Clinton’s Legal Woes
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JIM LEHRER: Ruth, welcome.
RUTH MARCUS, Washington Post: Hi.
JIM LEHRER: Now the court said no to an expedited review of both matters Starr wanted, forcing the testimony of Secret Service agents Secret Service agents and of White House Deputy Counsel Bruce Lindsey. How did the court make its decision known today?
RUTH MARCUS: Well, they issued a very brief statement, and they simply said no to the request for expedited review, leapfrogging the court of appeals, but they did say quite pointedly to the court of appeals we assume that the court of appeals will act expeditiously on that matter. That meant let’s move it along guys.
JIM LEHRER: Well, now, what does that mean? You covered the court of appeals. What does expeditious mean to the court of appeals?
RUTH MARCUS: Well, in reality, what it’s going to mean to the court of appeals is sort of whatever they want. They’re kind of in the position of a college professor with tenure being instructed by the university president. That is, they can’t be fired, but they’re going to pay some attention to what the Supreme Court said, and they can act within the next few months. The timetable is being proposed by both sides as to have oral argument towards the end of July. That would allow the court of appeals to rule in late summer. And, in reality, how-if they act in the next few weeks or the next month doesn’t really matter, because the Supreme Court is going to be out for the whole summer. They don’t return until the first Monday in October. And so what we’re seeing is likely that this won’t get resolved until sometime in the late fall at best.
JIM LEHRER: Late fall, and that assumes that whoever loses before the appeals court will take it to the Supreme Court.
RUTH MARCUS: I think that’s a pretty fair assumption, and then, of course, it’s really up to the court whether to take the case or not. We sometimes tend to forget that they do have control of their docket and they have turned down, for example, an attorney-client appeal in another independent counsel-related case involving Hillary Clinton’s notes, or notes of conversations with her, sorry.
JIM LEHRER: Yes. Ruth, I noticed in reading this brief order today that in both cases-the case involving Bruce Lindsey and the case involving the Secret Service agents, the-it says it is denied without prejudice. Are those words that mean much?
RUTH MARCUS: It just basically means that they are free to bring it back again, as when this case progresses through the normal channels through the court of appeals, then they can go back up in the normal timely don’t leapfrog appeals court way back to the Supreme Court. They’re not barred from doing so.
JIM LEHRER: But it doesn’t mean that if it goes through the appeals court and then comes back to the Supreme Court, that they wouldn’t-they could, if they wanted to, do their job expeditiously once they get it through the normal process, right?
RUTH MARCUS: That’s true. They clearly gave some consideration to the independent counsel’s argument that this was of paramount importance, that the country deserved to be spared a continuing independent counsel investigation, and absolutely if they thought it was important to the appeals court to act quickly on this, they would set a similarly expedited schedule when it goes up to them, if they decide to take it.
JIM LEHRER: Now, tell us about the appeals court that this will go to, how many members and some general feel for who they are and what they believe.
RUTH MARCUS: Well, I can tell you about the appeals court as a whole, but this case will kind of go through the luck of the draw. This is a court base of 11 active judges. There’s one senior judge. Five of them are Democrats. The rest are Republicans. Three are Clinton appointees, but the folks who will be deciding this case will be essentially a randomly chosen panel of three judges from that mixture, so likely a mix of Republicans, some quite conservative Republicans and Democrats, including the possibility of somebody appointed by President Clinton, himself.
JIM LEHRER: Who makes the decision as to which three?
RUTH MARCUS: It’s-they call it the wheel actually, and it’s a rotating mixture of different combinations of judges.
JIM LEHRER: And the process is that both sides will file legal papers. There will be no open testimony or anything like that, but there will just be arguments by the lawyers when the judge-when this three judge panel sets it, right?
RUTH MARCUS: That’s right. The case-the appeal will be assigned to a panel. A briefing schedule will be set. A time for oral arguments will be set, and then we will wait and hopefully not wait for too long, and I would guess, if this is argued in late July, that somebody’s August vacation is going to be pretty much taken up by helping to write the draft opinion in this case.
JIM LEHRER: But back to your earlier point, it’s conceivable that this could be done by early fall but not before, is that right, going through-not just the appeals process-but also the Supreme Court.
RUTH MARCUS: Well, if you assume an appeals court process, it takes some time-it takes some care in an opinion that’s obviously going to be read by the Supreme Court. Then you have the case-if it’s decided by then-put on the calendar for the Supreme Court’s consideration when it comes back and deals with a whole long list of cases that people are asking it to review. On the first Monday in October it will issue an order list, saying which of those cases will be taken and which of those cases won’t be taken. If this case is taken, the justices can set a pretty quick schedule for briefing and arguments, but we are talking, if they do take it, late fall at best, if they don’t take it, October, we can then go back and continue the litigation process.
JIM LEHRER: Assuming that that schedule holds, or something similar to that, is it possible to assess what this could mean to Starr’s overall case?
RUTH MARCUS: Well, if you read his papers to the Supreme Court, he sounds somewhat frustrated. He talks about how, for example, the Secret Service agents have important testimony and relevant, highly relevant testimony that he has been frustrated in being able to obtain from them. It’s unclear exactly what he wants from Bruce Lindsey, but he may want to hear from other folks in the counsel’s office who may similarly have attorney-client privileges that they would want to assert. So in terms of his investigation, while there may be a logjam having been broken this week with addition of new lawyers for Monica Lewinsky, clearly, some testimony that he considers very, very relevant he’s not going to be able to get at for the foreseeable future.
JIM LEHRER: But it would be kind of pointless to speculate at this point as to whether or not this means he will not move toward any kind of indictment say against Lewinsky or he may not go ahead and do his report to the House of Representatives on the-if, in fact, he was going do that-in other words, it doesn’t stop him in his tracks. Or, on the other hand, it could slow him down, right?
RUTH MARCUS: Well, it will probably be a fairer guess that it would slow him down, but, on the other hand, he may feel that he has enough evidence if he wanted indict Monica Lewinsky to proceed, for example, without Secret Service testimony. He may decide that it’s incumbent upon him in his role as independent counsel to submit an interim report to Congress. There’s nothing in the independent counsel law that prohibits him from doing that. And he may feel that it’s important, because, you know, the Supreme Court schedule is not exactly congruent with the election schedule, because as the Supreme Court acts, we have a mid-term election coming up, and so the two calendars aren’t quite meshing.
JIM LEHRER: Well, as they say in journalism, we’ll have to see what happens. Ruth, thank you very much.
RUTH MARCUS: Thank you.