By Ruth Marcus
When the Monica S. Lewinsky crisis erupted, White House lawyers moved quickly to determine the extent of President Clinton's jeopardy, debriefing grand jury witnesses and their lawyers to glean information about independent counsel Kenneth W. Starr's investigation.
But when Clinton asserted attorney-client privilege to prevent deputy counsel Bruce R. Lindsey from being forced to answer Starr's questions about such activities, the federal judge overseeing the investigation issued a sharp rebuke.
"The court questions the propriety of the president utilizing a government attorney as his personal agent in a personal attorney-client relationship," Chief U.S. District Judge Norma Holloway Johnson wrote in a still-sealed portion of her opinion last month rejecting the attorney-client privilege claim.
Today the federal appeals court here will hear oral arguments in the case, which presents the question of how -- if at all -- the privilege applies in the White House, where lawyers serve an individual, the president, but work for the government.
The legal dispute also raises fundamental policy questions about the proper role of White House lawyers: Has the counsel's office in the Clinton White House, as the administration insists, appropriately responded to myriad outside investigations? Or, as critics charge, has it become a branch office of the president's private legal team?
The standard formulation for the role of White House lawyers is that the client they serve is the institution of the presidency, not the president personally. But there is sharp disagreement about the practical application of that theory in an era of proliferating congressional and independent counsel inquiries.
The issue is especially complicated in the Lewinsky situation, which not only involves the president's alleged conduct with a White House employee, but also poses at least the threat of impeachment, a political consequence with grave implications for the office.
"The Clinton administration has taken the counsel's office to a new level of private political use," said Michael J. Madigan, chief counsel in the Senate campaign finance investigation, pointing to White House lawyers' role in debriefing outside witnesses in that inquiry. "I think it was a troubling use of the White House counsel's office, which is typically supposed to be handling legal, governmental matters, not being private defense lawyers."
In an interview, White House counsel Charles F.C. Ruff said the counsel's office has "not come anywhere close to" straying beyond the proper boundaries.
"We represent the institution but it's also clear that no day goes by without a lot of extraneous forces being brought to bear on the president in his personal capacity and if a president is going to be able to do his job, you have to be able to deal with the official implications of a lot of unofficial matters that are out there," he said.
Jane C. Sherburne, who handled legal issues relating to Whitewater in the counsel's office until leaving in 1996, defended White House lawyers' right to obtain such information but questioned the political wisdom of having that task performed by Lindsey, one of the president's closest and longest-serving political confidants.
"When Bruce goes around asking witnesses about their testimony, as a political adviser of the president's he's much more vulnerable to people raising questions about whether he was doing this to represent the office of the president or doing it to represent his longtime friend Bill Clinton," Sherburne said. "While I don't think there was anything inappropriate as a matter of legal practice in Bruce doing this, I would question the prudence of it given the political nature of his relationship with the president."
Sherburne also said she was surprised that the White House risked such activity after a ruling by the 8th U.S. Circuit Court of Appeals last year rejecting the White House claim that attorney-client privilege shielded Sherburne's conversations with Hillary Rodham Clinton.
"I was frankly stunned that, given that 8th Circuit decision out there, that the White House would be involved in any debriefing," Sherburne said. Referring to the president's private lawyer, David E. Kendall, she said, "Why risk it when you could have a Kendall out there doing the debriefings?"
The debate over the role of the counsel's office goes back to the earliest days of the Clinton White House, when deputy counsel Vincent W. Foster Jr. worked on setting up a blind trust for the Clintons, dealing with their Whitewater investment and helping prepare their tax returns.
It is a controversy that has erupted periodically ever since -- on matters ranging from White House lawyers' role in obtaining confidential information about a government investigation of Madison Guaranty Savings & Loan, the failed thrift owned by the Clintons' Whitewater business partners, to the way in which Lindsey handled issues arising from the Paula Jones sexual harassment lawsuit.
Since the allegations surfaced in January about Clinton's relationship with Lewinsky, the White House legal staff has become even more deeply embroiled in the president's legal problems. While the current dispute concerns whether Lindsey can be forced to testify, sources familiar with the White House's effort said that other members of the counsel's office have also been actively engaged in debriefing witnesses, chiefly special counsel Lanny A. Breuer.
