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Call it the latest — and possibly the most bizarre — of the Clinton battles over privilege. In the various scandals of the 1990s, the administration continually asserted attorney-client and executive privileges. And the scandal litigation left the privilege a little battered, as the administration lost many of the fights in court. They’re still fighting. On May 18, a Justice Department lawyer, seeking a writ of mandamus in a convoluted case brought by conservative activist Larry Klayman, handed the U.S. Court of Appeals for the D.C. Circuit an unusual twist on a privilege argument. Klayman is making headlines again this week for filing a $100 million lawsuit on behalf of Donato Dalrymple, one of the men who rescued Elian Gonzalez. Dalrymple claims Attorney General Janet Reno and INS Commissioner Doris Meissner violated his civil rights during the raid on the home of the boy’s Miami relatives. In Klayman’s suit against Clinton, which grew out of the Filegate scandal, Deputy Assistant Attorney General William Schultz argued that discussions in 1998 between President Clinton and Deputy White House Counsel Bruce Lindsey were protected by attorney-client privilege. Schultz had been dispatched to the D.C. Circuit to counter a March ruling by U.S. District Judge Royce Lamberth. Lamberth, who has proven himself one of the Clinton administration’s sharpest critics from the bench, ruled that the privilege did not apply to the Clinton-Lindsey talks about whether to disclose a dozen letters written to Clinton by White House volunteer Kathleen Willey. Clinton released the letters in an effort to discredit Willey’s claim that he had made a sexual advance toward her. To get to his ruling, Lamberth found that Clinton had committed a criminal violation of the Privacy Act because he knowingly disclosed information about Willey. Although Lamberth’s finding in the civil case didn’t put Clinton in immediate criminal jeopardy, it led the Department of Justice to ask the appeals court for a writ of mandamus — an extraordinary order nullifying the district judge’s ruling. “If the president doesn’t follow this opinion, he will be subject to the criminal law,” Schultz argued, contending that Lamberth was wrong because the Privacy Act, which bars government agencies from releasing personal information about citizens, doesn’t apply to the White House. In the spirited hour-long argument, the three judges on the panel — Chief Judge Harry Edwards and Judges Douglas Ginsburg and David Tatel — were skeptical both of Schultz’s claim that they had to intervene now in the privilege dispute and of Klayman’s argument that the Privacy Act clearly applies to the president and his advisers. Edwards told Schultz, “The White House can say, ‘Who cares what Judge Lamberth thinks?’ That’s done all the time. [The lower court opinion] is not the law of the circuit. So what’s the harm?” Schultz replied, “The harm is that of the president being labeled a criminal, and that the privilege of the White House counsel is breached.” Edwards reiterated, “I think any White House would laugh at the suggestion that Judge Lamberth’s views” control their actions, implying that the dispute could be handled in the normal appeals process without mandamus. Tatel asked Schultz, “Should there be mandamus for every discovery dispute regarding a privilege?” Schultz, who adopted a low-key, relatively flat tone, replied that “privilege, plus a clear error of law, equals mandamus. Here, as well, the President has been said to have violated the criminal law.” The Willey issue found its way to Klayman’s Filegate case via a circuitous route. Willey is not a party in the case, which was brought by former Reagan and Bush administration officials whose FBI background files were allegedly improperly reviewed by the Clinton White House early in the president’s first term. Klayman convinced Lamberth that Clinton’s disclosures in the Willey matter were similar enough to Filegate to be a proper subject of discovery. MIXED REVIEWS Klayman, who argued forcefully in a half-hour at the podium, scored several solid points but occasionally troubled the judges by referring to highly charged political issues not before the court. In court papers, Klayman invoked an earlier White House scandal, asserting that the Justice Department’s request for an injunction was “a transparent attempt to try to delay [the] lawsuit until after the Clintons leave the White House — a tactic unsuccessfully tried in other litigation such as Ms. Paula Corbin Jones’ lawsuit against the President.” Klayman began his argument by saying the only issue was “whether there is a pattern or practice of violating the Privacy Act. … This is just a discovery dispute” for which mandamus is inappropriate. On the Privacy Act, Klayman effectively cited the law’s origins in the Watergate scandal and a secret White House-backed bugging and wiretapping unit in the early 1970s known as the “plumbers.” He argued that the act ought to apply to the president and those around him. Edwards pressed him on how Clinton could have had a criminal intent to violate the act when the Justice Department has expressed a “consistent view” for decades that the Privacy Act didn’t cover the president. “How can a district judge say they had an intent to commit a crime? Did Janet Reno send you a note?” Edwards asked. Klayman replied testily, “Are you saying that the Department of Justice could say it had a right to kill women and children at Waco?” Edwards shot back sardonically, “Don’t start. You did so well for the first 15 minutes.” A minute or so later, Klayman said, “The only reason we’re here is because this is an embarrassment to the president and because Mrs. Clinton is running for office in New York.” The reference was evidently to the government’s purported desire to prevent Hillary Rodham Clinton’s alleged wrongdoing from coming out in Klayman’s case and waylaying her in her Senate run. “You’re off the point,” said Edwards. “We’re here for one purpose — whether we should issue a mandamus.” Schultz declines comment on the argument. Klayman says, “The government was arguing, ‘Help me. I’m the president. This thing should be heard now.’ But the panel made it clear that even the president is not above the law.”

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