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What does John Ashcroft do about Larry Klayman? For nearly seven years, conservative gadfly Klayman and his group, Judicial Watch, have essentially run an independent counsel probe into the scandals of the Clinton administration. Many of Klayman’s 50-odd cases have ended up in the courtroom of U.S. District Judge Royce Lamberth. The names of many of Klayman’s clients — Gennifer Flowers, Paula Jones, Juanita Broaddrick — and of his defendants — James Carville, Janet Reno, William Daley — sound like an all-star cast of the Clinton years. But now that those years are over, Klayman’s cases are about to become more than a continuing headache for the Clintons and their operatives. They will pose a tough litigation call for the Bush administration. Attorney General Ashcroft is, after all, a partisan Republican and a moralist who denounced the Clinton scandals. Will he keep up the Justice Department’s efforts to explain away irregularities such as the Clinton White House’s faulty archiving of e-mails, and allegedly intentional failures to turn over documents under the Freedom of Information Act? Or will Ashcroft — and whoever comes in as head of the Justice Department’s Civil Division and as U.S. attorney for the District of Columbia — decide that the government has no good reason to defend political opponents like former Clinton chief of staff John Podesta and new Democratic Party head Terry McAuliffe? Politically charged cases always present a difficult balancing act for an incoming administration, and this is even more so in litigation that targets the allegedly unethical conduct that Bush promised to eradicate. Says Mark Foster, a legal ethics expert and partner at Washington, D.C.’s Zuckerman, Spaeder, Goldstein, Taylor & Kolker: “If I were George Bush’s counsel, I’d say, ‘We might be able to make some political capital by throwing in the towel before Judge Lamberth, but what does that do for the prerogatives of a president in future cases?’ “This president, like all presidents, has an interest in not seeing his private e-mail all dumped into the public record. So you may not see a 180-degree turnaround.” Still, Foster says, the Bush Justice Department could pull such a switch without violating law or legal ethics. “If you concluded in good faith that the best thing for the institution of the White House was to go to Judge Lamberth and say, ‘I give up,’ you could do that ethically, just as long as you knew that your client was the White House, and not George W. Bush,” Foster says. As for Klayman, he’s hopeful that the new attorney general — whom he calls a “man of integrity” — will “assist Judicial Watch, not block Judicial Watch.” But Klayman thinks Bush himself has “bent over backwards to defend the Clintons” after the inauguration — and he fears that the new president will tell Ashcroft to act the same way in the litigation. DISCOVERY WARS Although many of Klayman’s cases have been turned aside in court, at least two have gained a solid foothold before Lamberth and taken on extended lives as they turn into exhaustive discovery battles, and as Klayman layers new allegations of scandal onto existing claims. One, the “Filegate” case brought in 1996, claims damages on behalf of a class of political appointees from the Ronald Reagan and the first George Bush administrations, who say that their FBI files were taken and misused in the early days of the Clinton White House. In that case, Alexander v. Federal Bureau of Investigation, Judicial Watch discovered that thousands of White House e-mails it was seeking were missing and had not been reviewed by Clinton staffers in the course of discovery. Under Clinton, the Justice Department responded that computer glitches and management failures had caused the snafu, but that there had been no intent to withhold information. But Klayman still wants information from former administration officials and from former First Lady Hillary Rodham Clinton, whose deposition he is demanding. The other case concerns Klayman’s allegation that under the late Commerce Secretary Ron Brown seats on trade missions abroad were, in effect, sold to big Democratic contributors. The current issue before Lamberth in Judicial Watch v. U.S. Department of Commerce is whether the Commerce Department complied in good faith with Klayman’s Freedom of Information Act requests for documents about the trade missions. Lamberth has already ruled that key documents were intentionally withheld by Commerce. In the Clinton years, Justice litigators denied that anything that responded to Klayman’s requests was held back. The Bush administration has not yet decided what approach it will take on these scandal-related cases. Charles Miller, a Justice Department spokesman, says it’s far too early, since no top officials other than Ashcroft are in place at the department. At the U.S. attorney’s office in D.C., Mark Nagle, head of the Civil Division, says through a spokesman, “The focus remains the same. We are still in the discovery phase. Nothing will change as a result of the change in administration.” Some of the attorneys involved in the litigation essentially agree with Nagle. Lawrence Robbins, a partner at the D.C. office of Chicago’s Mayer, Brown & Platt, is representing his partner, former Commerce Secretary Mickey Kantor, in Klayman’s case against the Commerce Department. “The bulk of what government does, does not change with the administration,” Robbins says. “What the attorney general will probably do is to say, ‘I may or may not like what the Clinton people did, but I also know that whatever I do will have implications not just for this case but for every case.’ And thank God that people do think that way.” But others are not so certain. Sherman Cohn, an ethics professor at the Georgetown University Law Center who is not involved in the litigation, takes a different tack. He thinks that whatever they say, political appointees will inevitably act politically in political cases. “Look at it from the client’s standpoint,” says Cohn. “If you are [ex-White House lawyer] Bruce Lindsey, for example, would you want to be represented by John Ashcroft? Would you have confidence in your own lawyer? If it were I, I would not. How would I know how zealous he would be on my behalf?” But one D.C. lawyer who has had experience litigating against Klayman says it’s important not to count out the influence of the permanent staff at Justice. “My sense is that the career lawyers at Justice will at some point send Ashcroft a signal. They will make it known to him that Klayman’s allegations ought not to be taken seriously,” says this lawyer. “And I think they’ll be vocal enough in their condemnation of his antics that they’ll prevent any association or collaboration with him.” Both the Filegate and the Commerce Department cases are approaching key decision points as the new administration begins. In Filegate, Judge Lamberth presided over six months of on-and-off hearings last year. He was testing not the original basis of the suit regarding the FBI files but the problems with the White House e-mails that Klayman is seeking in the belief that they contain data relevant to various Clinton scandals. On Jan. 9, Klayman filed a motion with Lamberth to hold the Clinton White House and “involved individuals” in it in criminal contempt for misconduct concerning what he calls the “e-mail scandal.” That motion is pending. The Commerce case is also heating up. In a Dec. 5, 2000, opinion, Lamberth noted that he had long ago found that the department “had illegally destroyed and removed many responsive documents from its custody.” He continued to express skepticism about the government lawyers’ claims. While the judge did turn down several of Klayman’s latest discovery requests, he agreed to let Klayman take the depositions of high-profile figures such as former White House lawyers Lindsey and Cheryl Mills. These depositions are in the process of being scheduled. Klayman says this case “goes into criminal mode now” as well, since he will soon seek contempt orders before Lamberth. Klayman, though, is uncertain what the future will hold for his cases. Lately, Klayman has severely criticized President Bush’s lack of fervor in pursuing alleged vandalism of White House equipment during the transition, and his relatively mild comments about the end-of-term Clinton pardons. “We like Ashcroft but haven’t seen much else that we like in the new administration,” says Klayman. “We hope Ashcroft will exert influence on Bush.”

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