How It Happened

By Jill Smolowe

IN THE END, ZOE BAIRD DID NOT NEED President Clinton or anyone else to tell her that her career as the nation's chief law officer was over before it ever got started. When her grilling before the Senate Judiciary Committee ended last Thursday at 9:30 p.m., she retired to the Washington law office of her friend and mentor, Lloyd Cutler, at 24th and M streets. Over coffee and sandwiches, an exhausted but clear-headed Baird rehashed her day with a group that would include her husband Paul Gewirtz, Cutler, fellow fortysomething lawyer Terrence Adamson and Secretary of State Warren Christopher. By 10:45, Baird concluded that she must withdraw her nomination. "She said, 'Look, this is so controversial it would be crippling for the President and the department even if we won,' " said Adamson. Soon after, Christopher phoned White House chief of staff Thomas ("Mack") McLarty and pulled her name.

Her decision climaxed a 29-day ordeal that secured Baird's place in the history books as the Clinton Administration's first major setback. As hard a comedown as it was for the talented Connecticut lawyer who stood to become America's first female Attorney General, it was a greater embarrassment for Clinton. The episode showed Clinton and his aides acting hastily, naively and cavalierly in brushing aside Baird's early warning that she had employed two undocumented Peruvians in her home. When the pieces of the shattered nomination are fitted together, Baird's civil infraction appears less careless than her handling by a transition team that seemed more bent on completing its headhunting mission than applying its standards.

In some ways, the Baird nomination was troubled from the start. The first indications from Bill and Hillary Clinton were that they wanted to appoint Vernon Jordan to the Attorney General's post. A flurry of press articles questioning Jordan's ties to a tobacco company, capped by a searing editorial in the New York Times, persuaded Jordan to remove his name from consideration. Aides then leaked word that Clinton sought a female appointee -- a move that in effect devalued the post to affirmative-action status.

That may help explain the series of rejections that followed. Clinton's first choice, Federal Appeals Court Judge Patricia Wald, declined the nomination, citing her age and reluctance to lose her pension benefits. The name of former Federal Judge Shirley Hufstedler was floated next. National Public Radio then reported that Washington lawyer Brooksley Born had been tapped. Baird and her husband first met the Clintons at an annual New Year's Renaissance Week at Hilton Head, South Carolina, some years earlier. But it wasn't until she was summoned late last year to Little Rock, initially to be vetted for the post of White House counsel, that she struck a fast rapport with the President-elect. "Clinton likes people who he likes," explains a presidential aide. Baird also boasted an impressive connection to the Clintons' alma mater, Yale Law School: her husband is a constitutional scholar on the school's faculty.

* While in Little Rock, Baird told Warren Christopher, who was then co-chief of the transition team and later became Secretary of State, that she employed illegal immigrants as a driver for herself and a nanny from 1990 through 1992. Christopher, a long-standing mentor of Baird's, passed the information on to Clinton. Last week, after much confusion about what Clinton knew and when he knew it, the President set the record straight. "Just before she was announced but after I had discussed the appointment with her, I was told that this matter had come up," he said. Clinton added that he had been told "in a very cursory way" about the hirings. He said he felt confident because Baird had consulted an attorney "who was an expert in this area."

Back in Little Rock, however, Clinton and his aides had perceived no danger. A transition aide recalls that the attitude about Baird's legal infraction was "Everybody does it." As for Baird, "she deferred to a political judgment that it was not something that should deter them from nominating her," says a lawyer who was involved in the process. The nomination went forward, and Clinton introduced Baird to the world, hailing her as a "dynamic, talented and innovative lawyer."

The press treated the unknown Baird gently, with adjectives like brilliant, hard-working and ambitious sprinkled throughout the stories. Her resume -- short stints in the Carter Justice Department and White House, private practice, head of General Electric's legal department, chief counsel of Aetna Life and Casualty -- was trotted out as the very model of the modern manager. It was noted that the woman now destined to restore order and morale to the 90,000-strong Justice Department had spearheaded a restructuring of Aetna's 120-member legal department.

In the wings, however, public-interest advocates quietly voiced their reservations. Critics complained about Baird's big-company orientation and her lack of experience in civil rights and criminal matters. "A lot of people in the public-interest community were saying, 'Zoe who?' " says a Washington lawyer involved with Clinton's transition team. Broadly, they worried about Baird's stance on tort reform; specifically, they questioned her role in Aetna's campaign to restrict the number of civil suits brought against corporations. Critics also pointed to Baird's work at GE that led to implementation of a program aimed at dodging federal prosecution and blunting whistle blowing on waste and contract fraud.

