Court Rejects Privilege Claim
Washington Post Staff Writer
Tuesday, July 28, 1998; Page A01
The federal appeals court here yesterday rejected the White House's argument that President Clinton's conversations with White House lawyers are shielded from disclosure by attorney-client privilege, clearing the way for independent counsel Kenneth W. Starr to question deputy counsel Bruce R. Lindsey, one of Clinton's closest confidants.
Invoking "the public interest in honest government and in exposing wrongdoing by government officials," the appeals court panel ruled that White House attorneys -- like other government lawyers -- have a duty to respond to grand jury questions "seeking information relating to the possible commission of a federal crime."
The 2 to 1 ruling opens the door for prosecutors to question not only Lindsey but other White House lawyers about their conversations with Clinton relating to the Monica S. Lewinsky investigation. It also has implications for lawyers throughout the government as well as future administrations.
In Lindsey's case, court papers indicate that prosecutors want to question him about his conversations with Clinton as well as his debriefing of other witnesses in the case and their lawyers regarding their grand jury testimony.
The ruling is the second by a federal appeals court rejecting the White House's claim of government attorney-client privilege. And it is the latest in a series of legal setbacks that have included rulings rejecting claims of executive privilege for Lindsey and other top aides and requiring grand jury testimony by Secret Service agents.
White House counsel Charles F. C. Ruff said the White House was "disappointed that the court of appeals has decided that, unlike every other attorney and client in this country, government attorneys and their clients do not enjoy the right to have confidential communications." In a statement, Ruff said, "The practical result of the court's decision is that the president and all other government officials will be less likely to receive full and frank advice about their official obligations and duties from government attorneys."
Ruff said the White House was weighing whether to appeal the ruling. The White House could take the case either to the full federal appeals court or to the Supreme Court, which had ordered the appeals court panel to hear the case on an expedited timetable. The appeals panel said the White House needed to file any request for review by the full court within seven days, shorter than the usual timetable.
But the White House's prospects for success -- and for blocking testimony by White House lawyers during an appeal -- appear dim. Another federal appeals court reached the same conclusion on attorney-client privilege in a dispute involving lawyers' conversations with first lady Hillary Rodham Clinton, a ruling the Supreme Court refused to review.
And Chief Justice William H. Rehnquist, in denying the administration's request that the Secret Service agents' testimony be put off while the high court considers whether to review that ruling, suggested there would not be any "irreparable harm" in allowing that testimony to go forward. Rehnquist could apply the same reasoning to the attorney-client privilege issue.
The majority opinion yesterday stressed the different roles and responsibilities of government lawyers and private attorneys. "With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar," it said. "Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure."
The court rejected White House claims that the prospect of impeachment proceedings -- in which the president could be represented by White House counsel -- buttressed its need for attorney-client privilege. The court said that, if it comes to impeachment, such conversations might be covered by executive privilege.
Two judges, A. Raymond Randolph, appointed by President George Bush, and Clinton appointee Judith W. Rogers, ruled against the president in a 47-page opinion, parts of which were kept under seal.
Another Clinton appointee, David S. Tatel, supported the existence of a privilege and said presidents "may well shift their trust on all but the most routine legal matters" to outside lawyers. He said the majority, "by lumping the president together with tax collectors, passport application processors, and all other executive branch employees," failed to take into account "the unique nature of the presidency, its unique need for confidential legal advice, or the possible consequences of abrogating the attorney-client privilege for a president's ability to obtain such advice."
Tatel warned that in the modern political world, with an independent counsel statute, congressional investigations and aggressive media scrutiny, "no president can navigate the treacherous waters of post-Watergate government, make controversial official legal decisions, decide whether to invoke official privileges, or even know when he might need private counsel, without confidential legal advice."
The majority ruling went further than the initial decision on the case by U.S. District Judge Norma Holloway Johnson, who ruled that a government attorney-client privilege exists but should be balanced against prosecutors' needs for information.
The appeals panel rejected a balancing test and said government lawyers have a duty to provide testimony to the grand jury. The court acknowledged its approach might chill conversations between government officials and government lawyers, but said the high court found that risk acceptable in establishing only limited protection for other presidential advisers under the doctrine of executive privilege.
"Only a certain conceit among those admitted to the bar could explain why legal advice should be on a higher plane than advice about policy, or politics, or why a president's conversation with the most junior lawyer in the White House counsel's office is deserving of more protection from disclosure than a president's discussions with his vice president or a Cabinet secretary," the court said.
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