POLITICS APRIL 13, 1998
President Clinton inspired dark comparisons to Watergate last week when he invoked executive privilege to prevent his aides from testifying before Kenneth Starr's grand jury. His critics are treating the president's claim as proof that he has something to hide. "Not since Richard Nixon tried to withhold incriminating taped evidence--and was forced by the unanimous Supreme Court to respond to the subpoena of a grand jury--has a president presumed to wrap personal wrongdoing in the cloak of official business," William Safire thundered. But, in fact, many of Clinton's arguments about executive privilege are legally uncontroversial: the president's critics have misunderstood U.S. v. Nixon and other relevant cases. And, far from arguing for special treatment, Clinton is seeking precisely the same privacy for executive branch deliberations that Congress and the courts necessarily take for granted.
To appreciate the constitutional stakes, try to imagine how difficult it is to conduct the daily business of the presidency under constant threat of subpoena. The conversations and e-mails of White House aides have been subpoenaed not only by Starr but also by Larry Klayman, the conservative lawyer who represents former Bush administration aides who allege their privacy was invaded when their FBI files were misused. (Paul Begala, for example, reportedly earned his subpoena by joking during a speech in Miami in February that "there are good Republicans out there, which is not something I would have known from reading their FBI files.") One Clinton aide described the current atmosphere in the White House as a "cone of totalitarianism" in which trusted friends suddenly find themselves breaking off conversations for fear of being called to testify. In thinking about executive privilege, therefore, it's helpful to ask whether you think the secrecy of any administration's deliberations should be invaded not only by an independent counsel but also by private litigants or state prosecutors.
In resisting Starr's subpoenas, White House lawyers have invoked the presidential-communications privilege upheld last year by Judge Patricia Wald of the U.S. Court of Appeals for the D.C. Circuit. During a grand jury investigation of former Secretary of Agriculture Michael Espy, his zealous independent counsel, Donald Smaltz, issued a subpoena for documents pertaining to the White House's internal investigation of Espy. Judge Wald held that the deliberative privilege extended to communications between presidential advisers who were preparing official advice for the president relating to his "quintessential and non-delegable presidential power." To overcome the privilege, Wald held, a prosecutor would have to show that the evidence he sought was "important to the ongoing grand jury investigation and ... not available from any other source."
Judge Wald's decision was hardly radical. The deliberative privilege she upheld was no broader than that routinely claimed by bureaucrats in administrative agencies. If independent counsels (or state prosecutors or private citizens) were allowed to subpoena evidence uncovered in internal White House investigations, presidents would be less likely to conduct their own investigations in the first place. This would amount to an intrusion by an independent counsel on the core internal functions of the executive branch- -precisely what the Supreme Court promised wouldn't happen when it upheld the independent counsel law in 1988.
But the presidential-communications privilege may be too thin to protect the White House from all of Starr's subpoenas. Starr will argue that whatever transpired between Clinton and Monica Lewinsky wasn't an exercise of "non- delegable presidential power." (Imagine delegating that.) In any event, why should Starr be able to subpoena the private conversations of White House aides simply by establishing that the conversations are "important" to his investigation? Opponents of executive privilege point to U.S. v. Nixon, in which the Supreme Court rejected President Nixon's attempt to withhold tapes from the Watergate grand jury. The Court stressed that executive privilege claims were strongest in cases involving "military, diplomatic, or sensitive national security secrets," and, because the Lewinsky affair doesn't concern national security, the argument goes, Starr should be able to subpoena whatever he pleases.
But this misunderstands the Nixon decision. The Nixon Court had, under seal, evidence that a grand jury had named the president as an unindicted co- conspirator in the Watergate affair after concluding that he had used the Oval Office as the hub of an ongoing conspiracy to obstruct justice. Just as the attorney-client privilege yields when there is independent evidence that a crime or fraud has been committed, and just as the secrecy of the jury room can be pierced when there is independent evidence that a juror has been bribed, so it was reasonable for the Nixon Court to hold that a special prosecutor could demand the tapes after he had convinced a grand jury that there was probable cause to believe that the president was a crook.
By the logic of the Nixon case, Starr shouldn't be able to intrude on the private communications of White House aides until after he has convinced a grand jury that there is probable cause the president obstructed justice in the Lewinsky affair. And, even then, he would need probable cause to believe that the disputed conversations were themselves part of the criminal conspiracy and that Bruce Lindsey and Sidney Blumenthal were themselves co- conspirators.
