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Kenneth Starr/AP
Kenneth W. Starr (AP file photo)


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Starr Asks for Expedited Ruling on Privilege

By Peter Baker
Washington Post Staff Writer
Friday, May 29, 1998; Page A01

Independent counsel Kenneth W. Starr asked the Supreme Court yesterday to intervene on an emergency basis to settle his fight with President Clinton over executive privilege, adopting the same legal tactic and reasoning that Watergate prosecutors did in similar circumstances a quarter-century ago.

In a maneuver employed only a handful of times in U.S. history, Starr asked the justices to bypass the appeals court and take the case directly from the district court, which has ruled that Clinton cannot use the privilege to shield top aides from testifying in the Monica S. Lewinsky investigation. Under the accelerated timetable Starr suggested, the high court would hear oral arguments June 29.

"This case is of high moment," Starr wrote to justify his request in yesterday's petition. "It is strongly in the nation's interest that the case be resolved quickly so that the grand jury's investigation can move forward at the earliest practicable date."

The move came on a busy day for the four-month-old investigation. In Los Angeles, Starr summoned Lewinsky to a federal office near her father's home to provide fingerprints and handwriting samples, the first direct contact she has had with investigators since she was snared in an FBI sting Jan. 16.

In Washington, a judge ruled that Starr can have records of Lewinsky's book purchases while Clinton friend Vernon E. Jordan Jr. returned to the grand jury. And in Alexandria, Starr opened another front in his investigation, using another grand jury to hear witnesses in a jurisdiction that prosecutors may prefer if they decide to indict Lewinsky.

The executive privilege petition, though, heralded a constitutional battle as the Supreme Court was asked to address the murky limits of presidential secrecy for only the second time. Throughout his 14-page filing yesterday, Starr patterned his argument and even his proposed timetable after those used by special prosecutor Leon Jaworski in persuading the Supreme Court in 1974 to force Richard M. Nixon to turn over the secret Oval Office tapes that forced him out of office.

"As with Nixon . . . this case is exceedingly important," Starr wrote, adding, "this litigation involves fundamental constitutional issues arising out of the doctrine of separation of powers."

The White House declined to comment on Starr's petition yesterday. "We have just been served with the papers and we have not yet had a chance to fully review them," said spokesman James Kennedy.

Under the unusually compressed schedule requested by Starr, the White House would have until Tuesday to respond to the request for certiorari. If the court then agrees to hear the case, Starr asked the justices to set a June 15 deadline for both sides to file briefs simultaneously and then June 22 for each to respond to the other. Arguments would be held June 29.

Leapfrogging a case past an appeals court on such an expedited schedule is almost never done. In his petition, Starr could cite only five times the Supreme Court has agreed to do so, dating back to 1947; in addition to U.S. v. Nixon, the other cases involved such issues as impending steel and mine strikes, and the question of Iranian assets during the Tehran hostage crisis.

The court usually holds oral arguments from October to April and rarely schedules a case even for May or early June. But it already has made one exception this term for Starr – agreeing to expedite a dispute over attorney-client privilege related to conversations the late White House deputy counsel Vincent W. Foster Jr. had with his lawyer before his suicide. Oral arguments are scheduled for June 8 on whether the attorney-client privilege dissolves when a client dies.

While the justices are likely to consider the questions presented in Starr's latest petition important, such a fast-track schedule may be difficult for them to meet. With just weeks left in its regular term, 30 cases involving some of the most contentious dilemmas have yet to be decided. Moreover, several justices likely already have made plans to leave the country during the summer.

The tight schedule tracks that in 1974, when Jaworski went to the Supreme Court on May 24, oral arguments were held July 8 and the unanimous 8-0 decision against Nixon was handed down July 24. With the tapes documenting his involvement in the Watergate cover-up, Nixon resigned barely two weeks later.

The only justice remaining from that court is Chief Justice William H. Rehnquist, who recused himself in the tapes case because he had worked for the Nixon Justice Department.

In that case, the court established that a president does have a right to keep his internal communications confidential, but that other than national security matters his interest must be balanced against prosecutors' need for evidence.

Applying that test, Chief U.S. District Judge Norma Holloway Johnson decided May 4 that White House deputy counsel Bruce R. Lindsey and communications adviser Sidney Blumenthal must answer Starr's questions in the Lewinsky matter. Her ruling, made public in redacted form on Wednesday, also rejected Clinton's claim of attorney-client privilege in Lindsey's case.

While filing a notice of appeal with the U.S. Circuit Court of Appeals for D.C., the White House also asked Johnson under seal to reconsider aspects of her ruling. The White House argued that she should interview Lindsey and Blumenthal in chambers without prosecutors present and decide on a question-by-question basis whether their answers would be important enough to Starr's investigation to breach the privilege.

Johnson rejected that Tuesday and the appeals court put the case on its docket Wednesday, leading to Starr's petition to the Supreme Court yesterday. And although he won at the district court level, Starr made clear in his filing with the high court that he was not satisfied with Johnson's reasons.

Starr had argued that executive privilege did not apply at all in the Lewinsky case because it involved private conduct by the president, not his official business. The judge disagreed, concluding that the investigation had affected his performance of his duties and therefore privilege was applicable, even if outweighed by Starr's demand for evidence.

Starr continued to dispute that, saying in his petition that "it cannot and should not be asserted to deny grand jury evidence of communications about private conduct."

While the White House filed a notice of appeal, it has not signaled what form that will take. The president's attorneys privately are debating whether to appeal only the attorney-client privilege portion of the ruling or both that and executive privilege.

The attorney-client issue presents the Supreme Court with a split between circuits. In another Starr case involving Hillary Rodham Clinton, the 8th U.S. Circuit Court of Appeals, which covers Arkansas, ruled that government-paid lawyers do not enjoy a privilege in criminal matters. However, Johnson took a different course, determining that there is a "qualified privilege" for government attorneys in criminal cases, subject to the same balancing test as executive privilege.

Staff writers Joan Biskupic and Ruth Marcus contributed to this report.

© Copyright 1998 The Washington Post Company

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