong that Gewirtz and Baird could not have relied on it in good faith. Belote confirms that Gewirtz wanted to pay the taxes from the start and pressed for a way to do so, only to be told by Belote that he would have to wait until the Corderos had Social Security numbers, and then pay the back taxes, interest, and penalties.

THE ABSENTMINDED PROFESSOR

Unfortunately for Baird, her husband was slow to file the documents for sponsoring the Corderos. “Paul is an absentminded professor,” says a Baird adviser. “He had a zillion and one other things to do. He tried to lake this load off Zoe … but essentially was inattentive to it.”

It took Gewirtz a full year after hiring the Corderos to assemble and file papers with the Labor Department to start the sponsorship process, partly because he got bogged down both finding a lawyer with the right credentials and collecting the necessary documents and references from Lillian Cordero’s prior employers in the U.S. and Peru.

Little could Gewirtz have imagined then the hours of cross-examination, about why he had not filed this or that form sooner, or when he had first called such-and-so lawyer, to which his wife would be subjected by the preeningly prosecutorial Senator” Arlen Specter (R-Pennsylvania) and others on the Judiciary Committee. Was it a coincidence that the first female nominee for attorney general would also be the first to face demands for testimony by her spouse?

Gewirtz finally got Lillian Cordero in line for a green card in July 1991 by sending the completed sponsorship forms to Belote for filing with the Labor Department, which “certified” the application in April 1992, finding that no U.S. citizen was available to do the job. Later Gewirtz filed the paperwork with the INS, which notified him in October 1992: “The above petition has been approved.”

Victor Cordero left Lillian, and the Baird family, in March 1992. Lillian was devastated, and uncomfortable living in a home they had shared, according to Baird’s testimony. In October Baird and Lillian agreed that she should leave once a replacement was found. Lillian did leave on November 30, with a parting gift of two months’ salary (over $2,000) from Baird and Gewirtz.

Meanwhile, on November 3, Julian Gewirtz’s third birthday, Bill Clinton had been elected president. Was Lillian’s departure related to the need of Baird and Gewirtz to clean up their act in case one or both of them were tapped for a job? Baird swore it was not. And Lillian Cordero’s account in her interview with the FBI was consistent with Baird’s. While the timing has led some to doubt Baird’s explanation, those who condemn her for violating the law by hiring illegal aliens can hardly condemn her again for ending the violation.

THERE’S THIS LITTLE PROBLEM

Baird and Gewirtz were both logical candidates for big jobs in the Clinton administration. He was an accomplished constitutional scholar who had worked with Democrats in Congress, testifying in 1987 against Robert Bork, and helping more recently with civil rights legislation.

Baird had risen like a rocket to the top of the corporate law world, and was a networker-par-excellence and protÈgÈ of leading Democrats including the head of the Clinton transition team, Warren Christopher. He had brought Baird to the Washington, D.C., office of O’Melveny & Myers in 1981, hiring her away from another mentor, outgoing White House counsel Lloyd Cutler, who remained close to Baird.

Baird left O’Melveny in 1986, after making partner, upon marrying Gewirtz. She moved to New Haven to live with him, and worked nearby as a senior in-house lawyer at General Electric Company until Aetna hired her in 1990. In Washington her sponsors included her friend Senator Joseph Lieberman (D-Connecticut), a certified FOB (Friend of Bill).

Baird’s big break, according to a friend, came the night of December 16, after the close of President-elect Clinton’s two-day economic conference in Little Rock, to which Baird had been invited. Christopher asked her to stay over to meet with Clinton, whom she had only met briefly once or twice before.

Baird and Clinton hit it off famously. Their one-on-one meeting at the Governor’s Mansion lasted for two-and-a-half hours. Clinton listened intently to her ideas on a range of matters, in particular the Justice Department and the White House counsel’s office, and names of people whom he should consider for top jobs. She made quite an impression.

Two or three days later, Christopher called Baird to ask if she would like to be considered for attorney general. “It hit them like an earthquake,” recalls another friend of Baird’s. She asked for time to think it over, discussed the pros and cons (including the nanny problem) with Gewirtz and others including at least one former senior Justice Department official, and called Christopher back the next day to say: Yes, she would like very much to be considered.

But there’s something you should know, Baird told Christopher, according to this friend’s account. She then laid out her nanny experience in some detail, putting Gewirtz on the phone…

Zoe Baird and her husband Paul Gewirtz, were sitting alone in a small conference room at the Washington, D.C., office of Melveny & Myers about 8 P.M., splitting a sandwich left over from lunch. Their “illegal alien” problem had burst onto the front page of The New York Times that morning, January 14. Another cold blast of bad press was on its way.

Zoe Baird should never have been picked as attorney general. She was ethically fit for the job. But she was unfit for the symbolic role of ultimate champion of the rule of law, given the public perception – simplistic, half-wrong, but unavoidable – that she had scoffed at laws enforced by the Justice Department.

