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Kenneth W. Starr
Federal marshals clear a path for independent counsel Kenneth W. Starr, who took time off from his Whitewater duties Tuesday to argue a legal appeal in Richmond for a private client. (AP)

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Related Links
_ Analysis: The Legal Fight (Washington Post, May 6)

_ Starr Compares Battles of Clinton and Nixon (Washington Post, May 2)

_ Executive Privilege Invoked for Two Aides (Washington Post, March 21)

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President Is Denied Executive Privilege

By Peter Baker and Susan Schmidt
Washington Post Staff Writers
Wednesday, May 6, 1998; Page A01

A federal judge has ruled that President Clinton cannot use the power of his office to block prosecutors from questioning his senior aides, rejecting Clinton's assertion of executive privilege in the Monica S. Lewinsky investigation, lawyers familiar with the decision said yesterday.

In a ruling issued under court seal Monday, Chief U.S. District Judge Norma Holloway Johnson concluded that independent counsel Kenneth W. Starr's need to collect evidence in his obstruction of justice probe outweighs Clinton's interest in preserving the confidentiality of White House discussions, the lawyers said.

The decision made Clinton the first president to take a claim of executive privilege to court and lose since the dramatic Watergate showdown in 1974, when the Supreme Court unanimously ordered Richard M. Nixon to turn over the secret Oval Office tapes that ultimately led to his resignation. Clinton's case also seems headed for the high court as sources indicated that the White House likely will appeal.

Johnson's ruling could amount to a significant political as well as legal setback for Clinton, lending ammunition to Republican critics, such as House Speaker Newt Gingrich (Ga.), who have charged that Clinton is trying, in Nixonian fashion, to impede Starr's investigation with invalid privilege claims.

Clinton invoked both executive privilege and attorney-client privilege to prevent Starr from asking deputy counsel Bruce R. Lindsey, communications adviser Sidney Blumenthal and other top officials about conversations regarding the Lewinsky case. According to the lawyers, Johnson also dismissed the attorney-client privilege claim on the grounds that Clinton could not use government-paid White House lawyers to aid his defense in a criminal probe.

The executive privilege dispute has been one of many legal hurdles erected in Starr's path as he investigates whether Clinton lied under oath about having a sexual relationship with Lewinsky and asked her to do so as well. But Starr has won a string of victories in recent weeks. Johnson has also sided with Starr by ordering Lewinsky's first attorney to comply with a subpoena and by rejecting the former White House intern's claim of a binding immunity agreement with prosecutors.

Word of the decision overshadowed other important developments yesterday in Starr's multi-faceted investigation into the Clinton White House. A day after charging former Clinton business partner Susan McDougal with criminal contempt and obstruction, the Little Rock grand jury that has been investigating Whitewater for 4 1/2 years disbanded without issuing more indictments.

While the White House took that as a hopeful sign that the long-running Whitewater investigation is nearing its end without producing charges against the president or first lady Hillary Rodham Clinton, officials were careful not to read too much into it, at least publicly. Indeed, a parallel Washington grand jury can still take testimony or issue indictments and Starr's spokesman suggested that he still could impanel a new Little Rock grand jury.

Johnson's executive privilege ruling came as prosecutors yesterday infused new energy into their Lewinsky grand jury investigation, bringing back one of the central players in that saga, Clinton confidant Vernon E. Jordan Jr., to testify. Another key witness, presidential secretary Betty Currie, is slated to return today.

Jordan, a prominent Washington attorney, arranged job interviews in New York for Lewinsky at Currie's request and found a lawyer to help Lewinsky draft an affidavit denying a sexual relationship with Clinton in the now-dismissed Paula Jones case. But Jordan has denied that he was trying to encourage her to lie.

"Today, as twice before, I answered all the questions completely, truthfully and honestly and to the best of my ability," Jordan said as he left federal court after his third appearance before the grand jury.

A Jordan associate said prosecutors yesterday asked him about the timing and substance of telephone calls he made to the president, as well as calls he made to various prospective employers on Lewinsky's behalf in December and January. Many of the questions went over ground covered in previous appearances, but Jordan was told he will have to return again.

In another legal judgment related to the investigation, the U.S. Circuit Court of Appeals for the District yesterday upheld Johnson's decision to keep secret the hearings related to executive privilege and other disputes. Citing grand jury confidentiality rules, a three-judge panel unanimously rejected a motion filed by news organizations, including The Washington Post, seeking access to the proceedings.

The continued secrecy surrounding the dispute over executive privilege has meant that both sides have not publicly explained their arguments in a high-stakes constitutional struggle, just as the White House and Starr's office offered no official comment on Johnson's ruling.

