Document Hunt Seizes Washington

Which White House papers are private? The first lady's uncertain legal perch.

Four months into the second Clinton term Washington officials are going about day-to-day business - making budget deals and so forth - with the equivalent of a giant stone hanging over their heads.

The stone represents the accumulated weight of the city's many ongoing scandal investigations. It's been there so long that many here have grown used to it and ignore the implications of its presence. But if it breaks loose, via a major indictment or other legal development, it could squash much work and many careers. And this week the stone has been swaying in the breeze.

It's still not clear whether President or Mrs. Clinton will be charged by independent prosecutor Kenneth Starr with any offense. Mr. Starr would likely have to build an ironclad case before taking the first couple to court. But it's apparent that Whitewater will chart new legal ground for executive branch lawyers - as did Watergate.

And it seems the stone is threatening the Republican Party, as well as Democrats. Revelations about foreign money and a Republican think tank will make it easier for the White House to mount an "everybody does it" defense of its own campaign finance problems.

Columnist George Will, an observer who has seen many Washington scandals come and come, summed up the situation with a recent, plaintive question on a talk show: "Don't we have something like mutual-assured destruction going on between the two parties?"

The details of recent Washington investigatory developments are:

* The White House asked the Supreme Court on May 12 to rule that notes taken by government lawyers of meetings with the first lady shouldn't have to be turned over to the independent counsel's office. The administration's reasoning: The notes are covered by attorney-client privilege, and thus aren't subject to subpoena.

Though the legal tussle over the notes seems about as dull as a Home Shopping Network rerun, it in fact raises new and interesting points of law, say many lawyers.

For one thing, what's the status of a government attorney in this regard? The notes would unquestionably be shielded if the lawyers in question were private, instead of on the public payroll.

Perhaps more important, the case could define the nature of what it means to be first lady. Is she a public figure, a private one, or some hybrid of the two? If she's found to be purely a private figure, she might have to fork over the papers.

"The first lady occupies a badly defined role as a legal matter," says Nelson Lund, a George Mason University law professor who was a White House lawyer in the Bush administration. "She doesn't draw a salary. Yet Congress appropriates money for her staff, implying that she has a public role."

Dr. Lund and other legal analysts say they can't really predict how the Supreme Court will rule in this matter. It's a hard legal question and there are good arguments on both sides, they say.

Finally, what's in those papers that might make them sensitive? The White House says they contain no hint of wrongdoing such as obstruction of justice, and that they're just trying to protect executive-branch prerogatives. Yet inevitably Clinton critics point out that assertions of privilege in regard to White House documents were a stable of Richard Nixon's defense during Watergate.

* The Republican Party in recent days has had its own legal problems. After months of hitting Democrats over allegations that foreign money illegally found its way to party coffers, the GOP last week returned $122,000 to a Hong Kong businessman named Ambrous Tung Young. Mr. Young had made the contribution to a think tank established in 1993 by Haley Barbour, then the chairman of the Republican National Committee.

Mr. Young also put up collateral for a $2.2 million loan obtained by the think tank, the National Policy Forum. He eventually lost $500,000 of this collateral, according to reports.

Republicans argue that Democrats took much more allegedly illegal foreign money and that the seriousness of the other party's offense was much greater. But Democrats have been given at least a talking point in their claim that party fund-raising behavior is morally equivalent - especially since the Internal Revenue Service ruled this week that the National Policy Forum was a partisan organization, and not the tax-exempt nonpartisan group it purported to be.

Major indictments could have far-reaching policy consequences, damaging the current climate of White House-Congress cooperation over the budget. But where's it all headed? No one - or at least no one who's talking to the press - knows for sure.

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