Legal Battle Mired in Tangle of Privilege
By Ruth Marcus
The increasingly vicious battle between President Clinton and independent counsel Kenneth W. Starr shows no sign of speedy resolution. This week, both sides took steps that make prospects of quickly wrapping up the investigation, one way or another, look more bleak than ever.
Nearly a month ago, Starr said he wanted to complete his inquiry into allegations involving former White House intern Monica S. Lewinsky "as quickly and thoroughly as possible." This week, he opened up yet another front with subpoenas to Clinton aides aimed at determining whether they tried to obstruct justice by investigating Starr's team.
At the same time, chances are fading of hearing soon from several critical players in the mess. Lewinsky's testimony before the grand jury, which had been scheduled for last week and was abruptly postponed, has been put off indefinitely. Likewise, the appearance of Vernon E. Jordan Jr., who promised a month ago to testify "directly, completely and truthfully," has been delayed. Jordan's lawyer said Starr's office had indicated it would be a "considerable period of time" before Jordan testifies.
Some sources have said Starr is leaning toward indicting Lewinsky, a development that -- if it plays out through a trial, possible conviction, and appeal -- could delay for months Starr's ability to obtain Lewinsky's testimony in building a case against Clinton or others.
On the Clinton end, the White House is preparing to assert executive privilege to block testimony from some top aides -- a matter that could be litigated up to the Supreme Court, taking months. Starr's effort to secure testimony from Terry F. Lenzner, the private investigator hired by Clinton's lawyers, could similarly bog down in litigation over the scope of attorney-client privilege.
And the Justice Department is locked in negotiations with Starr over testimony from Secret Service agents, a dispute that could also end up in court. Starr has been negotiating for access to Secret Service personnel for a solid month, and all he has to show for it is a brief grand jury appearance by a former uniformed guard, Lewis C. Fox, who said he had seen Lewinsky visit the Oval Office once. If Starr tries to learn anything more from the president's bodyguards, he may well face a long court fight.
"We were at a position two or three weeks ago where the path looked pretty clear and direct," said St. John's University law professor John Q. Barrett. "Since that time, Lewinsky's testimony and Jordan's testimony have been continued and these privilege invocations have come about and this . . . 'You-smeared-me-so-I-investigate-you' distraction has kicked in."
Meanwhile, Starr and Clinton's personal lawyer, David E. Kendall, are in court over Kendall's allegation that Starr's office leaked information to the press in violation of grand jury rules. And Starr and Lewinsky's lawyer, William H. Ginsburg, are in court over Ginsburg's claim that prosecutors unfairly reneged on a promise of immunity to Lewinsky.
Some lawyers said this litigate-to-the-finish approach was inherent in the independent counsel statute, which empowers a prosecutor to focus on a particular official and provides him with unlimited time and resources. "Once you've made the decision that this [allegations concerning Lewinsky] is worth law enforcement time. . . . I don't know why you stop," said Columbia University law professor Gerard E. Lynch. "We've unleashed this mad process . . . and I don't know that there's a simple end to it."
Earlier phases of Starr's investigation offer a case study in how assertions of privilege can drag out the conclusion of litigation, as well as how prosecutions of peripheral players in hopes of snaring bigger fish can delay resolution.
For example, Starr has been battling for more than two years over whether he can get access to notes made by the lawyer for the late deputy White House counsel Vincent W. Foster Jr., as part of his probe into the firing of White House travel office employees. The lawyer, James Hamilton, argues that the attorney-client privilege survives his client's death. The case is awaiting Supreme Court action. Starr, in asking the high court not to hear the case, said, "Delay of this magnitude seriously impedes a grand jury investigation."
Likewise, the example of Susan McDougal, the Clintons' business partner in the Whitewater real estate development, shows how prosecuting smaller fry in hopes of eliciting their testimony about more important players can delay matters. Prosecutors won the conviction of McDougal for bank fraud, then gave her immunity from further prosecution and put her before the grand jury -- only to have her refuse to testify and serve what is now approaching 18 months for contempt of court.
In prosecuting Lewinsky for perjury or obstruction of justice, Starr would face a significant risk that a jury might balk at convicting a young woman who could be portrayed by the defense as the victim of powerful people pressuring her. And winning a perjury or obstruction conviction would not exactly strengthen Lewinsky's credibility if she were then to testify for Starr.
"Add it all together, it's a pretty heavy-handed and legally uphill fight," Lynch said. "If she digs in for a war, it can be a long war, and even at the end of the war, look at Susan McDougal."
As the investigation drags on, some lawyers -- even veterans of Starr's office -- question whether the Lewinsky matter might be better resolved by Congress. They suggest Congress hold hearings now, even before Starr completes his inquiry, but Congress has shown little inclination to take on that task.
"From the country's perspective, it is absurd that Congress is doing nothing," said Brett Kavanaugh, a former Starr prosecutor. "The way to avoid a long, drawn-out process is for Congress to gather the relevant evidence, hold a hearing and ask Mr. Jordan, Ms. Lewinsky and the president to provide testimony. Then Congress and the people can determine directly and quickly what the facts are and whether any sanction should be imposed against the president, which are clearly the most important questions for the country."
© Copyright 1998 The Washington Post Company