On Response to Starr
By Peter Baker and Joan Biskupic
The justices gave Clinton until 4:30 p.m. Monday to respond to Starr's petition seeking to leapfrog the appeals court so the issue could be settled in a matter of weeks. The high court did not signal whether it would take the case, but forced the White House to answer a day faster than even Starr had suggested.
Clinton invoked executive privilege to prevent Starr from questioning top aides Bruce R. Lindsey and Sidney Blumenthal, but a federal judge ruled this month that Starr's need for evidence outweighed the president's claim to confidentiality. The White House has filed a notice of appeal with the U.S. Court of Appeals for the D.C. Circuit.
Starr on Thursday asked the justices to accept the case directly from the district court, arguing that the issue was of great national importance and that the normal appeals process would take so long that it would damage his investigation. Such a procedure is extremely rare and has been employed only a handful of times, including during steel and mine strikes and the executive privilege fight involving President Richard M. Nixon during Watergate.
The president's attorneys huddled at the White House yesterday to discuss their options and face a difficult decision this weekend.
Starr has proposed an extremely tight schedule that would require that briefs be filed and oral arguments presented by June 29, forcing the White House to fight out a thorny constitutional issue in a matter of weeks. In addition, there is some sentiment in the Clinton camp that the case does not merit the extraordinary move of sidestepping the appeals court and that an expedited review at that intermediary level would be more appropriate.
But White House officials also know that any decision to oppose Starr's petition inevitably will be seen in some quarters as a delaying tactic. If the case seems likely to end up at the Supreme Court anyway, some officials reason, the path of least resistance may be to acquiesce to Starr's request.
Flavoring the decision-making process are the unwelcome Nixon analogies that are likely to continue as long as the case does. Starr's petition was replete with comparisons to the Watergate legal battle, which grated at the White House.
"There are no parallels that I'm aware of," White House press secretary Michael McCurry said yesterday. In the Nixon executive privilege fight, McCurry added, "there were people who had been charged with crimes, and that's obviously not the case in this situation."
Should the White House decide not to fight Starr's petition, it might encourage the justices to take it, but the decision would remain entirely within their discretion and the chances that they will take it are viewed as slim by some in the legal community.
In the Watergate situation, said Jesse Choper, a law professor at the University of California at Berkeley, it "looked like a governmental crisis. Nixon was teetering. He'd fired people. This doesn't have the same sense of urgency."
The justices are likely to weigh the true legal urgency of Starr's petition, along with several other factors: that the high court wants cases to percolate up in an orderly process, including with review by an appeals court; that the justices already face a heavy schedule in June as they finish 30 pending cases; and that many of them have travel and teaching plans for the rest of the summer.
In a separate development, the federal appeals court yesterday issued orders again denying Lewinsky's request that it enforce an immunity agreement her lawyers claimed they reached with Starr. The appeals court has said it cannot intervene, given that Lewinsky, who is under investigation for allegedly lying under oath about an affair with Clinton or encouraging others to do so, has not been indicted.
Staff writer Bill Miller contributed to this report.
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