Just as some perfectly legal actions are immoral, some technically illegal actions are not. Yes, Baird broke “the law.” But everybody – at least every adult – has broken “the law,” if only by jaywalking, or exceeding the speed limit on a deserted country road, or driving home with two drinks under her belt, or missing the quarterly deadline for estimated tax payments. I, for one, may have violated the same immigration law that Baird did. And I may not have complied perfectly with the IRS rules (which I think unwarranted by the governing statute) levying Social Security taxes for every teenager whom 1 have ever paid more than $50 in a calendar quarter to baby-sit or cut the grass. How about you?

SEEDS OF NANNYGATE

“CRIME OF THE RICH”

It’s also worth noting that the Baird-Gewirtz “violation” was utterly devoid of moral turpitude. It was a victimless noncrime. It involved no lying. It was motivated by a desire to put their child in good hands. It benefited two people – two “aliens” – who needed work. And it did not offend the purpose of the 1986 law, which was to preserve jobs for citizens willing and able to do them. (The Labor Department would ultimately agree that no U.S. citizen was available for the job.)

Baird and Gewirtz also violated laws requiring them to pay Social Security and unemployment taxes. This was later to send journalists and citizens into paroxysms of self-righteous rage. Baird and Gewirtz – with a household income of $660,000 (mostly her salary, which was $507,000 in 1992) – deserve “special contempt” as “rich people who cheat,” Time said in its February I story demonizing Baird, with a half-face cover photograph seemingly designed to give her some kind of Leona Helmsley look. “The tax evasion alone,” said Time, “should have been enough to disqualify Baird.” Jerry Knight of The Washington Post accused Baird and Gewirtz of being “too cheap and heartless to do right by their baby-sitter.” He smugly announced that “lots of us play by the rules not only because it’s the law but because it’s the least we can do for the people who care for our kids.”

Tax evasion, Time should know, is a crime – one that Baird and Gewirtz did not commit, the IRS told FBI background checkers in early January. And the facts support Baird’s contentions that she and Gewirtz always intended to pay the taxes as soon as they could, and were not seeking to chisel anyone.

THE ABSENTMINDED PROFESSOR

THERE’S THIS LITTLE PROBLEM

But there’s something you should know, Baird told Christopher, according to this friend’s account. She then laid out her nanny experience in some detail, putting Gewirtz on the phone at one point because he had most of the first-hand information. Christopher asked some questions. He concluded – and told Baird, either then or later – that this was not a serious problem.

That was a big mistake, as it turned out. Christopher, or Baird, or somebody, should have said: “No, it won’t fly. We can’t nominate an attorney general who has to admit recent violations of laws she would be enforcing. It would create a bad appearance, and court political disaster.”

But nobody on the Clinton transition team has faulted Baird for accepting the nomination, given the fullness of her disclosures and her reliance on Christopher and others to make political judgments about whether this would risk Senate rejection. President Clinton, in taking “full responsibility” after Baird’s January 22 withdrawal for the disaster her illegal alien problem had become, stressed: “This is in no way a reflection on her. We would not have known any of this if she had not disclosed it.”

Aside from Christopher, Baird and Gewirtz told everything and gave the documentation about their ille-gal alien and tax problems, before her nomination, to a team of “vetters” headed by Lanny Davis of Washington, D.C.’s Patton, Boggs & Blow, according to three knowledgeable sources.

“She raised it persistently,” says Jamie Gorelick of D.C.’s Miller Cassidy Larroca & Lewin, perhaps Baird’s closest adviser during the confirmation process. “And she was consistently advised that this was something that would be a bump, something to be dealt with, but not ultimately a problem, and she accepted that view,” Gorelick notes.

“Everybody missed it,” says one source close lo the confirmation process. “Some of us thought it would be a problem, but no one thought it was going to be a fatal problem.”

On December 23 Baird flew to Little Rock with Gewirtz and Julian, and the next day she was the star of the show (mainly because of her gender) when Clinton announced five Cabinet nominations. On the plane back to New Haven, Baird called friends, including Terrence Adamson of the D.C. office of Donovan Leisure, Rogovin & Schiller. It was an occasion for euphoria, Adamson says, but “she was quite deliberate about it, as she always is” – already making plans about “things she needed to do, things she needed to think about.”

When Baird and family got back to New Haven close to midnight, they went straight to the annual Christmas Eve party of their friend, Representative Rosa DeLauro (D-Connecticut). Everyone toasted their good fortune. “Paul said, ‘ Gosh, imagine this happening to folks like us,’ ” Delauro recalls. “They were very, very humbled by the honor.”

At first Baird’s-confirmation seemed a foregone conclusion. The New York Times greeted her with an editorial calling hers “the most impressive nomination [of the five] yesterday.” Anthony Lewis called her “an inspired” choice. Women’s groups had gotten a woman, as they demanded – though they would have preferred a member of their own network. Republicans were pleased that Baird was no liberal activist but rather had sought to curb some suits by corporate whistle-blowers and had (rather vaguely) credited Dan Quayle for promoting civil justice reform.

