A STARR UPDATE
May 28, 1998
Independent counsel Kenneth Starr took the executive priveledge issue directly to the U.S. Supreme Court today and in Los Angeles, Monica Lewinsky gave fingerprints, handwriting, and voice samples to the FBI. Ruth Marcus, of the Washington Post, joins Margaret Warner in a Starr investigation update.
MARGARET WARNER: Late today Independent Counsel Kenneth Starr asked the Supreme Court to resolve on an expedited basis his legal struggle with the White House over executive privilege. Starr's request came 24 hours after the federal judge overseeing the Monica Lewinsky investigation made public her reasons for ruling that two White House aides can be forced to testify in the case. In an edited version of her May 4th ruling Judge Norma Holloway Johnson said President Clinton could properly claim that executive privilege protected his conversations with two close advisers, Deputy Counsel Bruce Lindsey and Communications Strategist Sidney Blumenthal. But she said evidence presented to her in private by Independent Counsel Kenneth Starr persuaded her that testimony from those aides was so crucial to his criminal probe that it overrode the executive privilege claim. We get more on the ruling, its limits, and Mr. Starr's action today from Ruth Marcus, who writes about legal issues for the Washington Post. She joins us from the Post newsroom. Welcome, Ruth.
RUTH MARCUS, Washington Post: Hi.
MARGARET WARNER: If Ken Starr won this ruling yesterday-and he did-why is he asking the Supreme Court to review it?
RUTH MARCUS: It sounds a little odd, and it is. It's very unusual. He's asking the Supreme Court to review it, because he wants to get it decided quickly. He wants to leapfrog the appeals court, which is where things would normally go. President Clinton's lawyers have said they want to appeal this decision. Judge Starr wants to get that over with and quickly and go directly to the Supreme Court, where many people have long predicted it was going to end up eventually.
MARGARET WARNER: How unusual is it to ask the court-or for the court to leapfrog the regular appeals court process?
RUTH MARCUS: It's very unusual. And the court has a rule that allows you to do it in cases of enormous public importance. And Judge Starr's argument is that this is one of those cases. He uses the phrase "high moment." And he cites some examples of previous cases where the court has done it. The one that's most relevant here is when Leon Jaworksy, the Watergate special prosecutor, asked the Supreme Court to leapfrog the appeals court there and hear the Nixon tapes case. The court also did that in the case arising from the Iranian hostage settlement and President Truman's seizure of the steel mills, big cases.
MARGARET WARNER: And how often does the court agree to grant this kind of thing?
RUTH MARCUS: This is entirely up to the justices, and they could-there are two theories on this. One theory is that they might be feeling a little bit guilty about whether they made the right decision in the Jones vs. Clinton case in allowing that private lawsuit to go forward and might be disposed to be a little bit charitable towards the President on the other end and take it up and deal with it there and shield him from having to have his aides answer these questions. On the other hand, one legal scholar that I talked to suggested that one of the court's basic instincts might be conflict avoidance. And they might want to let this percolate through the process and eventually they don't have to take it, though it's likely. I think it's likely first that they will and second that they will take it quickly.
MARGARET WARNER: And give us some idea-if they did decide to take it, how quickly could this thing move along?
RUTH MARCUS: It can move very swiftly. Judge Starr lays out some suggestions in his papers filed today that it be argued on June 29th, and, presumably, decided sometime in the next month. In the Nixon tapes case it was essentially the same timetable. Leon Jaworsky went to the court on May 20th. The case was argued and decided by the end of July.
MARGARET WARNER: All right, now, what's the scope of what Kenneth Starr is asking the court to review?
RUTH MARCUS: Well, he is assuming that the President is appealing all of the lower court's order, that is, both executive privilege and attorney/client privilege. Judge Johnson ruled that the President's advisers, Mr. Lindsey and Mr. Blumenthal, could be compelled to testify about their conversations, both with the President and with other folks, and that Bruce Lindsey, who's the Deputy Counsel to the President, did not have an absolute attorney/client privilege and basically under the same analysis if Judge Starr made the required showing, which the court said, that he could be required to talk about those things, which would be otherwise privileged.
