Last week President Clinton sent forth his lawyers to try to prevent two aides from being forced to testify on certain matters before a grand jury empaneled by independent prosecutor Kenneth Starr. In closed oral arguments in federal court, they reportedly raised the doctrine of “executive privilege” as well as the attorney-client privilege, claiming that the president and the first lady have a right to keep secret conversations with these aides about Monica Lewinsky and other matters being investigated by Starr.
Clinton is the first president since Richard Nixon to invoke executive privilege as a shield for such conversations. Nixon had the excuse that at the time, the nature and scope of the privilege had yet to be established definitively by the Supreme Court. Clinton has no such excuse for trying to hinder and delay the investigation through a tactic that ultimately is almost certain to fail. From now on, he has to share the blame with Starr for dragging this investigation out so long.
The two aides are deputy White House counsel Bruce Lindsey and adviser Sidney Blumenthal, who have advised the President on the Paula Jones lawsuit and the Lewinsky controversy. Though it is not known what questions they declined to answer when they were called before the grand jury, it’s hard to believe the courts will accept Clinton’s expansive conception of executive privilege.
The Supreme Court’s 1974 decision did say that the courts must respect the chief executive’s need for confidentiality in discussions with his subordinates about his constitutional responsibilities, particularly in matters involving military and diplomatic secrets. But it emphasized that in virtually all other cases, the search for truth in the criminal justice system must take priority. The matters being investigated by Starr, of course, have nothing to do with the president’s official duties, much less with national security.
The attorney-client privilege is another unlikely refuge for the president. Just last year, the Supreme Court refused to overturn a federal appeals court ruling that it applies only to any personal attorneys employed by the president or the first lady–which Lindsey, a government employee, is not.
Clinton does have the right to make even dubious legal claims in trying to keep the truth from emerging. In Nixon’s time, that approach was known as stonewalling. As Nixon could have told Clinton, it was a failure not only as a legal strategy but also as a political one.
