"The worst is yet to come"
WSJ Editorial - March 24, 1998
William Milhous Clinton
So William Jefferson Clinton becomes the second President
in history to invoke executive privilege against a subpoena from a grand jury
probing possible crimes in the White House. This is a sure sign that, despite
the Monica-sex furor of past weeks, the worst is yet to come.
To take the issue of executive privilege first, the White House has just
set itself up for a series of courtroom defeats. Yes, executive
privilege does exist, invoked most often in political tussles with
Congress with the courts as referee. Resisting a criminal investigation
is another matter, as President Nixon found in the Watergate scandal.
U.S. v. Nixon was a unanimous opinion written by Chief Justice
Berger and with Justice Rehnquist recused. It respected
confidentiality to the extent of providing in camera inspection of the
subpoenaed tapes and documents. But it flatly rejected an executive
privilege from court subpoenas "absent a claim of need to protect
military, diplomatic or sensitive national security interests."
Today President Clinton is seeking to protect
conversation on his personal behavior with top aide
Bruce Lindsey and--hold your breath--top hit man
Sidney Blumenthal. Independent Counsel Kenneth
Starr's subpoena to Mr. Blumenthal has been
condemned in the press as a mistake, but the big
whispering campaign against Mr. Starr's office did
stop. And the executive privilege claim now raises
an issue of whether the press was overly credulous
in accepting Mr. Blumenthal's breathless account of
what happened in the grand jury room. It will also
be interesting to learn whether this frivolous claim
was signed by the President personally, as has been
customary in executive privilege cases. The argument will win delay, but in
all likelihood at the expense of a string of rebuffs in court.
The Administration has also discovered an entirely new privilege,
Secret Service privilege, contending that agents can't protect a
President if they feel they may be questioned about his possibly
criminal acts. If the President out of boredom or madness decides to
rob a bank, the supposed logic runs, Secret Service agents should
protect him from the guards. This too is a sure loser. The most
interesting question concerns Treasury Secretary Robert Rubin, who
commands the Secret Service; will the Administration's last white hat
get spattered by the Clinton muck?
The Starr investigation ticks away, under a statute instructing the
independent counsel to report to the House if impeachable offenses
"may" have been committed. A report on Lewinsky et al. clearly
impends, no doubt focusing on Presidential perjury and attempts to
suborn perjury and obstruct justice. Fresh sexual embarrassments
may be disclosed, but more important, the raw scandal has allowed
prosecutors to penetrate the pattern of stonewalling that has kept
them from connecting the dots on more substantive matters. Proof of
obstruction over Lewinsky would be important evidence on such
issues as the vindictive Billy Dale prosecution or hush money for
Webb Hubbell.
Clinton mouthpiece Bob Bennett hopes to end the President's
troubles with something that can be spun as a "win" in the Paula
Jones case. In fact, Mr. Bennett is going the wrong way on a
one-way street created when Judge Susan Webber Wright ruled that
the Lewinsky material can't be introduced. If Mrs. Jones wins, she
wins. If she loses, either on summary judgment or on trial, her
appeals will keep Monica in the headlines another couple of years.
Even Judge Wright conceded the Lewinsky material was relevant,
but barred it to prevent Mrs. Jones's lawyers from interfering with the
Starr investigation. The sweeping ruling was far more than Mr. Starr
asked for, and will do anything but bring the case to a speedy
conclusion. Given any opportunity to avoid likely reversal on so
spectacular a case, Judge Wright would be wise to think again.
A new independent counsel now takes the
field, with Carol Elder Bruce named to
investigate decisions on Indian casinos by
Interior Secretary Bruce Babbitt, also a
former white hat. While the initial focus of the
inquiry is whether Secretary Babbitt lied to
Congress, the most interesting line of
questioning concerns a conversation between
an involved lobbyist and President Clinton,
with apparent follow-up by Mr. Lindsey and
Harold Ickes. Both Janet Reno's request and
the Special Division charter, however,
include the phrase "whether any violation of
federal criminal law occurred" in conjunction with the decision.
Knowledgeable lawyers say this gives Mrs. Bruce plenty of latitude
to look at the President's own involvement.
Attorney General Reno has asked for more time to study whether
another independent counsel should be appointed concerning
allegations that Labor Secretary Alexis M. Herman illegally accepted
cash to help business interests while she served as a White House
aide. Five independent counsels have already been appointed to
investigate high Clinton Administration officials, and Mr. Starr's
mandate has been expanded at least three times.
The Justice Department campaign-finance probe is showing life under
prosecutor Charles LaBella, who has now indicted Charlie Trie and
Maria Hsia and won a plea-bargain cooperation agreement from
Johnny Chung. Mr. LaBella is winning respect from Clinton
investigators in Congress, but he operates under guidelines from
Justice's Public Integrity division. At one point the Washington Post
reported that the guideline meant investigators couldn't ask whether a
crime had been committed by higher officials covered by the
independent counsel act. Senator Hatch or Congressman Hyde
should ask Mr. LaBella whether he can question Mr. Chung or Mr.
Trie about Presidential actions, or whether an independent counsel is
needed after all.
Those with a sense of the torrent of troubles headed toward the White
House keep asking themselves, what will happen? The White House tactics
will both win delay and dig deeper problems. The economy is good, and
even President Nixon's poll ratings held up well enough until the tapes were
discovered. Presidents should not resign easily, and we further doubt that
Mr. Clinton has the residue of conscience that led Mr. Nixon to leave when
the time came. But the Presidency is weakened, and will be weakened
further. The closest parallel may be President Woodrow Wilson, who spent
nearly the last 18 months of his tenure bedridden after a stroke. Efforts to
protect him from anxiety left Presidential decisions to his wife.
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