High Court Knocks Hole In Stone Wall

All over the world, the prurient interest is battling the public interest.

Here in Britain, when the new Tory leader named Cecil Parkinson to be chairman of the bedraggled Conservative Party, the press reported him finally released from “the sin bin.” This recollection of a 15-year-old affair, using a hockey metaphor, seemed unduly unforgiving.

In Israel, a TV interviewer provoked Sara Netanyahu, the prime minister’s wife, into an unfortunate outburst by asking about her husband’s prior infidelity. This nosiness struck many as excessive.

In Russia, Minister of Justice Valentin Kovalyov was embarrassed by a video purportedly showing him cavorting in a sauna with three naked women. Public reaction: not to castigate the minister but to wonder what combination of gangsters and journalists was out to get him.

In the United States, a report that investigators for the independent counsel had asked Arkansas state troopers about Clinton liaisons provided Democrats with an excuse to attack Kenneth Starr for invasion of privacy and to call for an end to his investigation.

In this global orgy of first titillating and then condemning prurient interest, legitimate lines of inquiry are obscured. That’s why Americans have not focused on last week’s most significant development in the prosecutors’ case against the Clintons.

For three years, the Office of White House Counsel has conspired with a score of private attorneys and Democratic counsel in congressional committees to delay and frustrate the working of Whitewater and Filegate justice.

This Clinton Stonewall Brigade bought a full year’s delay by hiding notes with a spurious claim of lawyer-client privilege, then recently sought another year’s delay by taking the claim to the Supreme Court.

This was a huge gamble, but the odds were good. If the Clintons could get the high court - which traditionally gives great weight to presidential requests - to take the case, argument would not begin until the fall and the case would not be decided until next spring. Meanwhile, the Clinton witnesses could hang tough and stymie the investigation.

Moreover, there was the chance that the court could decide on some halfway privilege that would allow the stonewalling to continue. Downside risk: that the court would refuse even to consider the Clinton appeal, letting stand the stern judgment against any privilege by the 8th U.S. Circuit Court of Appeals. And then the case would proceed all too speedily.

That Clinton worst-case scenario is what happened. In rebuffing the president’s outrageous claim, the court sent a signal that it would not be a party to his delay strategy. The subpoenaed notes were at last produced.

But the significance is not merely in these particular notes taken by taxpayer-paid lawyers and so long wrongfully concealed. The court action gives prosecutors a green light to get - without delay - all the plans for obfuscation, manipulation and information-sharing among subjects and targets of the investigation.

This includes grand jury testimony to be taken from a parade of White House counsel from Bernard Nussbaum to Lloyd Cutler to Abner Mikva to Jack Quinn (especially Quinn) and present Counsel Charles Ruff.

Recollections can be refreshed by notes, diaries and logs withheld for years by some of these unprivileged lawyers and their assistants, including William Kennedy III. The 1994 plan to “monitor” the investigation mapped out by Jane Sherburne deserves sworn elaboration.

Counsel Bruce Lindsey’s work-product and testimony should be of interest now that the claim of privilege has been exposed as a sham. And not just on Whitewater; the tight-lipped Clinton confidant was present at the 1995 meeting with James Riady when the president personally decided that John Huang, the longtime Riady employee assigned to a top-secret job in the Department of Commerce, would be reassigned to the Democratic Finance Committee.

Even the communications between White House counsel and those helping block congressional investigations may now be accessible. The White House lost its high-risk gamble. The Supreme Court decided not to be suckered into a strategy of delay.

No wonder Clinton defenders are venting their outrage at Kenneth Starr.

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