Disputed Tactic Bolsters Defense Behind Clinton

WASHINGTON — President Clinton has publicly pledged to cooperate with the investigation of his dealings with a former White House intern--but that has not prevented him from utilizing one of the best tools available to those who find themselves the target of a criminal investigation.

Lawyers representing Clinton have negotiated what are known as “joint defense” agreements with others involved in the case. In effect, the lawyers for at least some of the subjects of independent counsel Kenneth W. Starr’s investigation have agreed to form what is akin to a joint defense team.

The arrangements have provided Clinton with detailed knowledge of testimony Starr has gathered, helping the White House anticipate and parry the prosecutor’s moves, according to people familiar with the matter.

Already, lawyers representing the president are saying privately that they expect Starr to challenge their deployment of the joint defense agreements as he investigates whether Clinton had an intimate relationship with Monica S. Lewinsky and encouraged the former intern to cover it up.

The joint agreements have enabled the president’s defense team to learn, for example, what questions were posed and what answers were provided during recent appearances by several Clinton aides before a federal grand jury. Indeed, those witnesses--including the president’s personal secretary, Betty W. Currie, and a longtime White House steward, Bayani B. Nelvis--hired Washington lawyers who were suggested to them by the president’s legal team, according to Clinton administration officials.

Experts agree that joint defense agreements invariably make it more difficult for authorities to “flip,” or obtain the cooperation of, a target who otherwise might provide incriminating information against an associate in the hope of avoiding prosecution or a stiff prison sentence.

“Basically, the joint defense agreement is an attempt to avoid the divide-and-conquer strategy of the government in criminal cases,” said Milton C. Regan, a former defense attorney who specializes in legal ethics at Georgetown University Law School.

Joint defense agreements effectively extend the privilege that protects the confidentiality of communications between a lawyer and his client. At a minimum, the arrangements generally allow lawyers representing the targets of criminal investigations--be they drug dealers, Wall Street executives or Clinton and certain of his aides--to exchange information in a manner that will stay beyond the reach of prosecutors.

“Our communications are protected,” said one lawyer who is involved with the defense of the president. “And that’s obviously a key part of it, because you want to be able to exchange some candid views without the problem of” opening the defense lawyers to questioning under oath by prosecutors.

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Proponents of joint defense agreements say the accords help the pursuit of justice because they allow attorneys for targets or certain witnesses to exchange information, enabling their respective clients to deliver more accurate testimony.

Proponents also say the arrangements help level the playing field for defendants who typically face unified government investigations in which information flows freely among case agents and prosecutors.

Skeptics, notably prosecutors, say that joint defense agreements embolden wrongdoers to stand firm and to calculate their strategies with enhanced knowledge of whether their version of an event could be contradicted by a collaborator or any other witness.

“It’s a way to stonewall an investigation,” said John C. Gibbons, a former Justice Department prosecutor. “These agreements are usually to circle the wagons--and they’re used to protect those [targets] who are the most culpable and the most powerful. They can amount to a conspiracy backing up the conspiracy you’re trying to prosecute.”

Said Jane C. Sherburne, a former Clinton White House lawyer who has returned to private practice in Washington: “A lot of prosecutors get frustrated with the consequences of effective joint defense work.”

Indeed, prosecutors often seek--with occasional success--to challenge the legitimacy of such agreements, which can be written or oral. Generally, judges have held that a joint defense agreement is valid only where participants have a demonstrable “common interest.”

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It will be up to the lawyers representing Clinton to establish the president’s common interest with the various aides whose lawyers are participating in the joint defense approach. Currie, for instance, was the gatekeeper to the Oval Office and often authorized Lewinsky’s many visits to the White House.

Prosecutors are seeking, among other things, to determine Currie’s knowledge of Clinton’s dealings with Lewinsky; whether the president or one of his closest aides encouraged Currie to retrieve from Lewinsky gifts the intern had received from Clinton; and Currie’s familiarity with how Clinton’s trusted advisor, Vernon E. Jordan Jr., came to provide Lewinsky with a Washington defense lawyer and land her a job offer with a private company.

Jordan, in his only public comments on the matter, said last month: “Ms. Lewinsky was referred to me by Ms. Betty Currie.”

Starr is also trying to determine whether Clinton or Jordan, possibly with the help of others, encouraged Lewinsky to lie when she signed a sworn statement last month denying a sexual relationship with the president. Lewinsky signed the statement as her testimony was being sought by lawyers representing Paula Corbin Jones, the former Arkansas government employee who is pressing a sexual-harassment lawsuit against Clinton.

To keep intact the legal protections offered by the joint defense agreement, experts said Clinton’s lawyers could argue that the president and Currie have a “common interest” because both might be exposed to obstruction-of-justice charges.

However, lawyers noted that the president’s common interest with others, including Nelvis, the White House steward, is not so apparent. Nelvis was subpoenaed to testify before the grand jury, ostensibly because he has worked in close proximity to the Oval Office and was positioned to observe the arrivals and departures of Clinton’s visitors.

Those familiar with the investigation said they expect Starr may force a judge to rule on the legitimacy of the president’s joint defense arrangement with Nelvis. If pressed by Starr, Clinton’s lawyers would have to establish the president’s common legal interest with the steward, experts said.

A related showdown between Starr and Clinton’s defense is expected to arise because of the president’s use of government-paid White House lawyers to assist his private lawyers, David E. Kendall and Robert S. Bennett.

Last year, the St. Louis-based U.S. 8th Circuit Court of Appeals held that notes taken by government lawyers in connection with one aspect of Starr’s Whitewater investigation could not be shielded by the attorney-client privilege.

And, the U.S. Supreme Court, in a 9-0 decision, declined to hear the administration’s appeal of the 8th Circuit’s ruling. Starr obtained the notes.

Yet from the outset of the controversy regarding the former intern, Clinton has relied on both his private and public lawyers, notably White House Counsel Charles F.C. Ruff and his deputy, Lanny A. Breuer, to carry out details of the joint defense strategy.

Those familiar with Clinton’s defense said the president’s lawyers welcome a fight on this front and would hope for a favorable decision from the Washington, D.C., Circuit Court of Appeals.

Moreover, any delay the president’s lawyers can impose on Starr’s investigation buys Clinton important time. If Starr ultimately presents the findings of his investigation to Congress, even members who believe the president committed “high crimes and misdemeanors” may be less willing to vote for impeachment if he has just two years or so left in his term.

Still, Clinton’s decision to use government lawyers in service of his joint defense approach is viewed by some as perilous.

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“I’m sympathetic to it [Clinton’s use of a joint defense agreement], I think the president is entitled to the best defense he can get,” said C. Boyden Gray, who was White House counsel under President Bush, adding:

“But the problem is, these are government lawyers, and the taxpayers shouldn’t be funding his defense. . . . They are waiving the attorney-client privilege once the White House counsel [gets involved].”

White House officials, speaking on condition of anonymity, said they are confident of prevailing.