New Starr Subpoena
By Peter Baker and Susan Schmidt
Starr subpoenaed White House special counsel Lanny A. Breuer last week after an appeals court ruled that government lawyers cannot avoid testifying by invoking attorney-client privilege, legal sources said yesterday. The same court refused a request for postponement last night, prompting the White House to turn to Chief Justice William H. Rehnquist just 12 hours before Breuer is scheduled to appear at 9:15 a.m. today.
The courthouse brinkmanship echoed last month's showdown over Secret Service testimony, when Starr successfully short-circuited what promised to be months of legal sparring and forced the president's protectors to testify about what they know of President Clinton's relationship with Lewinsky. By following up last week's appeals court victory with a new subpoena, Starr similarly is trying to push the process ahead and begin interrogating White House lawyers right away rather than wait until the Supreme Court returns to session in the fall.
Breuer has been an important part of the White House counsel's office team dealing with the Lewinsky investigation. A mild-mannered former federal prosecutor from New York who turns 40 on Wednesday, Breuer came to the White House from the Washington law firm of Covington & Burling last year and has coordinated the response to Starr subpoenas and helped debrief other grand jury witnesses.
If the White House does not obtain a stay, the other lawyer certain to be called is deputy counsel Bruce R. Lindsey, Clinton's longtime confidant from Arkansas who was the subject of last week's decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.
Lindsey, however, is recuperating from back surgery he had last week and it was uncertain when he would be able to appear. Starr's office indicated that it "has no immediate intention" of summoning Lindsey to testify, according to court documents filed yesterday.
White House officials fear that Starr would not stop with Lindsey and Breuer, both of whom were first subpoenaed early in the investigation. White House counsel Charles F.C. Ruff and deputy counsel Cheryl D. Mills, who have worked extensively on matters related to the Lewinsky probe, also appear to be possible targets for subpoenas.
The legal maneuverings contrasted with Clinton's decision last week not to resist a subpoena for his own testimony, which he agreed to provide Starr at the White House on Aug. 17 in a session that will be transmitted live to grand jurors at the federal courthouse. While the president has pledged to answer questions "completely and truthfully," he decided to appeal last week's decision on attorney-client privilege to the Supreme Court because of the precedent it would set in limiting the confidentiality of legal advice "for this and future presidents," as Ruff put it.
"The attorney-client privilege is a bedrock principle of our legal system," Ruff said in a statement. "This privilege ultimately serves the public interest by ensuring fully informed decision-making through open and candid discussions between clients and attorneys. The confidential nature of the attorney-client relationship is no less important in government than in every other context where it exists."
In a separate development, another three-judge panel of the appeals court yesterday allowed to go forward an investigation into possible illegal leaks by Starr's office but restricted the involvement of Clinton's private lawyers, according to sources familiar with the sealed decision.
Clinton's private attorneys, led by David E. Kendall, wanted to participate in the questioning of Starr and his staff about whether they provided grand jury information to the news media in violation of secrecy rules. Starr's office argued that lawyers for someone under investigation should not be permitted to question prosecutors about how their evidence has been handled.
The appeals panel ruled that Chief U.S. District Judge Norma Holloway Johnson should conduct any leak investigation without the president's lawyers, although they could have access to documents at the end of the probe if Johnson finds any wrongdoing, the sources said.
It was unclear yesterday how the judge would proceed at this point. She could ask for affidavits from Starr and members of his staff; question them herself and in person; or appoint a special master to conduct an inquiry.
The president's decision to appeal the attorney-client decision will confront the Supreme Court again with the question of whether government lawyers enjoy the same right to confidentiality as their private-sector counterparts, an issue that has broad impact across the federal government beyond the Lewinsky situation.
