May 7, 1998
ESSAY / By WILLIAM SAFIRE
'U.S. v. Clinton'
ASHINGTON -- Thanks to a leak from "lawyers familiar with the decision,"
we think that a judge has found President Clinton's attempt to place himself
above the criminal law to be unconstitutional.
Yet Federal Judge Norma Holloway Johnson will not let us hear the arguments, or see
the briefs, or even read her decision.
The result is government in darkness. An unconscionable veil of secrecy, largely
approved by an appeals panel, obscures this constitutional clash.
Why aren't constitutional scholars on the march, firing off faxes to argue pro and con?
What happened to law schools and think tanks? They have been information-starved
into submission. When news about great controversies is suppressed, no informed
debate is possible.
Clinton does not want his grab for "executive privilege" to be seen, and judges are
mistakenly allowing him to cloak his usurpation of power under the umbrella of "grand
jury secrecy." Federal Rule 6(e) -- with not even the weight of a statute -- shoulders
aside the First Amendment.
Here is Clinton's political-legal strategy: Do anything to delay investigations until after
midterm elections.
The White House hope is that November will see a switch of a dozen seats in the
House of Representatives, giving Democrats control. If a lockstep partisan like John
Conyers were to replace Henry Hyde as House Judiciary chairman, not even a
Presidential beer-hall putsch would trigger an impeachment inquiry.
Clinton's strategy of delay accounts for his seemingly mindless grasping for new
privileges. Though he loses cases, he wins time.
He first tried to assert "executive privilege" to put his aides out of reach of the law, but
before an appeals court could deny that, he switched to "attorney-client" privilege. The
courts held that government-paid lawyers worked for the people, not the First Lady,
and the Supreme Court refused Clinton's plea to overturn that ruling.
Then Clinton fell back on executive privilege with a new twist: asserting the power of
aides to claim executive privilege about his personal affairs without his knowledge.
He even disclaimed responsibility by pretending publicly to be wholly ignorant of it.
That cover-up power is what was turned down in a sealed court decision this week, if
the leak is accurate. But Clinton's maneuver accomplished its mission, causing two
months' delay, with appeals likely to take months more.
An even more outrageous claim -- "protective privilege" -- is being concocted to shut
down testimony from Secret Service bodyguards. On that theory, a guard seeing
Spiro Agnew taking cash payoffs could not have reported the crime -- as the law
requires all Federal officers to do -- lest the executive being protected lose assurance
of Secret Service discretion.
The courts will knock down that absurd claim, too. In the 1972 Branzburg decision,
Justice Byron White wrote for the Supreme Court about "the public right . . . to every
man's evidence" -- which applies to journalists, when no other way of getting evidence
is available. But Clinton finds no claim too wild if it buys him time to get to November.
His pettifogging filibuster has two dangers. One is the titling of any of these claims if it
is taken to the Supreme Court. His spinmeisters want to avoid a case called "U.S. v.
Clinton," so damaging to the White House when a similar cover-up was labeled "U.S.
v. Nixon." That's why Ken Starr, who wins appeals, is likely to short-circuit the
appellate process and ask the highest court to intervene expeditiously. (It has agreed
to move speedily in the case of "dead man's privilege" claimed by Vince Foster's
lawyer.)
The bigger danger is to the Presidency. Comity among the branches of government
expresses respect for powers the Founders separated carefully but not absolutely.
Deference is due the executive in national security affairs, the judiciary in criminal
cases, the legislature in oversight.
By pressing to set impossible precedents, Clinton selfishly stresses our system. He
forces the other branches to weaken the Presidency lest an overreaching President
weaken them. History will not soon forget him for that.
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