Rule of Law
A Privileged Executive?
By JOHN C. YOO
James Madison wrote that a "popular Government, without popular
information, or the means of acquiring it, is but a Prologue to a Farce or a
Tragedy, or perhaps both." Reports that President Clinton may invoke
executive privilege to block the investigation into the Monica Lewinsky
affair have elements of both.
Some might question whether the investigation has gone too far, while
others might argue that the White House is seeking to delay matters in
court. Nonetheless, Clinton opponents and supporters alike must question
the president's decision to risk the authority and prestige of the presidency
on such weak claims, which will only undermine the ability of future chief
executives to act secretly when the national interest demands it.
Ms. Lewinsky, as we all know, is now the most famous alumna of the
White House intern corps. Mr. Clinton is suspected of having urged Ms.
Lewinsky to lie about their affair when she was questioned during the
Paula Jones proceedings. If these charges are true, Ms. Lewinsky may
have committed perjury and Mr. Clinton may be guilty of suborning
perjury and obstruction of justice.
Independent counsel Kenneth Starr wishes to question Bruce Lindsey,
Mr. Clinton's close friend and senior adviser, before a grand jury about
discussions Mr. Lindsey had with the president on these matters. A claim
of executive privilege would prevent the grand jury from hearing Mr.
Lindsey's testimony. Executive privilege refers to the president's right to
withhold records of both presidential communications and internal
executive branch deliberations from the federal judiciary, Congress and the
public.
Although the legal historian Raoul Berger has dubbed the privilege "a
constitutional myth" because it is nowhere mentioned in the Constitution,
the right of executive secrecy has been established by long historical
practice, beginning with George Washington's decision in 1794 to withhold
from the Senate diplomatic communications with France. Presidents since,
including Jefferson, Madison, Jackson, Polk, Lincoln, both Roosevelts,
Truman, Eisenhower (whose administration created the phrase "executive
privilege") and Kennedy have invoked the power to keep internal
executive branch communications secret from congressional inquiries.
These uses of the privilege typically involved documents and
communications related to diplomacy, national security and law
enforcement, and were generally honored by Congress.
It was not until the presidency of Richard Nixon, who sought to withhold
taped discussions related to the Watergate coverup from a special
prosecutor, that the issue of executive privilege required the intervention of
the Supreme Court. In the famous case of U. S. v. Nixon, the court for the
first time recognized the existence of executive privilege.
The justices declared that in the spheres of military, diplomatic or national
security secrets, the president's claim to confidentiality was most likely
absolute. But when the president relies upon a "broad, undifferentiated
claim," executive privilege must be balanced against legitimate claims to the
information by the other branches of government, such as the judiciary and
the criminal justice system. In order to maintain "our historic commitment
to the rule of law" and to ensure the constitutional functioning of the
criminal justice system, the Nixon court found that the "demonstrated,
specific" need for the Watergate tapes in a criminal trial outweighed the
president's need for candor and confidentiality in his communications with
his assistants. The court's decision was unanimous.
As interpreted by the lower courts, the lesson of Nixon is that as long as
prosecutors can show that non-national security information contains
important evidence, and that the information is not available elsewhere,
claims of executive privilege will fail. A typical example would be one in
which a White House official is being investigated for criminal
behavior--the example given by Judge Patricia Wald of the U.S. Court of
Appeals for the D.C. Circuit in the opinion she wrote last year on an
executive privilege claim in the investigation of former Agriculture
Secretary Mike Espy. This is the court where any appeal in the Lewinsky
affair would arise.
Mindful of the extraordinary step of keeping information secret in a
democratic government, presidents since Nixon have been wary of
resorting to executive privilege. Presidents Ford, Carter and Bush formally
raised the privilege only once each, and President Reagan three times in
two full terms. In less than 11/2 terms, Mr. Clinton has claimed executive
privilege at least six times, four times before Congress and twice in court.
Like the boy crying wolf, Mr. Clinton's regular use of the privilege
threatens to dilute its effectiveness for future presidents on matters of true
national importance.
Furthermore, Mr. Clinton's attempt to extend the privilege to matters
involving claims of personal sexual misconduct has little foundation. As the
D.C. Circuit held in the Espy case, "the privilege only applies to
communications that [presidential] advisers and their staff author or solicit
and receive in the course of performing their function of advising the
President on official government matters." Mr. Clinton's relationship with
Ms. Lewinsky may have been many things, but it hardly constitutes "official
government matters."
In response, Mr. Clinton's lawyers might argue that even if the president's
relationship with Ms. Lewinsky were not official government business,
discussions concerning the investigation arising from it are. Similar thinking
led Mr. Clinton to claim presidential immunity from the Paula Jones suit
and to argue that he could employ government lawyers to work for him on
the Whitewater investigation--both private matters that occurred before he
became president. Both claims were unsuccessful. Similar reasoning would
have allowed Nixon to succeed in his claims of executive privilege over the
Watergate tapes; after all, he was just discussing official government
responses to the Watergate investigation.
A decision to invoke executive privilege in this case would be yet another
example of the Clinton administration's failure to understand the distinction
between the office of the president and the person who happens to be the
president. In democracies, we distinguish between a public office and the
person who holds that office; people for whom the office and the person
are one and the same are called kings.
Mr. Yoo, who served as general counsel to the Senate Judiciary
Committee in 1995-96, is an acting professor at the Boalt Hall School
of Law, the University of California at Berkeley. He was once a
White House intern.
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