Last week's 2 to 1 decision by the D.C. appeals court panel arose from Lindsey's refusal to answer some questions posed by Starr's prosecutors and paralleled a ruling by the 8th U.S. Circuit Court of Appeals in a different case brought by Starr involving the Clinton White House. In both rulings, the courts found that government lawyers do not have a privilege because their first duty is to the taxpayers who pay their salaries and not to any individual officials they may be advising. The Supreme Court declined to hear a White House appeal of the 8th Circuit ruling last year, leading some legal experts to suggest it may be similarly disinclined to take the latest case.
Even so, without the new Starr subpoena, the process could have dragged on until fall. While the White House said it would file an expedited appeal, the justices still would not be expected to hear the case until returning from their summer recess in October, officials said.
By summoning Breuer, Starr could force an earlier resolution, much as he did in the Secret Service fight when Rehnquist declined to stop the testimony pending an appeal to the full court, reasoning that there would be no irreparable harm in proceeding.
In the latest series of rapid-fire legal skirmishes, the White House filed a motion under seal yesterday afternoon asking the appeals court to stop Breuer's testimony until after the Supreme Court hears the whole case. The same three-judge panel that ruled last week turned down the request, issuing an order last night that did not name Breuer but instead referred to an unnamed "member of the White House Counsel's Office."
At 8:30 p.m., the White House appealed to Rehnquist, who as the justice designated to oversee emergency motions in the D.C. circuit can act on his own or consult his colleagues if he chooses. A Supreme Court spokeswoman said he was not expected to decide last night.
Starr issued no comments on the matter yesterday, although similar issues were on his mind. Speaking at an American Bar Association conference in Toronto, he reflected on another Supreme Court decision this year rejecting his attempt to force a lawyer for the late deputy White House counsel Vincent W. Foster Jr. to turn over notes of their conversation nine days before his death. In that instance, the high court ruled that attorney-client privilege survives a client's death.
Starr told fellow lawyers he had once been advised that in litigation there are victories and there are developments. "For the Office of Independent Counsel, this was a development, but it also taught us a lesson about this court," he said, according to news reports from Toronto. "Yes, truth is precious . . . but the court reminded us that there are other considerations, other values."
The current attorney-client dispute was generated by Starr's investigation into whether Clinton lied under oath during the Paula Jones case when he denied having a sexual relationship with Lewinsky and whether he encouraged her to lie as well. Lewinsky has now agreed to testify that they did have an affair and she spent yesterday again being debriefed by prosecutors, legal sources said.
Lindsey played a key role in the Jones case, often conveying information from Clinton's private attorneys to the president, including the fact that Lewinsky had been named on a witness list in December.
Lindsey already has testified three times in the Lewinsky matter, but declined to answer a variety of questions that were deemed covered by attorney-client privilege. During one of those appearances, according to court documents, Lindsey testified that he had no knowledge of any criminal wrongdoing involving the president in the Jones case and White House officials said they expect that Breuer would say the same thing to the grand jury.
In addition to whatever they may have heard from Clinton about his dealings with Lewinsky, Starr appears to want to ask Lindsey and Breuer about their roles in trying to defend the president during the current grand jury investigation. Both Lindsey and Breuer have debriefed other grand jury witnesses or their lawyers in the Lewinsky investigation, a practice called commonplace by the White House and some outside lawyers but denounced as objectionable by Judge Johnson in her ruling on the attorney-client privilege case.
While the lawyers jousted, the White House waited anxiously for any word of the FBI tests for DNA material on the navy blue cocktail dress Lewinsky turned over to Starr last week as part of her immunity deal. By now, the FBI laboratory should have been able to determine whether a stain on the garment contained semen and whether it could be compared with a genetic sample from the president, but officials were mum on the results.
FBI Director Louis J. Freeh and other top agency officials have sent out word that they will not tolerate any disclosure of information about the dress, FBI sources said. "Obviously, there's a great deal of concern about leaks," one official said. "It's a highly sensitive matter, and it isn't even our case." Said another FBI source: "This place is wrapped up like a Christmas present."
Staff writers Bill Miller and Michael Grunwald contributed to this report.
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