A PRESIDENTIAL SUBPOENA
July 27, 1998
A move by Ken Starr to subpoena President Clinton creates a stir in Washington. Could this lead to a constitutional showdown? After this background report with The Washington Post's Ruth Marcus, Jim Lehrer leads a discussion on the legal ramifications of Starr's actions.
MARGARET WARNER: As we reported earlier, there were new developments in the Starr investigation story today. For more we go to the Washington Post news room and to Post Legal Affairs Reporter Ruth Marcus. Welcome, again, Ruth.
A RealAudio version of this segment is available.
July 21, 1998:
A roundtable discussion on Chief Justice Rehnquist's decision not to interfere with the subpoenas of secret service agents.
July 16, 1998:
The Clinton administration appeals to Chief Justice Rehnquist to keep secret service agents from testifying before the Starr grand jury.
July 15, 1998:
Can the Justice Dept. force secret service agents to testify?
July 4, 1998:
The Supreme Court refuses to hear from Kenneth Starr.
July 1, 1998:
A report on the question of executive privilege and the Starr investigation.
June 29, 1998:
The Supreme Court upholds attorney-client privilege in the Vincent Foster case.
June 8, 1998:
The Supreme Court hears arguments in the Vincent Foster attorney-client privilege case.
June 4, 1998:
The Supreme Court refuses to expedite matters in the Ken Starr investigation.
May 1, 1998:
Dan Balz discusses the new charges against former Justice Department official Webster Hubbell.
April 16, 1998:
Ken Starr discusses his investigation with the press.
April 13, 1998:
A report on Ken Starr's subpoena of two Washington bookstores.
April 1, 1998:
A judge dismisses Paula Jones' case against the president.
March 3, 1998:
President Clinton's friend and confidant, Vernon Jordan, testified before the grand jury.
February 27, 1998:
Shields and Gigot discuss criticism of Starr's investigation .
February 26, 1998:
First Amendment implications of the Starr investigation.
February 24, 1998:
Clinton aide Sidney Blumenthal is called before the grand jury.
February 18, 1998:
Washington Post reporter Dan Balz discusses presidential adviser Bruce Lindsey's testimony before the grand jury.
February 6, 1998:
Perspectives on the Starr investigation from beyond the beltway.
January 26, 1998:
Experts debate the role of the independent counsel.
January 22, 1998:
Presidential historians and experts put the brewing crisis in perspective.
January 21, 1998:
President Clinton responds to charges that he may have had an affair with a former White House intern.
Browse the NewsHour's coverage of the Starr investigation .
The Washingtonpost.com's library of legal documents in the Starr investigation.
RUTH MARCUS, Washington Post: Hi.
MARGARET WARNER: First of all, the independent counsel's subpoena of the President, what can you tell us about it? When was this issued and why?
Behind the subpoena.
RUTH MARCUS: It was issued within the last few weeks, and I think the answer was to move the White House from its previous position of the President doesn't want to answer your questions, and it seems, in fact, to have had that effect. We know that the independent counsel had kind of invited the President to provide information to the prosecutors on about a half a dozen previous occasions, and had just been rebuffed. All of a sudden, when the White House received subpoena, it kind of found itself in a different posture, much more cooperative.
MARGARET WARNER: And so negotiations began.
RUTH MARCUS: And so negotiations began, and they really involved most likely three areas: where this testimony will be, who will be there, and what the scope of the questioning will be.
MARGARET WARNER: All right. Well, let's take those in order. First, though, let me ask you one quick question. Was there a deadline given for the president to respond?
RUTH MARCUS: Yes. As in all subpoenas, they will tell the recipient of the subpoena show up at the courthouse at X time on X day. We believe in the case of the President that that was sometime this week, though it's not entirely clear what day. Most likely, as these negotiations go forward, we're not going to actually see the presidential limousine pulling up to the steps of the courthouse, but some accommodation will be reached, so I don't expect, for example, the president tomorrow to be turning up there to testify, waiting in the hallway with the rest of the witnesses before the grand jury.
MARGARET WARNER: All right. Let's go through some of the areas of negotiation that you outlined. First of all, what form the testimony will take, what's the issue there?
What form will the testimony take?
RUTH MARCUS: Well, the possibilities could range anywhere from written answers to written questions called interrogatories, which would be the best case scenario for the President because his lawyers could essentially sit down and write the answers for him and go over them with him extensively to direct questioning by the prosecutors and potentially the grand jurors.
Clearly, the independent counsel is not going to want written questions; they want real live person-to-person testimony. And the president's lawyers are probably not going-realize they're not going to deal with simple interrogatories but are going to want perhaps some indication of the areas of questioning in advance, particular questions, get agreements to have particular areas potentially off limits or agreed to be off-limits, and that's going to obviously meet with some resistance from the prosecutors, who have historically and with every other witness extremely wide latitude before the grand jury.
