By Susan Schmidt
Clinton has invoked executive privilege in an effort to block Blumenthal and White House lawyer Bruce R. Lindsey from having to answer certain questions before the grand jury examining whether the president engaged in perjury or obstruction of justice in the Paula Jones sexual harassment lawsuit. Clinton is also asserting attorney-client privilege to bar Lindsey from being required to answer some questions presented by independent counsel Kenneth W. Starr.
The central question in the dispute between Starr and the White House concerns the scope of a president's ability to protect the confidentiality of communications within his administration. Yet the involvement of Hillary Clinton also raises the side issue of how the quasi-official role of first lady fits into the constitutional framework, a problem that has arisen regularly since she moved into the White House in 1993 with plans to restructure the nation's health care system.
Her emergence in the executive privilege fight -- which was the subject of closed-door oral arguments last week -- also underscores the extent to which Hillary Clinton has been involved in White House efforts to contain any political and legal damage from the allegations that her husband engaged in sexual relations with Lewinsky and other women.
The White House apparently maintained that Blumenthal's talks with her were protected from prosecutors under the same principle that covers discussions among White House officials talking about how to advise the president.
An appeals court ruled last year in a case involving Mike Espy, the former agriculture secretary who has since been indicted on corruption charges, that executive privilege extends not just to communications involving the president himself but also to those of senior advisers. The question now may be whether the first lady counts as such an adviser in a legal sense.
"The reality is first ladies are part of the policy-making process of the White House even though they don't have the official capacity," said Mark J. Rozell, a political scientist at American University who has written a book on executive privilege. "Conceivably a case can be made that a first lady could be privy to conversations of a confidential nature."
However, Rozell added that, as a general matter, Clinton's assertion of privilege in the Lewinsky investigation is on weak ground and including the first lady "could be a stretch, quite frankly."
The White House filed a brief formally invoking executive privilege last Wednesday after Starr filed papers attempting to force Lindsey and Blumenthal to respond to the questions they declined to answer in their grand jury testimony last month, according to a source close to the case, which remains under seal.
Starr and Neil Eggleston, an outside lawyer hired by the White House after the Justice Department declined to handle the case, presented arguments behind closed doors Friday to U.S. District Judge Norma Holloway Johnson, who observers expect to rule within several weeks and whose decision could be appealed all the way to the Supreme Court.
A claim of executive privilege involving Hillary Clinton's conversations with others in the White House was advanced once before but quickly abandoned. In 1996, Starr's office sought notes taken by White House lawyers in conversations with the first lady about long-subpoenaed billing records from her law firm that were eventually discovered in the White House residence.
The White House argued then that its lawyers were gathering information from Hillary Clinton to prepare advice for the president, but in the end it dropped the executive privilege claim and argued instead that the notes should be protected under the doctrine of attorney-client privilege. The case went to the Supreme Court, which sided with Starr last June.
Sources said yesterday that a significant portion of the arguments on both sides presented to Johnson Friday concerned the question of whether the communications Starr wants to question Lindsey and Blumenthal about can be rightly claimed as subject to executive privilege. The resolution of this dispute also could cover planned testimony by two other aides: deputy chief of staff John D. Podesta, whose scheduled appearance before the grand jury today has been postponed, and deputy counsel Lanny A. Breuer, who has been subpoenaed but has not yet appeared.
Since Blumenthal is not a lawyer, Clinton cannot assert an attorney-client privilege claim over conversations he had with Hillary Clinton after the Lewinsky story erupted in January. One area Starr is investigating concerns the extent to which Blumenthal and others in the White House sought to disrupt the investigation by disseminating negative information about Starr and his staff. While declining to testify about internal discussions before the grand jury, Blumenthal has said he answered all questions about his contacts with reporters regarding the independent counsel's office.
Blumenthal is a proponent within the White House of a theory that Starr is part of what Hillary Clinton called a "vast right-wing conspiracy" determined to bring down the president.
The claim of executive privilege in this case raises the constitutional question of whether its use extends beyond cases involving the national interest to the president's personal interest. Three areas traditionally considered protected are: law enforcement matters, military or diplomatic affairs, and information that goes to the "deliberative process" of making public policy.
In a 1994 memo, then-White House counsel Lloyd N. Cutler said that "in circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either in judicial proceedings or in congressional investigations."
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