Clinton shifts legal strategy White House drops fight with Starr over executive privilege

'This is not U.S. v. Nixon'

President's lawyers press attorney-client confidentiality claim

June 02, 1998|By Lyle Denniston and Susan Baer | Lyle Denniston and Susan Baer,SUN NATIONAL STAFF

WASHINGTON -- Blunting comparisons to Richard M. Nixon and Watergate, President Clinton abandoned yesterday his effort to use executive privilege to keep top White House aides from testifying before a grand jury.

But the president pressed on with his claim that the doctrine of attorney-client privilege should shield his conversations with a trusted adviser in the Monica Lewinsky matter. And, in a brief filed in the Supreme Court, Clinton's attorneys argued that the nation is nowhere near a constitutional crisis requiring the justices to step in immediately to resolve the conflict.

The lawyers ridiculed the sense of urgency that independent counsel Kenneth W. Starr tried to create by filing an emergency Supreme Court appeal last week seeking a broad right to question top White House aides about the Lewinsky scandal.

"We are not in the throes of a national emergency" like those that have justified swift Supreme Court action in the past, the White House lawyers argued in opposing Starr's appeal. "In no sense does this matter rise to the level of the few other occasions on which this court has exercised this power."

Referring to the Supreme Court's swift intervention in the Watergate matter nearly a quarter-century ago, White House counsel Charles F. C. Ruff said, "This is not U.S. v. Nixon."

Clinton's lawyers informed the court that the president was abandoning his claim that presidential "executive privilege" shields two senior aides from having to answer questions before a grand jury about discussions of the Lewinsky matter they had with the president, the first lady and among themselves.

One of those aides -- communications adviser Sidney Blumenthal -- can be summoned by Starr for questioning about the source of negative information about the independent counsel's staff that Blumenthal passed on to the news media.

The other aide, deputy White House counsel Bruce R. Lindsey, will be at the center of the fight Clinton wants to press -- preferably, he said, in lower courts first -- over attorney-client privilege. Starr wants to question Lindsey about the legal advice he gave Clinton about impeachment and about ways to resist Starr's probe.

Although Lindsey is a longtime Clinton friend and confidant, in his conversations with the president on the Lewinsky matter, "he was acting as the president's attorney," Ruff said.

"When he is discussing the president's official business with the president and performing his role as deputy White House counsel, I believe those conversations are protected by the attorney-client privilege," the White House counsel told reporters.

Secret Service dispute

Potentially further complicating Starr's investigation, the Justice Department appears to have decided to appeal a federal judge's ruling permitting the grand jury to question Secret Service agents about what they saw Clinton doing and heard him saying in the White House. The Secret Service opposes such testimony, saying it would endanger the president by compromising the trust between protectors and protected.

The Justice Department, noting that the dispute on Secret Service testimony has been unfolding behind closed doors, would not concede it had filed the appeal by yesterday's deadline.

Ruff and other White House lawyers argued yesterday that the dispute between Clinton and Starr over attorney-client confidentiality should be heard first in a federal appeals court in Washington. Starr's maneuver last week sought to bypass that court altogether.

"The Supreme Court ought to let the process play itself out," Ruff said. "That's what courts generally do."

As part of their reply to Starr's petition, the president's lawyers moved to try to gain at least a four-month stretchout -- taking up the summer -- in the handling of a range of disputes between Clinton and Starr's investigators.

Starr had hoped to have the Supreme Court decide the most significant legal questions before it finishes its current term late this month or in July.

The White House lawyers said that even if the Supreme Court disagrees with them and decides to take up Starr's appeal now, the dispute should be put on a slower track. Eight weeks -- not three, as Starr urged -- should be set aside for filing written arguments, they argued.

The lawyers suggested that the dispute that remains, over attorney-client secrecy, had already been put on an expedited rTC track in the U.S. Circuit Court of Appeals in Washington. That court, the lawyers said, could hear the case "by the end of July."

The Supreme Court could then take up the matter in its new term starting in October, Ruff told reporters.

Ruff conceded that some observers might suggest that "it must be some great scheme to delay." But, he added, "That's just nonsense."

The White House lawyer also disputed the notion that the president was dropping the executive privilege claim to avoid comparisons with Watergate.

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