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The Nixon Tapes
A Secret Service agent delivers the Nixon Watergate tapes to a federal court in 1974. (Post file photo)

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Related Links
_ Clinton Loses Executive Privilege Claim (Washington Post, May 6)

_ Starr Compares Battles of Clinton and Nixon (Washington Post, May 2)

Watergate Flashbacks:
_ Court Orders Nixon to Yield Tapes (Washington Post, July 25, 1974)

_ U.S. v. Nixon Supreme Court Decision (FindLaw Internet Legal Services)

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ANALYSIS
Constitutional Clash Evokes Watergate Era

By Ruth Marcus
Washington Post Staff Writer
Wednesday, May 6, 1998; Page A01

Judge Norma Holloway Johnson's ruling rejecting President Clinton's claim of executive privilege sets the stage for one of the most momentous constitutional clashes over presidential power since the Supreme Court ordered Richard M. Nixon to turn over the Watergate tapes.

Almost since the beginning of the republic, when President Thomas Jefferson resisted turning over a private letter in the treason trial of his former vice president, Aaron Burr, presidents have jealously guarded their right to have confidential conversations without having their contents revealed to Congress or the courts.

But it was not until the showdown between Nixon and Watergate special prosecutor Leon Jaworski in 1974 that the justices for the first time specifically acknowledged the existence of an executive privilege. What the court also added was that the president's rights to such a privilege did not outweigh the prosecutor's need to obtain the tapes for evidence in the pending criminal prosecution of Nixon's former top aides.

That unanimous ruling paved the way for Nixon's resignation 17 days later. And presidents since then, fearing that they will be seen as employing Nixonian tactics, have largely worked out their struggles over executive privilege in private -- mostly by quietly negotiating with Congress over access to presidential aides and documents.

Indeed, until Clinton took office, presidents after Nixon invoked executive privilege only rarely. Clinton by contrast has claimed privilege in four congressional inquiries and two court proceedings before the current controversy involving Monica S. Lewinsky.

Now, it appears likely that the high court, which has not directly confronted the question of executive privilege in the 24 years since U.S. v. Nixon, will be asked again to define its proper contours.

Although the cases on the subject are few and the exact parameters still fuzzy, a number of scholars have said they expect Clinton will lose his bid to prevent key advisers from having to answer certain questions as part of independent counsel Kenneth W. Starr's grand jury investigation. They note that the information Clinton is trying to protect does not relate to national security, or even the workings of government operations, but instead involves an essentially personal issue.

"Executive privilege must be reserved for the most compelling circumstances and for official governmental matters, not personal matters," said American University political scientist Mark J. Rozell, who wrote a book on the subject. "It would have expanded the doctrine of executive privilege to an absurd degree to have this particular claim upheld." Precisely what legal arguments Clinton is making are not clear because his claims of executive privilege, and his related assertion of attorney-client privilege involving deputy counsel and close presidential confidant Bruce Lindsey, remain shrouded in secrecy. Both sides have made their case in sealed papers and oral arguments. And the judge's decision Monday rejecting Clinton's privilege claim was also issued under seal.

If the case goes to the Supreme Court, it will be the latest among several legal issues arising from the Clinton presidency to reach the high court docket. Just a year ago, the court unanimously rejected Clinton's claim that, as a sitting president, he should be shielded from Paula Jones's sexual harassment lawsuit.

Next month, the justices will hear arguments in Starr's effort to obtain attorney James Hamilton's notes of his conversation with deputy White House counsel Vincent W. Foster Jr. nine days before Foster committed suicide.

The federal appeals court in Washington ruled that the absolute attorney-client privilege does not last past a client's death. When Foster's lawyer appealed, the high court took the unusual step of granting Starr's motion to speed up the handling of the case.

The executive privilege case could leapfrog the appeals court stage entirely and go directly to the high court -- a step Jaworski took in the Nixon tapes case. Under Supreme Court rules, Starr could ask the justices to take up the case directly on the grounds that the matter is of great public importance.

Given the messy aftermath of Jones v. Clinton, the court "may feel they owe it to the system to bring this particular issue to a more expeditious resolution," said University of Pittsburgh law dean Peter Shane. "But on the other hand, it is also an area where the court's initial instinct might well be conflict avoidance."

The words "executive privilege" appear nowhere in the Constitution, but the court in the Nixon case said that it was grounded in the separation of powers and the president's need, in fulfilling his constitutional duty, to obtain candid information from his advisers.

Then-Chief Justice Warren E. Burger said the president's interest in confidentiality is "weighty indeed and entitled to great respect." But he said it was unlikely a president's advisers would "be moved to temper the candor of their remarks" based on the remote chance that they would ultimately be subpoenaed.

On the other side of the balance, Burger said, allowing a president "to withhold evidence that is demonstrably relevant in a criminal trial would . . . gravely impair the basic function of the courts." One of the most significant cases since that ruling came in a different Clinton administration independent counsel case involving former agriculture secretary Mike Espy. In that case, the administration claimed executive privilege to avoid turning over information gathered in its internal Espy probe.

For Clinton, the good news in that case was that the appeals court said the privilege extends not only to communications directly with the president but also to information gathered by senior White House advisers as they formulate recommendations for the president. It also said that prosecutors should have to show why the evidence is important to their investigation and not available from any other source.

But the court also noted that the privilege "only applies to communications that these advisers and their staff author or solicit . . . in the course of performing their function of advising the president on official government matters" -- a standard that could cause some problems for Clinton's claim in this setting. And if the odds are any guide, Clinton faces an uphill battle: Starr's record in the appeals courts is nine victories without a defeat.

© Copyright 1998 The Washington Post Company

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