Clinton Accused Special Report
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Clinton and Lindsey/AFP
President Clinton walking with senior aide Bruce Lindsey in March. (AFP)


Related Links
_ Full Text of Judge Johnson's Order

_ Full Text of White House's Argument for Privilege

_ More New Legal Documents

_ Analysis: Echoes of 1974 Nixon Tapes Decision (Washington Post, May 28)

_ Lewinsky Lawyer Urges Clinton To Fire Starr (Washington Post, May 28)

_ Clinton Loses Executive Privilege Claim (Washington Post, May 6)


Starr's Evidence Swayed Judge

By Peter Baker and Susan Schmidt
Washington Post Staff Writers
Thursday, May 28, 1998; Page A01

The federal judge overseeing the Monica S. Lewinsky investigation agreed with President Clinton's legal argument invoking executive privilege but decided his right to confidentiality was outweighed after independent counsel Kenneth W. Starr privately presented secret grand jury evidence to her.

In a redacted version of her May 4 decision made public yesterday, Chief U.S. District Judge Norma Holloway Johnson determined that Clinton could legitimately claim the privilege to try to prevent prosecutors from asking senior aides about internal White House conversations concerning the Lewinsky probe. But Johnson added that a private submission from Starr convinced her the testimony of those aides was important enough to Starr's criminal investigation to justify overriding Clinton's assertion of confidentiality.

"If there were instructions from the President to obstruct justice or efforts to suborn perjury, such actions likely took the form of conversations involving the President's closest advisors, including Lindsey and Blumenthal," Johnson wrote, citing the two affected aides, deputy counsel Bruce R. Lindsey and communications strategist Sidney Blumenthal.

The documents unsealed yesterday -- which include Johnson's 34-page ruling and an inch-thick stack of legal pleadings -- offered the first inside glimpse of the fierce legal battle that has been waged behind closed doors for months between the Clinton White House and Starr's office. Although Starr's victory was disclosed shortly after Johnson's ruling, the legal basis for the judge's decision was not made public until yesterday. The White House has filed a notice stating that it intends to appeal Johnson's ruling. However, the appeals court has sent the case back to Johnson because the White House simultaneously asked her to reconsider.

Until yesterday, both sides were forbidden by court order from discussing the matter and Clinton has declined even to acknowledge that he invoked the privilege. His legal briefs, though, made clear how stark the specter of impeachment was for the president in the first few weeks after Starr in January began investigating allegations that Clinton had an affair with Lewinsky, lied about it under oath and urged her to do so as well.

Throughout the court papers, Clinton's lawyers cited the possibility of congressional impeachment proceedings as a justification for his claim of executive privilege, arguing that he needed candid, private advice from his aides about how to counter any effort to remove him from office.

The legal documents also reveal a provocative debate about the contours of presidential secrecy the likes of which have not played out since President Richard M. Nixon tried and failed to cite executive privilege to prevent prosecutors from obtaining secret Oval Office tapes implicating him in the Watergate cover-up. Indeed, Johnson repeatedly referred to that 1974 legal battle in her ruling, at one point writing of "the factual similarities between the Nixon cases and the case at hand."

Several key new details about the Lewinsky investigation were also provided in the legal papers released yesterday, although the court redacted many significant elements, such as the specific questions Lindsey and Blumenthal refused to answer before the grand jury.

Among other things, the Johnson ruling confirmed that Lindsey has been debriefing grand jury witnesses or their lawyers after they testify in the Lewinsky matter and raised the question about whether such interviews were part of an attempt to improperly influence the investigation, which the White House denies.

While news organizations previously reported that Blumenthal declined to disclose his discussions with Hillary Rodham Clinton about the Lewinsky situation, Lindsey too cited executive privilege to protect his conversations with the first lady, according to the documents.

In her decision, Johnson concurred that Hillary Clinton effectively serves as a senior adviser to the president and, in the first such ruling by a judge, concluded that the first lady is covered by executive privilege.

A third aide also cited executive privilege in declining to answer questions before the grand jury about Lewinsky or another former White House aide, Kathleen E. Willey, who has alleged that Clinton groped her against her will during a meeting in the Oval Office suite. After Starr filed a motion to compel the aide's testimony, the White House backed down and instructed her to answer. The aide was not identified in the papers, but sources have said it was Nancy Hernreich, director of Oval Office operations.

