The federal judge overseeing the grand jury in the Monica S. Lewinsky investigation has this week ordered Lewinsky's first attorney to testify and turn over certain documents, in a sealed decision concluding that the attorney-client privilege should be breached, sources familiar with the case said.
But the most significant part of U.S. District Judge Norma Holloway Johnson's ruling may be her reasoning in compelling Washington lawyer Francis D. Carter to comply with the subpoena from the independent counsel: The judge apparently has concluded that Lewinsky may have lied in an affidavit by denying an affair with President Clinton, the sources said.
The details of Johnson's 19-page decision, handed down Tuesday evening, remain murky because of a strict gag order she has placed on the matter. However, the sources said Johnson made her ruling under the crime-fraud exception to the legal principle of attorney-client privilege, determining that Carter must testify before the grand jury and release papers relating to his work for Lewinsky because she intended to commit fraud in the affidavit the lawyer prepared at her direction.
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But the judge granted Carter a partial victory by ruling he did not have to turn over Lewinsky material that independent counsel Kenneth W. Starr's subpoena demanded of him, including any of her diaries, letters and other papers, as well as dresses, jewelry and other personal items. It is not clear whether Carter ever had any such items, but Johnson ruled that the material need not be produced to Starr because of Lewinsky's Fifth Amendment protection from self-incrimination.
In a brief passage, Johnson expressed alarm that Starr's investigators had confronted Lewinsky at a Pentagon City hotel and urged her to cooperate with them -- without Carter being present. The judge suggested she may inform Justice Department ethics investigators about her complaint, the sources said.
Lewinsky lawyer William H. Ginsburg declined to comment on Johnson's order, first disclosed in yesterday's New York Times. Starr also declined to comment.
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Carter's lawyer, Harvard law professor Charles Ogletree, declined to comment except to say, We are inalterably opposed to any effort by the government to pierce the attorney-client privilege. We'll use every available avenue to protect the interests of Monica Lewinsky and to insure Frank Carter isn't used as a witness against his client.
Starr is interested in the affidavit Carter prepared for Lewinsky in the Paula Jones sexual harassment case. In it, Lewinsky denied having had a sexual relationship with President Clinton, but her denial contradicts secretly tape-recorded statements she made to her onetime friend, Linda R. Tripp, that she indeed had had an affair with Clinton and planned to lie about it in the Jones case.
Clinton friend Vernon E. Jordan Jr. referred Lewinsky to Carter after she received a subpoena in December in the Jones case. Based on what Lewinsky told him, Carter's attorneys have said, he prepared an affidavit on Jan. 7 denying any affair with Clinton. A few days later Lewinsky was offered a job with Revlon that Jordan had arranged for her, and then on Jan. 16 Carter submitted the affidavit in court.
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Starr is investigating whether Clinton had a sexual relationship with Lewinsky and whether he or others urged her to lie about it in the affidavit. Another question is whether she withheld the affidavit until she received the job offer Jordan was helping her land.
Starr's office has argued that the attorney-client privilege claim does not hold because Lewinsky destroyed her right to keep the communications confidential by committing fraud in her affidavit, and because she in effect waived the privilege when she told Tripp about her conversations with Carter.
Carter's attorneys have argued that until Lewinsky releases him from his professional obligation to keep those conversations secret, he must fight Starr's subpoena.
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Carter's attempt to resist the subpoena has been intertwined with a related dispute still pending before Johnson -- an attempt by Lewinsky's current lawyer, Ginsburg, to enforce what he claims is a binding immunity deal with Starr.Bowles Testifies Before Grand Jury (04-02-98) White House Supports News Media's Request (04-01-98) Starr Investigation Costs Just Shy of $30 Million (04-01-98) Landow Not A Clinton Confidant (03-27-98) More Stories...