The grand jury, in other words, shouldn't be used as an information- gathering device when the presidency is concerned: the Constitution assigns that task not to unelected prosecutors but to elected representatives acting through the impeachment process. The impeachment power is the constitutional embodiment of the crime and fraud exception to executive privilege: whenever Congress believes that executive officers may be guilty of high crimes or misdemeanors, it has sweeping powers to investigate. If the president refuses to hand over evidence to an impeachment hearing, that itself would be grounds for impeachment. (William Safire confuses this possibility with Clinton's efforts to resist an ordinary congressional subpoena issued by the campaign finance investigators.) But, unlike independent counsels, state prosecutors, and private parties, who can wield the subpoena power without being held politically accountable, Congress will have to pay a political price if it uses the impeachment power to intrude on the president's privacy in a way that offends the people of the United States.
Except in the course of an impeachment hearing, the internal deliberations of each branch should be presumptively shielded from the prying invasions of the other two branches. The Constitution protects the sanctity of the Senate and House cloakrooms. (" F or any Speech or Debate in either House," Senators and Representatives "shall not be questioned in any other Place.") There's also a presumptive privilege for jurors' conversations in the jury room and for judges' conversations with law clerks. Indeed, for a dramatic illustration of how judges react when their private deliberations are invaded, recall the Supreme Court's enraged response to the opening of the Thurgood Marshall papers. Only in a hyperlegalistic age, in which judges and lawyers have become dangerously full of themselves, would courts presume to deny the executive the same confidentiality they claim for themselves.
Before Watergate, of course, courts knew better than to intrude on the private deliberations of the president, because the president would cheerfully ignore them. The first and most relevant case about executive privilege, Akhil Amar of Yale Law School notes, is Marbury v. Madison. Because the case fell under the original jurisdiction of the Court, the justices had to act like jurors, finding facts and summoning witnesses to determine what happened to William Marbury's commission as a federal justice of the peace and whether or not the document had been signed by President Adams before his term expired. In an obscure part of the opinion, President Jefferson's attorney general, Levi Lincoln, was summoned before the Court, but he objected to answering certain questions on the grounds of executive privilege. Lincoln insisted "that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as" a Cabinet officer.
The Marbury Court was sympathetic to Lincoln's claim of executive privilege but decided that it didn't apply in Marbury's case. " I f he thought that anything was communicated to him in confidence he was not bound to disclose it," the justices agreed, but "the fact whether such commissions had been in the office or not, could not be a confidential fact; it is a fact which all the world have a right to know." By contrast, the justices held that Lincoln didn't have to answer a question about the physical disposition of the document after it was signed. In other words, Lincoln had to answer questions about public facts that he learned in his ministerial capacity, as an independent officer of the United States, but not about any private facts that he learned in his confidential capacity as "an agent of the president, bound to obey his orders, and accountable to him for his conduct." By the logic of Marbury, then, Bruce Lindsey might have to answer questions about whether or not Kathleen Willey had been given an administration job, but not about the reasons she got the appointment.
Some of Clinton's executive privilege claims are more legally adventurous than others. He has asserted, for example, that Sidney Blumenthal's conversations with Hillary Clinton should be shielded, although Mrs. Clinton's legal status is not entirely clear. (Between the attorney-client privilege, presidential-communications privilege, and spousal privilege, she should keep the courts busy for a while.) Moreover, Starr's prosecutors will try to argue that conversations about Clinton's private misdeeds as opposed to his public duties should not be privileged. But the Lewinsky affair, although its genesis was private, has exploded into a serious dispute about the separation of powers, and Sidney Blumenthal and Paul Begala should be able to have confidential discussions with each other about how to advise the president on the legal and political consequences of Starr's investigation.
It's true, as John Yoo of the University of California at Berkeley Law School has noted, that President Clinton has claimed privilege to withhold information from courts and Congress six times--as often as Ford, Carter, Reagan, and Bush combined. But it's also true that the administration has been sued and subpoenaed by public and private opponents more relentlessly, and more frivolously, than its predecessors. At every stage in the endless legal battles, sanctimonious editorialists have insisted that the president shouldn't be "above the law," and, in its simple-minded opinion in Clinton v. Jones, the Supreme Court agreed. But the question in the current battles about presidential privilege is whether the executive branch will have precisely the same breathing room for internal deliberations that judges and congressmen demand for themselves. This is ultimately a question about democracy, not special privileges, and, if Judge Norma Holloway Johnson of the U.S. District Court in Washington fails to grasp the constitutional stakes, the administration should, without apologies, appeal.