Reprinted from The Washington Times , 5am -- March 24, 1998
Rancor grows over invoking privilege
By Bill Sammon
THE WASHINGTON TIMES
President Clinton's refusal to say whether he has invoked executive privilege to shield his wife and aides in the White House sex-and-lies probe is an unprecedented maneuver that adds a new level of secrecy to an already shrouded scandal.
Although sources close to the administration have said Mr. Clinton has decided to formally invoke the refuge, the White House yesterday refused to confirm that the president has actually signed a document asserting privilege for first lady Hillary Rodham Clinton and aides such as Bruce Lindsey, Sidney Blumenthal and John Podesta.
The attempt to shield Mrs. Clinton, first reported yesterday by NBC News, was immediately savaged by Rep. Bob Barr, a member of the House Judiciary Committee and an early advocate of impeachment proceedings.
"This claim is absolutely ridiculous," said Mr. Barr, Georgia Republican. "There is simply no other word for it. Despite what she may think, the first lady is not an elected official. Hillary Clinton has not been elected or appointed to represent one single American voter and has absolutely no basis upon which to claim executive privilege."
Former federal prosecutor Victoria Toensing added: "I don't remember her being on the ballot. Who's next --Socks?"
Meanwhile, Monica Lewinsky's father said yesterday that executive privilege will only prolong his daughter's isolation. "The longer this delays, the more difficult it becomes," Dr. Bernard Lewinsky told the Associated Press.
White House spokesman James Kennedy defended Mr. Clinton's decision to stay mum about whether he has invoked the privilege to conceal conversations about the scandal from independent counsel Kenneth W. Starr.
"Our position is that the sealed nature of the proceeding precludes us from commenting in any way on it," Mr. Kennedy said.
But legal scholars said the secrecy ordered by U.S. District Judge Norma Holloway Johnson, who is overseeing the grand jury, does not prevent Mr. Clinton from publicly revealing whether he has formally invoked the privilege.
"The mere stating that you have invoked it does not violate any of the rules surrounding grand jury proceedings," said Robert Alt, adjunct fellow at the John M. Ashbrook Center for Public Affairs at Ashland University in Ohio. "There's no way the judge would have told him to be silent on this question.
"But in addition, I think it's a true disservice to the public not to make them aware of this fact," said Mr. Alt, who writes on legal issues for the center. "If the president is trying to cover up that he is invoking executive privilege, this truly raises some ugly specters: What is it that he's trying to pull? What is he trying to carry out behind closed doors here?"
Aside from the inevitable comparisons to Richard Nixon, who invoked executive privilege in a failed bid to prevent release of the Watergate tapes, there is another reason why Mr. Clinton might be leery of admitting he has resorted to the politically charged defense: It would lead to more scrutiny of the claim's merits.
Many legal experts doubt that conversations about the sex-and-lies scandal would be covered by a claim of executive privilege, which historically has been reserved for the administration of federal law and the formulation of federal policy.
"The White House itself recognizes that this is an extraordinary stretch and that it is embarrassing to try and defend the indefensible," said Pepperdine University law professor Douglas Kmiec, who headed the Justice Departmentīs office of legal counsel during the Reagan administration.
"To suggest that you are duty-bound not to talk about an invalid privilege claim is to just lay error upon error and to extend an illegitimate claim to even greater levels of illegitimacy," Mr. Kmiec said. "It is entirely unprecedented. There is no established presidential practice of secrecy about asserting secrecy."
University of Pittsburgh law dean Peter Shane, an expert on presidential power, said Mr. Clinton's reported attempt to shield his wife behind executive privilege could open up a new legal battleground. Mrs. Clinton is believed to be playing a key role in directing damage control in the scandal.
"It may be that what [Mr. Clinton] wants to do is make sure, for at least these purposes, Hillary counts as an aide," Mr. Shane said.
While private conversations between the president and his wife would likely be protected by spousal privilege, Mrs. Clinton's talks with aides such as Mr. Lindsey might be fair game for Mr. Starr unless the White House can successfully argue that Mrs. Clinton functions as another presidential aide.
Failure of that argument might result in even more evidence for Mr. Starr. If Mrs. Clinton is ruled to be a private citizen, any third-party participation she might have had in talks with her husband and his aides would invalidate claims of executive privilege that might otherwise apply if she had not been present, Mr. Shane suggested.
The White House has hired a private attorney, Neil Eggleston, to handle the executive privilege aspect of Mr. Clinton's defense. Some say this demonstrates the weakness of the president's claim of executive privilege, which would normally be handled by Attorney General Janet Reno.
"Even Attorney General Reno, it seems to me, has caught up on this question," Mr. Kmiec said. "For a long time, she was being brought into privilege assertions after the fact to kind of ratify decisions made by [then White House Counsel] Jack Quinn or others in the Clinton administration.
"But she's dropped out of this one altogether," Mr. Kmiec said. "She's basically told the White House, 'If you want to assert executive privilege, you better go get private counsel.' And that in itself is a dramatic illustration of how the interests of the United States government are not implicated by this assertion of privilege.
"Because if, in fact, the interests of the office of the presidency were at stake, it would be outrageous for the attorney general not to supply counsel and not to be aggressively defending the assertion of privilege. But because it relates to a private, personal concern, dealing with personal malfeasance, the only lawyer available to them is a criminal defense lawyer."
Copyright 1998 News World Communications, Inc.
Reprinted with permission of
The Washington Times.
To subscribe to the Washington Times National Weekly Edition, click this icon or call 800-363-9118.