WASHINGTON (AllPolitics, March 4) -- Monica Lewinsky's former attorney is fighting an effort by Independent Counsel Ken Starr to force him to testify before the grand jury investigating sex-and-perjury allegations against President Bill Clinton. The chief judge presiding over the grand jury held a closed-door hearing Wednesday on the matter but did not immediately issue a ruling. (448K wav sound)
Asserting attorney-client privilege, lawyer Frank Carter challenged Starr's subpoena that would force him to answer grand jury questions and turn over notes he took of conversations with Lewinsky while helping her prepare her affidavit in the Paula Jones case. In that affidavit, Lewinsky denied any sexual relationship with the president. (352K wav sound)
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Leaving the federal courthouse in the early afternoon, Carter's attorney, Charles Ogletree, told reporters he could not comment on the hearing's specifics. But he defended the importance of a confidential attorney-client relationship and said they would fight to maintain that privilege for Lewinsky. Frank Carter has done nothing wrong, and the only thing that he can do is to protect and defend a client who hired him to represent him vigorously within the bounds of the law, Ogletree said.
We are confident that after careful consideration of these issues that this court, and any other court, would say that there is no basis for the extraordinary breach of the attorney-client privilege by allowing the government to call Mr. Carter to produce documents or to be a witness against his client, said Ogletree. (448K wav sound)
Carter, who was referred to Lewinsky by lawyer-lobbyist Vernon Jordan, no longer represents the former White House intern. But Lewinsky has in no way has asked us to waive her privilege, and she continues to assert her privileges as long as we have the authority to do so, Ogletree said. And until we are required by the court to do something else we intend to vigorously challenge this at every single level. (320K wav sound)
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Starr's prosecutors argue that because this is a criminal case, attorney-client privilege should be superceded by their investigative needs to get to the bottom of the Lewinsky matter.
The Washington grand jury was not in session Wednesday. It resumes Thursday for a second day of testimony from Jordan, a longtime friend of Clinton and a central figure in the Lewinsky controversy.
Jordan completed the first day of his long-awaited testimony Tuesday, saying afterwards he answered all of the panel's questions truthfully and completely, to the best of my ability. His extended questioning has pushed back Starr's recall of White House secretary Betty Currie and presidential confidant Bruce Lindsey until next week.
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Meanwhile, the Justice Department announced Wednesday it will review a new formal complaint against the independent counsel filed by a South Carolina lawyer alleging that Starr concealed false testimony while representing General Motors in a civil case.
Attorney Kendall Few said Starr helped conceal alleged perjury by a General Motors engineer while defending the company in a product liability suit dealing with fuel tank fires.
Few filed the complaint with U.S. Attorney Rene Josey in Columbia, S.C., and Justice Department officials in Washington expect to get it in the next day or so, department sources tell . The complaint will be reviewed along with those filed by Sen. Bob Torricelli (D-N.J.), Monica Lewinsky's attorneys and Rep. John Conyers (D-Mich.), officials say.
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Justice sources say Attorney General Janet Reno is waiting to see how Judge Norma Holloway Johnson responds to a separate complaint filed by David Kendall, Clinton's personal attorney, decrying leaks to the news media concerning Starr's investigation.
Reno wants to know what, if any, action the judge calls for before she responds to the growing number of allegations against Starr.
Privately, White House officials are criticizing Starr's efforts to force Carter's testimony, noting Starr's own aggressive use of attorney-client privilege in this contested case.
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Said one senior administration official: Today's question is this: Will the real Ken Starr please stand up? Is it the Ken Starr who forcefully defends the concept or attorney-client privilege or the one who is in court today trying to trample on that right when someone else tries to assert it?
Starr's office told President Clinton's personal secretry Betty Currie and presidential adviser Bruce Lindsey they will not be recalled this week before the Washington grand jury, has learned. Though originally scheduled to appear again Thursday, both were informed they need not be on standby to follow Jordan.
During his previous two days of testimony, Lindsey declined to answer questions about his conversations with the president about former White House intern Monica Lewinsky. White House aides John Podesta and Sidney Blumenthal also have declined to answer such questions.
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The federal judge overseeing the grand jury has asked the two sides to work out an agreement for questioning senior White House aides about their meetings and conversations with the president concerning Lewinsky.
Sources say negotiations aimed at a compromise are stalled, and White House lawyers are expecting a showdown when Lindsey is recalled to testify. It is clear the
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