Judge Blocks Clinton’s Use of Executive Privilege


In a setback for the White House, a federal judge has rejected President Clinton’s use of executive privilege to prevent questioning of top aides about certain aspects of the Monica S. Lewinsky controversy.

The judge’s ruling, filed under seal but described by people familiar with the investigation, addresses one of the major legal issues hanging over Whitewater independent counsel Kenneth W. Starr’s probe of Clinton’s relationship with the former White House intern.

The decision would allow prosecutors to question more extensively Deputy White House Counsel Bruce R. Lindsey, regarded as Clinton’s closest staff confidant, and political strategist Sidney Blumenthal, about their knowledge of the Lewinsky matter and the White House’s response to it.


Starr is seeking to determine whether the president has lied under oath about his dealings with Lewinsky or encouraged others to do so.

The independent counsel’s investigation stems in part from the Paula Corbin Jones sexual harassment lawsuit against the president, which was dismissed by a judge in Little Rock, Ark., on April 1. In that lawsuit, several women, including Lewinsky, were subpoenaed to describe their dealings with Clinton. Lewinsky and Clinton separately denied having sexual relations. But Starr later obtained secretly recorded tapes in which Lewinsky discussed intimate episodes.

Clinton must now decide whether to mount an appeal that could further delay the investigation but would draw more attention to his use of the privilege to limit testimony before the grand jury.

The ruling was issued by Chief U.S. District Judge Norma Holloway Johnson, who is overseeing the grand jury.

Lindsey and Blumenthal have both made appearances before the grand jury. But the White House had argued that executive privilege allowed the aides to keep private certain of their conversations with the president or First Lady Hillary Rodham Clinton.

Starr has maintained that executive privilege should not be allowed because prosecutors’ questioning would not conceivably jeopardize national security.

The ruling could provide an impetus for the White House and Starr to compromise on the questioning of Lindsey and Blumenthal, eliminating a significant legal obstacle. Or, Clinton and his lawyers could tie the matter up by pressing appeals all the way to the Supreme Court.

“If the president wants to be hard-nosed and Ken Starr is unwilling to compromise, there could be at least a year’s delay,” said Paul F. Rothstein, a law professor at Georgetown University who specializes in evidentiary privileges. “The president, if he wants to, could stall this maybe through the next [presidential] election.”

If the White House appeals, Rothstein said, there is scant chance that Johnson would compel the disputed testimony until a higher court ruled.

White House officials and Clinton attorneys declined any comment on the ruling.

“I can’t comment on it, I can’t confirm it, I can’t deny it. . . . I just can’t say a word,” said David E. Kendall, the Clintons’ private lawyer.

The administration is asserting another legal privilege in the investigation, seeking to block the unfettered questioning of Secret Service personnel who may have observed Lewinsky in or around the Oval Office. A decision on that issue is pending.

Confirmation of Johnson’s ruling came amid a flurry of developments in the probe, which, after a period of relative quiet, recently produced new criminal indictments of Whitewater figures Webster L. Hubbell and Susan McDougal.

On Tuesday, Vernon E. Jordan Jr., Washington lobbyist and longtime advisor to the president, was called again before the Washington grand jury.

Jordan is a central figure in the investigation because he arranged employment for two prospective witnesses that prosecutors suspect could provide testimony damaging to Clinton--Lewinsky and Hubbell, Clinton’s former No. 3 official at the Justice Department.

Jordan’s appearance was his third before the Washington grand jury, but the first since the indictment of Hubbell last week on tax-related charges.

Jordan said he does not believe prosecutors are through with him.

“Today, as twice before, I answered truthfully, honestly and to the best of my ability,” Jordan, accompanied by his lawyer, William G. Hundley, told reporters. “It is my considered judgment that the independent counsel’s office is not finished. I believe that I will be called again. And, if so, I shall return.”

Prosecutors are exploring whether Hubbell and Lewinsky may have gotten career help to buy their silence. Jordan, who has denied any wrongdoing, lined up paying engagements for Hubbell and Lewinsky with Revlon Inc., the New York-based cosmetics firm. (Revlon withdrew its job offer to Lewinsky on Jan. 21, the day Starr’s investigation was first reported).

Hundley told reporters on March 5 that Jordan helped Lewinsky after being asked by Clinton’s secretary, Betty W. Currie. This, Hundley said, Jordan regarded as a direct overture from Clinton.

Currie is expected to be summoned again before the Washington grand jury, perhaps today.

Also on Tuesday, another federal grand jury, in Little Rock, Ark., disbanded after having examined evidence presented by Starr and his aides over the last two years.

The grand jury in Little Rock had focused on the real estate and financial transactions known as Whitewater.

The Little Rock panel concluded its work without filing any charges against either the president or Mrs. Clinton, who, as a private lawyer, worked on at least one land transaction at the heart of the Whitewater controversy.

Starr’s office is continuing to examine Mrs. Clinton’s role.

Word of Johnson’s sealed decision on executive privilege came as an appellate court ruled that the judge must take steps to open to public view some aspects of Starr’s probe. The ruling came in response to an action filed by 12 news organizations, including The Times.

The U.S. Circuit Court of Appeals ordered Johnson to reconsider her refusal to allow advance notice of hearings that she is to preside over involving the investigation. The appeals court also appeared to encourage the public release of certain documents and transcripts, providing that confidential investigative information can first be omitted.

However, the appeals court ruled that the news organizations are not entitled to attend hearings before Johnson or to immediate access to legal papers filed with her by parties to the investigation.

In addition to the disputes over executive privilege, other matters that have been argued in secret before Johnson include accusations by Clinton’s lawyers that Starr’s office has illegally leaked investigative information gathered by the grand jury.

“We are pleased that the court has sent some issues back to Johnson for reconsideration, but are disappointed that the court failed to recognize the public’s important 1st Amendment right to witness these historic proceedings,” said Theodore J. Boutrous Jr., a lawyer for the news groups. “We are studying the opinion and considering our options.”

The appeals court appeared to take to task White House lawyers for foot-dragging that has delayed the release of some hearing transcripts that Johnson has been willing to make public.

Said the appeals court: “It appears that any delay in the release of redacted documents is, at least in part, attributable to some of the attorneys who . . . were ordered some time ago to prepare [proposed] redacted copies for the Chief Judge’s review.”

Starr, who appeared Tuesday in a Richmond, Va., courtroom on behalf of a private client, a company that makes auto mufflers, did not comment on the developments in the Lewinsky investigation.