! With the notable exception of consumer watchdog Ralph Nader, most of the carping was done anonymously. A public-interest activist explained the general reluctance to openly criticize Clinton's nominee: "The Washington civil rights lobby groups have a symbiotic relationship with the Democratic Party and are unwilling to rock the boat. They are desperate to preserve their access."

There was quiet concern at the Justice Department. After the scandals that plagued previous Attorneys General -- Edwin Meese (Iran-contra and Wedtech), Dick Thornburgh (B.C.C.I.) and William Barr (the Iraqi-loan affair) -- the department badly needs to salvage its reputation. At a moment when strong leadership is needed, employees were worried about working for an Attorney General who largely owed her job to Christopher. Justice and State often spar when criminal investigations turn up evidence of misdeeds by foreign officials of friendly countries.

None of these issues, however, threatened to derail the Baird nomination. For that, a far more potent explosive was required. It came, in classic Washington fashion, in the form of a leak, one that Baird supporters think dripped from the FBI, though they can't prove it. On Jan. 14, the public awoke to a Page One New York Times headline: CLINTON'S CHOICE FOR JUSTICE DEPT. HIRED ILLEGAL ALIENS FOR HOUSEHOLD. By this time, Baird and Gewirtz had remedied their delinquent-tax situation by paying nearly $16,000 in taxes, penalties and interest. It was made known that they had hired the Peruvians only after failing to find an American baby-sitter and that they had relied on the advice of an immigration lawyer, Thomas Belote of Ridgefield, Connecticut. The Clinton camp released a letter from Belote, dated Jan. 5, 1993, and written at Gewirtz's request, confirming that he had provided counsel and had advised that the Peruvians' lack of Social Security numbers would complicate tax payments.

Immediately, questions arose about the propriety of Baird's presiding over a department that oversees the enforcement of immigration laws. Yet the Clinton camp remained unfazed, dismissing Baird's transgression as a "technical violation." By the weekend, with editorials denouncing Baird's nomination, the Clinton people had shifted to a "Baird deeply regrets" mode. But they still did not grasp that a recession-pressed public would have little sympathy for the nanny problems of a couple who jointly earned more than $600,000 annually and evaded taxes.

* Among the top players in the unfolding drama, only Senate Judiciary Committee chairman Joseph Biden seemed to anticipate the fire storm ahead. He first learned from Baird on Jan. 5 of her transgressions. Biden was shocked when a Clinton transition aide dismissed Baird's offense as a "parking ticket." To his mind, a worried Biden told his staff, "It's a freeway crash." "Putting aside the legal question, this is a big political problem," Biden told Baird, who appeared surprised by his vehemence. Biden told her that she had to inform ranking minority member Orrin Hatch and Senators Edward Kennedy and Alan Simpson, who sit on an immigration subcommittee. Baird had two more meetings with Biden, each time leaving his office in tears. On the day the Times story broke, Biden stated, "I do not believe this matter will prevent her confirmation." Meanwhile, the increasingly public discussion was making the Clinton camp angry with the panel's Democratic Senators for stirring up the issue. "The White House gave us a lot of heat," says an aide to one Senator. "They said, 'Why aren't you being as helpful as Senator Hatch?' "

The support of Hatch and other conservative Republicans had an easy explanation: her strong probusiness credentials. And if they could push through her nomination, the conservatives would have a large chit to call in from the new Administration. The Democrats on the committee, however, were caught in a painful bind. After the Anita Hill debacle, they desperately wanted the Baird confirmation to go smoothly. They also did not want to embarrass the new President. But after so many tainted Attorneys General, they were determined to confirm someone with an unblemished record.

The confirmation hearing opened last Tuesday with not a single member of the committee on record against Baird. But the illegal-alien issue was front and center -- and growing fast. "There were phone calls to offices, local editorials," says a top Senate official. "The people were just way ahead of us." Biden more than hinted at the ground swell with his pointed, if rambling, questions. "Do you understand that the vast majority of the American people have similar needs?" he lectured.

Baird allowed that she had made a "mistake," but stressed that she had been open about the infraction from the start. She blamed her husband for having failed to file Labor Department papers in a timely fashion, saying, "I would have pushed to make it more expeditious." She assumed responsibility for the lapse in judgment but blamed it on the pressures of motherhood.

It was an appeal designed to tug heartstrings. But Baird's apologia did not play well in Peoria -- or the rest of America. Irate callers jammed the phone lines of radio and cable stations across the country, denouncing her tax dodging and calling on her to withdraw. The switchboard on Capitol Hill lit up as constituents weighed in with their representatives. In a single day, Senator Paul Simon's Washington office logged 1,000 calls. "In 18 years in the Senate," said Senator Patrick Leahy, "I had never seen so many telephone calls, spontaneously, in such a short period." Senator Nancy Kassebaum and Representative Marge Roukema lobbied Republican colleagues on the Judiciary Committee to quash the nomination.

