Lindsey's testimony may be delayed Impeachment threat could require silence, appeals court hints


WASHINGTON -- A White House lawyer's potentially crucial testimony in the Monica Lewinsky matter could get bogged down in a constitutional fight developing over the threat of impeachment of President Clinton, judges on a federal appeals court indicated yesterday.

The development, emerging during a 92-minute hearing here, left the impression that the Whitewater special prosecutor, Kenneth W. Starr, could be frustrated further in his demand that Bruce R. Lindsey, a White House deputy counsel and longtime Clinton confidant, testify before a criminal grand jury.

Starr told the three judges on the U.S. Circuit Court of Appeals panel that Lindsey has "abundantly relevant evidence" that the grand jury should hear, bearing on what Lindsey and Clinton discussed after the sex scandal surrounding Lewinsky emerged in January.

That evidence, the prosecutor indicated, is needed in his inquiry into whether Clinton lied under oath in denying that he had had a sexual relationship with Lewinsky, or tried to obstruct Starr's investigation of the Lewinsky matter.

But at yesterday's hearing, the possibility that Starr might send a report to Congress that could trigger impeachment proceedings emerged as a larger issue than in any other courtroom battle between Starr and the White House.

The White House is resisting Starr's demand to question Lindsey. What the lawyer and Clinton discussed, the White House asserts, is protected by attorney-client secrecy. One of the Clinton team's main arguments is that the president needs Lindsey as a confidential legal adviser should Starr's investigation lead to impeachment proceedings.

The White House has contended that Starr is using the grand jury not only in his role as a prosecutor but also to help him serve "as a conduit of information to the Congress for use" in possible impeachment proceedings. Impeachment, the White House said in legal papers, is "the ultimate attack on the president's constitutional authority," and Clinton would need Lindsey's advice in handling it.

Neil F. Eggleston, arguing the White House case yesterday, mentioned that argument only briefly, but it drew the rapt attention of the appeals court judges.

Two of the three judges seemed troubled about how they could decide whether to force Lindsey to testify before the grand jury without knowing what effect it might have later if Clinton needed legal advice to fight off impeachment.

Judge David S. Tatel asked Starr how attorney-client secrecy should be handled when a president sought legal help during impeachment proceedings. Starr conceded that a president might need a White House lawyer's advice during impeachment. But he said the situation was different when a grand jury seeks evidence of a possible crime. A grand jury, the prosecutor said, should always get the evidence it seeks.

Tatel noted that there is "significant overlap" between the issues the grand jury is reviewing and the issues that might arise in impeachment proceedings. Starr replied that the impeachment issue "should give this court no pause whatsoever." He said it was "premature for this court to be looking down the road and to be worrying about impeachment."

Judge Judith W. Rogers suggested that the impeachment issue may not be premature, though the Justice Department agrees with Starr that the appeals court should not face that issue now.

Noting that Starr has said publicly that he is pondering "possible reports [to Congress] for impeachment proceedings," Judge Rogers asked a Justice Department lawyer, Douglas N. Letter, whether impeachment would be a problem for a president unprotected by a broad attorney-client privilege.

That question, Letter replied, raises "momentous" constitutional issues, with "enormous impact on all three branches of government," about how to handle the impeachment process. At a minimum, Letter said, the appeals court should send the issue back to the federal judge overseeing the grand jury investigation, who could gather facts that would give those issues a clearer focus.

Tatel and Rogers, along with the third judge on the panel, A. Raymond Randolph, seemed unsure about the roles White House lawyers are performing when advising the president, and whether they sometimes give advice that a president ought to be receiving from his own private lawyer.

Eggleston, the attorney for the White House, countered that lawyers on the president's staff are used solely to give the president advice on "official matters." Eggleston argued that official matters extend to how the president should respond to the Lewinsky scandal, because of the scandal's effect on his ability to function as president and on a possible impeachment.

Under orders from the Supreme Court, the appeals court is considering the attorney-client secrecy claim of the White House on an expedited basis. The appeals court is likely to decide the issue in a matter of weeks, perhaps setting the stage for the case to go to the Supreme Court for a final ruling within a few months.

Pub Date: 6/30/98

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