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A Highly Strategic Legal Chess Game

June 07, 1998|Stephen Gillers | Stephen Gillers, professor of law at New York University, teaches legal ethics, law and literature and evidence

NEW YORK — If law is a spectator sport, then the O.J. Simpson trial was ice hockey--rowdy and raucous. The Microsoft antitrust trial will be like baseball--long and boring. And the contest between Whitewater independent counsel Kenneth W. Starr and President Bill Clinton is chess--intellectual and highly strategic. That's because the Starr-Clinton contest is not about guilt or innocence (at least not yet), but about legal principles at the very foundation of our constitutional democracy. While that might make it less dramatic than the Simpson trial, it's a lot more important.

Events of the last 10 days underscore the chess analogy and may prove to be the most decisive in Starr's four-year investigation. They confirm, in case there was any doubt, that each side's strategy can be reduced to a single word: information. Information is what Starr means when he says he just wants "the facts," and information is what Clinton wants to keep Starr from getting. Unfortunately for the president, Starr has two weapons that make him virtually unstoppable: subpoena power and a grand jury. A witness called before a Starr grand jury doesn't have many choices. He can talk, hope a legal privilege will let him refuse to talk or join Susan McDougal in jail.

Clinton & Co. have placed their bets on legal privileges--old ones and newly minted ones--that they hope will keep Starr from getting "the facts." They have invoked attorney-client privilege, lawyer work-product privilege, spousal privilege, executive privilege and a new protective privilege for the Secret Service.

Starr has, so far, defeated all Clinton's privilege claims, although this perfect courtroom record has been obscured by Clinton's relentless assault on Starr's character. Before a microphone, Starr may be duller than Clark Kent, but in court, he's closer to Superman.

Consider what's happening now. The White House relied on executive and attorney-client privileges to block grand-jury subpoenas to presidential aides Bruce R. Lindsey and Sidney Blumenthal. When Federal District Judge Norma Holloway Johnson rejected both efforts, the White House appealed to the U.S. Court of Appeals in Washington.

President Richard M. Nixon had a stronger argument to protect his White House tapes in 1974, but the Supreme Court unanimously rebuffed him. Why, then, did Clinton bother asserting executive privilege at all and, having lost, why did he appeal? Here is Clinton's fallback strategy. Second best to denying Starr information is giving it to him too late, after the midterm elections if possible or, hope against hope, after Election Day 2000. An unsuccessful appeal to the Court of Appeals could have been followed by another appeal to the Supreme Court. Even if the president lost both appeals, a final decision might be delayed until early 1999 or after.

Enter Starr. In a tactically shrewd response, Starr asked the Supreme Court to bypass the Court of Appeals and accept the case directly. What's more, Starr asked the high court to decide the appeal swiftly, before the end of July. Clinton now faced the prospect of a strongly worded Supreme Court opinion unanimously rejecting his position in a matter of weeks. That risk only increased when the court gave the White House a mere weekend to explain why it should not agree to Starr's request. Cornered, Clinton dropped executive privilege.

But watch how White House Counsel Charles F.C. Ruff announced that the president no longer needed to appeal his executive-privilege claim. Oh, really? Why not? Well, because Johnson's opinion, though rejecting executive privilege for Lindsey and Blumenthal, recognized the privilege would exist in a proper case.

This is nonsense. Of course, it would exist in a proper case. The Supreme Court said as much in 1974. Besides, if the White House only wanted this acknowledgment, why did it bother to appeal Johnson's ruling at all? The answer is obvious. To slow things down. But it says a lot about the media's failure to understand this story that one television network introduced an interview with Ruff by describing the White House decision as "graceful." Rubbish. It was a defeat.

Even though the White House abandoned executive privilege, it continued to press attorney-client privilege, which entitles a client to refuse to reveal communications with his lawyer. Because this privilege, unlike executive privilege, is not constitutionally based, the White House was able to argue that the case no longer contained an issue important enough to burden the Supreme Court's busy end-of-term calendar.

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