While presidents have claimed a form of executive privilege to shield their internal deliberations since George Washington, the Nixon ruling in 1974 was the seminal case establishing that such a privilege exists and setting the broad parameters of White House secrecy for the modern era.

At the time, Nixon was defying special prosecutors seeking Oval Office tapes that implicated him in the Watergate coverup. In an 8-0 decision, the Supreme Court found that the president does have a right to confidentiality, particularly in national security or law enforcement situations, but that it must be balanced against the need for disclosure. In Nixon's case, the court judged that the interests of the Watergate probe outweighed the privilege. Two weeks later, Nixon resigned.

Judge Johnson applied a similar test in the Clinton case, according to lawyers familiar with her ruling. While she found some validity to the argument for confidentiality of the disputed conversations, she concluded that the prosecutors' needs were more compelling, the lawyers said.

She also relied heavily on an earlier appeals court ruling involving another Clinton White House claim of attorney-client privilege, citing a decision that called the use of White House lawyers in Whitewater criminal matters affecting the Clintons a "gross misuse of public assets."

That case involved Starr's efforts to subpoena notes taken by White House lawyers in discussions with Hillary Clinton during 1995 and 1996. The 8th U.S. Circuit Court of Appeals agreed with Starr that government lawyers cannot be enlisted in private defense work and the Supreme Court refused a White House request to hear an appeal.

The White House has 10 days to file a notice of appeal of the latest privilege ruling. If Clinton's lawyers seek a hearing in the appeals court, Starr likely would ask the Supreme Court to grant an immediate hearing instead, just as Watergate prosecutors did. The White House may decide to forgo an appeal rather than run the risk of a highly visible defeat on the executive privilege issue in the Supreme Court.

While Starr has been criticized by the White House for spending four years and more than $30 million on his investigation, yesterday's ruling underlines how much of his resources have been absorbed fighting various court challenges. In nine instances, witnesses or defendants -- including the White House, McDougal and former Arkansas governor Jim Guy Tucker -- have challenged criminal convictions or court rulings, only to be rebuffed by the courts.

But Starr's time has also been split between his private law practice and his public duties. Just yesterday, Starr argued at the 4th U.S. Circuit Court of Appeals on behalf of the Meineke muffler chain, which was appealing a $397 million judgment awarded to franchisees who claimed that the firm defrauded them of millions of dollars that were supposed to go to advertising.

Clinton partisans seized on yesterday's argument to illustrate their contention that Starr has not devoted full energy to the taxpayers. "When he got up Tuesday morning, Mr. Starr had the choice to serve the public interest or his own," said White House spokesman James Kennedy. "He chose the latter course."

Starr deflected questions about his work at Kirkland & Ellis, where he continues to earn up to $1 million a year, after the three-hour session in Richmond. Instead, he seemed to relish his brief furlough from government business. Far from appearing unprepared, Starr seemed sure-footed during aggressive questioning by judges seated at a wood-paneled dais in green leather swivel chairs.

At one point, he complained "there has been a vilification" of his client. And in an allusion to a famous Watergate phrase, he waved a black binder of company letters and dismissed their significance, saying, "These are not smoking guns."

If Starr has found a smoking gun against the first family in his Whitewater probe, he was not saying yesterday. The Little Rock grand jury disbanded two days before its official expiration date without any charges being brought against Hillary Clinton in connection with her legal work involving Whitewater. Starr and his deputies interviewed the first lady under oath for nearly five hours at the White House last month and presented a videotape of that session to the grand jury before closing it down.

Starr could still decide to bring a Whitewater-related perjury or obstruction case in Washington, since the testimony of many witnesses, including Hillary Clinton, has also been given here, either before the grand jury or in depositions. While the expiration of the Arkansas grand jury signals Starr's efforts there are nearly at an end, his spokesman, Charles Bakaly, said he could not rule out the possibility another grand jury would be impaneled there in the future if evidence warrants.

During 4 1/2 years of operation involving three successive groups of Arkansas citizens, the Little Rock grand jury handed up nine indictments, including charges against Tucker, McDougal and her late ex-husband, James B. McDougal. Starr's office also obtained several guilty pleas in the investigation.

The latest group to serve on the grand jury celebrated the end of their two years on the job with a pizza party at the courthouse. The White House, by contrast, said the president was not ready to celebrate yet.

"He's not expecting that it will fundamentally change things one way or another," said White House press secretary Michael McCurry. "The persistent quest for something in Whitewater will likely continue."

Staff writers Lena H. Sun in Washington and Spencer S. Hsu in Richmond contributed to this report.


© Copyright 1998 The Washington Post Company

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