By Peter Baker and Susan Schmidt
President Clinton abandoned his claim of executive privilege in the Monica S. Lewinsky investigation yesterday, but vowed to keep fighting independent counsel Kenneth W. Starr's attempts to question the president's closest White House confidant by pressing a parallel assertion of attorney-client privilege.
The strategic shift came after a federal judge rejected both claims and Starr last week asked the Supreme Court to hear Clinton's appeal on a rare emergency basis. In responding yesterday, the White House urged the justices to reject Starr's petition because it is appealing only the attorney-client portion of last month's district court ruling.
The decision amounted to a tactical retreat for Clinton, allowing him to shed the political liability of being the first president since Richard M. Nixon to take an executive privilege claim to the Supreme Court while still blocking testimony by the most critical witness involved in the dispute, White House deputy counsel Bruce R. Lindsey. Clinton also may have prolonged the legal skirmishing, because dropping executive privilege deprived Starr of a constitutional issue that might have persuaded the Supreme Court to short-circuit the normal appeals process.
"We are not in the throes of a national emergency," the White House said in court papers, rebutting Starr's Watergate comparison. "Despite [Starr's] claims to the contrary, the fate of the Nation will not hang in the balance if [he] is required to participate in the court of appeals on an expedited basis before seeking this Court's intervention."
In a separate decision yesterday, government officials said the Justice Department filed a sealed notice that it will appeal a ruling ordering Secret Service officers to testify before Starr's grand jury, which is investigating whether Clinton or Lewinsky committed perjury or obstruction of justice to cover up a sexual relationship. The Secret Service has asserted a new "protective function privilege" in fighting Starr's subpoenas.
The White House surrender on executive privilege clears the way for Starr to summon back to the grand jury White House communications strategist Sidney Blumenthal, a close confidant of first lady Hillary Rodham Clinton, possibly in the next few days.
It also could mean another appearance for Lindsey, the president's longtime friend, although he previously has cited both executive and attorney-client privileges in refusing to answer questions. A footnote in yesterday's White House brief said for the first time that Lindsey told the grand jury "that he had no information that anyone had committed perjury or obstruction of justice."
While opposing an urgent Supreme Court review, the White House denied it was stalling, noting that it still wants an expedited appeals court review with oral arguments in July. "There will undoubtedly be folks out there who will suggest, 'Oh, oh, this must be some great scheme to delay,' " said White House counsel Charles F.C. Ruff. "I'll just tell you . . . that's just nonsense."
Starr remained unconvinced, though, implicitly chastising the White House in a speech he gave to the Mecklenburg County Bar Association in Charlotte yesterday. "At what point does a lawyer's manipulation of the system become an obstruction of the truth?" he asked, without specifically mentioning the Clinton case. "A good lawyer, acting as a counselor, must urge the client against steps that are likely to impede the quest for truth."
A government-paid lawyer, he added, "owes a duty not to any particular individual, but to the people as a whole."
Starr wants to ask White House aides and lawyers about their discussions with the president, first lady and each other shortly after the Lewinsky investigation began in January. In doing so, he hopes to determine whether Clinton tried to orchestrate a campaign to hide the nature of his relationship with the former White House intern during the since-dismissed Paula Jones sexual harassment civil lawsuit.
The White House has argued that such conversations must remain private to ensure that the president can obtain candid advice, both legal and political. In a May 4 ruling, Chief U.S. District Judge Norma Holloway Johnson agreed with the White House that those discussions are entitled to executive and attorney-client privileges, but concluded that Starr's need for evidence outweighed the interest in confidentiality.
While Lindsey and Blumenthal were the only aides directly involved, the ruling opened the door for Starr to question a host of other potential witnesses. With the executive privilege claim now dropped, prosecutors are free to bring back to the grand jury White House deputy chief of staff John D. Podesta, a top Clinton strategist.
That was a risk the White House apparently was willing to take. But without attorney-client privilege, the Clinton camp is worried that Starr would force testimony from the entire senior staff in the White House counsel's office, including Ruff and deputy counsels Lanny A. Breuer and Cheryl D. Mills. Breuer was subpoenaed early in the probe, but has not appeared before the grand jury.
Ruff acknowledged that the prospect of a "broader attack" influenced yesterday's move. "Obviously, institutionally, it's got to be a concern," he said. "That's what's driving our decision-making."
In withdrawing the executive privilege appeal, the White House essentially declared victory and went home. Ruff and other officials noted that Johnson's ruling upheld the principle first established in 1974 in U.S. v. Nixon and if anything expanded it by covering the first lady.
White House advisers calculated they could do no better in appealing that part of the ruling, but had more of a case with attorney-client privilege. While in the case of private lawyers such a privilege is considered "absolute," Johnson concluded it is conditional for government-paid lawyers and tipped the balance in Starr's favor. Starr argues that there should be no such privilege, citing an 8th U.S. Circuit Court of Appeals ruling he won in a different case involving the Clintons.
Starr has until today to respond to the White House brief and could still ask the high court to take up the attorney-client privilege question on an expedited basis. Prosecutors could argue that the issue has already been examined by the 8th Circuit and that the White House has thumbed its nose at the grand jury by blocking government lawyers from testifying.
Still, some legal scholars said the justices now were far less likely to take the extraordinary step of accepting the case directly from the district court. "By now focusing on a relatively narrow area of the dispute, you take some of the steam out of the push to expedite it and the need for a quick answer," said David Post, a law professor at Temple University.
On the Secret Service issue, the Justice Department yesterday asked the appeals court to overturn Johnson's ruling last month that no privilege prevents agents from testifying. Starr could ask the Supreme Court to take that case on an expedited basis as well.
In his Charlotte speech, Starr criticized the assertion of such a privilege, which has never been established by a court or Congress. "The courts cannot be in the business of creating new privileges from whole cloth," he said. "And lawyers ought to tell their clients that."
In a separate development, Starr appears to have dropped his efforts to subpoena records of Lewinsky's purchases at one Washington bookstore. Mary Ellen Keating, a spokeswoman for Barnes & Noble, said yesterday that "there's no order outstanding which requires us to produce any."
Johnson had ordered Starr to demonstrate a "compelling need" in seeking the bookstore records and he apparently responded only with a narrowed subpoena to the other store involved, Kramerbooks, which is appealing the order. Starr wants to confirm whether Lewinsky bought books as gifts for Clinton as she described on secret tape recordings made by a onetime friend.
Meanwhile, Starr has decided to hire Michael E. Shaheen Jr., a former internal watchdog official at the Justice Department, to examine allegations that Whitewater witness David Hale received payments from conservative activists to influence his testimony implicating Clinton. To establish his independence, Shaheen will assemble his own staff and report to a panel of retired judges, instead of to Starr or the Justice Department.
Staff writers Joan Biskupic, Roberto Suro and David Streitfeld contributed to this report.
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