By Peter Baker
President Clinton may drop his court appeal on executive privilege today, possibly short-circuiting independent counsel Kenneth W. Starr's bid to bring the case directly to the Supreme Court, but also allowing Starr to summon senior White House aides back to the grand jury, sources close to the situation said yesterday.
Under this legal strategy, Clinton would inform the Supreme Court this afternoon that he will not contest a lower court's rejection of his executive privilege claim regarding two top aides. However, he would notify the justices that he will continue to appeal in order to block some of Starr's questions on the grounds of attorney-client privilege.
Starr is investigating whether Clinton lied under oath when he denied having sex with former White House intern Monica S. Lewinsky and whether he or anyone else obstructed justice by encouraging her to commit perjury.
Clinton has until 4:30 p.m. today to respond to Starr's petition asking the Supreme Court to take the case on a rare expedited basis before its summer break. White House officials and lawyers spent the weekend preparing to withdraw the executive privilege appeal, sources said, but no final decision was made and a meeting is scheduled for this morning before the papers are filed.
If Clinton goes forward with this approach as planned, he could maintain that he had succeeded in his top priority of protecting the prerogatives of future chief executives, on the theory that the district court ruling recognized the legitimacy of his executive privilege claim even if it concluded that it was overcome by prosecutors' need for evidence.
At the same time, pursuing the attorney-client claim would still affect many, though not all, of the questions Starr wants answered. And because it would not present the same sort of constitutional question about the powers of the presidency that executive privilege raises, Clinton's lawyers could argue that the Supreme Court does not need to hear the matter on the fast-track basis that Starr requested last week.
Another appeal decision by the Clinton administration on a related matter is also due today. The Justice Department must file a notice of appeal with the U.S. Court of Appeals for the D.C. Circuit by this afternoon if it intends to challenge a lower court's decision ordering Secret Service officers to testify about what they know of Clinton's relationship with Lewinsky. While no final decision was reported, officials were expecting Attorney General Janet Reno and Solicitor General Seth Waxman to go forward with the appeal at the strong urging of Secret Service Director Lewis C. Merletti.
Clinton and the White House have said they are not involved in the decision regarding the Secret Service, which is asserting that its personnel cannot be compelled to disclose what they witness while protecting the president because of a never-before-claimed "protective function privilege." Clinton has declined a request by Starr that he waive any Secret Service privilege, although Merletti has privately told other officials that he would still refuse to allow testimony even if the president did acquiesce.
The White House and Starr are also wrestling on several other fronts. The independent counsel has been seeking Clinton's testimony, but has been put off by aides. The Clinton camp is considering whether the president should decline to answer questions altogether and take his chances with an impeachment inquiry in Congress, although officials yesterday insisted that no final decision has been made.
The White House also has rejected a request by Starr for logs detailing the president's location and activities during certain time periods, contending that it is too broad and seeks information about meetings that have nothing to do with the Lewinsky probe.
"He has a habit of asking for a lot of things he has no business asking for," White House spokesman James E. Kennedy said yesterday.
Charles Bakaly, a Starr spokesman who appeared on two network talk shows yesterday, said a president who refused to testify could be subpoenaed and that the White House has been delaying the investigation on several fronts. "The American people are entitled to the facts," he said on ABC's "This Week." "The grand jury is entitled to the facts. That is our job, to get the facts. And we're going to do everything we can to get the facts."
Of the various legal disputes between Clinton and Starr in the course of the Lewinsky investigation, though, the executive privilege claim has been the most problematic for the White House. Several of the president's political advisers had urged that he not seek to invoke the privilege in the first place, fearing the inevitable comparisons with Richard M. Nixon, who asserted executive privilege in his losing battle to hang on to the presidency in 1974.
Clinton cited the privilege to prevent Starr from asking White House deputy counsel Bruce R. Lindsey and adviser Sidney Blumenthal about internal discussions regarding the Lewinsky probe and how to respond to it. Chief U.S. District Judge Norma Holloway Johnson rejected Starr's argument that the privilege was not applicable at all, but decided that the demands of a grand jury criminal investigation outweighed the president's interest in privacy.
Simultaneously, Clinton cited attorney-client privilege regarding some conversations involving Lindsey. Johnson again dismissed Starr's contention that the privilege did not exist for government-paid lawyers, but also found that in this instance it was outweighed and that Lindsey would have to testify.
Clinton subsequently filed a notice of appeal with the U.S. Court of Appeals for the D.C. Circuit, but did not have to specify in that document whether he was contesting Johnson's orders regarding executive privilege, attorney-client privilege or both. Starr last week petitioned the Supreme Court to take the case immediately because of its overriding national importance, just as special prosecutors did during Watergate.
If the White House withdraws any appeal regarding executive privilege, Starr could immediately bring Blumenthal back to the grand jury. He might also be able to bring Lindsey back for limited questioning, because Johnson's redacted opinion released last week suggested that there were areas of inquiry Starr was pursuing with regard to Lindsey that were covered only by executive privilege and not attorney-client privilege.
Withdrawing the executive privilege appeal would not preclude the White House from raising the matter again later if Starr asks additional questions not already considered by the judge or seeks to question other senior aides that Clinton wants to shield, according to legal sources.
The White House could assert executive privilege in those instances by noting that Johnson had decided it applies to the Lewinsky situation, which would force the judge to then consider whether Starr had met the two-part test for overcoming the privilege -- that the information was important to his investigation and that it could not be obtained elsewhere.
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