As Clinton was feted, two transition-team lawyers flew to Connecticut to interview Baird's immigration lawyer, Belote. They emerged disturbed by what one lawyer called "substantial discrepancies" between Baird's testimony and Belote's logs and diaries. Upset by his depiction in the media as an inept attorney, Belote provided documentation that some Senators believe contradicts Baird's testimony. While Baird testified that her husband contacted Belote upon hiring the Peruvians in July 1990, Belote's documents indicate that Gewirtz did not contact Belote's firm until four months later. Moreover, according to a lawyer familiar with the session, Belote's records indicate that he had no further contact with the couple until April 12, 1991, when he told them that the Peruvians were not authorized to work until they had documentation, that their employment was illegal and that there were tax obligations.

As the second round of hearings opened Thursday, it was plain that Baird was a woman without a constituency. She had no track record with women's groups, Washington insiders or public-interest groups. Not even professional women with children rushed to her defense.

Through a second round of questioning, Baird remained calm. At noon, Senator Herb Kohl brusquely inquired, "Have you asked yourself whether or not you might serve . . . best by withdrawing your nomination?" Baird replied, "I don't believe that would be appropriate," leaving tea-leaf readers to divine that Clinton's support remained intact. During the lunch break, White House aides Bernie Nussbaum and Howard Paster sprinted to the Hill to take Baird's pulse. The result: full-speed ahead, Baird told them. But during that same break, Senators of both parties caucused, and the mood perceptibly began to shift against Baird. Five Southern Democrats told majority leader George Mitchell that they could not support the nominee. Five Republicans, including two committee members, soon announced their opposition.

Over the next several hours, the Clinton Administration seemed to vacillate in its support for Baird. Even as Baird soldiered on, heartened by her lunchtime visit from Clinton aides, White House spokesman George Stephanopoulos was cutting her loose. During a press conference, he said the Administration continued to support her "right now" and that details of her tax and hired-help situation were "murky." Clinton, who was kept informed of developments in multiple briefings, was determined to let Baird play out her cards and make her own decision. "Remember, he stated his case on 60 Minutes," said a Clinton associate, recalling how Clinton and his wife had gone on TV last January to address questions about his marital fidelity. "He believes in that."

While the Clinton people made no effort to warn Baird of the shifting mood, Biden did. More than once he invited her to bring the proceedings to a halt. In each instance, she declined. At 7:30 p.m., as more Democratic Senators said they would vote against Baird, Biden joined Senate majority leader George Mitchell in a blunt call to Clinton, telling him that the nomination was doomed. When Biden could not get through to the President, he resorted to a final message: If his call was not returned immediately, he would state his opposition to Baird's nomination publicly. The tactic worked: Clinton called back and Biden told him the bad news. Baird meanwhile kept going with considerable poise and grit. "We kept telling her that she had to smile," a White House aide recalled. Two hours later, the hearings closed. At 10, Baird reached Cutler's office downtown, where Christopher and White House aide Paster informed her that there was no hope left. Biden called to echo the point. After some hesitation, Baird relented. Phone calls were made; letters were exchanged by fax, and, at 1:22 a.m., released to the press.

If Clinton moves quickly to name a successor, it is likely that the furor will die out. Chief of staff McLarty and counselor Bruce Lindsey will oversee the new selection process. To his credit, Clinton assumed full responsibility for the blunder. Moreover, once the nomination began to crumble, he retreated swiftly, recovering with some grace from a nasty stumble.

While the headache is ending for Clinton, it may be just beginning for the Peruvian couple hired by Baird. Immigration officials have ordered Victor and Lillian Cordero to appear for questioning next week in Hartford. Deportation proceedings could follow. Victor's current employer says the former driver has disappeared, leaving a note that he was returning to Peru; Lillian has not yet been located.

Things should go better for Baird. Aetna has put out word that it "very much looks forward" to her continuing in her job. Clinton, in his letter to Baird, left a door open to other possibilities, stating, "I hope that you will be available for other assignments for your country in my Administration." It is not known what the two discussed when they met at the White House on Friday. Since sending her withdrawal letter, Baird has disappeared from public view. What is known is that after her exhausting ordeal, she and Gewirtz returned to their hotel where their three-year-old son was sleeping soundly under the care of a baby-sitter -- a U.S. citizen.

With reporting by Margaret Carlson, Julie Johnson and Elaine Shannon/Washington