MARGARET WARNER: And what were-just remind us-the basic arguments that each side is making here and clearly will make again to the Supreme Court, if they get the chance?
RUTH MARCUS: Yes. Well, basically, Starr did not get everything that he wanted. He said that because the questions that he wanted to ask these presidential aides involved purely private matters and not decisions about government policies or about foreign policy issues, that there should be absolutely no executive privilege involved. He also made the same argument with the attorney/client privilege, that because it was a criminal case, there was absolutely no privilege. The President's lawyers, on the other hand, said that there should be a privilege in both cases and that the-absolutely in the case of the attorney/client privilege and just presumptive, that is, difficult to overcome in the case of executive privilege, and that there was going to have to be a very high showing in order to invade those private conversations that otherwise the President couldn't possibly have candid conversations with his advisers, which is why we have executive privilege in the first place.
MARGARET WARNER: All right. And you said that the judge did not give Ken Starr everything he wanted, even though it's been painted-yesterday's-or the earlier ruling-as a victory for him. Explain that.
RUTH MARCUS: Well, it is a victory for him. The judge, in a sense, followed more of the legal reasoning of President Clinton's lawyers, but it found against them on their own theory of the law, that is, the court said on executive privilege there is a privilege. The fact that these questions touch on private matters is too simplistic to simply exclude that from privilege. A president's private life is inevitably going to be wrapped up into his public duties, and he and his advisers are going to have to talk about things like this in this case whether it will lead to impeachment proceedings, whether to deal with it in the State of the Union Address, how to handle it when it comes up at a press conference with a foreign leader. Judge Johnson said, yes, therefore, these are-in her phrase-presumptively privileged, but that Judge Starr could come in and make a showing that he absolutely had to have them and that there wasn't any way, other than having this testimony, to get that information.
MARGARET WARNER: All right. And what can we tell from her ruling--and I know parts were blacked out-about what it is Kenneth Starr came-and the showing he made her that led her to override this privilege?
RUTH MARCUS: The answer is really not very much. We can tell these sort of broad areas of argument about things like Lindsey says he spoke to the President about impeachment proceedings and things like that. But there's a lot of mystery and, in fact, there's one mystery in the papers that were filed today, which is a question that Judge Starr and his lawyers are asking the court to review, that is entirely redacted; we don't know what it is.
MARGARET WARNER: You mean, one of the actual issues they're saying to the court, please review, it's just blank?
RUTH MARCUS: There's a number 3 and the word "redacted." We don't know what it is. We have guesses.
MARGARET WARNER: Now, were the President's lawyers privy to this showing, or this evidence, or whatever it was, that Ken Starr presented to the Judge?
RUTH MARCUS: No. Just as they're excluded from the grand jury proceedings, they were excluded from this expartee review that the prosecutors came to Judge Johnson with. And they convinced her that basically they needed this information, that it was relevant to their inquiry, and there wasn't any way to get it, other than asking these folks about it. And Judge Johnson seemed very sympathetic today. She says in her ruling that if, for example, the President were to have discussed the plan to suborn perjury or obstruct justice with his advisers, it's highly unlikely that any of that would be in writing. And, in fact, White House lawyers and aides have told us that they put almost nothing in writing these days. So that-and there would be no other way to obtain that information, so that, therefore, was the basis that she said they had-basically they had to testify.
MARGARET WARNER: And just very briefly, can we assume that while this appeal is going forward, if it goes forward, these two aides will not be called to testify, or could Ken Starr do that?
RUTH MARCUS: He could try and then there would be an argument about whether the ruling should be stayed, because the President's lawyers will argue that there would be irreparable harm to the President's ability to have these candid conversations with these aides if they were to be forced to testify even before a grand jury while this litigation is going on. And I think that the expectation is that he has the better of that argument and that whatever testimony is to come from these folks will come after this case is resolved.
MARGARET WARNER: Okay. Well, Ruth, thank you very much.
RUTH MARCUS: Thank you.