How Court Shaped Clinton Inquiry

When President Clinton's secretary Betty Currie met with investigators and reportedly contradicted her boss' account of gifts and time spent with Monica Lewinsky, she was obligated to answer questions under a Supreme Court ruling in the Richard Nixon tapes case.

When special prosecutor Kenneth Starr asked for private notes of White House lawyers, he did so based on a Supreme Court action denying Mr. Clinton an "attorney-client" privilege.

Compared with the current roiling atmosphere in the White House and the clanking media roller coaster chasing the Big Story, the US Supreme Court, with its gurgling fountains and empty plaza, might seem almost Oriental in its detachment.

Yet it's clear the high court played a central, even if not deliberate, role in opening the biggest Washington scandal of the 1990s. In the past year, a series of technical Supreme Court decisions, some dating to the Watergate era, converged to allow unprecedented exposure of the Oval Office through subpoenas and a nearly limitless scope of inquiry.

By themselves, the different rulings might have had little effect, experts say. But after the high court's ringing 9-to-0 decision last spring to let the Paula Jones case go forward, the rulings collectively acted like tumblers falling into place - allowing investigators to legally open most of the doors of the White House and to walk and look inside.

Together, these rulings also reveal a high court that has grown supremely confident in its authority. At the same time, the stature of the presidency as an imperial office not subject to review and compliance has eroded - a stature the office long enjoyed, particularly in the 20th century when presidents confronted the threats of fascism and communism abroad.

"The kind of bold certainty and tone of last year's Jones v. Clinton ruling is impossible to imagine during Eisenhower years when there was a cold-war standoff," says Akil Amar, a legal scholar at Yale University in New Haven, Conn. "There's also a change in tenor of the presidency now. Someone like Andrew Jackson would just have said to the Supreme Court: 'Forget it. I'm not following you.' "

The underpinning of rulings bearing on the Lewinsky case themselves derive from the era of Vietnam, the Nixon presidency, and the Watergate affair. Most have a high ethical intent designed to curb unfettered abuse of power and money - though the fairness and integrity of the independent-counsel law, a mandate that will expire next year unless Congress renews it, is highly debated.

Two cases, United States v. Nixon and Jones v. Clinton, limit White House efforts to claim executive privilege, which keeps the business of the White House private and insulates its occupants from lawsuits.

A 1988 case, Morrison v. Olson, upheld the independent-counsel law that allows Mr. Starr to operate. Buckley v. Valeo, the legendary campaign-finance ruling of 1976, is another. It spawned a money culture in Washington that gave rise to groups like the Rutherford Institute, which is paying Ms. Jones's legal bills, that carry out aggressive political advertising.

"Buckley-Valeo led to a proliferation of independent associations, all doing fund-raising and looking for ways to spend, that changed the dynamic in this town," says Mark Tushnet, a Georgetown University law professor.

Add to this the Whitewater executive-privilege case last spring. In a one-line denial, the court let stand a ruling by the US Court of Appeals for the Eighth Circuit that allows prosecutors to subpoena White House lawyers.

That means, essentially, that lawyers for Clinton the president may not talk to lawyers for Clinton the citizen - and it makes fair game almost any conversation the president may have in the White House other than with his spouse or private attorney.

Critics say it is wrong and impractical for a president to have fewer rights to private conversations than, say, a priest or minister or doctor. "Whatever President Clinton's story, he can't unburden himself to his friend [White House press secretary] Mike McCurry for fear McCurry will be subpoenaed," notes Jeffrey Rosen of The New Republic.

The current lines of Supreme Court reasoning stem largely from the battles over presidential power waged by Richard Nixon. The high court cut a stronger image in the public mind after forcing Mr. Nixon to release tapes made of White House conversations - an image that has only been enhanced by the relatively low regard the public holds for most politicians in general.

BUT the issue is not one of image but of power. In the 1974 Nixon ruling, the court asserted it is "the ultimate interpreter of the Constitution." Such language, now taken for granted, was rare prior to the 1970s. In the 1997 Paula Jones ruling, in fact, the court said, "We have long held that when the president takes official action, the court has the authority to determine whether he has acted within the law."

The Morrison-Olson ruling that upheld the role of independent counsels, moreover, also empowers a panel of federal judges to pick those counsels. The result is a lack of political accountability, critics say, since judges are not elected officials.

"What business is it of a judge to appoint prosecutors?" asks Dr. Amar. "Like the Clinton-Jones ruling last spring, it's another example of the court saying, 'Trust us, we will manage with sensitivity.' But where do you find that in the Constitution?"

Other court critics point out that while the high court does not mind extending a full right of independent counsel to investigate private White House conversations, the justices themselves would never allow a similar investigation of their discussions. When, for example, the papers of former Justice Thurgood Marshall were released posthumously, many members of the court were angry about having their private discussions made public.