TRACKING THE STORY
June 1, 1998
President Clinton did not appeal his executive privilege case in the Monica Lewinsky investigation. Ruth Marcus, who writes about legal issues for The Washington Post, discusses recent occurances in the Starr Investigation.
MARGARET WARNER: President Clinton today decided to avoid a Supreme Court showdown over executive privilege in the Monica Lewinsky investigation. At issue is a lower court ruling compelling two top aides-Deputy White House Counsel Bruce Lindsey and Communications Adviser Sidney Blumenthal-to testify before independent counsel Kenneth Starr's grand jury. We get more on this now from Ruth Marcus, who writes about legal issues for the Washington Post. She joins us from the Post newsroom. Hi, Ruth.
RUTH MARCUS, Washington Post: Hi.
MARGARET WARNER: All right. What is the White House saying about why it decided to drop the executive privilege claim?
RUTH MARCUS: It's basically saying that it won. The White House is saying that it wanted to make clear that there was a qualified privilege in this case, as there was in the Nixon tapes case, and that there was a balancing test that the court should apply. The independent counsel had argued that basically because he said these issues involved the president's private conduct and discussions about the president's private conduct, there should be no privilege. The White House--having convinced the court there should be some privilege-says that just because the court says independent counsel's needs in this case outweighed the privilege that that was fine with it; it could let things rest where they are.
MARGARET WARNER: Then how do they explain the fact that they're still going to go forward on the attorney-client privilege claim?
RUTH MARCUS: Well, that's a different privilege. Their argument on attorney-client privilege is different because you're right-the court applied exactly the same test to the attorney-client privilege. Johnson said it didn't make sense for there to be two different tests for privilege covering the same groupings of advisers talking about some of the same subjects. But the White House argues that on attorney-client privilege it's imperative that that privilege be absolute, in other words, that the president's conversations with his lawyers about legal issues, be completely shielded from having to be disclosed, just like other citizens, conversations with their lawyers are shielded.
MARGARET WARNER: All right. So, now take us through what the practical effect of today's decisions will be as they apply, first of all, to Sidney Blumenthal, who was--the only claim on his behalf had been executive privilege.
RUTH MARCUS: That's right. And the practical aspect of that will be that Mr. Blumenthal, if the independent counsel wants to call him, which presumably he will, we'll be back before the grand jury and we'll not be able to claim privilege on those questions. And, not being a lawyer, he won't be able to claim attorney-client privilege on those questions. Bruce Lindsey, who's the Deputy White House counsel, is another matter. He-there will be some area of questions that he could be required to answer that are covered by executive privilege. I know this is getting a little complicated, but that are not privileged by the attorney-client privilege. That's because not every conversation that a lawyer has with his client, even if his client is the president, is covered by attorney-client privilege. So there could be some new areas because of the dropping of the executive privilege claim that Bruce Lindsey could be asked to talk about and others that will continue to be the subject of litigation.
MARGARET WARNER: But as far as Sidney Blumenthal is concerned, does this mean he's going to have to answer? I mean, he's already been in several times-he accepted certain questions. Until now, tough to answer, essentially anything Ken Starr asked him?
RUTH MARCUS: Basically, I think that's right. I don't think there is going to be any new privileges that the White House could come up within this setting he can go out to his lawyers and ask them questions during the grand jury process about whether questions are fair or not fair or relevant or not relevant. But basically the processes have a lot of leeway, and they should be able to get the testimonies that they were looking for from Sidney Blumenthal.
MARGARET WARNER: All right. Now let's go more into this attorney-client appeal, which is still a live issue, and Ken Starr spoke a little bit about it today in a speech. What, very simply, are his arguments? Why does Ken Starr say that in this case attorney-client privilege doesn't shield the confidentiality of discussions Bruce Lindsey might have had within the White House with the president and others?
RUTH MARCUS: His argument is basically that Bruce Lindsey works for the people of the United States and another part of the people of the United States, that is, the independent counsel's office, who are acting like government prosecutors, need that testimony, and that their need for that testimony outweighs any interest in confidentiality that the president and his lawyers might have. They're all part of the same government and the government's need for evidence is what should control here is what the independent counsel is saying.
MARGARET WARNER: And the White House is saying-
RUTH MARCUS: The White House is saying that the White House should be treated essentially like a private corporation, that is, that in a private corporation. If there's a question about wrongdoing, the corporation's lawyers can go and interview corporate employees, the CEO, whoever, and have all of those discussions shielded by attorney-client privilege. They say the White House should be treated analogously. The independent counsel says the White House isn't a private corporation; it's a public body doing the public business, and, in fact, notes that there is a law declaring government lawyers to come forward if they find evidence of wrongdoing.
MARGARET WARNER: Okay. Now, the White House also said today-or Charles Ruff, the White House lawyer, was quoted today as saying, they haven't asked the Supreme Court not to rush this attorney-client privilege appeal along, as Ken Starr wants to do. What does history tell us about the likelihood of which the Supreme Court is going to go on this and whether this might be resolved quickly?
RUTH MARCUS: They filed their papers today, and their basic argument is this is not the kind of case of national emergency, like President Truman's seizure of the steel mills, or even an impending criminal trial, as in the Nixon tapes case. It requires the Supreme Court to short-cut the usual processes of having these cases developed through the appeals courts. In fact, they argue that, as in other cases, the court would benefit from having this fully litigated through the D.C. circuit and, if necessary, up to the Supreme Court. And my sense is that the court is not going to reach out to grab this case, that there are a lot of things to be resolved, but it's a lot-but a simple attorney-client privilege case is not going to be the kind of case that will require the court to apply its rules of enormous public-imperative public importance-and leapfrog the appeals court.
MARGARET WARNER: Okay. Two final questions I want to squeeze in. One is-very briefly-what are the sort of strategic implications now? These two decisions-as it affects Ken Starr-in other words, these-okay, he's going to get Sidney Blumenthal-but a lot of-that is to testify-but a lot of Bruce Lindsey's won't-and also in terms of the process for delay.
RUTH MARCUS: Well, he will get Sidney Blumenthal-he won't get Bruce Lindsey, at least on everything he wants to ask him-for some time-as this is waiting to be resolved. Even if the Supreme Court short-circuits the process, which I doubt, it's still going to take some time. And not only will he not get Bruce Lindsey, but if he's interested in hearing about conversations that the president had with any of his other lawyers, he'll also be blocked, at least temporarily, from doing that as the case is litigated.
MARGARET WARNER: And so what you know about the case-who's more-potentially may be more valuable to Ken Starr?
RUTH MARCUS: Well, if I have a choice, if I was Ken Starr and I had a choice between getting testimony from Sidney Blumenthal and getting testimony from Bruce Lindsey, who's been the president's closest adviser for years and years and years and years, I think I'd probably want to be able to ask Bruce Lindsey any question that I could under oath.
MARGARET WARNER: All right. Well, Ruth, thanks very much again.
RUTH MARCUS: Thank you.