ON ONE POINT, both sides in the case of Office of the President vs. Office of the Independent Counsel agree: The issue pitting President and Mrs. Clinton against counsel Kenneth Starr is unprecedented.
It raises a major constitutional question -- whether, in the context of a grand jury probe, matters between the First Lady and government attorneys are confidential under client-lawyer privilege. The White House says yes. So did a federal district judge. Mr. Starr says no. So did a federal appeals court on a split 2-1 decision. Only the Supreme Court can decide.
In addition to this fascinating legal issue, the case also involves the practical functioning of government. For if Mrs. Clinton, as a member of the White House inner circle, cannot deal with government attorneys without potential loss of privacy, then neither can the president or, presumably, other top members of his entourage. Carried to its logical conclusion, so chilling an inhibition would be an intolerable burden on this White House -- or any White House.
What Mr. Starr apparently is after, in his examination of the Whitewater land deals, is evidence of perjury or obstruction of justice on the part of the First Lady. To this end, he is seeking notes taken by government attorneys who conferred with Mrs. Clinton about the removal of papers from the office of White House assistant counsel Vincent Foster after his suicide and on the occasion of Mrs. Clinton's appearance before a federal grand jury.
The White House balked at Mr. Starr's "fishing expedition," thus opening the president and his wife to charges of cover-up by their critics. Interestingly enough, the only major earlier case mentioned tangentially in the court opinions involved Richard Nixon's losing battle over his White House tapes. So to bring the issue out into the open, White House attorneys demanded release of the secret federal appeals decision even though it had gone against them.
The result is some high-powered rhetoric. "Never in history," Mr. Starr charges, "has this kind of privilege been asserted in a federal criminal proceeding." "No previous independent counsel," the White House retorts, "has had the audacity or imagination to launch such a direct attack upon the seemingly well-established rights of government clients to unfettered assistance of counsel."
Because the stakes are so high, because clarification on the client-government attorney issue is so necessary, because the public interest is deeply involved, the Supreme Court should settle this case with the attention and dispatch it deserves.
Pub Date: 5/14/97