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Clinton May Employ Executive Privilege to Shield Close Aides

By David G. Savage
Los Angeles Times
WASHINGTON

In another echo of the Watergate affair, President Clinton and his legal advisers are considering invoking the doctrine of "executive privilege" to shield two of his close aides from testifying fully before a grand jury.

In subpoenaing presidential advisers John Podesta and Bruce Lindsey, Independent Counsel Kenneth W. Starr would like insight into the discussions of the innermost presidential circle planning the White House response to the allegations that Clinton had an affair with Monica S. Lewinsky and later urged her to lie about it.

In signaling a move to resist, the White House shows an intention to keep its secrets - despite some precarious legal rulings on the issue.

Like Watergate, the current controversy has featured secret tape recordings, a president under siege, a special prosecutor, and a key player - in this case Lewinsky - holed up last week in the Watergate apartments.

Now, the talk of executive privilege evokes memories of the legal claim that President Nixon invoked famously, and ultimately unsuccessfully, to block the release of the Watergate tapes that drove him from office.

In 1974, the Supreme Court unanimously rejected Nixon's bid to block the special prosecutor's subpoena for the tapes, ruling that "the search for the truth" in a criminal case outweighs the "president's privilege of confidentiality."

Nixon had claimed he had an "absolute privilege" of keeping secret his White House conversations.

Disagreeing, the court said the executive privilege is what lawyers call a "qualified privilege." Sometimes it is honored, and sometimes not, depending on the circumstances.

If the president and his aides were discussing matters of national security, military operations or diplomatic secrets, those conversations would almost always be shielded from disclosure, the court said. However, if the president tried to shield all conversations with his aides simply because they are "presidential deliberations," that claim would not necessarily carry much weight.

On the other side of the scale, the court ruled, is the need for the information. The court said criminal cases get the highest priority for release of requested information - higher than a congressional committee seeking information from an executive branch agency.

"The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the function of the courts," wrote Chief Justice Warren Burger, a Nixon appointee.

Though the president's privilege to have confidential conversations in the White House "is entitled to great respect" most of the time, the chief justice said, "it is essential that all relevant and admissible evidence be produced" in a criminal case.

Starr, a one-time law clerk to Burger, recited the key elements of the 1974 decision in his comments about executive privilege Thursday.

"We want the truth (regarding) very serious allegations," Starr said in Little Rock, Ark. While the president's claim of confidentiality is "a recognized constitutional privilege," its use in the current case would serve "to prevent the grand jury from getting specific information," he said.

Podesta appeared before the grand jury Thursday and, in comments after his appearance, said he answered all questions asked of him. He is scheduled for another grand jury appearance Friday. Lindsey is expected to be called soon.

Starr's prosecutors are reportedly interested in learning whether Lindsey, one of the president's closest confidants, encouraged Lewinsky to deny under oath a sexual relationship with Clinton in exchange for help in getting a job.

While Clinton's aides are presumably willing to tell the grand jury about the general operation of the White House or whether they had observed Lewinsky in the Oval Office, they may be reluctant to discuss their conversations with Clinton about the issue.

In public comments, administration officials have been reluctant to speak directly about invoking executive privilege.

Clinton was asked about the issue Thursday during a brief appearance with British Prime Minister Tony Blair. "That's a hypothetical question," he replied. "Should it arise, I will await a recommendation from the White House counsel about the institutional responsibilities of the presidency."

Legal experts on presidential powers say they doubt the White House can succeed with a broad claim that seeks to shield officials from testifying before a grand jury.