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Clinton denied executive privilege

A U.S. District judge has issued a major setback to the White House in the Monica Lewinsky investigation, ruling that President Clinton cannot claim executive privilege to block prosecutors from questioning his aides.

Officials and lawyers involved in the inquiry said the ruling by Judge Norma Holloway Johnson, contained in a sealed opinion and order, broadly struck down the president's claims that because he needs to be able to rely on the candid advice of his aides, the inner workings of the White House are off limits to investigators.

The opinion rejected an effort to block testimony of two White House aides, Bruce Lindsey and Sidney Blumenthal. They had asserted executive privilege on behalf of Clinton and refused to answer certain questions posed to them before a federal grand jury. The grand jury is examining whether anyone committed perjury, witness tampering or obstruction of justice over the relationship between Clinton and Lewinsky, a former White House intern.

White House officials were said to be discussing on Tuesday night whether they would seek an appeal, as many lawyers following the case expect they will do.

While the decision is an important legal defeat, it is unclear what broader impact it will have on the investigation. It is not known, for instance, whether Lindsey or Blumenthal, two of the president's most trusted aides, are willing or even able to testify about anything that could be incriminating of the president.

Mike McCurry, the White House press secretary, and Deborah Gershman, a spokeswoman for the Whitewater independent counsel, would not comment about the ruling. Johnson, who is overseeing the grand jury, has rebuked lawyers for talking publicly about decisions she has made concerning secret grand jury proceedings.

Although Johnson's opinion did not address the issue of whether there is a privilege that prevents Secret Service officials from being questioned by the grand jury, as the Clinton administration has argued, her reasoning in Tuesday's executive privilege decision does not appear to bode well for Clinton on that issue either.

The administration has argued that there needs to be a privilege to prevent Secret Service officers from testifying so that the Secret Service can continue to effectively protect the president.

But officials and lawyers involved in the case said that in her sealed opinion, Johnson relied on an opinion last year by the 8th U.S. Circuit Court of Appeals, in St. Louis, that refused to protect the notes taken by government lawyers of conversations they had with Hillary Rodham Clinton over several Whitewater-related matters under investigation.

The appeals court held that because government officials have an obligation to report any evidence of a crime, government lawyers cannot provide advice in criminal defense proceedings.

"The government's need for confidentiality," the court ruled, "may be subordinated to the needs of the government's own criminal justice processes."

Clinton's lawyers had recently argued before Johnson that the appeals court opinion was not applicable to the Lewinsky inquiry, a position that Johnson rejected.

Tuesday's decision was the third victory for the Whitewater independent counsel, Kenneth Starr, in recent weeks in the Lewinsky investigation.

In other sealed rulings, Johnson decided that Lewinsky does not have immunity from prosecution, as she had contended. The judge also ruled that documents created by her first lawyer, Francis Carter, are not protected by the lawyer-client privilege and must be turned over to investigators.

Executive privilege is a constitutional doctrine that judges have created in their interpretation of the separation of powers between the three branches of the federal government. It allows a president to keep confidential the advice he receives from his aides.

The privilege was first recognized by the Supreme Court 24 years ago in the case brought by the Watergate special prosecutor against President Richard Nixon.

In that case, a unanimous court recognized the privilege and then found that it can be overcome in a criminal inquiry of the White House.

Shortly after that ruling, Nixon became the first president to resign from office.

While it is common for presidents to invoke the privilege to shield communications from congressional inquiries, it is unusual for the White House to cite the privilege in criminal matters.