Many aspects of the current battle in Washington between President Clinton and Kenneth Starr are eerily reminiscent of the last days of Richard Nixon. The present bunker mentality at the White House; the president being named as a passive co-conspirator to obstruct a congressional investigation (1); an impeachment inquiry before the House Judiciary Committee; administration claims of improper behavior by the Independent Counsel; and hints by the IC that the President may be engaging
in obstruction of justice all give one the feeling of deja vu. Making the comparison almost perfect were statements by the Clinton Administration last week that it may invoke executive privilege to shield itself from Starr's investigation. However, such claims are unlikely to be more successful this time than they were in 1974.
On March 1, 1974, a federal grand jury in Washington D.C. returned indictments against former Attorney General John Mitchell and six other people, alleging conspiracy and obstruction of justice. The grand jury also named President Nixon as an unindicted co-conspirator. Special Prosecutor Leon Jaworski then sought a subpoena duces tecum, ordering Nixon to turn over tape recordings of conversations with certain advisors. Nixon released transcripts of several of the conversations but declined to surrender any more materials. Presidential counsel James St. Clair then moved to quash the subpoena, claiming the controversy was nonjusticiable and the conversations were protected by executive privilege.
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In U.S. v. Nixon, 1974, the Supreme Court ruled on the President's claims. The opinion states that "[n]o [previous] holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential presidential communication for use in a criminal prosecution." Nixon's counsel offered two arguments to the court to support the claim of privilege. The first rested on "the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties." The second rested on the doctrine of separation of powers. Nixon claimed, in effect, that each branch of the government was supreme in its own sphere. The implication was that since the executive was supreme with regard to its functions, courts had no power to enforce subpoenas for information from the executive.
In a unanimous 8-0 opinion (Rehnquist took no part in the case), the Court recognized a presumptive executive privilege of the President. This elevated the privilege, which had been claimed by presidents since George Washington, from a common law privilege to a constitutional one. However, the court clearly rejected Nixon's claim that the privilege is absolute. Rather, the President's claim will stand unless the opposing party can state a claim of need sufficient to override it.
What would constitute an overriding claim? The Court was quite clear that the judiciary's responsibility to do justice in criminal prosecutions is such a claim. As the Court said: "[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgements were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and publicconfidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To insure that justice is done, it is imperative to the function of the courts that compulsory process be available for the production of evidence by the prosecution or the defense."
The Court did recognize that certain presidential documents or discussions might be so sensitive that they should be exempted even from a criminal case. The Court specified what type of information might merit such exemption: "military, diplomatic, or sensitive national security secrets." But the Court indicated that even these materials had to be turned over to the presiding judge in the case for an in camera inspection. Stated differently, the judge is to examine the materials in the secrecy of his chambers and return those to the President which met the threshold for exemption.
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The Court concluded that: "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."
On February 6 the Associated Press ran a story about President Clinton's potential claim of privilege, quoting several experts in constitutional law. Two of those experts indicated that the claim of privilege might prevail over Starr's attempts to question White House aides about conversations they had with the
President about Monica Lewinsky. Given the Court's specific, repeated statements in U.S. v. Nixon that generalized claims of privilege cannot prevail in criminal proceedings, it is difficult to imagine upon what these experts based their opinions.
We might get a clue from Maureen Dowd's February 4 New York Times editorial entitled "Undercover Advisor." Ms. Dowd speculated on attorney William Ginsberg's statement to Barbara Walters that Bill Clinton and Monica Lewinsky spent so much time together because they were "colleagues." Ms. Dowd made the tongue-in-cheek remark that Monica had been transformed from a mall rat to a policy advisor. If so, Monica could have been advising our President on what to do about Saddam Hussein. In that case it is easy to see how his conversations with the former intern - and subsequent conversations with his advisors about their meetings -- could be covered by executive privilege. Perhaps that is what
the constitutional experts were thinking.
(1) See last week's Washington Weekly: "A String of Indictments in Chinagate Scandal"
Wesley Phelan is Associate Professor of Political Science at Eureka College. Dr. Phelan teaches Constitutional Law and American Government.] Published in the Feb. 9, 1998 issue of The Washington Weekly Copyright 1998 The Washington Weekly http://www.federal.com