A White House spokesman said that of the 19 staff lawyers in the counsel's office, six are assigned to handle congressional, independent counsel and Justice Department investigations -- a total that does not include Ruff, Lindsey or deputy counsel Cheryl Mills.
Lindsey, who began as chief of personnel and moved to the counsel's office in 1994, has played a particularly active role as what one former colleague described as "captain of the defense."
In 1993, he led the White House response when the American Spectator reported allegations that Arkansas state troopers said Clinton used them to procure women when he was governor. An ABC news crew captured Lindsey on the telephone with a former trooper sympathetic to Clinton, Buddy Young, asking him to go on CNN.
In 1994, when reporters were looking into Jones's allegations that Clinton sexually harassed her and seeking evidence of similar conduct with other women, Lindsey called a former flight attendant who served on Clinton's campaign plane to find out what she had said to reporters and assure her she did not have to answer their questions.
"The way the White House is being run, they've had a problem separating out issues concerning the presidency and President Bill Clinton," said Robert J. Giuffra Jr., who served as counsel to the Senate Whitewater Committee. "There's been a blurring of the personal and the public. What makes this tough is it's hard to draw the line."
Indeed, former White House special counsel Lanny J. Davis said the effort was futile. "I don't believe there's any way for White House counsel to differentiate personal from official. It's chasing a ghost," he said. "It is appropriate for Bruce Lindsey or any other White House counsel to remain knowledgeable about testimony before the grand jury because it's not Bill Clinton personally who is being investigated. It is the office of the president."
The Clinton White House counsel's office is not the first to try to maneuver through what A.B. Culvahouse Jr., counsel to President Ronald Reagan, termed "a bit of an uncharted sea."
Leonard Garment, who served as counsel for President Richard M. Nixon during the Watergate investigation, said the Nixon White House largely handled his legal problems in-house. "Nixon's view, and it was supported by his staff, was that he was the president and he was being challenged, threatened, hampered, jeopardized and otherwise limited in the effective conduct of presidential business by this entire investigation," Garment said. "We had considerably more leeway" than Clinton does now, he added.
Peter J. Wallison, who served as Reagan's counsel when the Iran-contra scandal erupted, said that Clinton administration lawyers had gone too far in both the Lewinsky and the campaign finance inquiries. "At some point you have to say to yourself, 'I should not be handling things for this president because I am no longer representing the presidency, I am now representing an individual who happens to be president but is subject to some kind of legal process,' " he said.
Culvahouse said that Reagan's White House lawyers were "leery" of involving themselves in the independent counsel investigation by Lawrence E. Walsh. "Judge Walsh was representing the United States," Culvahouse said. "We were part of the United States. . . . That's a line we would not have crossed."
The actions of President George Bush's counsel, C. Boyden Gray, sparked controversy when it was revealed that he had asked a top banking lawyer about the federal case involving the president's son, Neil Bush, and his actions as director of a Denver thrift.
Gray said that he merely inquired about procedural issues in a phone call about an unrelated matter. "It's ironic that I should have been criticized for that as being improper whereas the current White House doing that is considered mandatory," he said.
Indeed, after Foster committed suicide in July 1993, Denver lawyer Jim Lyons told the FBI that Foster was worried that "private sector attorneys should be handling many of the matters [White House lawyers] were handling, both for ethical and workload reasons."
Such questions continued after Foster's death, as then-counsel Bernard Nussbaum and other members of the office obtained confidential information regarding a criminal referral by the Resolution Trust Corp. that mentioned the Clintons as possible witnesses in the investigation of Madison Guaranty.
The Senate Whitewater committee concluded there was "evidence that the White House counsel's office and the Clintons' private attorneys had joined forces and clearly were working as agents of the private counsel in a joint and wholly improper effort to serve the private interests of the Clintons."
In her ruling last month, Johnson noted tartly that White House lawyers are on the public payroll. "White House attorneys are paid by U.S. taxpayers to provide legal advice on official presidential decisions," she wrote, "not the private decisions of President Clinton, and certainly not private, potentially criminal conduct."
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