Ralph Nader began campaigning against Baird immediately. Any corporate lawyer who had been an in-house counsel at GE and Aetna would not be his kind of attorney general. But Nader’s hard-core constituency is limited, and he was no threat to Baird’s confirmation – not, that is, until Nannygate broke.

BAIRD’S BLUE-CHIP TEAM

Baird and the Clinton transition team began almost immediately assembling a cast of about a dozen blue-chip Washington lawyers, some of them old friends of Baird’s, to help her with the confirmation process. Baird needed to cram herself full of information about the vast range of issues dealt with by the Justice Department, for the Judiciary Committee is notorious for putting even the most uncontroversial nominees through extensive hearings.

The only direct comment Baird offered for this article, relayed by her friend Adamson, was this: “The one thing she wants to be sure to underscore is how proud and touched she was by the esprit and unity and contributions of the large group of people that were a part of her confirmation team.”

Their first big task was to prepare a massive briefing book on the issues for Baird to study. The initial version was done in three days under the direction of Mayer, Brown & Platt partner Mark Gitenstein (a former chief counsel to the Judiciary Committee) and rushed on New Year’s Eve to Baird at Hilton Head, North Carolina, where she was attending “Renaissance Weekend” with, among others, President-elect Clinton (with whom Baird spent considerable time).

Most members of the preparation team were told nothing about Baird’s illegal alien problem. The decision to guard this secret so closely was part of a strategy set by top transition officials including Howard Paster, now the White House congressional lobbyist, and George Stephanopoulos, Clinton’s communications director. Baird also spoke with her mentor Warren Christopher “all the time, all through this,” according to one source.

The Paster plan, two sources say, was to avoid any public disclosure for as long as possible; to tell the FBI about Baird’s alien problem as part of its detailed, highly confidential background investigation; to tell Senators Joseph Biden, Jr. (D-Delaware), the Judiciary Committee chairman, and Orrin Hatch of Utah, the senior Republican, before they got the FBI report; and to let them decide whether to make it public at the hearings or keep it confidential.

Senate aides assert (though some Baird advisers dispute) that Baird apparently hoped, at least initially, to keep her alien problem secret forever – ” that if they did this right, it would be in the FBI report and no one else [except any Judiciary members who read it) would ever have to know it,” as one aide asserts.

Adds a source who worked for Baird’s confirmation “There are always disclosures to the FBI which are potentially awkward and which never come out because the committee does not view them as disqualifying and doesn’t want to embarrass the nominee.”

Some other Baird advisers, however, thought a leak or disclosure by senators at the hearing was inevitable. According to two sources, Baird adviser Ronald Klain (another former Judiciary Committee chief counsel, now associate White House counsel) urged Baird to make a preemptive disclosure, perhaps on the public portion of the committee’s questionnaire. (Klain did not return calls.)

But instead, Baird included the essential facts of her alien problem only on the FBI’s confidential background questionnaire, which she submitted on January 5. It was a very carefully drafted few sentences. “We looked at it from every direction possible for hours and hours,” laughs one member of the Baird team.

The FBI set swiftly to work, interviewing “everybody and her mother,” one source says: Baird, Gewirtz, the Corderos, the head of the employment agency, and others including Belote, the immigration lawyer.

Meanwhile, transition team lawyers figured out how to pay the taxes Baird and Gewirtz owed on the Corderos, and Gewirtz wrote a check to the IRS on January 5 for the $8,300 in back taxes and another $3,400 in penalties and interest. He also paid a little under $1,000 in state unemployment taxes. The IRS later told the FBI that given these disclosures and payments, no further proceedings, civil or criminal, would be appropriate.

Similarly, the INS, when asked by the FBI about a hypothetical case involving an anonymous employer whose conduct matched Baird’s, responded that no enforcement action would be taken. It was later to change its tune.

A BOX WITH NO ESCAPE

Baird was in her room at the Jefferson Hotel on January 10, conferring with Gorelick, when the phone rang. It was Gewirtz. Lillian Cordero had called with distressing news: The FBI back-ground checkers had come to interview her and her new employer – who had fired her on the spot.

“Zoe just burst into tears,” says Gorelick. “That was the only time 1 have ever seen her cry. … I think it truly pains them that Lillian has had to pay this price for the fortuity of having worked for Zoe and Paul. They have true affection for her.”

As Baird’s confirmation hearing approached, and the question of how to explain her alien problem to the senators and the public came into sharper focus, Baird and her advisers found themselves in a difficult box. If Baird said that she had knowingly violated the law, people would say we can’t have a scofflaw as attorney general. But if she claimed she had thought her conduct was legal and hid behind advice of counsel, people would say she was evading responsibility or wasn’t a good enough lawyer to be attorney general. If she explained the complex states of mind of her and her husband that had been the reality, people would say she was waffling or being evasive. If she blamed her husband, people would stereotype her as an ambitious woman ready to sacrifice anyone to get to the top. And if she mixed in a little bit of all these themes – as she ultimately did – she would invite endless cross-examination while slowly broiling under the television lights.

