High Court Intervention Was Unlikely, Despite Case's High Profile
Washington Post Staff Writer
Wednesday, August 5, 1998; Page A12
On the face of it, the legal questions seem enormous: Should the agents who guard the president's life be forced to testify about what he does in private, and should the government lawyers he relies on for advice be compelled to reveal those conversations?
Yet, twice in the last three weeks, the chief justice of the United States has refused to weigh in. First, just minutes before a high noon deadline on July 17, Chief Justice William H. Rehnquist allowed Secret Service agents to be questioned by a grand jury investigating the Monica S. Lewinsky scandal. Then yesterday, he cleared the way for White House lawyers to be summoned.
How can the legal dilemmas be of such importance, yet appear to be so easily dismissed by the chief justice? The reality is that, despite the drama of an eleventh-hour appeal and the importance of a case involving no less a figure than the president, it would have been extraordinary if Rehnquist or any justice had intervened.
Rarely will the nation's high court grant an emergency "stay," as the administration had requested, to stop a lower court ruling from taking effect. In this case, a lower appeals court said President Clinton's bodyguards and government lawyers had to testify.
The hurdles that must be crossed for the Supreme Court to intervene are many and onerous. The administration or anyone else must first demonstrate that irreparable harm would occur without the justices' action. That is a tough test, and an especially difficult one at the grand jury stage when no indictment has been issued and it is unclear how any testimony would be used against a defendant.
A challenger also must show a likelihood that at least four of the nine justices would vote to hear the case's merits and that a majority eventually would conclude that a lower-court decision was wrong.
"Just because an issue is politically charged and occupies the front page of the newspapers doesn't mean it meets the criteria justifying Supreme Court review," said John Roberts, a former law clerk to Rehnquist who specializes in appellate cases.
Similarly, Laura Ariane Miller, a criminal defense lawyer, said it's tough to get the court to grant such a stay under any circumstances, and particularly difficult to show that a person would suffer irreparable harm. "Any defendant could always come in later and say that the testimony tainted the [grand jury] proceeding or that it shouldn't be allowed at a trial," she said.
University of Chicago law professor Dennis J. Hutchinson and other legal experts also noted that even though the high court has refused to enter the Secret Service and attorney-client disputes at this stage, it is not necessarily prevented from taking up the cases' merits once the matter has worked its way through the normal appeals process. That could come as early as this fall.
The administration has already appealed the lower court's decision to require the president's bodyguards to testify and has vowed to petition the high court to review the ruling that government lawyers are not covered by the traditional attorney-client privilege.
In the first of the two cases that were recently before Rehnquist, the D.C. Circuit Court of Appeals had rejected the notion of a "protective function" privilege and refused to consider the Secret Service's plea to shield its agents from grand jury testimony.
In hoping to get the high court to intervene, Treasury Secretary Robert E. Rubin had contended that if agents were allowed to testify, the "protective function privilege" would be destroyed and privileged information would be lost forever. But Rehnquist wrote, "I cannot say that any harm caused by the interim enforcement of the subpoenas will be irreparable. If the secretary's claim of privilege is eventually upheld, disclosure of past events will not affect the president's relationship with his protectors in the future."
In yesterday's case, the administration argued that the attorney-client privilege covers government lawyers and their White House clients. In spurning spurned that plea, Rehnquist showed just how routine such a rejection is: He put nothing in writing and instead sent word of his denial through the clerk's office.
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