By Susan Schmidt and Peter Baker
"The facts are quite different in this case," Clinton said at a news conference two days after a federal judge rejected his attempt to shield top White House aides from testifying before a grand jury investigating the Monica S. Lewinsky matter. Clinton did not elaborate, but White House press secretary Michael McCurry said that the president is not "worried about any parallels to Watergate because there are none. In the case of Watergate, crimes were committed, as you may recall."
The Nixon comparison had Clinton allies steaming yesterday and flavored their deliberations about whether to appeal. But while the executive privilege dispute with independent counsel Kenneth W. Starr poses constitutional issues similar to those raised during Watergate, even a legal victory for Starr might not produce an investigative breakthrough as his prosecutors examine whether Clinton lied under oath about an alleged sexual relationship with Lewinsky or encouraged others to do so.
The disputed testimony Starr is seeking would come from two presidential loyalists who may not provide damaging information about the president even if they are forced to answer questions about Clinton. Deputy counsel Bruce R. Lindsey, Clinton's closest aide since his days as governor of Arkansas, has not hurt the president in numerous previous sworn statements and communications adviser Sidney Blumenthal arrived at the White House only last year.
While attention focused on Chief U.S. District Judge Norma Holloway Johnson's sealed ruling on executive privilege, lawyers familiar with the inquiry suggested that Starr could secure information more significant to his investigation if he wins two other privilege fights. One concerns Clinton's assertion of the more mundane attorney-client privilege to prevent testimony by White House lawyers, a claim Johnson also rejected in her Monday decision. The second relates to a new legal privilege asserted by the Justice Department that would bar Secret Service personnel from testifying about what they might have seen of Lewinsky in the Oval Office.
Starr is seeking to question White House lawyers about efforts to contain the Lewinsky scandal in discussions with the Clintons or damage control meetings. He has already sought to subpoena the testimony of associate White House counsel Lanny A. Breuer, and he could now seek the testimony of a host of others who participate in daily meetings on handling the Lewinsky investigation.
In rejecting the attorney-client privilege, Johnson cited a decision in a similar case involving the Clinton White House by the 8th U.S. Circuit Court of Appeals, lawyers familiar with the ruling said. In that case, Starr obtained from White House lawyers notes they took in discussions with first lady Hillary Rodham Clinton, including conversations during breaks in her 1996 grand jury testimony on Whitewater matters. Johnson's ruling, the sources said, quoted the appeals court finding that the use of White House lawyers was a "gross misuse of public assets."
Johnson has still not ruled on the administration's attempt to assert a newly defined "protective" privilege to prevent questioning of Secret Service agents and officers, and some legal scholars suggested her rebuff to the White House on the other privilege matters is a signal that she will not agree to create a new one.
"Given that a long-established privilege that has a highly significant purpose for the office of the presidency under the Constitution was not found to be sufficient, an entirely novel claim of privilege that is unknown to case law, statute or practice is not likely to be given much credence by this judge," said Douglas W. Kmiec, a Pepperdine University law professor and former Reagan administration Justice Department official.
The prospect of time-consuming appeals makes it unlikely Starr will be able to secure the disputed testimony from White House aides and Secret Service personnel in time to include it in a report to Congress in the short term. Legal debates already have taken several months, and Lewinsky is appealing Johnson's decision dismissing her claim that Starr reneged on an immunity agreement. As a result, it now appears doubtful that Starr's office can meet its goal of getting an interim report to Congress by the end of this month. Any report after that is unlikely to produce congressional action on the Lewinsky matter in this election year.
At the White House, lawyers huddled to consider their next step and the possible ramifications. The strong consensus among the attorneys was to appeal the decision, according to sources familiar with their thinking.
Some of the president's political advisers have reservations about the public relations impact of an appeal, dreading the prospect of months of television broadcasts juxtaposing pictures of Nixon and Clinton.
"There is a political cost because of the inappropriate and inaccurate but inevitable analogies to Watergate," said Lanny J. Davis, a former White House special counsel under Clinton. The comparison was unfair, Davis said, because the Lewinsky investigation is about "at worst a false statement" in the now-dismissed Paula Jones civil case, while Watergate centered on "the abuse of power and felonies."
If there were any doubts that critics would seize on the issue, they were immediately dispelled as congressional Republicans assailed the White House. On the House floor, Majority Whip Tom DeLay (R-Tex.) said an appeal would amount to "one more effort to delay the Starr investigation and keep the truth from the American people." Sen. John D. Ashcroft (R-Mo.) said the privilege claim was so flimsy that an appeal "would be wasteful, irresponsible and abusive."
Still, several Clinton political advisers said they were coming to the conclusion that a prolonged debate generated by an appeal would not damage Clinton's standing with the public, although they said they were not being consulted on the decision.
"This is a lot less exciting to the American people than it is to the political class," said one administration official who did not want to be named. Another pointed to a new poll showing Clinton's approval rating nudging up to 64 percent, while House Speaker Newt Gingrich (R-Ga.), who has led harsh criticism of the White House in recent days, fell to 31 percent.
The Clinton camp yesterday also launched a new broadside against Starr for alleged leaks, this time accusing him of disclosing Johnson's still-sealed ruling on executive privilege to Fox News and suggesting that prosecutors "be held in contempt of court for these latest flagrant leaks," as Clinton's private lawyer David E. Kendall said in a letter.
Starr's deputy, Jack Bennett, immediately disputed the allegation, calling it "utterly, categorically false" and demanded in a letter to Kendall that he withdraw his motion. Bennett said his office was told by reporters that the White House had informed them of the ruling, and a Fox reporter involved in the coverage acknowledged yesterday that the network incorrectly attributed its report to Starr's office when it was not actually the source.
At the grand jury investigating the Lewinsky matter, presidential secretary Betty Currie returned yesterday for her second appearance, but prosecutors did not complete their questioning and she will have to return this morning, according to her attorney, Lawrence Wechsler.
Currie, who was the first witness summoned to the grand jury after the Lewinsky scandal erupted in January, looked calm and relaxed yesterday -- in sharp contrast to her harried, frightened demeanor during her initial appearance. Currie is a central witness because she was the one who enlisted Clinton confidant Vernon E. Jordan Jr. to find a job for Lewinsky at a time when the former White House intern was being sought to testify about her relationship with the president in the Jones case. While Lewinsky was under subpoena from the Jones lawyers to turn over any gifts she had received from Clinton, she instead returned them to Currie.
Staff researcher Ben White contributed to this report.
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