Clinton loses fight on privilege White House aides must answer questions in Lewinsky matter; Appeal considered likely; Judge's ruling applies only to two advisers, sex case allegations


WASHINGTON -- In a potentially damaging loss for President Clinton's legal defense in the White House sex scandal, a federal judge has rejected the argument that two Clinton aides do not have to answer some questions put to them before a grand jury.

U.S. District Judge Norma Holloway Johnson, in a ruling mostly shrouded in secrecy, decided yesterday that the doctrine of "executive privilege" does not shield two White House advisers' discussions about how to deal with the Monica Lewinsky investigation scandal, a legal source reported.

The judge's ruling was said to be confined to the Lewinsky inquiry, and not to other matters being reviewed by a grand jury and by independent counsel Kenneth W. Starr, such as the loss of Whitewater land deal records or the use of secret FBI files by the White House. The Lewinsky allegations are the only matter in which executive privilege has been claimed.

The ruling also appeared to apply solely to questions put to two close Clinton advisers, Bruce Lindsey and Sidney Blumenthal. Both have played key roles in planning White House strategy in response to allegations that Clinton engaged in a sexual relationship with former White House intern Lewinsky and encouraged her to lie about it under oath.

Starr presumably wants to determine whether Clinton or White House aides sought to impede the Lewinsky investigation or to interfere with Paula Corbin Jones' sexual misconduct lawsuit against Clinton.

Despite his victory yesterday, the independent counsel, who has been warring behind closed doors in the federal courthouse in Washington against the executive privilege claims made for Lindsey and Blumenthal, is unlikely to see all his questions answered soon.

Johnson's ruling very likely will be appealed, perhaps directly to the Supreme Court, bypassing an appeals court. That could take weeks, even if the justices choose to speed a ruling.

The last time a presidential claim of executive privilege worked all the way through the courts was in 1974, when President Richard M. Nixon invoked it amid the Watergate scandal. That case went directly from a trial judge to the Supreme Court for a quick decision that rejected Nixon's claim.

Little detail is known about what Johnson was asked to decide and what she ruled. The dispute over Starr's demand for answers from Lindsey and Blumenthal has been conducted in private hearings, leading to the secret decision yesterday.

By coincidence, Johnson decided the dispute on the same day that the U.S. Circuit Court of Appeals in Washington confirmed her authority to handle the matter outside public view, though the higher court urged her to consider making aspects of the proceedings public at some point.

Any information about the Johnson ruling emerged from lawyers and others said to be familiar with those proceedings.

The White House, Starr's office, and lawyers directly involved in the executive privilege fight declined to confirm or deny those reports, citing the judge's confidentiality orders.

"We continue to view matters related to this issue as under seal and therefore we are not commenting," said Jim Kennedy, a White House spokesman.

In another development yesterday, Vernon Jordan, a close Clinton confidant, testified again to a grand jury in Washington about the role he played after the White House first learned of allegations that Clinton had had a sexual relationship with Lewinsky.

Jordan has said he helped Lewinsky find a lawyer and made some calls to assist her in getting a job after leaving government service. But he insisted that he did not encourage her to lie or to engage in any other wrongdoing.

After his latest session with the grand jury, Jordan told reporters outside the U.S. courthouse: "Today, as twice before, I answered all of the questions completely, truthfully, honestly and to the best of my ability. It is my considered judgment that the independent counsel's office is not finished. I believe that I will be called again, and if so, I shall return."

Also yesterday, a federal grand jury in Little Rock, Ark., that has been investigating the Clintons' failed Whitewater land deal finished its work yesterday, leaving all of Starr's remaining investigation to unfold before the grand jury in Washington.

Starr recently said that "the end is not in sight" for his multifaceted investigation, all focused on Clinton and Hillary Rodham Clinton but ranging far beyond the Whitewater deal, which happened years ago in Arkansas.

The special prosecutor has complained that his investigation has become prolonged because of what he considers to be resistance from the White House and fights over potential witnesses' claims that they are shielded from having to answer certain questions.

He has one case pending in the Supreme Court, a claim of attorney-client secrecy for the lawyer for Vincent W. Foster Jr., the deputy White House counsel, involving conversations shortly before Foster committed suicide. The justices will hear that case next month.

Johnson is weighing another claim of legal privilege: a request by the Secret Service for its agents to be excused from answering grand jury questions about what they may have observed the president doing in the White House. That claim apparently was not included in her ruling yesterday.

The most important of Starr's fights over legal privileges, however, has been the one over executive privilege. Under the Supreme Court's ruling in the Nixon case, presidents are entitled to assert claims of confidentiality about internal White House discussions. But, the court ruled, such claims can be outweighed by demands for potentially criminal evidence. In that case, the court found that Nixon's claim of privilege could not shield secret White House tape recordings from a special prosecutor.

Last year, the U.S. Circuit Court of Appeals in Washington expanded the protection of executive privilege, saying it extends beyond conversations directly with the president and beyond documents that the president has seen.

The privilege applies, that court declared, to communications that presidential advisers and their aides have or write "in the course of performing their function of advising the president on official government matters."

Lindsey and Blumenthal reportedly were relying on that decision, which is binding on Johnson, in the privilege fight that they and Clinton lost yesterday.

Because the appeals court said the privilege, as applied to presidential aides, covers only "official governmental matters," purely personal acts of the president presumably would not be shielded from prosecutors' inquiries.

That is said to explain why Lindsey and Blumenthal sought to avoid questions pertaining not to Clinton's personal relationship with Lewinsky, but rather to White House discussions of how the scandal might affect the functioning of the presidency.

Pub Date: 5/06/98

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