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Johnson/TWP file
Judge Norma Holloway Johnson in 1980.
(By Tom Allen-The Washington Post)

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Executive Privilege Invoked
For Two Aides

By Susan Schmidt
Washington Post Staff Writer
Saturday, March 21, 1998; Page A01

President Clinton has invoked executive privilege in an effort to keep two of his top aides from having to testify fully in independent counsel Kenneth W. Starr's investigation of the Monica S. Lewinsky matter, sources said yesterday.

A team of lawyers for the president, along with Starr and seven prosecutors, presented oral arguments during a closed hearing before U.S. Chief Judge Norma Holloway Johnson yesterday afternoon. Attorneys for Clinton also asserted the attorney-client privilege in their effort to prevent Starr from questioning White House aides, according to sources knowledgeable about the proceedings.

By claiming executive privilege, Clinton is setting the stage for a constitutional battle over the president's ability to protect the secrecy of his discussions with close advisers. The privilege was established on the theory that certain conversations should remain private to ensure the president receives candid and uncensored advice. But it is rarely invoked, and ultimately, if no compromise is reached, the disagreement could reach the Supreme Court and clarify what have long been imprecise rules governing president confidentiality.

Last night, the White House refused any public comment on the president's decision to take such a dramatic step -- one that harkens back to Watergate, when President Richard M. Nixon sought to shield his secret Oval Office tape recordings.

White House counsel Charles F.C. Ruff, quizzed when he emerged from Johnson's courtroom, said, "I'm not going to have anything to say -- zero." Clinton's private lawyer David E. Kendall swept past reporters at the courthouse without saying a word.

Johnson has insisted on strict secrecy in mediating several legal battles involving evidence and other matters that have arisen during the grand jury proceedings. The two sides must now await a ruling from Johnson.

White House press secretary Michael McCurry declined to comment on the question of whether the White House had invoked executive privilege, citing the judge's orders to maintain the secrecy of the grand jury proceedings and matters related to it.

"Given the strict admonition of the court, the only conceivable response is no comment," McCurry said. "The court takes seriously the secrecy of grand jury proceedings, and discussion of grand jury testimony are secret for the same reason. We have to accept those constraints, even when news organizations can't."

Clinton directed his aides Bruce R. Lindsey and Sidney Blumenthal not to answer some questions and cite executive privilege when they were brought before the grand jury last month. Lindsey, a deputy White House counsel and close Clinton adviser, is perhaps the most visible Clinton aide involved in the dispute. But deputy chief of staff John D. Podesta is scheduled to return to the grand jury Tuesday and may face a similar situation.

The White House is seeking to block Starr from questioning certain communications not just with the president himself but also among aides regarding their strategic deliberations and what advice to give the president, according to a source familiar with the issue.

Lindsey and Blumenthal cited a prospective executive privilege claim in refusing to answer certain questions during their grand jury appearances last month. Starr filed a brief last week seeking to force them to answer questions; the White House responded with its own brief formally invoking privilege in the last few days, prompting yesterday's hearing, according to a source close to the situation.

The claim of executive privilege in this case raises constitutional questions of whether the use of such a privilege should be limited to cases involving the national interest, not the president's personal or political interests.

Starr personally argued the issue before Johnson for the independent counsel's office. Neil Eggleston, a former member of the White House counsel's office now in private practice, made the argument on behalf of the president because the Justice Department declined to handle the matter, citing conflict of interest.

Lindsey has long been involved in rebutting allegations of womanizing by Clinton, and he figures in the current investigation in several ways. For example, Clinton told lawyers for Paula Jones in a sworn deposition taken in January that it was Lindsey who informed him in December that the Jones lawyers were planning to question Lewinsky as a possible witness in their sexual harassment case against the president.

Lindsey also talked with Linda R. Tripp, whose secret tape recordings of Lewinsky set off Starr's investigation. Lindsey questioned Tripp about allegations that another former White House aide -- Kathleen E. Willey -- had a sexual encounter with the president, according to sources close to Tripp. Tripp, who ran into Willey immediately after the alleged 1993 incident, has said she was pressured by Lewinsky to lie to the Jones lawyers about the Willey matter.

Starr has sought to question Blumenthal about efforts within the White House to spread false information about prosecutors on Starr's staff, including whether private investigators were employed to seek out damaging personal information.

Clinton's effort to bar his aides from discussing aspects of the Lewinsky case may be part of a larger strategy to minimize how much the White House says about the matter.

Last Monday, Clinton said he may have no further public comment on his relationship with Lewinsky and Willey, when the story first broke in January, Clinton said he believed the public had a right to hear a full explanation and intended to provide one. And Clinton's lawyers have so far not agreed to Starr's requests made over the last six weeks for the president's testimony.

Presidential scholar Charles O. Jones said a decision to invoke executive privilege represents a potentially damaging political step by the White House because it echoes a similar decision by the Nixon White House during the Watergate crisis.

"My judgment is that it's damaging because those comparisons are going to be made, and getting into it all leads one to ask why," Jones said.

He said the fact that those involved in the dispute are barred from talking publicly about it may complicate matters for the White House. "If you leave it to speculation on the part of the talking heads on Sunday morning, then that's where you get the invocation of the Nixon analogy, along with everyone trying to stretch in answering the question of how could this seemingly private matter affect public affairs and presidential decision-making," he said.

Staff writers Dan Balz and Peter Baker contributed to this story.


© Copyright 1998 The Washington Post Company

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