Reprinted from The Washington Times , 5am -- March 23, 1998
Privilege claim goes against trend
By Bill Sammon
THE WASHINGTON TIMES
President Clinton's claim that his discussions about the White House sex-and-lies scandal are protected by executive privilege stands in stark contrast to waivers of the privilege by Presidents Bush and Reagan during the Iran-Contra scandal.
Historically, presidents have invoked executive privilege only on those rare occasions when the disclosure of presidential communications might undermine national security. After the spectacular failure of Richard Nixon's assertion of the privilege over the Watergate tapes, presidents have been even more reluctant to resort to this politically-charged defense.
"Washington was the first to invoke executive privilege," said Sen. Orrin G. Hatch, chairman of the Senate Judiciary Committee. "He didn't call it that, but it was with regard to foreign policy and diplomacy.
"Jefferson was the first to invoke it with regard to a civil action," said the Utah Republican. "And then in 1948 the Supreme Court upheld that you could have executive privilege, but only in the rarest of circumstances -- where the most important security interests of the country are at stake. "When Nixon tried to invoke it, it was not permitted."
Under fire from congressional Republicans over the weekend, the White House yesterday dismissed criticisms by Senate Majority Leader Trent Lott and others as partisan infighting.
Mr. Lott's remarks "looked like a political statement done for a political purpose," said White House senior adviser Rahm Emanuel on CNN's "Late Edition" yesterday, adding that he was sure Mr. Clinton's legal counsel would "find a way" to work with the office of independent counsel Kenneth W. Starr.
Chief Justice Warren E. Burger, a Nixon appointee, wrote in the 8-0 decision in 1974 that while a president's right to keep White House conversations private "is entitled to great respect," that right is superseded by the need for prosecutors to gather evidence.
"The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the function of the courts," Justice Burger wrote.
The defeat, with the repercussions that followed, led to Mr. Nixon's decision to resign two weeks later. And the episode infused the previously obscure legal strategy of executive privilege with such negative political connotations that both Presidents Reagan and Bush decided against using it during the Iran-Contra hearings.
"Both Ronald Reagan and George Bush waived executive privilege with respect to Iran-Contra, which was much more a question of national security than the president's conduct in the ... private spaces of the White House," said House Majority Leader Dick Armey, Texas Republican, on "Fox News Sunday." "I'm sure there will be a legal test of that. But, it doesn't pass the smell test, in my estimation."
Mr. Hatch, who served on the committee that investigated the Iran-contra affair, agreed.
"Reagan could have invoked executive privilege -- he would have had every right to do so," he said. "But Reagan chose to require every member of his administration they wanted to interview or interrogate to appear and testify."
In 1990, after Mr. Reagan left office, he invoked executive privilege to avoid turning over excerpts from his White House diaries to lawyers for former National Security Advisor John Poindexter, who was charged with obstruction and conspiracy. But days later, Mr. Reagan waived the privilege by agreeing to testify on videotape in Adm. Poindexter's trial.
Although executive privilege affords the greatest protection when it comes to military and diplomatic affairs, it can also shield some information connected to law enforcement investigations. To a lesser degree, it covers certain policy-making deliberations between a president and his aides.
Mr. Clinton is expected to cite this "deliberative process" protection to shield his conversations with aides such as Bruce Lindsey, Sidney Blumenthal and John Podesta about the scandal. The White House has hired lawyer Neil Eggleston to handle the executive privilege aspect of Mr. Clinton's defense.
Mr. Eggleston had successfully invoked executive privilege in an earlier case, arguing the Clinton administration did not have to turn over certain materials in the investigation of former Agriculture Secretary Mike Espy.
That ruling by a U.S. Court of Appeals actually expanded the coverage of executive privilege to include not just a president's direct conversations with aides, but also talks those aides hold among themselves. Yet the court made clear the protection applies only to official governmental matters.
But many legal scholars doubt Mr. Eggleston can prevail in his argument that discussions about a sex-and-lies scandal qualify as official government business.
"I don't care what they say about American citizens -- they're not morons," said Peter Schramm, executive director of the John M. Ashbrook Center for Public Affairs at Ashland University in Ohio. "People will say he's got something to hide."
Former Clinton adviser George Stephanopoulos also questioned the merits of the president's defense strategy. He said Mr. Clinton's argument that scandal talks with his aides are part of his official duties "undercuts his strongest political position."
"The reason the president's in good shape is because people say, 'This is his private life. Let's leave it alone,'" Mr. Stephanopolous said on ABC's "This Week" program yesterday. "The argument for executive privilege is, 'No, this is an official public matter, intimately tied to my duties.' And I think, in the long run, that can undercut his position."
But the president and his aides have been conspicuously quiet about whether Mr. Clinton has formally invoked executive privilege in the current scandal.
The president's attorneys have cited the defense in closed-door arguments with Mr. Starr, who once clerked for Justice Burger. But they refuse to say whether Mr. Clinton actually signed the document bearing those ominous words "executive privilege."
The closest Mr. Clinton has come to addressing the issue was a joke he told Saturday at the annual Gridiron dinner.
"A lawyer and a client walk into a bar," Mr. Clinton said. "The lawyer turns to his client and says ... "
Mr. Clinton hesitated before delivering the punch line.
"No, wait. It's privileged."Copyright 1998 News World Communications, Inc.
Reprinted with permission of
The Washington Times.
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