Executive Privilege Claim Is Revived
Washington Post Staff Writers
Thursday, August 6, 1998; Page A01
President Clinton has moved to block White House lawyers from having to answer certain questions in the Monica S. Lewinsky investigation by reviving an executive privilege claim he abandoned two months ago rather than take it to the Supreme Court, legal sources said yesterday.
White House lawyer Lanny A. Breuer cited executive privilege in refusing to answer certain questions put to him Tuesday when independent counsel Kenneth W. Starr summoned him to the grand jury, legal sources said. Breuer, along with attorneys for both sides, appeared before Chief U.S. District Judge Norma Holloway Johnson yesterday morning, the day after Chief Justice William H. Rehnquist refused to block Breuer's testimony on a claim of attorney-client privilege.
After an appeals court ruled last week that attorney-client privilege does not shield White House deputy counsel Bruce R. Lindsey from questioning, Starr quickly moved to secure testimony from Breuer and was expected to call Lindsey and other White House lawyers as well. But the new executive privilege claim could spark a separate legal case, delaying Starr's questioning of the White House lawyers for weeks or longer, perhaps until after Starr was planning to send Congress a report of possible impeachable offenses by Clinton.
The White House and Starr's office refused to comment yesterday on the executive privilege assertion, but the renewed battle was not universally supported among the president's allies. "Given the very small chance of success of an executive privilege claim under these circumstances, it's a shame to keep handing Ken Starr victories," said one Clinton adviser.
In June, the White House abandoned its effort to assert executive privilege for Lindsey and Clinton adviser Sidney Blumenthal after Judge Johnson rejected the claim and Starr had asked the Supreme Court to back that decision.
At the time, White House counsel Charles F.C. Ruff indicated there would be no further efforts to use that privilege to block aides from testifying. "We have no intention of asserting the privilege, executive privilege, in any situation that I'm aware of," Ruff said.
The White House said then that it was satisfied with the legal standard that Johnson had adopted to weigh claims of executive privilege, but that it simply disagreed with the way she applied it.
But the legal landscape has changed somewhat since then as the result of language in last week's ruling by the U.S. Court of Appeals for the D.C. Circuit rejecting the attorney-client privilege claim.
"In preparing for the eventuality of impeachment proceedings, a White House Counsel in effect serves the president as a political advisor, albeit one with legal expertise," the court said in its 2 to 1 decision. "The information gathered in preparation for impeachment proceedings and conversations regarding strategy are presumably covered by executive, not attorney-client privilege. While the need for secrecy might arguably be greater under these circumstances, the district court's ruling on executive privilege is not before us."
Although the White House this week asked the Supreme Court to overturn the attorney-client decision, that language may have encouraged Clinton's lawyers to reconsider the executive privilege claim, emboldening them to press the question with a different witness, Breuer.
In her May ruling, Johnson rejected Starr's claim that executive privilege did not apply at all in a criminal investigation of the president. He argued that he wanted to question White House advisers about their discussions involving Clinton as an individual, not about the official duties of the president. But Johnson also ruled that prosecutors' need for the evidence and inability to obtain it elsewhere outweighed Clinton's interest in maintaining the confidentiality of White House conversations.
Because the White House did not appeal that portion of the ruling, the appeals court did not consider whether Johnson's interpretation was correct.
The legal maneuvering came on a busy day at the courthouse as prosecutors called a parade of grand jury witnesses, including as many as nine Secret Service officers and Harold M. Ickes, the former White House deputy chief of staff now serving as a private adviser to Clinton. Aside from the White House lawyers, Starr has only the two central witnesses left to hear from: Lewinsky, who is scheduled to start testifying today, and Clinton, who will give his account to Starr on Aug. 17.
Sen. Arlen Specter (R-Pa.), a senior member of the Senate Judiciary Committee, wrote Starr yesterday urging him to ship a report of the Lewinsky probe evidence to Congress "as promptly as possible" after Clinton's Aug. 17 testimony. Specter said he believed "it would be very harmful for the public interest . . . to have commentators speculating on leaks of key testimony -- to include, perhaps, results of DNA examinations -- while the Congress awaits the true facts as outlined in your report."
Specter said that, as "a potential juror in the Senate if the matter goes that far," he is not prepared to absolve Clinton if he follows the advice of some advisers who have urged the president to acknowledge publicly that he had a sexual relationship with Lewinsky despite his sworn denial in the Paula Jones lawsuit.
"On this state of the record, I would not condemn the president nor would I exonerate or excuse him, whatever his 'mea culpa' may be, without knowing the detailed facts," he wrote. On Sunday, Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said he believed that Congress would allow the president to extricate himself from political and legal peril by admitting he lied to protect his family.
Staff writer Peter Baker and special correspondent Ben White contributed to this report.
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