Gewirtz was a persistent advocate of what one Baird adviser calls “the long explanation – the long and true explanation.” Whether the question was what to put on the FBI form, or what to say privately to a senator, or how to respond to press inquiries, or what Baird should say in her testimony, Gewirtz would push for minimizing the offense while explaining, in detail, without legal conclusions, that this had been almost entirely his doing (not Baird’s); that the lawyers had suggested this was the way to do it; that this advice and the nature of the sponsorship process showed that the government viewed this as a mere technical violation; and so on, and on.

“Paul was really pushing this, all the time,” says a source. And what did Gewirtz think Baird should say if asked something like: Didn’t you know that your conduct was illegal – yes or no?

“He would want to go into this whole long thing again,” this source laughs. “That’s why he’s a law professor. I think he felt that a short answer was not giving the real truth of the matter.

“Some of the rest of us felt that you couldn’t do it,” this lawyer adds. “I also personally felt that … it was simply untenable for a woman in her position to say, ‘ I don’t know anything about it. Talk to my husband.’ Now if it were a man in those circumstances, I think that he could have done that.”

These debates ran up to, and even through, the opening of the hearing on January 19. By then Lloyd Cutler (who had not known of the alien problem until it leaked) was urging Baird to “eat the whole carpet.” The name partner of D.C.’s Wilmer, Cutler & Pickering wanted Baird to “take complete responsibility for it and not try to explain,” another adviser recalls. “He and Paul were very much on opposite ends.”

“Looking at Zoe and Paul together, even when they were in a room full of people, you had the sense that they were really alone in dealing with this problem,” adds still another adviser. “You wanted to help but you couldn’t really articulate an answer for them.”

TENSE TIMES WITH BIDEN

The difficulty of explaining away the alien problem was driven home to Baird in three private meetings with Senator Biden, each more tense than the last. The recollections of Baird, as relayed by friends, vary sharply with those of Senate aides on key aspects of these meetings. The aides describe Biden as far more offended by Baird’s conduct – even before it became public and political winds began blowing against her – than Baird perceived him to be. (Biden had not responded to an interview request when this story went to press.)

Baird first mentioned her illegal alien problem to Biden at her initial courtesy call on January 5. “She was trying out her best possible light on it,” recalls a Senate aide. Another says that Baird left Biden with the erroneous impression (though she did not explicitly state) that Gewirtz had hired “the lawyer,” and had started the sponsorship process, when they first hired the Corderos in July 1990. This source says that even though Biden urged Baird immediately to get her facts and documentation together, the Baird team did not tell Biden about Gewirtz’s delays until more than a week later – after her second meeting with Biden on January 12.

“No one says, ‘ Oh, by the way, it was actually a year later that the certification was filed,’ ” this source adds. “It may have just been confusion and sloppiness and not designed to be misleading, [but] we were upset when we were told one thing and it turned out to have been something else.” (Baird friends say she did not deliberately withhold anything, but rather did not have all the facts herself at first, and knew that Biden would soon have the detailed FBI report.)

Even without benefit of all the messy details, Biden told Baird on January 5: ” ‘ This is a big, big problem,’ ” a Senate aide recalls, “and that’s when she said, ‘ I disclosed his to the transition team, and they said it was no problem.’ ” Politics aside, the aides say, Biden was personally offended by the hiring of illegal aliens, especially by people of wealth. Years before, says one aide, when Biden himself had had a chance to save money by hiring an illegal nanny for his children, “he stared it in the face and decided it would be wrong.”

Baird, on the other hand, has told friends that Biden hardly conveyed shock or alarm at this first meeting. Rather, a Baird friend says, “he saw it as a political problem that he, as chairman, could manage at the hearing.”

Senate aides also claim that Biden warned Baird that this was likely to leak, and strongly implied, on January 5 and at their second meeting on January 12, that she should make a preemptive public disclosure. “And just the opposite is what happened,” adds one source. “It came out by leaks and by incremental responses, none of which got all the facts out on the table. Baird advisers say Biden never suggested a public disclosure before the hearing.

At the January 12 meeting, a Senate source says, “Biden came on very strong” about the seriousness of Baird’s alien problem. He also gave a theatrical rendition of how a tough crossexaminer might fire questions at her. “He can come on quite bullish and intimidating,” this source says, and Baird “was clearly shaken, because you could kind of see how tough this could be, how harshly it could be played.”

“He expressed it in very personal terms,” adds another Senate source: ” ‘ I’m a middle class guy, and you need to understand that to people like me, you look like you think you’re better than us, and the rules don’t apply to you, and you don’t have to pay your taxes like the rest of us.’ … She was choked up a little bit.”

A BIG LEAK, AND SOME COLD WINDS

The difficulty of managing Baird’s alien problem grew exponentially when David Johnston of The New York Times got wind of it on January 13 – almost certainly, in the view of Baird affair veterans, via a leak from the FBI.

