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Francis Carter/twp
Attorney Francis Carter at federal court in March.
(The Washington Post)

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_ Starr Vows Vigorous Pursuit Despite Dismissal (Washington Post, April 3)

_ Lewinsky's First Attorney Tries to Block Subpoena (Washington Post, March 5)

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Lewinsky's 1st Attorney Told To Hand Over Documents

By John Mintz and Peter Baker
Washington Post Staff Writers
Friday, April 3, 1998; Page A34

The federal judge overseeing the grand jury in the Monica S. Lewinsky investigation has this week ordered Lewinsky's first attorney to testify and turn over certain documents, in a sealed decision concluding that the attorney-client privilege should be breached, sources familiar with the case said.

But the most significant part of U.S. District Judge Norma Holloway Johnson's ruling may be her reasoning in compelling Washington lawyer Francis D. Carter to comply with the subpoena from the independent counsel: The judge apparently has concluded that Lewinsky may have lied in an affidavit by denying an affair with President Clinton, the sources said.

Lewinsky plans to appeal the decision, the sources said. As the client, Lewinsky is the party who must assert attorney-client privilege.

The details of Johnson's 19-page decision, handed down Tuesday evening, remain murky because of a strict gag order she has placed on the matter. However, the sources said Johnson made her ruling under the "crime-fraud exception" to the legal principle of attorney-client privilege, determining that Carter must testify before the grand jury and release papers relating to his work for Lewinsky because she intended to commit fraud in the affidavit the lawyer prepared at her direction.

But the judge granted Carter a partial victory by ruling he did not have to turn over Lewinsky material that independent counsel Kenneth W. Starr's subpoena demanded of him, including any of her diaries, letters and other papers, as well as dresses, jewelry and other personal items. It is not clear whether Carter ever had any such items, but Johnson ruled that the material need not be produced to Starr because of Lewinsky's Fifth Amendment protection from self-incrimination.

Under the ruling, Carter will have to produce his retainer agreement with Lewinsky and phone message slips.

In a brief passage, Johnson expressed alarm that Starr's investigators had confronted Lewinsky at a Pentagon City hotel and urged her to cooperate with them -- without Carter being present. The judge suggested she may inform Justice Department ethics investigators about her complaint, the sources said.

Lewinsky lawyer William H. Ginsburg declined to comment on Johnson's order, first disclosed in yesterday's New York Times. Starr also declined to comment.

Carter's lawyer, Harvard law professor Charles Ogletree, declined to comment except to say, "We are inalterably opposed to any effort by the government to pierce the attorney-client privilege. We'll use every available avenue to protect the interests of Monica Lewinsky and to insure Frank Carter isn't used as a witness against his client."

Starr is interested in the affidavit Carter prepared for Lewinsky in the Paula Jones sexual harassment case. In it, Lewinsky denied having had a sexual relationship with President Clinton, but her denial contradicts secretly tape-recorded statements she made to her onetime friend, Linda R. Tripp, that she indeed had had an affair with Clinton and planned to lie about it in the Jones case.

Clinton friend Vernon E. Jordan Jr. referred Lewinsky to Carter after she received a subpoena in December in the Jones case. Based on what Lewinsky told him, Carter's attorneys have said, he prepared an affidavit on Jan. 7 denying any affair with Clinton. A few days later Lewinsky was offered a job with Revlon that Jordan had arranged for her, and then on Jan. 16 Carter submitted the affidavit in court.

Starr is investigating whether Clinton had a sexual relationship with Lewinsky and whether he or others urged her to lie about it in the affidavit. Another question is whether she withheld the affidavit until she received the job offer Jordan was helping her land.

Carter's lawyers have said that if she lied in the affidavit, Carter had no idea she was lying.

Starr's office has argued that the attorney-client privilege claim does not hold because Lewinsky destroyed her right to keep the communications confidential by committing fraud in her affidavit, and because she in effect waived the privilege when she told Tripp about her conversations with Carter.

Carter's attorneys have argued that until Lewinsky releases him from his professional obligation to keep those conversations secret, he must fight Starr's subpoena.

Carter's attempt to resist the subpoena has been intertwined with a related dispute still pending before Johnson -- an attempt by Lewinsky's current lawyer, Ginsburg, to enforce what he claims is a binding immunity deal with Starr.

Staff writer Susan Schmidt contributed to this report.

© Copyright 1998 The Washington Post Company

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