White House Pushes for Lindsey Privilege

The day before key witness Linda Tripp’s first grand jury appearance, a White House lawyer told a federal appeals panel Monday that presidential confidant Bruce R. Lindsey should not have to reveal his private conversations with President and Mrs. Clinton about the Monica S. Lewinsky matter.

The three appeals judges sharply questioned whether the Clinton advisor truly merits such a “privilege.”

The White House seemed to be asking for “something far beyond” the confidentiality accorded to government lawyers, Judge Judith Rogers remarked during the argument before the U.S. Circuit Court of Appeals.

She questioned whether such a privilege should apply “in fraud cases as opposed to the civil area.”

Judge A. Raymond Randolph suggested that Lindsey might have to testify against his will in an investigation of wrongdoing involving the president.

“There seems clearly to be a difference” between the duty of a government-paid lawyer like Lindsey and the privilege of a private lawyer, Randolph said, noting that a federal employee takes an oath of office to uphold the Constitution and that includes reporting violations of law.

Randolph noted that in the mid-1970s, then-White House counsel John W. Dean III provided testimony about President Nixon’s role in attempting to obstruct justice in the Watergate scandal.

Monday’s arguments, presented by independent counsel Kenneth W. Starr and special White House counsel Neil Eggleston, set the stage for a ruling on what has become one of the central legal confrontations of the Lewinsky investigation: whether Starr should have access to the innermost White House consultations on the matter after it erupted in January.

The judges’ reaction to the White House argument for attorney-client privilege echoed similar doubts expressed last week by a different appellate panel to Clinton administration arguments that Secret Service employees should be excused from testifying about what they saw or heard while protecting the president.

The information that Lindsey and three Secret Service employees might have is particularly important to Starr, who has been unable to get Lewinsky to cooperate with his investigation.

The grand jury appearance by Tripp, 48, the then-Lewinsky friend who secretly taped her phone calls about the former White House intern’s alleged sexual relationship with Clinton, has been anticipated ever since the matter erupted. Her appearance marks a significant milestone in the case.

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Starr is proceeding with the questioning even though, sources confirmed, his negotiations with Lewinsky for her testimony are going nowhere in the wake of her recent change in attorneys.

Starr’s refusal to grant Lewinsky immunity for testimony about her alleged sexual relationship with the president hinges on the fact that she is unwilling or unable to testify that either Clinton or his golfing partner, attorney Vernon E. Jordan Jr., encouraged her to lie, sources said. Starr reportedly is seeking evidence that the president sought to obstruct justice in connection with the Paula Corbin Jones sexual harassment suit against him. A federal judge in Arkansas has since dismissed that case.

In the Lindsey matter, the White House is appealing a lower court order by U.S. District Judge Norma Holloway Johnson that Lindsey must answer questions from the grand jury.

Eggleston told the appellate court Monday that breaching the attorney-client privilege would mean that “a president would be completely deprived of the confidential advice of counsel if that matter [of their conversation] later became the subject of a grand jury investigation.”

Judge David Tatel, however, appeared to question the basis of the White House argument for Lindsey’s privilege when he said that it would “have to be legal. We can’t be just political.”

And when Tatel asked Eggleston if he could tell the judges “how the White House counsel walks that line” between official and personal matters, the White House lawyer said that all things affecting the president are official, implying that all matters Lindsey might have discussed with Clinton should be protected.

But Starr told the judges that Clinton’s longtime Arkansas friend and advisor should not be permitted to escape a grand jury appearance. The grand jury must have all “relevant” information to which Lindsey became privy through his discussions with Clinton and others, Starr said.

“Morality, common sense and law,” said Starr, dictate that “you don’t sit on information . . . that’s relevant to a federal grand jury.”

Eggleston countered that “relevant” in Starr’s mind “extends to the boundaries of imagination.”

The Times reported June 12 that Lindsey also has refused to answer questions before the grand jury about his conversations with two witnesses as well as a lawyer for a third witness in the Lewinsky investigation.

The other witnesses are Jordan, the Washington attorney-lobbyist who sought to arrange a private sector job for Lewinsky; D. Stephen Goodin, the president’s former scheduler who shadowed him throughout his daily activities, and a lawyer for Michael McGrath, a retired White House steward.

Tripp’s long-awaited appearance before the panel could prove a turning point because grand jurors’ assessment of her credibility and motivation likely will influence their decision on whether to bring charges, send Congress an accusatory report or take no action in the case.

The voice of Tripp, who has spent days meeting with Starr’s prosecutors preparing for the session but still could be taken by surprise by a grand juror’s question, should not be unfamiliar. The panel has listened to the 20 hours of tapes she made of her conversations with Lewinsky.

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The once-secret recordings prompted Starr to seek Atty. Gen. Janet Reno’s permission to broaden his investigation to include whether Lewinsky, Clinton or others obstructed justice or committed perjury in sworn statements about the nature of their relationship.

In a telephone interview published in today’s Washington Post, Tripp said she has been unfairly vilified in the five months since she gave Starr’s office tapes of Lewinsky claiming to have had an affair with the president.

“I am so anxious to go before the grand jury and tell the truth,” she said. “I did not cultivate Monica,she cultivated me. Monica is a very worldly person. She educated me.”

Tripp refused to discuss any aspect of Starr’s investigation. But she said she has “the truth on my side. It is what has sustained me. The truth as I know it will be corroborated.”

Tripp’s testimony “is clearly important if this investigation is going to go anywhere--and that’s a big if,” said Stephen Saltzburg, a law professor at George Washington University Law School and a former Justice Department official.

Although there are tape recordings of conversations, “reasonable people will ask whether they are conversations where somebody is manipulating somebody else, or candid conversations between friends,” Saltzburg said. “If they [members of the grand jury] conclude she [Tripp] is leading and manipulating, they might give less credence” to the taped evidence, he said.

Some published excerpts and descriptions of the recordings depict Tripp as leading Lewinsky in the discussions, and others describe Lewinsky as “obsessed” about her alleged sexual relationship with Clinton.

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“I would emphasize that Linda Tripp is not an eyewitness to any of the basic events,” said Paul Rothstein, a Georgetown University law professor. “All of it hinges on the veracity of Monica Lewinsky when she is speaking to Tripp. Generally, people are more inclined to tell the truth if they are under oath than when they’re speaking to friends.”

Mindful of the heavy reliance on Lewinsky’s veracity on the tapes, Starr’s prosecutors and FBI agents assigned to his office have spent months trying to corroborate details of her statements. Their raw material has ranged from records of Lewinsky’s book purchases to White House visitor logs.