Gewirtz called Belote, the Connecticut immigration lawyer, the night of January 13 to tell him that the ‘ Times would report Baird’s alien problem the next morning, on the front page. “I could hear the pain in his voice,” recalls Belote, “and I could certainly feel the pain in my stomach.”

The next morning, says a Baird friend who had seen her alien problem as no big deal, “when I saw it on the front page of The New York Times I just about threw up. I said, ‘ Holy shit, I had absolutely misread this. … These guys are big leaguers. If they think it’s a big deal, it’s a big deal.’ ”

But political Washington was initially unexcited, in part because every politician, journalist, and lawyer in town either has employed illegal domestics or has friends who have. The Washington Post (which tends to downplay the scoops of competitors) buried its follow-up inside the paper under the headline, “Baird’s Hiring Disclosure Not Seen as Major Block.” Republican Judiciary Committee leaders Hatch and Alan Simpson said they expected to confirm Baird. “This is not something sinister,” said Simpson, the principal sponsor of the 1986 law Baird had violated. Biden predicted Baird’s confirmation, while keeping his options open pending receipt of the FBI report. And Clinton’s team declared his “complete confidence in Zoe Baird.”

Cold winds were blowing, however. The Times hit Baird with an extremely tough January 15 editorial calling this “troubling and potentially disqualifying conduct.” And The Washington Post editorialized that day that Baird may not be “the right person to undertake the great cleansing” that the Justice Department needs.

Perhaps more damaging, Baird’s alien problem quickly became the hottest new topic on the radio and TV talk shows – vehicles of the new electronic populism. She was excoriated by voices all across the nation and the political spectrum, from Ralph Nader to Rush Limbaugh, by middle-class parents who struggle to find adequate day care, and by affluent people who complained, “I pay my taxes, why can’t she?”

Nader hit the talk shows hard – about 60 of them in all, he estimates. His previously ineffectual opposition gained new potency. (He accused Baird, erroneously, of “premeditated criminal activity” in comments to The Washington Post. )

One Baird adviser got a sense of the storm signals when he called his parents in California on January 16. “They said the talk shows are just savaging Zoe and Paul,” he recalls. “That really hit me. … I was privately wondering whether she ought to withdraw. But I didn’t say anything.”

Meanwhile, the press was not buying the Clinton team’s complex explications of Baird’s mitigating circumstances. Soon the pack was in full cry. “We couldn’t get the message across,” says a Baird adviser. “They didn’t want to hear it.” The Washington Post, catching up, front-paged a long piece on January 16 headlined, “Is Baird’s Initial Luster Fading?” Baird’s problem was also put in embarrassing relief by a detailed Legal Times report that an INS employee could be disciplined or even fired for what she had done.

The INS also reacted swiftly to the headlines: It brought an enforcement action against Gewirtz and Baird, despite its previous response to the FBI that it would not expend enforcement resources against household employers in circumstances like theirs. Why the switch? The agency explained to a Baird adviser that when specific violators were brought to its attention, sanctions were appropriate.

Although this violation had been brought to the INS’s attention months before by Gewirtz’s filings, the INS explained that its enforcement officials do not look at alien sponsorship documents, which go elsewhere in the INS bureaucracy. Politically, Baird and Gewirtz were in no position to argue. They paid the full $2,900 fine sought by the INS on January 16. More bad headlines.

That night Jamie Gorelick was watching the film Aladdin with her 4-year-old son and her husband when her husband’s beeper went off. Mark Gitenstein was calling. Gorelick got back to him from a nearby drugstore. She was told that Joe Biden was angry and anxious to speak with her. When she reached Biden (at a ski resort), he said he was very upset with Baird because he kept learning facts inconsistent with his initial impressions about when Gewirtz had started the sponsorship process. Gorelick, who had not been in on the first Baird-Biden meeting, explained the facts as she knew them and felt that the air had been cleared.

Some other Baird friends attribute Biden’s increasingly tough private (and, later, public) posture towards Baird to concerns about his own carefully burnished image. The Times had blasted him in its January 15 editorial for suggesting prematurely that the alien problem should not bar Baird’s confirmation. “The country cannot afford, and Mr. Biden’s reputation cannot stand, another tardy, unfocused inquiry,” the Times declared, citing the Clarence Thomas hearings.

All these nicks were bleeding Baird. Clinton nominees with early hearings had flown through the Senate despite questions about their ethics. By the time Baird came up, neither press nor public were in a forgiving mood. Baird would be held to the pristine standards of conduct and appeals to “the people who pay their taxes and obey the law” on which Clinton had campaigned. And with the incoming president’s honeymoon cruise hitting rough seas before he had even gotten the keys to the White House, the Clinton inner circle was distracted and anxious to change the subject, by focusing the nation’s attention on the inaugural celebration, not on a fight to the finish over Nannygate.

