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June 5, 1998
Court Rebuffs Starr's Request for Expedited Hearings
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By LINDA GREENHOUSE
ASHINGTON -- The Supreme Court delivered a swift and unanimous rebuff Thursday to Kenneth Starr's effort to short circuit the ordinary appellate process and get a quick ruling from the justices on disputed claims of privilege for four grand jury witnesses.
The court said in two brief orders that it would not grant expedited hearings, or indeed any hearings at all at this stage, on the scope of the attorney-client privilege for White House lawyers or on the existence of a previously unrecognized "protective function privilege" for Secret Service agents.
Starr, the Whitewater independent counsel, is seeking testimony from Bruce Lindsey, the deputy White House counsel and close presidential confidant, and from three Secret Service employees as part of his investigation into whether President Clinton had a sexual relationship with former White House intern Monica Lewinsky and sought to have her cover it up.
Chief Judge Norma Holloway Johnson of the U.S. District Court in Washington rejected both claims of privilege in separate rulings last month. Despite having won the two cases, Starr asked for an immediate Supreme Court review to avoid, he said, any further delay in his investigation.
The court Thursday denied both portions of Starr's requests: that it take jurisdiction of the two cases away from the U.S. Circuit Court of Appeals for the District of Columbia, and that it hear the cases on an expedited timetable.
"It is assumed that the court of appeals will proceed expeditiously to decide this case," the court said in each of its two one-paragraph orders.
While the appeals court could schedule arguments as early as next month, even such an accelerated schedule would effectively preclude the justices, whose current term ends in a matter of weeks, from having a final say on the issues before the November congressional elections.
How that fact may affect Starr's own timetable, either for seeking an indictment of Ms. Lewinsky for perjury and other charges or for sending an impeachment report to the House of Representatives, as he hinted he might consider in one of his Supreme Court briefs this week, is the most obvious question raised by the court's action Thursday.
The independent counsel made no reference to his long-range strategy in a statement he issued after the court's action.
"In light of the Supreme Court's determination today, we will proceed to litigate these issues as quickly as the court of appeals' schedule will permit," Starr said. "This office will continue to take every reasonable and practicable step to bring out the relevant facts as promptly as possible, so this investigation can be concluded in a thorough and expeditious manner."
Charles Ruff, the White House counsel, said, "The Supreme Court acted appropriately today rejecting Mr. Starr's attempt to bypass the traditional appeals process."
Mike McCurry, the White House press secretary, pronounced the president "pleased" and then said, in answer to a question on whether the result would now be "more delay," that it was "day 1,400 of Ken Starr's tenure as an independent counsel at the rate of $30,000 a day of taxpayers' money." He added: "Now, if there's any delay, that's the delay right there."
Both sides have asked the appeals court for a July hearing in the attorney-client case, a request that the appeals court is likely to grant in light of the Supreme Court's unusual statement that it expected the cases to move forward "expeditiously."
Arguments in the Secret Service privilege case are likely to be scheduled quickly as well. In a brief filed with the Supreme Court on Thursday morning, the Solicitor General's office, representing the Secret Service, said it would not oppose accelerated review, either in the court of appeals or directly in the Supreme Court.
While requests for immediate Supreme Court review of U.S. district court decisions are not particularly rare, such requests are rarely granted. So Starr faced a heavy burden in trying to persuade the justices that the current disputes posed crises on the order of Watergate or the nationwide steel strike in 1952, two of the handful of occasions on which the justices have granted a request for "certiorari before judgment," to use the court's terminology.
Starr tried to make his case by drawing repeated analogies to United States vs. Nixon, the 1974 ruling in which the court rejected President Richard M. Nixon's claim of executive privilege and ordered incriminating White House tapes turned over to the Watergate special prosecutor.
That effort was blunted by the White House decision on Monday to drop from the case an executive privilege claim that Judge Johnson had rejected at the same time she rejected the claim of attorney-client privilege.
For months, the White House had claimed executive privilege to shield both Lindsey and Sidney Blumenthal, a senior aide, from having to testify. Since Blumenthal is not a lawyer, the remaining claim of attorney-client privilege did not apply to him, and he appeared before Starr's grand jury Thursday.
Blumenthal, who advises the president and first lady on communications strategy, spent most of the afternoon before the grand jury. His lawyer, William McDaniel Jr., said afterward that prosecutors spent much of the session questioning Blumenthal about the White House view of Starr and other members of the independent counsel's office, rather than about his conversations with Clinton on the Lewinsky matter.
"This investigation has been more about Mr. Starr than anything else," McDaniel said.
Blumenthal was told that he would be called again to continue his testimony. Until then, his lawyers said, Blumenthal would have no comment.
The grand jury also heard from Nathan Landow, a Democratic fund-raiser and Maryland real estate developer. The independent counsel's office has been examining whether Landow took any improper steps to discourage Kathleen Willey, a former White House aide, from being truthful in a deposition she gave in the Paula Jones sexual harassment suit.
In her testimony, Ms. Willey said Clinton made a sexual overture to her in an Oval Office encounter in 1993; Clinton has said that he may have given her a comforting hug and a kiss on the forehead but that he had no sexual intent. Landow has acknowledged having conversations with Ms. Willey, but has repeatedly denied making any effort to influence her testimony.
Also Thursday, Ms. Lewinsky spent several hours with her new Washington lawyers, Plato Cacheris and Jacob Stein. While lawyers involved in the inquiry expect that the introduction of the new legal teams means that there will be a renewed round of settlement talks, nothing has been scheduled.
In his petitions urging immediate Supreme Court review, Starr described both cases as raising issues in urgent need of resolution by the country's highest court and said that further litigation would be "inimical to the nation's well-being."
"In our view, only this court has the moral authority and public credibility to issue a final ruling" on the Secret Service case, he said.
While the justices denied the petitions "without prejudice," meaning that further appeals are not foreclosed, there is no guarantee that the court will ever take up the cases.
There is also no safe prediction of the fate of the cases in the court of appeals. The 11-member court is known for sharp ideological divisions, but ideology does not necessarily have much to do with how a judge views such technical matters as the rules of evidence at issue in both these cases.
For example, the Supreme Court next Monday will hear an appeal on whether the attorney-client privilege automatically survives the death of the client -- in this case, the late Vincent Foster, the deputy White House counsel who committed suicide in 1993.
Starr has been seeking notes that Foster's lawyer took nine days before the suicide. Last year, the appeals court rejected the claim of absolute privilege by a 2-1 majority that was composed of one of the court's most conservative members, Judge Stephen Williams, and its long-time liberal stalwart, Judge Patricia Wald.
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