It was not a telephone call that a lawyer practicing in New Hampshire would expect. But on the line that day in January was Bruce R. Lindsey, a senior White House official.
What, Lindsey wanted to know, did the lawyer's client, a retired chief White House steward named Michael J. McGrath, know about the president and a former intern, Monica S. Lewinsky? Lindsey, said a source familiar with the conversation, "was trying to take a barometer of the facts."
After reviewing Lindsey's actions, a federal judge has sharply questioned why a lawyer on the government payroll was doing this kind of sleuthing, according to confidential court records obtained by The Times.
"The court questions the propriety of the president utilizing a government attorney as his personal agent in a personal attorney-client relationship," Chief U.S. District Judge Norma Holloway Johnson wrote in a 51-page opinion that she signed May 1. Johnson is overseeing the independent counsel's investigation of Clinton's conduct with Lewinsky.
Lindsey's official title is assistant to the president and deputy White House counsel. His status as Clinton's right-hand man is by now well known in Washington.
But secret portions of court records in the case illuminate the presidential aide's special role as an intelligence and reconnaissance operative. The previously undisclosed records provide more insight into his significance as a potential witness in the Lewinsky investigation.
The records show that Lindsey directly sought information from two other witnesses in the Lewinsky matter at the time the controversy was erupting: Vernon E. Jordan Jr., the Washington lobbyist who helped Lewinsky find a job, and D. Stephen Goodin, the president's personal scheduler whose job had entailed shadowing Clinton through much of his workday.
Lindsey has refused to answer prosecutors' questions about his contacts with the witnesses or their attorneys, citing lawyer-client privilege.
White House Counsel Defends Lindsey's Role
Lindsey, 50, declined to be interviewed for this article. In extended comments last week, White House Counsel Charles F. C. Ruff defended the propriety of the role played by Lindsey.
"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 ought to be protected by the attorney-client privilege," Ruff said.
Independent counsel Kenneth W. Starr wants to know what Lindsey said during his contacts and whether Lindsey crossed the line from innocuous fact-finding to implicitly coaching a witness' testimony.
Whether Lindsey must disclose under oath what he knows about the Lewinsky matter is the subject of a legal battle that will go to an appeals court Monday and, by next fall, probably on to the Supreme Court.
How the dispute is resolved stands to influence the conduct of government lawyers for years to come--and to shed fresh light on what Clinton's inner circle was doing in the frantic first days of the Lewinsky controversy.
Lindsey's contacts with the witnesses came near the time when federal investigators confronted Lewinsky on Jan. 16 in an Arlington, Va., hotel with evidence that she had had an intimate relationship with the president and lied about it under oath. The agents sought her cooperation in determining whether Clinton or others were involved in an illegal cover-up. They also sought other witnesses with knowledge of the matter.
The dates of Lindsey's calls to the witnesses were not noted in the records, but they came before Starr had brought the three before a federal grand jury in Washington to tell what they knew.
Few Knew McGrath Was Likely Witness
At the time Lindsey contacted McGrath's lawyer, only a handful of attorneys--including those cooperating with Clinton through so-called joint-defense arrangements--knew that McGrath was a likely grand jury witness.
The lawyers knew that McGrath was positioned to shed light on a subordinate's account to him, describing an alleged encounter between Clinton and Lewinsky in late 1995 near the Oval Office.
McGrath was prepared to testify that a White House valet, Bayani B. Nelvis, just after the alleged encounter had given him details of what he observed. Among other things, Nelvis told McGrath that Lewinsky's hair was askew and that, on the floor of the study, the valet found towels smeared with lipstick.
Nelvis was later called before the grand jury twice. He was represented by a lawyer who is participating in a joint-defense arrangement with those defending Clinton. McGrath also appeared in early March before the grand jury.
Clinton has denied under oath that he ever had sexual contact with Lewinsky.
Lindsey's early contacts with the witnesses or their attorneys were important to Clinton, in part because the president was considering what, if anything, to say publicly about the nature of his dealings with Lewinsky.
Lindsey's efforts also would help in the preparation of Clinton's defense strategy, as the president and his lawyers sought to anticipate and parry Starr's moves. Through Lindsey's contact with McGrath's attorney, Clinton also could learn whether the retired steward was a firsthand or hearsay witness to the alleged episode in late 1995.
The Times has learned that Lindsey is also refusing to answer questions about his conversation several months ago with Jordan, who had been asked by the White House to help find Lewinsky a job in the private sector. Jordan also arranged for Lewinsky to be represented by a lawyer in Washington.
Jordan this week completed his fifth appearance before the grand jury, and the specifics of his testimony remain a source of intense curiosity.
Starr is investigating whether Lewinsky was given help in finding a job to encourage her silence about her relationship with Clinton.
Goodin, the scheduler who was at the president's side for innumerable meetings and activities, declined to comment Thursday on Lindsey's contact. "I'm not going to talk about that kind of stuff," said Goodin, who left the White House about three months ago.
The propriety of Lindsey's actions involving the witnesses is a matter of intense dispute.
Starr maintains that government lawyers should not engage in such conduct. The government lawyers, Starr says, serve the interests of the people, not a single officeholder--in this instance, President Clinton.
Judge's Ruling Is Detailed
Judge Johnson, in ruling last month that Lindsey must answer the questions before the grand jury, questioned the propriety of a government lawyer providing personal legal-defense services.
"In the case of the president of the United States, taxpayers should not bear the financial burden of facilitating communications between the president and his personal attorneys or of advising those attorneys on strategy . . . ," Johnson wrote. She added:
"The court finds that Lindsey was not an appropriate intermediary, and the attorney-client privilege does not apply to conversations where he allegedly facilitated communications between the president and his personal counsel."
The White House has maintained that Lindsey could provide legal services for Clinton without being a private lawyer.
Until now, the judge's conclusions and numerous investigative details have remained out of public view because of extensive redaction by lawyers involved with the case.
The unabridged documents also provide a more complete view of Lindsey's activity in the case. They indicate that Lindsey has conferred with Clinton and First Lady Hillary Rodham Clinton and has collected information about the most sensitive aspects of the controversy, including the roles played by Jordan and Clinton's secretary, Betty Currie.
"Lindsey declined to answer questions [before the grand jury] relating to his conversations with the president and with senior White House advisors, including the first lady, regarding Monica Lewinsky, the grand jury investigation and the Paula Jones investigation," Johnson wrote.
"He also declined to discuss communications about the Monica Lewinsky matter among the senior White House staff, communications regarding the president's knowledge of whether Betty Currie called Vernon Jordan to help Monica Lewinsky find a job in New York and whether Lindsey heard during the weekend of Jan. 24-25, 1998, that Betty Currie was cooperating with the [independent counsel's office]."
By citing "the Paula Jones investigation," Johnson referred to the former Arkansas state employee whose sexual harassment lawsuit against Clinton spawned Starr's inquiry of the Lewinsky controversy.
The documents also note that Clinton himself repeatedly declined to answer investigators' questions. Citing a sworn declaration from Robert J. Bittman, one of Starr's top deputies, Johnson wrote that the independent counsel's office "has invited President Clinton to appear before the grand jury no less than six times, and he has rejected all of these invitations."