Presidential Evasions
Landmark Legal Foundation
July 1998 Mark Levin
So far, Mr. Clinton has lost every constitutional argument he has taken to the courts. The United States Supreme Court rejected Mr. Clinton's assertion of civil immunity in the Paula Jones sexual assault lawsuit. The Eighth Circuit Court of Appeals rejected Hillary Clinton's attorney-client privilege claims, forcing her to give Independent Counsel Kenneth Starr notes taken by government lawyers who were improperly representing her in the Whitewater investigation. The Supreme Court rejected the Clintons' request to even hear the case on appeal. A federal district judge ruled against Mr. Clinton's expansive claims of executive privilege and attorney-client privilege, which were asserted by Mr. Clinton to prevent his top aides from testifying before a federal grand jury. Mr. Clinton has now appealed those rulings. And the same judge refused to recognize the Clinton administration's newly fabricated privilege, the so-called Secret Service Protective Function Privilege. This, too, has been appealed by Mr. Clinton.
The presidency Mr. Clinton envisions for himself would be vastly different than the presidency he inherited when he took office, and vastly different from the office created by the Founding Fathers. A president would be immune from civil litigation involving allegations of personal misconduct that took place before he came to office. He would be free to use his government lawyers for personal legal matters. He would be free to claim a new attorney-client privilege preventing those same government lawyers from cooperating with federal investigators. A president would be free to assert executive privilege to prevent his top staffers from telling grand juries and trial juries about illegalities they may have witnessed. And even Secret Service agents and uniform officers would be part of a president's obstruction team.
For wholly personal reasons -- that is, to protect himself from civil allegations and criminal investigations of wrongdoing -- this president has sought to transform the presidency into a truly imperial office. But the most disturbing evidence of Mr. Clinton's arrogance will come in the weeks and months ahead, when the American people are faced with the spectacle of Mr. Clinton attempting, yet again, to use his official powers to thwart a criminal investigation of his personal misconduct.
Yesterday's Washington Post suggests that the president, who has already refused six times to testify voluntarily before a grand jury investigating the Lewinsky-Clinton scandal, will not comply with a subpoena compelling his testimony, should one be issued. Moreover, if subpoenaed, Mr. Clinton will reportedly claim that, as president, he cannot be subpoenaed against his will because he cannot be indicted. And a court cannot enforce the subpoena under the separation of powers doctrine because it lacks the authority to punish him - such as holding him in contempt and sending him to prison.
In United States v. Richard Milhouse Nixon, the Supreme Court, in an 8 to 0 decision, rejected President Nixon's executive privilege argument that he was not required to provide subpoenaed tapes to Special Prosecutor Leon Jaworski. The high court ordered Mr. Nixon to turn over the tapes, which he did. They incriminated Mr. Nixon and led to his resignation. Moreover, in Paula Corbin Jones v. William Jefferson Clinton, the Supreme Court, in a 9 to 0 ruling, held recently that Mr. Clinton was subject to certain civil lawsuits while in office. At a minimum, with these two rulings as guideposts, it is difficult to imagine the Supreme Court reversing course and deciding that a president is immune from testifying in a criminal matter involving his own personal conduct. Furthermore, I doubt the high court will realize suddenly that it violated the separation of powers doctrine (and, I would add, Art. III, Sec. 2 of the Constitution - the cases and controversies clause) when, twenty-four years ago, it heard the Nixon tapes case and directed Mr. Nixon to release his tapes to his special prosecutor.
Furthermore, and perhaps most importantly, Mr. Clinton himself has submitted willingly to the judiciary's authority in his disputes with his prosecutor, Mr. Starr, by filing briefs in federal district court, the court of appeals and the Supreme Court opposing grand jury subpoenas for the testimony of top White House officials on executive privilege and attorney-client privilege grounds. Mr. Clinton has never argued in any brief that the court lacks jurisdiction to hear these cases under the doctrine of separation of powers and, therefore, lacks the power to compel his compliance with their rulings.
Apart from Supreme Court precedent, however, the Constitution does not prevent a federal grand jury from indicting a president, or issuing subpoenas to a president. The Constitution gives the president, as head of the executive branch, the power to stop an indictment against himself or to direct its withdrawal. He also has the power to direct the prosecutor to withdraw a subpoena. If the prosecutor refuses to comply, the president can order him fired and find someone who will enforce his directive. The president can also grant himself an unconditional and complete pardon and bar any prosecution altogether. Each of these steps, taken alone or together, risks impeachment.
As a practical matter, the Supreme Court would rely on its own precedent and reasoning if confronted with this dispute. This means that it would hear the case and uphold and enforce a subpoena for Mr. Clinton's testimony. Therefore, this would leave Mr. Clinton with another bad option. He could become the first president to assert a Fifth Amendment right against self-incrimination, which really means that the president of the United States refuses to state the truth under oath. If he "pleads the Fifth," Mr. Clinton would be acknowledging, at least tacitly, that he could be indicted while serving as president, or that the question is unsettled. Moreover, since the Fifth Amendment right against self-incrimination belongs to individuals, and not the office of the presidency, it would become clear that Mr. Clinton is not attempting to protect the presidency but himself.
All of this makes you wonder how much longer this man can remain the leader of a great nation and a great people.
freerepublic.com |
