Clinton Drops Executive Privilege Appeal
Starr welcomes the White House's shift in tactics
WASHINGTON (AllPolitics, June 1) -- President Bill Clinton's legal defense team Monday dropped its planned appeal of a federal judge's decision on executive privilege, opening the way for testimony from one of the president's aides.
But White House Counsel Charles Ruff said Clinton will continue to argue attorney-client privilege in an attempt to prevent his close aide and friend, White House deputy counsel Bruce Lindsey, from answering Independent Counsel Ken Starr's grand jury questions.
Ruff said Starr has attempted to leapfrog an orderly appellate process, and the White House will resist any attempt by Starr to win an expedited appellate review on the attorney-client privilege issue.
Ruff denied the White House was attempting to delay Starr's investigation into the sex-and-perjury allegations against Clinton in the Monica Lewinsky controversy.
"Not to put too fine a point on it, but that's nonsense," Ruff told CNN.
Ruff said Clinton has every right to have confidential communications with Lindsey, the deputy White House counsel. "That's not shielding," Ruff said. "That's a principle of law that all lawyers understand."
Starr, in Charlotte, N.C., said he welcomed Clinton's decision not to pursue an appeal on the executive privilege issue.
In remarks to CNN after Starr delivered a speech to a lawyer's group
in Charlotte Monday afternoon, Starr said, "Obviously to the extent that we
can move forward with the investigation, to gather the information as quickly
as possible, it is a good thing.
"And so I welcome any movement in the direction of our getting more
information sooner rather than later," Starr said.
By dropping an executive privilege appeal, Clinton will allow his communications aide Sidney Blumenthal to answer all of Starr's questions.
The White House notified the Supreme Court of these decisions Monday afternoon. The court had given the White House a Monday afternoon deadline, following Starr's motion last Thursday for the Supreme Court to hear the executive privilege arguments on a speedy basis.
Documents filed with the high court urged the Supreme Court not to speed up review of an attorney-client privilege and dropped any claim to executive privilege.
Clinton met with his White House and private lawyers Monday morning to go over the new legal strategy.
In dropping plans to appeal the executive privilege decision, the White
House will argue that U.S. District Judge Norma Holloway Johnson in fact had ruled that the privilege exists in principle, even though she agreed with Starr's request that both Blumenthal and Lindsey must testify.
Meanwhile, in a separate legal motion later Monday, the Justice and Treasury departments filed a notice to appeal a lower court ruling denying a so-called Secret Service "protective function privilege."
The White House was facing political criticism that an appeal would be simply a means of delaying Starr's investigation. The sources said the leading scenario was to drop the appeal of executive privilege issues but pursue a more narrow appeal on grounds that some of the conversations at issue were protected by attorney-client privilege.
Such an approach would lessen comparisons to Richard Nixon's appeal on executive privilege in the Watergate investigation, but an appeal on attorney-client privilege could still slow the investigation for months.
Starr won the executive privilege fight at the District Court level; Judge Johnson ruled that conversations between a president and top aides can be shielded by executive privilege but that in this case Starr's investigatory need for the information outweighs the privilege.
White House lawyers met Sunday to debate their course, and several sources described Ruff as adamant that if the White House did appeal, it should argue that the debate go to the Circuit Court next, on protocol grounds. The sources said Ruff and others on the White House legal team also believe the Circuit Court will be more sympathetic to privilege questions because
its caseload is dominated by government-related issues.
Also under debate then was whether to appeal on grounds that
some of Lindsey's conversations with the president are protected by attorney-client privilege. The White House lost a previous case on that issue, when the high court embraced a lower court ruling that Hillary Rodham Clinton's conversations with government lawyers were not protected by attorney-client privilege.
Starr asserts that Lindsey, as deputy White House counsel on the government payroll, enjoys no attorney-client privilege with his friend the president.
Sources say no voluntary Clinton testimony on Lewinsky
Separately, sources familiar with the White House legal strategy tell CNN it is all but certain that Clinton will not voluntarily submit to questioning by Starr in the Monica Lewinsky investigation. But these sources insist no final decision has been made or communicated to Starr's office.
On the question of Clinton's testimony, sources tell CNN that
presidential lawyer David Kendall as recently as last week resisted efforts by Starr's office to question the president under oath about his relationship with Lewinsky.
Clinton's legal advisers were described as unanimous in the view it would be foolhardy to have the president voluntarily submit to questioning by a prosecutor they view as politically biased. And political advisers, who
have a lesser say in this debate, are less and less nervous about how such a refusal would play out in the court of public opinion, citing polls showing that much of the American public views Starr's investigation as politically
motivated.
Two of the sources forcefully disputed a TIME magazine report that a final decision against testifying had been made, however. They said there was no need to make such a decision now, as the investigation continued, and also noted
that giving a definitive rejection to Starr now would allow him to take steps designed to force or pressure the president to testify.
Said one of the sources: "I don't see a scenario under which he testifies, no, but we don't have to make that decision now. It's hard to see the legal or political environment changing the calculation, but you put that in stone only
when you have to. And we do not have to today."
Starr's spokesman, Charles Bakaly, said Sunday the independent counsel's office had not ruled out issuing a subpoena for Clinton's testimony, although he acknowledged doing so would put Starr on shaky legal ground. Most legal experts say the courts cannot enforce a subpoena against a sitting president because of the separation
of powers.
"The American people are entitled to the facts. The grand jury is entitled to the facts. That is our job, to get the facts and we are going to do everything we can to get the facts," Bakaly said on ABC.
Bakaly also said Starr was considering making an interim report to Congress while some of the legal debates with the White House over executive privilege, Secret Service testimony and other issues play out in the courts.
This statement is significant because the law creating the independent counsel requires reports to Congress only if the prosecutor believes he has credible evidence of impeachable offenses.
Lott says Clinton should give up executive privilege fight
Meanwhile, Senate Majority Leader Trent Lott (R-Miss.) said
Clinton should stop the fight over executive privilege.
"I think he should give up
that contest," Lott told reporters Monday. "And I think he should be forthcoming. He should give us more
information, not less."
CNN's Wolf Blitzer and John King and The Associated Press contributed to this report.
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