Clinton Lawyer Cites Privilege
Washington Post Staff Writers
Wednesday, August 5, 1998; Page A01
A top White House lawyer went before the grand jury investigating President Clinton's ties to Monica S. Lewinsky yesterday but refused to answer certain questions, prompting another round of legal jousting with independent counsel Kenneth W. Starr, according to sources familiar with the closed proceedings.
White House special counsel Lanny A. Breuer showed up at the federal courthouse to testify about two hours after Chief Justice William H. Rehnquist refused an emergency White House request to intervene and temporarily block his appearance yesterday morning.
Breuer, who has coordinated much of the White House damage-control efforts related to the Lewinsky investigation, spent nearly five hours with the grand jury. He answered some questions related to the case while declining to discuss subjects that he and his colleagues asserted are covered by attorney-client privilege, the sources said.
At the end of the afternoon, Breuer, his private attorney, fellow White House lawyers and a pair of Starr deputies convened for nearly an hour behind closed doors with Chief U.S. District Judge Norma Holloway Johnson. Johnson, who is overseeing the Starr probe, previously has rejected White House claims of attorney-client privilege in the Lewinsky case and the White House had been braced for another rebuff, likely to be followed by another set of appeals, possibly all the way up to Rehnquist again.
But the day ended without any public indication of additional appeals and a legal source said Breuer plans to be at the courthouse again at 10 a.m. today. Breuer declined to discuss the situation yesterday. Asked how he felt being the subject of such a high-profile battle, he joked, "I'm honored."
The White House said it was disappointed with Rehnquist's decision. "This is a critical issue," said deputy press secretary Barry Toiv. "This is not merely about whether one person is required to testify. This is an issue of principle. This is an issue of whether . . . this president and future presidents are able to have access to the attorney-client privilege."
The developments were the latest in what appear to be increasingly futile attempts by the Clinton administration to prevent Starr from interrogating people close enough to the president to know about his relationship with Lewinsky. One by one, Starr has secured court rulings affirming his right to question senior presidential aides, Secret Service officers and now White House lawyers.
What remains uncertain is how important that testimony will be, especially now that Clinton and Lewinsky have both agreed to provide their own accounts to Starr. The White House suggested in legal papers filed at the Supreme Court on Monday and made public yesterday that such witnesses may be peripheral at this point.
"The publicly announced recent agreements [Starr's office] has concluded for the testimony of the President and Ms. Lewinsky will ensure that the grand jury will hear the evidence relating to the merits of the investigation while this important legal issue is being resolved," wrote attorney W. Neil Eggleston, the private lawyer who is representing the White House in the attorney-client fight. "Indeed, it is quite likely that [Starr's office] may obtain from the President some, if not all, of the factual information it has sought to date from White House counsel."
On the other hand, third-party witnesses may help resolve what promises to be a fundamental clash between the versions of events provided by Clinton and Lewinsky.
Lewinsky has told prosecutors that she will testify that she had a sexual relationship with the president and that they discussed ways of disguising that during the Paula Jones lawsuit, according to legal sources. Clinton testified in the Jones case and repeated on national television that he never had sexual relations with Lewinsky, and aides said he has no intention of changing his account when he testifies from the White House on Aug. 17.
Still, it is not clear that Clinton would have confided any intimate secrets to Breuer. Starr appears to want to ask Breuer and other White House lawyers about their damage-control strategy sessions early in the investigation and about their attempts to interview grand jury witnesses or their private attorneys.
Starr argued in his own brief filed at the Supreme Court that any further postponements would not be in the national interest. "The costs of delay here extend beyond the adverse effects on an important investigation. . . .," he wrote. "The Nation is entitled to its prompt conclusion."
Rehnquist agreed there was no reason to delay Breuer's testimony. In an oral order yesterday morning, he declined to issue a temporary order blocking Breuer's grand jury appearance while the White House asks the full Supreme Court to hear the question of whether attorney-client privilege applies to government lawyers working for the president. An appeals court agreed with Johnson last week that it does not.
The sequence of events recalled a similar drama involving the Secret Service last month, when Rehnquist refused to step in at the last minute to stop Starr from bringing the president's protectors before the grand jury.
In both cases, the Supreme Court still may decide to hear Clinton administration appeals on the merits of the issues in the fall when it begins its new session, even though Starr has been allowed to proceed in the meantime.
To assuage concerns about the "chilling effect" that may plague the president's ability to obtain candid legal advice in the interim, Starr volunteered in his Supreme Court filing not to ask any White House lawyers about conversations occurring after Monday unless the justices ultimately decide no privilege exists. He made the same offer on Secret Service officers last month.
The dispute over a stay, though, could run up the appeals chain again in the coming days. Because Breuer had never appeared before the grand jury and some of the questions to be posed to him did not deal with attorney-client matters, the courts did not consider the issue to be properly before them.
The White House told Rehnquist that unless he intervened, Starr likely "will subpoena other members of the Office of Counsel to the President before the grand jury," possibly including the president's chief counsel, Charles F.C. Ruff. Also likely to be recalled is deputy counsel Bruce R. Lindsey, who was the subject of the original attorney-client privilege fight, but he is recovering from back surgery.
Clinton's lawyers also disputed the idea that no harm would result from going ahead with testimony while the underlying appeal is pending. "Those privileged communications, once disclosed, can never again be made confidential even if the White House prevails before this Court," the White House brief said.
While the attention focused on Breuer, Starr separately brought as many as four Secret Service officers before a second, borrowed grand jury yesterday as he continued to rush to finish his investigation. And Clinton and Lewinsky separately continued to prepare with lawyers for their own fateful testimony.
While Lewinsky is talking with his prosecutors privately, Starr gave no indication whether he plans to bring her to the grand jury before Clinton is scheduled to testify Aug. 17. Another mystery factor is whether Starr plans to give the White House advance warning of the results of an FBI laboratory test of a dress Lewinsky turned over. The FBI is determining whether a stain on the dress contains semen and, if it does, whether it matches a DNA sample that would be provided by Clinton.
Staff researcher Ben White contributed to this report.
© Copyright 1998 The Washington Post Company