Hears Privilege Case By Peter Baker and Ruth Marcus
Washington Post Staff Writers
Tuesday, June 30, 1998; Page A5 A federal appeals court yesterday explored the legal boundaries of President Clinton's relationship with his closest aide, White House deputy counsel Bruce R. Lindsey, struggling with the question of where personal loyalty ends and public duty begins.
The White House asked a three-judge panel to prevent independent counsel Kenneth W. Starr from questioning Lindsey about his conversations with Clinton and others regarding Monica S. Lewinsky, arguing that those talks should be protected by the same attorney-client privilege that exists for private lawyers.
Starr, making his second appearance in the same courtroom in four days, told the judges that the privilege should not protect Lindsey because as a White House lawyer he serves the people and not Clinton, despite their long-standing friendship dating back to Arkansas. The White House position is contradicted by "morality, common sense and law," Starr contended.
The morning-long hearing at the U.S. Court of Appeals for the D.C. Circuit was the first time Starr and the White House legal team have argued in open court over Lindsey's testimony, one of the key side battles to emerge from the Lewinsky investigation and likely a precedent-setting case that will affect presidents and their attorneys long after Clinton leaves office. All previous hearings on the matter had been conducted behind closed doors, and even some of yesterday's oral arguments were sealed to protect sensitive grand jury information.
Never before has a president publicly gone to court to assert attorney-client privilege in the face of a grand jury subpoena. President George Bush invoked the privilege for his White House counsel, C. Boyden Gray, during the Iran-Contra investigation but prosecutor Lawrence E. Walsh didn't pursue a court fight. Whichever way the appeals court decides, it may just be a way station on the road to the Supreme Court.
"These are momentous decisions here, which will have historical, immense impact on all three branches of government," Justice Department attorney Douglas N. Letter told the appeals court.
Although the immediate focus of the dispute was Lindsey, who has declined to answer questions in 14 categories related to Lewinsky, the larger issue concerns what confiden-ces, if any, a president can share with White House lawyers.
W. Neil Eggleston, a private attorney hired to represent the White House in this case, said the president needs the assurance of privacy during his deliberations to do the public business. Starr presented it as a question of whether lawyers on the government payroll should be allowed to thwart a criminal inquiry or be required to comply with their "ancient duty" to report wrongdoing.
Starr questioned "the very idea that a government attorney . . . could receive information that is relevant to a criminal investigation and could hide that." If a White House lawyer "believes there's information that is relevant" to a criminal inquiry, "he must report it," Starr said. "That is our system. That is the rule of law."
But Eggleston said, "If Mr. Starr is correct, the president simply has no advice of counsel on official matters, on official duties, on official decisions. He has nobody he can turn to to have a conversation" about his official responsibilities.
The panel of judges appeared to wrestle with how to balance those interests, especially given that Starr may refer findings to Congress to conduct an impeachment inquiry, a situation that indisputably involves the president in his official capacity.
Starr called the prospect of impeachment proceedings -- and the question of how the attorney-client privilege would apply in such circumstances -- "far away" and said it would be "premature for this court to be looking down the road."
Still, the arguments repeatedly harkened back to the last time a president faced impeachment, in 1974, before Richard M. Nixon resigned. Clinton's White House counsel, Charles F.C. Ruff, sat in the courtroom yesterday two decades after serving as the final Watergate special prosecutor. Once, Eggleston even mistakenly used Clinton's name when he meant to say Nixon.
Starr said Clinton's action in this case was "a clear end-run around Nixon's values," provoking one of the few moments of levity in the courtroom. "You mean the Nixon case's values," Judge A. Raymond Randolph interjected with a smile, referring to the Supreme Court's executive privilege decision, a correction Starr happily accepted.
But Eggleston rejected the comparison, saying, "No one in Watergate thought they could call [White House attorney] James St. Clair and say, 'Did the president tell you what's on the tapes?' "
While Starr argued there was no attorney-client privilege for government lawyers in a criminal case and the White House maintained the privilege was absolute, none of the judges appeared sympathetic to the middle-ground position taken by the Justice Department. The department, which intervened as a friend of the court, adopted a position similar to Chief U.S. District Judge Norma Holloway Johnson, who determined there was a "qualified" privilege that could be outweighed by prosecutors' need for evidence.
For its appeal of that ruling, the White House drew a friendlier pool of judges than the Secret Service did on Friday when it argued with Starr over whether its agents enjoy a privilege of their own. Randolph, a Bush appointee, served on that panel, but yesterday he was joined by two Clinton appointees, Judith W. Rogers and David S. Tatel. Even so, Rogers joined Randolph in appearing troubled by the dual role that lawyers play in the Clinton White House.
"What you're asking for is something far beyond that," Rogers told Eggleston regarding past court rulings about government attorney-client privilege in civil cases.
Randolph was especially interested in Lindsey's role in aiding Clinton during the Paula Jones civil case before word of Starr's criminal investigation into possible perjury and obstruction of justice reached the White House on Jan. 20.
"Why is that an official White House act?" he asked Eggleston.
Eggleston said Lindsey helped handle matters so that Clinton "could spend as much time as possible and not be distracted from his duties as president of the United States."
Lindsey served as a conduit between Clinton and his private attorney, Robert S. Bennett, during the Jones case and talked with former White House aide Linda R. Tripp and other possible witnesses.
But it was unclear whether Lindsey had refused to answer questions about those actions in the grand jury. Eggleston suggested the questions were nearly all about White House communications after Jan. 20. However, Randolph retorted cryptically, "I think you're making an assumption that may not be warranted."
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