Switching legal strategies, President Clinton and his lawyers decided Monday to tell the Supreme Court they will drop a claim of executive privilege and try to block a top aide's testimony solely on grounds of attorney-client privilege, The Associated Press has learned.
The switch came as lawyers tried to counter Independent Counsel Kenneth Starr's dramatic move last week seeking to bypass the normal appeals process and ask the nation's nine justices to settle his dispute over the testimony of two aides in the Monica Lewinsky investigation.The final decision was made at a meeting Monday between the president and top lawyers, two administration sources said. The high court had set a 4:30 p.m. EDT deadline for the response to be formally given.
The decision effectively removes the barriers for Starr to question immediately one of the aides, Sidney Blumenthal.
The president's appeal will focus on blocking some testimony by Clinton confidant Bruce Lindsey on grounds that he was functioning as a lawyer and his testimony is covered by the right of clients to keep their legal conversations confidential.
Anticipating such a move, Whitewater prosecutor Kenneth Starr gave a speech Monday in Charlotte, N.C., suggesting such an appeal was wrongheaded because courts have already concluded that government lawyers don't have such a privilege in criminal cases involving public officials.
"Litigants often try to concoct new privileges by contending that their relationship is just as important as the attorney-client relationship or the spousal relationship," Starr said in prepared remarks. "But their problem is that they make this argument in the wrong forum.
"If you want to expand an existing privilege, to apply it in a new and unusual area, then the place to go is Congress, not the courts," he added.
Prosecutors want to question Blumenthal about his sources of derogatory information about Starr's office and Lindsey on a variety of matters, including his contacts with witnesses in the Lewinsky probe.
In her ruling last month, U.S. District Judge Norma Holloway Johnson rejected the attorney-client claim based on earlier rulings that while government lawyers have such a privilege it can't be used to block their testimony before a federal grand jury about possible criminal activity.
On executive privilege, Johnson ruled that while the privilege applied to the disputed testimony, prosecutors' interest in the information outweighed the president's right to keep his conversations confidential.
White House lawyers viewed the latter interpretation as a partial victory, and that led to the president's decision to focus the appeal solely on attorney-client privilege.