A REHEARSAL – AND A BRACING WELCOME

As the inaugural festivities got under way, about a dozen members of the Baird team spent the weekend of January 16 and 17 preparing for the upcoming hearing at the Georgetown offices of Swidler & Berlin, which has a big mock courtroom where most Clinton Cabinet nominees, including Baird, rehearsed their testimony.

Mark Gitenstein played his former boss Biden. Baird’s briefing book was by this time six inches thick, and much of the activity focused on substantive questions unrelated to her alien problem. The mastery of these issues that Baird displayed both at the rehearsal and later in her poised (but passionless, and completely unnoticed) performance at the hearing itself was “a tour de force, with all this going on,” Gitenstein says. “She had absorbed tremendous amounts of information, and she’s obviously a hell of a lawyer.”

The running debate on how to explain the alien problem continued. Gewirtz was still holding out for a detailed narrative of what they (mostly he) had done and why it was only a technical violation. Cutler and most others were still urging Baird to “eat the whole carpet.” Maybe they should have tried a focus group with some non-Washington nonlawyers. “You had to think about how people in a middle-class, two-earner household who are also concerned about child care would look at this,” Gitenstein says. “They just wouldn’t see it the way Washington lawyers would see it.”

The Washington lawyers labored on into the evening that Sunday, pausing to gaze out the conference room windows at the spectacular fireworks display over the Potomac River that greeted President-elect Clinton after his bus from Monticello arrived at a Lincoln Memorial celebration-concert. “It would have been nice to be out there with your children,” recalls Adamson.

Baird got a bracing welcome when she arrived for a last private meeting with Biden less than an hour before starting her public testimony at 9 A.M. on January 19.

Biden was angry. “He said that he had felt misled,” recalls a Senate source, citing Baird’s failure to tell him sooner about Gewirtz’s delays in hiring a lawyer and starting the sponsorship process for the Corderos. Biden also (old Baird, according lo (Ins source: ” ‘ You continue to respond to this in a legalistic fashion . . . and unless you say, “I knew it was a violation and it was a mistake,” I will vote against you.’ … He was offended by her continuing to call this a technical violation and minimizing it.

“She had a handkerchief out,” notes this source. “There were tears on her cheeks. … She was in an extremely difficult position, and what she was hearing was not good news.” Another Senate source says: “Biden was explaining in five or six different ways how awful it was going to be unless she just laid out the facts and acknowledged how bad it was, and that it was wrong and she was sorry.”

According to one Baird adviser, Biden’s apparent purpose was to tell her how she had to testify to enable him to “lance the boil,” get it behind her, induce other committee members to move on to other issues, and get her confirmed: “Biden felt that the more explanation, the greater the temptation there would be to try to pin down every last fact and sort of wallow in detail,” says this adviser.

When the public hearing started, Baird did her opening-statement mea culpa: “It was a violation of the law to hire undocumented workers. Our decision to hire the couple was wrong, and I deeply regret it.” This juxtaposed awkwardly with Baird’s assertion minutes earlier that “I want the [Justice] Department to be a symbol for this country that we are governed by the rule of law.” But Baird still hedged too much for Biden’s taste: He wanted her to admit a knowing violation. In his opening round of questions, he kept pressing for such an explicit admission, and she kept not quite giving him one.

Biden also lectured Baird so harshly, with so many rhetorical flourishes, that he may well have helped inflame the television audience against her, spurring some of the thousands of angry phone calls that were to jam the Capitol switchboards and stampede senators like scared rabbits. When Baird tried to explain why she had let herself believe that the government’s sponsorship process had given “tacit approval to this sort of situation,” Biden smothered her in sanctimony: “It’s amazing,” philosopher Joe interjected in his most sincere Neil Kinnock tone, “the ability of the human condition to rationalize, to justify, what you know is not right.”

What did Biden think he was doing? Three days before, he had said: “I expect her lo be confirmed.” Now, while patting Baird on the back for taking responsibility, he was declaring for the cameras’ benefit:

“It is not just me but a significant portion of the population that finds your action … inconsistent with the responsibilities that you will have as attorney general of the United States to enforce the very laws you knowingly violated. … I, for one, do not know exactly how I’m going to deal with this. … Millions of Americans out there … have trouble taking care of their children … with one fiftieth the income that you and your husband have, and they do not violate the law.”

With friends like these, who needs enemies? Biden’s last line was an incitement to class resentment against Baird. “I thought he was laying it on a little thick,” as a former Baird colleague watching on television puts it. “Biden’s a show-off,” grumbles another. Says a third: “He was trying to have it both ways, |and] he got carried away.” But other Baird advisers credit Biden with good intentions, and a Senate source says Biden was a lot easier on Baird in public than he had been in private.

After Biden had finished his first round. Hatch, the senior Republican – a conservative who had savaged Anita Hill in 1991 – praised Baird so effusively, and forgave her illegal alien indiscretion so completely, that the net effect may have been to heighten liberal unease about her. But as other senators got their turns, they wallowed in Nannygate, endlessly and repetitively, Democrats and Republicans alike. Baird and her advisers hadn’t expected that. What went wrong?

