Ex-Lewinsky Lawyer Fights Starr Subpoena

A federal judge is preparing to rule on an extraordinary effort by independent counsel Kenneth W. Starr to obtain notes, case files and even diary entries of Monica S. Lewinsky’s former lawyer.

Despite the legal privilege that normally protects the confidentiality of communications between attorneys and their clients, Starr also is seeking potentially to question the lawyer, Francis D. Carter, before a federal grand jury.

It was Carter who helped prepare the affidavit Lewinsky signed on Jan. 7, swearing that she had never had sexual relations with President Clinton. Carter had been contacted by Washington lawyer Vernon E. Jordan Jr., a close friend and advisor to Clinton, who also drove Lewinsky to Carter’s office.

Jordan is to appear today before the grand jury that is reviewing evidence in the matter.

Starr’s subpoena for Carter’s materials is one example of the aggressive tactics the independent counsel is employing in his investigation of whether Clinton lied under oath about his dealings with Lewinsky or encouraged her or others to testify falsely.

At the same time, Starr is facing sophisticated maneuvering from Clinton’s lawyers, who are using the prospect of asserting attorney-client privilege and executive privilege in an attempt to block the questioning of some White House officials.

Still, defense attorneys are appalled that Starr is trying to obtain Carter’s notes--which could reflect what Lewinsky told him about her relationship with Clinton, how the affidavit was prepared or the comments of Jordan.

“The whole notion of requiring a lawyer to come in and to open his files to the government when they are investigating the [former] client for possible criminal penalties is the most serious challenge imaginable,” Carter’s lawyer, Harvard Law School Professor Charles Ogletree, said in an interview. “It has a chilling effect on the willingness of clients to be candid with their attorneys.”

Ogletree has asked Norma Holloway Johnson, the chief U.S. district judge overseeing the Lewinsky investigation, to throw out subpoenas from Starr that seek Carter’s materials and his appearance before the grand jury.

A representative of Starr declined to comment. According to lawyers familiar with the investigation, the independent counsel is contending that Lewinsky waived her attorney-client privilege with Carter by discussing with a friend, Linda Tripp, the filing of a false statement about her relationship with Clinton.

On Wednesday, Ogletree and lawyers from Starr’s office are scheduled to make their final arguments in a closed hearing before Judge Johnson.

Lawyers familiar with the matter said they expect Johnson to rule as early as Wednesday.

The Jan. 7 affidavit was filed in an effort to head off the questioning of Lewinsky under oath by attorneys for former Arkansas government employee Paula Corbin Jones, who has sued Clinton for sexual harassment.

But when Lewinsky was confronted at a suburban Virginia hotel by prosecutors on Jan. 16--and informed that they had audiotapes in which she described having an affair with Clinton--she did not contact Carter.

Instead, she retained William H. Ginsburg, the Los Angeles lawyer who is a longtime friend of Lewinsky’s father. Three days later, Carter formally withdrew as Lewinsky’s lawyer.

In the meantime, on Saturday, Jan. 17, Clinton was questioned under oath for six hours by Jones’ lawyers and testified that he at no point engaged in sexual relations with Lewinsky.

Starr is locked in what could be a months-long appellate battle with lawyers for Clinton over their threat to assert executive privilege or attorney-client privilege to block certain testimony from aides, notably Bruce R. Lindsey, a deputy White House counsel and presidential confidant.

Ogletree said Monday that he, too, would litigate in the appellate courts if Judge Johnson orders that Starr can bring Carter before the grand jury or obtain his notes.

“I’m expecting to prevail,” said Ogletree, who is representing Carter without fee. “I think it’s wrong. And that’s why we’re fighting so vigorously.”

In another development Monday, Ginsburg, Lewinsky’s current lawyer, sought to downplay the significance of comments he made the previous night during an interview on a cable television network. Ginsburg told CNBC’s Geraldo Rivera Sunday that Lewinsky and Clinton were alone together “a few times. I don’t think very many, but there were a couple or a few.”

In her affidavit, Lewinsky swore that other people were present on the occasions that she saw Clinton after her White House employment ended in April 1996.

On Monday, Ginsburg told The Times: “You shouldn’t glean anything from that, because the doors [to the Oval Office] were always open. . . . She was alone twice with the president. Everything is status quo; we stand by the [Jan. 7] affidavit.”

Carter’s position has won the support of the National Assn. of Criminal Defense Lawyers, which has filed a brief, under seal, with Judge Johnson.

“It’s very rare that a prosecutor will subpoena the files of a grand jury target’s attorney or a target’s attorney,” said Jack King, spokesman for the defense lawyers’ association. “I practiced for 10 years in this jurisdiction and never saw a subpoena on an attorney.”

King added: “You usually only see it in an organized-crime prosecution, when there’s evidence to suggest that the law firm or the attorney is part of the alleged conspiracy.”

With Carter, there has been no suggestion that he was aware at the time he helped prepare Lewinsky’s affidavit that her statement may have been false, according to numerous lawyers familiar with the matter.

Those involved with preparing Carter’s defense said Starr’s office has informed them that it does not believe Carter participated in a crime and that he is not a target of prosecution.

“Frank really is one of the most respected attorneys across the board in Washington,” said Rob Douglass, a lawyer who assists Carter.

Douglass said that Carter would not under any circumstances have conspired with Jordan or Lewinsky to file a false statement on her behalf. “It just wouldn’t happen,” he said. “There’s not a chance in hell.”