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Attorney-client privilege won't shield the Clintons

I called Bernard Nussbaum last Wednesday to find out whether he had hired a lawyer for himself; he had not. Further poking-about revealed that no White House aides had yet been asked about their cozy consultation with "investigators," nor had a warning been issued about destroying notes of the improper meeting.

The barb here about that laxity, made puissant by the Washington Post's stunning revelation of two similar abuses of White House influence, helped get the non-independent counsel off his duff.

Nussbaum seemed a lonely man last week; it turns out he was in the midst of a four-day White House freeze-out, which ended in a 90-minute presidential session Friday night. He must have argued to Clinton that the recent meeting that precipitated the firestorm was the handiwork of a blundering "damage control" aide, not the White House counsel. But Nussbaum had attended without objection; taken with previous episodes of zealous protection of the president, it made him the first to be cast off the sled.

A confession: I like the scrappy Bernie Nussbaum and admire his loyalty. He is neither an evil genius nor a political shmegegge. But his feisty resignation blasting "those who do not understand . . . the role and obligations of a lawyer" shows how the aide called "the president's lawyer" thinks that is what he is.

He is not. The White House counsel is supposed to advise the president on official, governmental matters only _ not on any personal action taken before or after his inauguration. Deputy counsel Vincent Foster, before his apparent suicide, was ignoring that restriction in protecting the Whitewater file; Nussbaum then continued that protection by secretly sending the personally embarrassing file to the Clintons' private attorney.

A precedent on "privilege": A generation ago, Nixon counsel James St. Clair called acting Attorney General Laurence Silberman to complain about the special prosecutor's call of another attorney helping Nixon, Fred Buzhardt, to appear before a grand jury. What about attorney-client privilege? Silberman, now a federal appellate judge, advised there was no such privilege: Buzhardt worked for the government, not for Nixon personally. Astonished, St. Clair said, "Then that applies to me." Which it did.

The White House counsel's only real "client" is the people; no government official can claim attorney-client privilege in consulting him. But on official matters, he and the president sometimes claim confidentiality through a modern notion of "executive privilege." That may be why Nussbaum _ with the Clintons' interests at heart _ fought the impulse of uninformed White House spin doctors to make him the scapegoat.

Why does he want to remain until April 5? Not for the stated "orderly transition," which his deputy could handle, or to stay on the public payroll, which costs the successful corporate lawyer $150,000 a month. Perhaps he lingers to maintain a semblance of executive privilege before a grand jury, which will diminish after he is set adrift.

Later this week, that grand jury will watch an ill-prepared prosecutor examine a parade of meeting participants. Having moved too slowly last week, Robert Fiske is moving too hastily this week, putting on a dramatic show of prosecutorial muscle, letting us in the media jerk his chain. (Free the "Clinton 10"!)

He should first interview all the participants and their aides, basing specific questions on subpoenaed notes, calendars and computer records. He would discover how best to obtain sworn testimony from seekers or disclosers of investigative data, as well as any participation by potential targets in selecting Fiske as their investigator.

In this fair and systematic way, grand jury testimony could be taken to reconstruct meetings with the Clintons _ as, for example, in the period just after the Foster death and before Nussbaum's turnover of the 27 pieces of a note. (Ink your thumbs and tear a single page four times; I get 32 pieces and thumbprints all over.) Did Hillary know Foster kept the Whitewater file?

To defend themselves, the president and first lady cannot turn with privileged confidence to the replacement White House counsel. The Clintons, with no personal fortune, are entitled to private support from a legal-defense fund. Start one now.

New York Times News Service

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