MARGARET WARNER: All right, and going back to the format just for a minute, there is a middle ground, isn't there, between written answers and face-to-face in the grand jury room-couldn't there be some in-between?
Face-to face testimony?
RUTH MARCUS: I'm sorry. When I said face to face, I don't really expect that it's likely that the President will, in fact, troop down to the courthouse like other grand jury witnesses. For one thing, there are obvious issues of safety concerns that apply to him as they would not apply to other witnesses, and, in fact, when the independent counsel and his prosecutors have questioned the President and except for the one very famous instance when the First Lady actually did go down to the courthouse, that questioning has been done at the White House. The possibilities are for the prosecutors and potentially even the grand jurors, themselves, to come to the White House to have this face-to-face questioning.
MARGARET WARNER: And how about the possibility of videotaping?
RUTH MARCUS: Well, if the grand jurors are not present or even if they are, conceivably, the proceedings could be videotaped so that they could later see the proceedings and assess a president's evidence for themselves and also in our modern world, as you and I are speaking in different places, conceivably the grand jurors could watch from the grand jury room while the President is questioned at the White House and, in fact, provide questions through the miracles of modern technology. The one wrinkle in this and one other big likely area of negotiations is who will be President-present when the President testifies, if he does.
The President and his lawyers presumably would very much like for his personal attorney, David Kendall, to be there and perhaps White House lawyers as well. The independent counsel may well want to have him before the grand jury alone, as other witnesses are, without having the benefit of kind of nudges from his counsel, or to give the counsel real explicit glimpses as you get through grand jury questioning and to exactly what the independent counsel is after.
The White House: A decision to comply?
MARGARET WARNER: Briefly, because I want to go on to another issue, but, does the fact that these negotiations are taking place mean that the White House has made a definite or the President's lawyers have made a definite decision to comply in some fashion?
RUTH MARCUS: I think it does. I think it's going to be very hard for them after having said that they want to provide some cooperation to the independent counsel to unring that balance-to step back from there. They had set themselves up to make the argument with who's going to be-possibly difficult, but available to them, that this was an outrage, and this was a blatant constitutional violation, an encroachment on the separation of powers.
Having said they want to provide information, I think they're going to reach closure to do it in some form. I guess the only caveat is if they could find a hook to say that the explicit demands being put on them by the independent counsel are so outrageous that this can't possibly comply with them.
MARGARET WARNER: Okay. Now, another major figure who has not testified is Bruce Lindsey, the Deputy White House counsel. And as reported, there was an appeals court ruling today. What did the appeals court say?
Testimony from Bruce Lindsey?
RUTH MARCUS: The appeals court said that he has to testify; that the assertions of a governmental attorney/client privilege are not valid; that government lawyers have a different duty, you know, a duty to different entities, than private lawyers do. Private lawyers' job is to protect their clients and keep their clients out of prison or out of other legal trouble. In the case of the government lawyers, their duty is to the government, to expose wrongdoing, and to promote honest government, not to try to keep information from the grand jury. And this ruling, which was a two to one ruling by the appeals court, opens the door to having the prosecutors question not only Bruce Lindsey but potentially a parade of other government lawyers as well, the White House counsel and others intimately involved in presidential discussions on this case.
MARGARET WARNER: And has the White House said whether it will appeal this?
RUTH MARCUS: The White House said it was very disappointed in the ruling, talks about how this was going to chill the ability of future presidents to have candid conversations with their lawyers. I don't believe they have said yet whether they will appeal, but quite honestly, at this point they kind of have nothing left to lose; they have bad law against them, not just in this circuit, which is probably the controlling circuit for most issues involving the White House but in the 8th circuit as well, and they may well go off and go forward with an appeal, though, obviously they've lost twice now.
MARGARET WARNER: And-
RUTH MARCUS: More than that, if you include the lower court rulings.
Monica Lewinsky: Starr witness?
MARGARET WARNER: And finally we have to be quite brief here, but the other major figure, of course, who hasn't testified is Monica Lewinsky. Where does that stand?
RUTH MARCUS: There is every indication tonight that that is moving ahead at a very fast pace, that there are reports that she has met face to face with the independent counsel's office and that, I think, is the prelude to possible testimony before the grand jury and/or a deal by her. So I think we could have lots of developments very quickly.
MARGARET WARNER: All right. Ruth, thank you very much.
RUTH MARCUS: Thank you.
JIM LEHRER: A reminder: The Washington Post's full coverage is available after 10:30 PM Eastern Time on their Web site and on ours.