Clinton Abandons Executive Privilege Claim in Inquiry

Seeking to avert the quick intervention of the U.S. Supreme Court, White House lawyers Monday withdrew President Clinton’s controversial claim of executive privilege in the Monica S. Lewinsky investigation.

Instead of using executive privilege--the doctrine employed unsuccessfully by President Nixon during the Watergate scandal--Clinton now is asserting only the attorney-client privilege to limit questioning of his closest staff confidant, Deputy Counsel Bruce R. Lindsey.

The legal shift offers clear benefits to a White House that has been trying to fend off independent counsel Kenneth W. Starr’s demands for full testimony by Clinton’s aides but has been fearful of unflattering parallels to the Watergate scandal.

The maneuver allows the president’s lawyers to continue fighting--but on less provocative grounds.

“I think it was a very smart move for the president to make,” said Paul Rothstein, a professor at Georgetown law school. “He dropped the smelliest and most doubtful of the two privileges and still is able to accomplish the guts of what he wanted.”

If the Supreme Court declines Starr’s request for an expedited review of the White House appeals, it could be months before Lindsey is again questioned before a federal grand jury about his knowledge of the president’s relationship with former White House intern Lewinsky.

The repeated White House challenges to Starr’s subpoenas for testimony and evidence have slowed the inquiry into whether Clinton has lied about his relationship with Lewinsky and whether he encouraged her or others to lie under oath. Starr sought an expedited review by the high court to accelerate the process.

White House Counsel Charles F.C. Ruff, responding to a deadline of Monday afternoon imposed by the Supreme Court, urged the justices to stand back and allow the “orderly” progression of the dispute within the U.S. Circuit Court of Appeals.

Ruff told reporters that he believes the battle over Lindsey’s testimony could be acted on by the Circuit Court before the end of the summer. If the Supreme Court wishes, he said, the matter could be brought before the justices as soon as next fall.

“There will undoubtedly be folks out there . . . who will suggest that ‘Oh, lo, it must be some great scheme to delay.’ . . . That’s just nonsense . . . “ Ruff said. “We’re fighting about an important principle.”

Ruff acknowledged that the president personally participated in the decision to drop the assertion of executive privilege. He added that “more than 40 White House employees have been interviewed or been before the [Lewinsky] grand jury.”

From the outset of the investigation in mid-January, Lindsey has been among a handful of government-paid lawyers who have worked with private criminal-defense lawyers to chart the president’s legal and political strategy.

Prosecutors want to question Lindsey about his consultations with the president regarding Lewinsky.

Lindsey had cited both executive privilege and attorney-client privilege in refusing to answer certain questions before the grand jury. Sidney D. Blumenthal, another White House aide, had asserted executive privilege.

Chief District Judge Norma Holloway Johnson heard arguments on the issue and ordered both to testify fully. Based on the White House shift in tactics, Starr’s office is now at liberty to bring Blumenthal back before the grand jury.

In a separate development Monday, Clinton administration lawyers said that they intend to appeal another ruling by Johnson, ordering three Secret Service officials to testify about the Lewinsky matter before the same grand jury.

*

Despite opposition from some career lawyers, the Justice Department has decided to appeal in deference to Lewis C. Merletti, director of the Secret Service. Merletti has argued that a president’s safety could be compromised if the chief executive--worried about the prospective testimony of the agents--withdraws from their constant protection.

For his part, Starr did not respond directly Monday to the White House shift in tactics. But in a speech delivered in Charlotte, N.C., Starr underscored his view that government-paid lawyers work for the public at large and are not entitled to claim the attorney-client privilege.

“That lawyer owes a duty not to any particular individual but to the people as a whole,” Starr told a gathering of the Mecklenberg County Bar Assn.

The independent counsel did not refer to Lindsey or the Clinton White House directly. But he pointedly chafed at lawyers who use their positions to mask the truth.

“Lawyers have a duty not to use their skills to impede the search for the truth,” Starr said. “Imagine the disaster that would consume our profession and our society if lawyers simply shrugged when clients declare their intention to commit perjury.”

Clearly, Starr and Clinton are at direct odds over whether the attorney-client privilege can properly apply to the work of government lawyers. The question is ripe for appeal in the Lewinsky investigation because Judge Johnson rejected the White House assertion of this privilege in her ruling last week, ordering the unfettered questioning of Lindsey.

To the extent that she explained her decision, Johnson dealt predominantly with executive privilege. She found that although both executive privilege and attorney-client privilege could apply with Lindsey, the privileges were overcome by the grand jury’s need for the information.

Now, lawyers for the president have an opportunity not only to win a reversal of Johnson’s decision, but also to trump a ruling made last year in the Whitewater case by the St. Louis-based 8th Circuit U.S. Court of Appeals.

Starr argued successfully in that instance that officials who consult with government attorneys cannot claim attorney-client privilege because those lawyers are retained by the government, not the official. The Supreme Court let the ruling stand without hearing the matter.

*

In his speech Monday, the independent counsel cited parts of the 8th Circuit’s decision, which forced a White House lawyer to surrender notes she had taken in connection with Mrs. Clinton’s appearance in 1996 before a grand jury.

“To allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets,” Starr said, quoting the court’s decision.

Lawyers for Clinton, however, believe that the 8th Circuit ruling is flatly wrong. They expect that the Circuit Court of Appeals here would rule in favor of allowing governmental lawyers to use the attorney-client privilege.

“Bruce Lindsey is the deputy White House counsel,” Ruff told reporters Monday. “When he is discussing the president’s official business with the president and performing his role as deputy White House counsel, I believe those conversations should be protected by the attorney-client privilege.”