White House Lawyers Can Be Made to Testify About Lewinsky
Supreme Court lets stand decisions that narrowly define attorney-client privilege for the president.
WASHINGTON — When Bruce Lindsey was called before the grand jury investigating the Monica Lewinsky matter, he repeatedly refused to answer certain questions.
He says he's one of President Clinton's lawyers and their conversations are thus protected by attorney-client privilege.
Mr. Lindsey is a deputy in the White House counsel's office and is one of the president's closest advisers. But his salary is paid with US tax dollars, which technically means his client is the presidency rather than Bill Clinton.
Two appeals courts have ruled that Lindsey is not shielded in the Lewinsky matter by attorney-client privilege because he is not Mr. Clinton's personal lawyer. Yesterday, the US Supreme Court agreed when it declined by a 7-to-2 vote to review those decisions.
The high court's action makes clear that Lindsey and other White House lawyers can be compelled to testify before a grand jury. But it leaves unresolved a thorny question about the extent to which the president can rely on the White House counsel's office to help defend himself during impeachment proceedings.
Did the Founding Fathers expect that when Congress takes the political action of considering the president's impeachment for alleged personal - rather than official - actions, that the president would not have the full resources of his White House staff to respond?
In his brief, Independent Counsel Kenneth Starr argued there is no reason why an attorney-client privilege for White House lawyers should extend beyond the executive privilege that protects all the president's sensitive official discussions.
Legal precedent holds that presidents enjoy the protection of executive privilege in their official actions, but that does not apply to private acts of alleged criminal conduct. Two appeals courts ruled that the same standard applies to the protections of attorney-client privilege when government lawyers are involved.
Facing a demand for information from a grand jury investigating alleged crimes, White House lawyers must testify. In contrast, the president's personal lawyer, David Kendall, cannot be compelled to testify before a grand jury about his discussions with Clinton. Those discussions are covered by attorney-client privilege.
Mr. Starr quoted in his brief an earlier appeals-court ruling: "To allow any part of the federal government to use its in-house attorneys as a shield against production of information relevant to a federal criminal investigation would represent gross misuse of public assets."
Some legal experts suggest the president should enjoy an expanded version of attorney-client privilege because of the all-encompassing nature of his job. They say government lawyers will be reluctant to engage in a full and frank discussion of sensitive presidential issues with personal overtones for fear they might later be called before a grand jury.
The issue is magnified when impeachment is actively being considered in Congress. Writes presidential lawyer W. Neil Eggleston: "The judicial branch has ... imposed serious constraints on the executive branch's power to defend itself in proceedings before the legislative branch."
Mr. Eggleston warns that unless the president and his White House legal staff are afforded some leeway, the existing court rulings create a "perverse incentive" for the president and other government officials to rely on private lawyers for advice, including advice that spills over into official areas.