Johnson's decision noted that Starr's prosecutors wanted to ask Lindsey about 19 "categories of information" and Blumenthal about three. Many of the White House conversations targeted by Starr were in the first few days of the investigation as aides deliberated about how to respond to the political crisis during the State of the Union address and the visit of British Prime Minister Tony Blair.

Lindsey, though, was unwilling to answer questions about conversations with not only the president and fellow aides but also with nongovernment employees, including "the president's friends and personal attorneys, grand jury witnesses, and attorneys for grand jury witnesses," according to a brief filed by Starr.

According to the papers, the White House made a last attempt March 4 to head off a court confrontation on executive privilege by offering to allow aides who were not attorneys to testify about "factual information" arising from the disputed White House conversations, but not "strategic deliberations and communications." Starr rejected the offer as inadequate and a delaying tactic, writing that "this is word play."

In addition to executive privilege, the White House also claimed attorney-client privilege regarding Lindsey. In her ruling, Johnson agreed with the White House that it could invoke attorney-client privilege for a government-paid lawyer but determined that Starr's need for evidence outweighed the privilege in this instance as well.

Starr argued that Clinton had no legal basis for using executive privilege as a shield to keep prosecutors from getting at potential criminal conduct, saying the issue in dispute involved his private behavior, not official business.

Under the line of reasoning advanced by the Clinton White House, Starr wrote, "every potential White House scandal can be shrouded in executive privilege. If a president were to murder a political opponent, he would argue that the resulting uproar could impair his legislative program, distract him from his duties, affect his dealings with foreign heads of state, and potentially give rise to impeachment proceedings -- the very arguments raised by the White House here. . . . The result would be this: A privilege intended to aid the functioning of the executive branch would be transformed into a cloak for the gravest private misdeeds of a president."

Starr dismissed the White House assertion that the Lewinsky issue has become an official government matter because it threatens to distract him from foreign policy and his other duties. "Under this theory," wrote Starr, "a president's financial problems, marital discord, chronic backache, or private litigation likewise could fall within the zone of official concerns."

Clinton's lawyers argued that the Lewinsky matter had seriously affected the president's ability to do his job -- contrary to public assertions by his aides at the time that his conduct of his duties was unaffected by the crisis. Among other things, White House counsel Charles F.C. Ruff said it was hindering Clinton's ability to sell his domestic program and to marshal public support for his threatened military showdown with Iraq.

As a result, White House aides' deliberations about the Lewinsky matter were a function of official duties, Ruff argued. "In discussing with the President his ability to achieve the Administration's domestic policy objectives, advisors must take into account the impact of issues arising out of the Lewinsky investigation on his efforts and advise him accordingly," he wrote.

Johnson agreed with that assessment, saying that it would be "oversimplified" to suggest that the investigation had not spilled over into official business. "The President does need to address personal matters in the context of his official decisions," she wrote. In the Nixon case, she added, the underlying conduct at issue also was not related to his official duties -- a break-in at Democratic headquarters and the subsequent cover-up -- but the president's conversations were considered subject to executive privilege.

Still, much like the Supreme Court in 1974, Johnson sided with prosecutors in determining that even a legitimate claim of executive privilege in most cases is trumped by the overriding needs of a criminal probe. Starr argued the evidence he is seeking from Lindsey goes to the heart of his investigation and cannot be obtained elsewhere, meeting the legal test that it be important and unavailable from other sources.

"Determining whether tactics obstructive of justice were run from the White House is a focal point of the United States' investigation," wrote Starr.

The key for Johnson was a secret and "extensive" submission made by Starr detailing the factual basis for his pursuit of Lindsey and Blumenthal. That submission, which has not been made available to the White House and was not included among the documents released yesterday, provided "a substantial portion of the evidence gathered by the grand jury," Johnson wrote. As a result, she found that testimony by Lindsey and Blumenthal is "likely to contain relevant evidence that is important to the grand jury's investigation."

Johnson's reasoning on attorney-client privilege followed a similar pattern. She did not agree with Starr's contention that no such privilege exists involving a government-paid lawyer such as Lindsey, but she also rejected the White House assertion that it would be an "absolute privilege." Instead, she said it is a "qualified privilege" much like executive privilege and subject to the same test balancing competing interests.

In this case, Johnson ruled, a criminal investigation outweighed the interest of the president in having confidential legal advice. "White House attorneys are paid by U.S. taxpayers to provide legal advice on official presidential decisions," she wrote, "not the private decisions of President Clinton, and certainly not private, potentially criminal conduct."

Staff writer Bill Miller contributed to this report.

© Copyright 1998 The Washington Post Company

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