Hearings Put Focus on Nussbaum’s Style : Whitewater: Senate Democrats cite ex-White House counsel’s pushiness to explain actions after Vince Foster’s death. He is slated to be final witness.

In their effort to shield President Clinton from allegations of obstruction of justice, Democrats on the Senate Whitewater investigating committee are invoking the well-worn stereotype of the pushy New York lawyer to explain the actions of former White House Counsel Bernard Nussbaum.

Frequently during committee hearings over the past two weeks, Nussbaum’s alleged interference with a July, 1993, police investigation of the death of Deputy White House Counsel Vincent Foster has been portrayed as the natural result of the intensity with which he practices law.

“That’s just Bernie’s personality,” shrugged former Associate Atty. Gen. Webster L. Hubbell, when asked by Democrats why Nussbaum prevented law enforcement officials from searching Foster’s office. “Bernie is one who will jump in there with both feet. . . . He is a New York litigator.”

It is by no means the first time Nussbaum has been portrayed by friends and critics alike as being out of step with Washington protocol.

Corporate Beginnings

Nussbaum came to be phenomenally successful in litigating corporate takeovers during the 1980s before being chosen as Clinton’s first White House counsel. But his lack of experience in dealing with sensitive political issues eventually forced him to return to private practice in New York City.

Nussbaum’s defenders insist that by attributing his difficulties in the Foster case to personality, Democrats are minimizing the serious matters of law that lie at the heart of his clash with Justice Department attorneys and other law enforcement officials that were investigating Foster’s death.

In his own defense, Nussbaum, who is scheduled to be the final witness in this series of hearings, is expected to tell the committee that he had a solemn duty as the President’s lawyer to preserve the confidentiality of the Foster papers under the principles of executive privilege and lawyer-client privilege.

Executive privilege traditionally has been used by presidents to protect the privacy of White House papers, while lawyer-client privilege commonly preserves the privacy of communication between lawyer and client.

Over decades, Nussbaum’s White House predecessors have jealously guarded the principle of executive privilege, fearing that any breach--no matter how small--might be made a precedent.

To be sure, even the Republicans who accuse Clinton’s appointees of obstructing justice in this case do not argue that the White House should have allowed law enforcement officials unfettered access to Foster’s papers.

Yet members of the GOP, who were vocal on the subject of executive privilege when President Richard Nixon was battling the Watergate scandal and when President Ronald Reagan was defending himself against accusations in the Iran-Contra affair, have been noticeably quiet about it in this case involving a Democratic chief executive.

Novel Situation

Legal experts note that the application of executive privilege in a suicide investigation poses a novel situation. Never before in modern U.S. history had police come calling at the White House to investigate the mysterious death of a top presidential adviser.

The legal issues were even more complicated because Foster’s body was found in a federally maintained park, giving the executive branch itself jurisdiction in the case. Unlike local police, the U.S. Park Police, an arm of the Interior Department, had no formal procedures to follow in such cases.

Roger C. Adams, a career Justice Department official, testified last week that law enforcement officials had “no legal tool” to gain access to Foster’s papers. Because all the evidence at the time ruled out murder as a cause of death, he said, police had “no grounds” to seek a search warrant of Foster’s home or office.

In routine cases similar to this, authorities say, police usually rely on the cooperation of the victim’s co-workers and family to permit them to do a cursory inspection of the home and workplace to help establish a motive and to rule out any possibility of foul play.

Adams, who sought access to Foster’s office on behalf of police investigators with that idea in mind, said law enforcement officials had no interest in seeing top-secret files, such as Foster’s file on potential Supreme Court nominees, when they asked to inspect the office. Instead, they were interested in personal papers, such as diaries and telephone logs.

Often overlooked in the political furor over Nussbaum’s resistance to the Justice Department request is the simple fact that Michael J. Spafford, the Foster family’s lawyer, allowed the Park Police to inspect Foster’s personal papers after they were removed from the White House office. To a large extent, this gesture satisfied the needs of the police investigators.

Lack of Cooperation

Indeed, no testimony has yet been offered to suggest that Nussbaum was on shaky legal ground when he blocked investigators from inspecting the documents in Foster’s office. Instead, law enforcement officials have said it was Nussbaum’s uncooperative attitude that annoyed them.

Specifically, Adams indicated that Justice Department and other law enforcement officials were miffed that Nussbaum made them wait two days after the body was found--until the afternoon of July 22, 1993--to enter Foster’s office. In addition, they testified, he changed the ground rules for the meeting at the last minute.

According to Adams, Nussbaum had agreed on the afternoon of July 21 that he would permit Justice Department attorneys to look at the title page of every file in the office to determine whether it was relevant to their probe. But on July 22, when law enforcement officials assembled in Foster’s cramped West Wing office, Nussbaum announced that he would instead read the titles of the files to them.

To make matters worse, Nussbaum’s assistant, Clifford Sloan, offended an FBI agent in attendance: When the agent stood to stretch his legs, Sloan accused him of trying to peek at the documents.

Furthermore, law enforcement officials were angered to learn four days later that Nussbaum had overlooked what is now being described as a “suicide note” when he emptied Foster’s briefcase during the July 22 meeting.

Even Nussbaum’s fellow Democrats think he erred by changing the ground rules of the meeting at the last minute. “I think it would have been a hell of a lot better if it had proceeded that way,” said Sen. John Kerry (D-Mass.), referring to the original plan.

But Kerry noted that his judgment is based entirely on political, not legal, considerations. Legally, he said, Nussbaum was justified. Politically, he said, the White House counsel failed to consider how Clinton’s political enemies would portray his resistance.

Richard Ben-Veniste, a Washington attorney hired by Senate Democrats to assist in the hearings, said Nussbaum could have avoided a confrontation simply by inviting law enforcement officials into the White House for a cup of coffee, and very informally assisting them in their probe.

“This would have been the common-sense approach,” Ben-Veniste said. “It would have compromised those legal privileges, but it also would have resolved the question quietly.”

Nevertheless, it is not surprising that Nussbaum, faced with a choice of jealously guarding the legal prerogatives of the President or taking a more politically correct course, opted for the former. According to lawyers familiar with the case, it doesn’t take a hard-bitten “New York litigator” to see why Nussbaum opted for a conservative legal strategy.

“This is nothing a serious lawyer could take lightly,” said Ben-Veniste, who made his reputation investigating the Watergate scandal.

Watergate Experience

Nussbaum’s friends noted that he gained his training in these matters in Washington--not in New York. As an attorney for the Senate Watergate committee in the early 1970s (along with future First Lady Hillary Rodham Clinton), Nussbaum spent hours interviewing Nixon’s White House counsel, John W. Dean III. That experience left him with a keen understanding of the territory between cooperation and cover-up.

Meanwhile, the Democrats’ well-intended remarks about Nussbaum’s personality have proven controversial for other reasons. Radio talk show host Don Imus and some other commentators have charged that the term “New York litigator” is being used by the committee as a euphemism referring to a derogatory stereotype of Jewish lawyers.

But Ben-Veniste insisted that Democrats meant no offense to Nussbaum. Ben-Veniste noted that he also works for a Manhattan-based law firm and holds New York litigators in very high regard.