A Highly Strategic Legal Chess Game

Stephen Gillers, professor of law at New York University, teaches legal ethics, law and literature and evidence

If law is a spectator sport, then the O.J. Simpson trial was ice hockey--rowdy and raucous. The Microsoft antitrust trial will be like baseball--long and boring. And the contest between Whitewater independent counsel Kenneth W. Starr and President Bill Clinton is chess--intellectual and highly strategic. That's because the Starr-Clinton contest is not about guilt or innocence (at least not yet), but about legal principles at the very foundation of our constitutional democracy. While that might make it less dramatic than the Simpson trial, it's a lot more important.

Events of the last 10 days underscore the chess analogy and may prove to be the most decisive in Starr's four-year investigation. They confirm, in case there was any doubt, that each side's strategy can be reduced to a single word: information. Information is what Starr means when he says he just wants "the facts," and information is what Clinton wants to keep Starr from getting. Unfortunately for the president, Starr has two weapons that make him virtually unstoppable: subpoena power and a grand jury. A witness called before a Starr grand jury doesn't have many choices. He can talk, hope a legal privilege will let him refuse to talk or join Susan McDougal in jail.

Clinton & Co. have placed their bets on legal privileges--old ones and newly minted ones--that they hope will keep Starr from getting "the facts." They have invoked attorney-client privilege, lawyer work-product privilege, spousal privilege, executive privilege and a new protective privilege for the Secret Service.

Starr has, so far, defeated all Clinton's privilege claims, although this perfect courtroom record has been obscured by Clinton's relentless assault on Starr's character. Before a microphone, Starr may be duller than Clark Kent, but in court, he's closer to Superman.

Consider what's happening now. The White House relied on executive and attorney-client privileges to block grand-jury subpoenas to presidential aides Bruce R. Lindsey and Sidney Blumenthal. When Federal District Judge Norma Holloway Johnson rejected both efforts, the White House appealed to the U.S. Court of Appeals in Washington.

President Richard M. Nixon had a stronger argument to protect his White House tapes in 1974, but the Supreme Court unanimously rebuffed him. Why, then, did Clinton bother asserting executive privilege at all and, having lost, why did he appeal? Here is Clinton's fallback strategy. Second best to denying Starr information is giving it to him too late, after the midterm elections if possible or, hope against hope, after Election Day 2000. An unsuccessful appeal to the Court of Appeals could have been followed by another appeal to the Supreme Court. Even if the president lost both appeals, a final decision might be delayed until early 1999 or after.

Enter Starr. In a tactically shrewd response, Starr asked the Supreme Court to bypass the Court of Appeals and accept the case directly. What's more, Starr asked the high court to decide the appeal swiftly, before the end of July. Clinton now faced the prospect of a strongly worded Supreme Court opinion unanimously rejecting his position in a matter of weeks. That risk only increased when the court gave the White House a mere weekend to explain why it should not agree to Starr's request. Cornered, Clinton dropped executive privilege.

But watch how White House Counsel Charles F.C. Ruff announced that the president no longer needed to appeal his executive-privilege claim. Oh, really? Why not? Well, because Johnson's opinion, though rejecting executive privilege for Lindsey and Blumenthal, recognized the privilege would exist in a proper case.

This is nonsense. Of course, it would exist in a proper case. The Supreme Court said as much in 1974. Besides, if the White House only wanted this acknowledgment, why did it bother to appeal Johnson's ruling at all? The answer is obvious. To slow things down. But it says a lot about the media's failure to understand this story that one television network introduced an interview with Ruff by describing the White House decision as "graceful." Rubbish. It was a defeat.

Even though the White House abandoned executive privilege, it continued to press attorney-client privilege, which entitles a client to refuse to reveal communications with his lawyer. Because this privilege, unlike executive privilege, is not constitutionally based, the White House was able to argue that the case no longer contained an issue important enough to burden the Supreme Court's busy end-of-term calendar.

The White House was making another bid for delay, and it worked. Last week, the Supreme Court declined to advance either the attorney-client privilege or the Secret Service privilege issues, leaving them for expedited review in the Court of Appeals. The White House victory is modest and mixed. Even on the slower track, the privilege questions should be resolved by mid-autumn. Furthermore, the White House avoided immediate Supreme Court review only by capitulating on its executive-privilege claim.

The president's claim of attorney-client privilege for his conversations with Lindsey (Blumenthal is not a lawyer) is stronger than his executive-privilege claim. But it has several problems.

First, because Lindsey is not listed as a member of the D.C. Bar, he would not be allowed to practice law there unless he falls within an exception for "any attorney employed by the United States and carrying out the duties and function" of his office. If this exception does not apply, the courts will have to decide if Lindsey nonetheless qualifies as a lawyer for purposes of the privilege. Even if he does qualify, however, the attorney-client privilege only protects advice on the law--not political or any other kind of advice. If the courts decide that Lindsey was not giving legal advice, the privilege doesn't exist.

Second, as Supreme Court Justice Benjamin N. Cardozo wrote in 1933, the privilege "takes flight if the relation is abused," which means if Starr can establish what the courts call "a reasonable basis for believing" that Clinton used Lindsey to further criminal or fraudulent conduct (obstruction of justice is both), the privilege will vanish. Starr's burden of proof here is not high and he has met it at least once before in this investigation.

Even if Clinton can surmount these hurdles, he must still circumvent a 1997 decision of the Eighth Circuit Court of Appeals in St. Louis. In that case, Starr won the right to see White House counsel's notes of interviews with Hillary Rodham Clinton. In a broadly worded decision, the Eighth Circuit held that attorney-client privilege does not exist when a federal prosecutor subpoenas a lawyer who works for any branch of the federal government. The court reasoned that government lawyers and federal prosecutors have the same "boss," the United States, and a common goal--to prevent and punish crime. Consequently, there was no need for the privilege.

The Eighth Circuit's opinion goes too far. It forces high officials to employ a shadow group of private lawyers--beholden only to private interests--if they want or need confidential legal advice about their official conduct. That hurts the country, puts sensitive information at risk and, in the end, will net prosecutors no more information because it means government lawyers will be kept in the dark. Nonetheless, the Eighth Circuit's opinion, though not binding, will be influential in the current dispute.

The president suffered another setback last week in his effort to prevent Starr from getting information. Wisely but belatedly, Monica S. Lewinsky replaced William H. Ginsburg with two experienced criminal-defense lawyers. Ginsburg was bad for Lewinsky but good for Clinton because, as the old saying goes, "The enemy of my enemy is my friend." Ginsburg's misguided strategies (they seemed to keep changing) so alienated Starr that he had ruined Lewinsky's chances to get a deal. Lewinsky's new lawyers quickly reopened the channel to Starr's office. We can expect them to test the possibility of a deal. Lewinsky will want immunity. Starr will want information, lots of it.

Let's review the bidding. Starr succeeded in removing executive privilege from the case and defeated the president's other privilege claims before the district judge. Blumenthal must testify. Clinton will be able to keep Lindsey from the grand jury through the summer, and possibly longer, if his claim of attorney-client privilege is ultimately upheld.

All in all, Starr is well ahead in his battle for "the facts." But he's a long way from check, let alone checkmate.

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