“The phone calls went wrong,” says a Baird adviser. People watching Baird’s initial testimony on television, and hearing about her on the radio, did not like it. They were flooding the congressional switchboards with calls demanding that the nomination be rejected. Senator Howard Metzenbaum (D-Ohio) told Baird as lie questioned her that morning that his calls were running “fifty no, zero yes.” In the afternoon, Senator Paul Simon (D-Illinois) gave Baird another taste of direct democracy: “In our D.C. office we had eighty-four calls against, three for you, and in the Chicago office today they had eighty-one against you and four for you.”

The callers didn’t like Baird’s breaking the law. They didn’t like her hiring “aliens,” legal or otherwise. They didn’t like her not paying her taxes. They didn’t like her when she took responsibility. They didn’t like her when she seemed to blame her husband and his lawyer. They didn’t like her legal jargon – ” enforcement matter,” “regularize,” and the like. They didn’t like her cool composure. Above all, perhaps, they didn’t like her making $507,000 a year. They especially didn’t like that in a 40-year-old woman with a small child at home. Baird became a symbol of lots of things that grate on thisnation’s frustrated middle class.

Nor did they like Baird’s testimony on substantive issues, to the extent that they listened to it. That testimony was masterful by the usual standards of confirmation hearings: Baird knew her stuff, from antitrust to habeas corpus. She spoke with poise and confidence. She avoided grandstanding rhetoric. And she deftly dodged demands for commitments on senators’ pet issues. But this hearing had become a show trial, and Baird’s technical competence, on-the-one-hand-on-the-other-hand explanations, and dignified but unemotive demeanor made for lousy TV.

Another sign of trouble that day came at the luncheon held by Emily’s List, the all-female political fund-raising group. When the two new women on the Senate Judiciary Committee, Dianne Feinstein (D-California) and Carol Moseley-Braun (D-Illinois), brought up Baird’s status as the first woman nominee for attorney general, the roomful of 4,000 feminists showed no enthusiasm.

No doubt some were offended by Baird’s conduct. But I’ll bet most of these feminists would have rallied behind Baird had she been part of [heir network or a champion of their causes. This corporate lawyer, this protÈgÈ of men like Christopher and Cutler, had not paid her feminist dues. So when she was being savaged – over an issue of special concern to working women – the feminists turned their backs on her.

By the end of Baird’s first day of testimony, Moseley-Braun, her finger to the wind, was pointedly pressing Biden to get Gewirtz, Belote, and even the two Corderos to testify. A surer way of killing Baird’s chances could scarcely have been devised.

A DAY OF RENEWAL – AND MIRAGES

The hearing broke for Inauguration Day, January 20. The cold, sunny morning began with Baird suggesting that maybe she should withdraw, at an 8 A.M. meeting at Cutler’s office with him, Gorelick, and Adamson. Baird questioned whether, even if she were confirmed, the controversy would underline her goals of restoring the Justice Department’s image and integrity. But her advisers urged her to light on – if, that is, the Clinton team wanted her to.

Baird left for the Capitol for the new president’s swearing-in ceremony and inaugural address. She was seated next to Biden at the congressional luncheon afterward. According to a Baird friend, Biden gave her great encouragement, praising her testimony and suggesting that things were going well and she could be confirmed. When President Clinton (and at another point former President Carter) came over and put his arms on Baird’s and Biden’s shoulders, Biden made upbeat remarks to them. Clinton praised Baird and urged her to tough it out in the face of adversity, as he had had to do during his campaign.

But minutes later Biden gave the new president a grimmer assessment, two Senate sources say. “He said something roughly to the effect,” says one, “that ‘ I’m planning to to call you tomorrow. It will be one of two phone calls – either to start really squeezing arms and bucking up Democratic senators, or my judgment that the nomination isn’t survivable and you should pull it down.’ ” Biden stopped there. ” ‘ The guy had just been inaugurated,'” one source recalls Biden saying later, ” ‘ and I wasn’t literally going to rain on his parade.’ ”

During the parade Baird basked in expressions of support from inaugural celebrants and took her 3-year-old son to meet Barney, the purple and green dinosaur, who was on one of the floats. “It was a day of great renewal,” a friend recalls. And a day of mirages: The next day Baird sat in the witness chair until 9:30 P.M., gamely fielding questions and soaking in senatorial sanctimony, only to learn that the White House had cut her loose seven hours before.

Round two of the hearings began with more senatorial buzzing about the firestorm of calls, still running against Baird by ratios of 20-to-l and higher. (More scientific public opinion polls showed the public against Baird by about 2-to-l.) Outside the committee, the Senate’s only Republican woman, Nancy Kassebaum of Kansas, was the first senator to announce against Baird.

At a Senate Democratic caucus during the lunch break, majority leader George Mitchell of Maine found himself standing in the path of a senatorial stampede. Most of his colleagues wanted Baird to go. Mitchell and Biden called Clinton and told him bluntly that if he wanted to save her, he would have to intervene personally and spend lots of political capital. And she might lose anyway.

The president and his staff, moving into their new offices amid confusion and jammed switchboards, did virtually nothing to back Baird. Clinton spokesman Stephanopoulos sent a clear message that she was on her own just after 2:30 P.M., at his first White House news briefing. Asked whether Clinton would have chosen Baird had he known all the facts, the spokesman said, “I can’t answer that hypothetical.” He also hedged that Baud was Clinton’s nominee “right now.” As if on cue, five Democrats, in an almost unheard-of mid-hearing mass defection, dumped their new president’s nominee that afternoon.

It was over. By nightfall 11 senators had come out against Baird. But nobody told her the bad news. While she plowed on into the night, her advisers wanted to keep up her morale. In another Mitchell-Biden call to the president, after 6 P.M., Biden strongly urged: “For your interests and hers, you should bring her down.” Clinton got the message, but an aide says he didn’t want to push Baird; he wanted to let her make her own decision to jump.

Baird briefly raised her team’s flagging morale by mounting a spirited defense of her husband against Senator William Cohen’s (R-Maine) attempt to smear Gewirtz for an effort by others in (heir neighborhood association to fence out a foster home for disabled black and Hispanic children. During the next break, recalls a Baird adviser, “in the back room, she and Paul embraced. I think it was the closest we came to feeling that we had made a point.”

Finally her marathon testimony ended. As Baird numbly made her way out the door for the last time, a woman in Native American garb approached and barked, “Stop exploiting indigenous peoples!”

Baird learned of the defections and other bad news in a nearby Senate office, then headed across town to Cutler’s office, where Christopher and Vernon Jordan, Jr., Clinton’s transition chairman, were waiting. She walked in about 10 P.M. and said she thought she should with- draw. There was no disagreement, although discussions of the options dragged on a bit, with Biden carrying water for the While House at one point, by spelling out the hopelessness of the political situation to Christopher by phone. Then there were the details – coordinating with the White House the mechanics of the withdrawal and when to go public, preparing a letter, exchanging drafts with the White House. But, finally, Baird’s letter was faxed to the president at 12:42 A.M. on January 22, and released to the waiting reporters.

In his own letter accepting Baird’s withdrawal, Clinton called her “a person of great decency and integrity” and praised her “candid disclosure.” He concluded: “Hillary and I value your and Paul’s friendship. We look forward to seeing you often. I hope that you will be available for other assignments for your country in my administration.” A Clinton aide who was there stresses: “These are heartfelt sentiments. He sat-there with a paper and pencil and wrote it himself.”

The next morning Baird was up early, calling friends like Senator Lieberman and Representative DeLauro, thanking them emotionally for their support. Baird caught Lieberman at home brushing his teeth. “Life comes in chapters,” he recalls telling her, “and you’ve got a lot of good chapters ahead of you.”

President Clinton had Baird for an hourlong chat in the Oval Office that evening about six o’clock. He was warm and supportive, Baird later told a friend, and “she felt very good about it.” After a couple of days of bittersweet visits with friends and members of her confirmation team, Baird and Gewirtz headed back to New Haven – back to a home that had been staked out by television crews; to a next-door neighbor who had blasted Baird, in a newspaper interview, for “exploiting the system” ; to nasty headlines in the local papers; to Aetna Life and Casualty and Yale Law School. Back to face their futures.

Bad as they were, the ordeals of Baird and Cewirtz may have been less oppressive than those of their two former employees, Lillian Cordcro and her estranged husband, Victor – interrogated by the FBI and Senate staffers, hounded by reporters, hunted down and threatened with deportation by the INS. Both finally lied back to Peru. Baird, meanwhile, still has her $500,000-a-year job, and the hope that in the future the public memory of this episode will wane and she can again return to the limelight.

Perhaps the deepest hypocrisy manifested during the Baird uproar was that of the many Americans, themselves descended from “aliens,” who branded Baird and Gewirtz as immoral for giving jobs to the two struggling Corderos. The prohibition against hiring illegal immigrants might (were it enforced) find some justification in the self-interest of those ol us who occupy this island of relative prosperity, and who think there will be more for us if we slam the door shut on the fingers of people like the Corderos. But morality is entirely on the side of the illegal aliens, not the self-serving nativists When Jefferson invoked the rights of all to life, liberty, and the pursuit of happiness, he wasn’t just talking about U.S. citizens.

And it is sobering to consider that this whole scandal probably would never have happened – the firestorm, the humiliation, the outcry of unethical behavior – if Baird had been less forthcoming. Had she kept mum about the little legal skeleton in her closet, as have many other appointees of this and other administrations and the senators who confirmed them, she would probably be attorney general today.

“I really do think it’s tragic,” says a Baird adviser who declined to speak for attribution. “These are the risks you take when you’re asked to do a job and you expose your self to the confirmation process. It’s all so ironic that her full disclosures led to her downfall. And it puts into ques tion whether honesty is the best policy.”

Stuart Taylor, Jr.

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by Stuart Taylor, Jr