Echoes of 1974 Nixon Tapes Case
By Joan Biskupic
And legal experts said yesterday that since the ruling by Chief U.S. Judge Norma Holloway Johnson did not appear to represent a sharp departure from the relatively limited body of law in this area, the White House would likely face a difficult struggle in challenging the decision.
"Johnson's opinion is absolutely consistent with Nixon," said Kathleen Clark, a law professor at Washington University in St. Louis.
In her forcefully worded, 34-page opinion issued May 4 and released yesterday, Johnson said that, just as with Nixon, President Clinton clearly has a right to have confidential conversations without worrying that their contents could be revealed. But she also made clear that the needs of the current criminal investigation trumped the claim of executive privilege.
Where Johnson did break some legal ground was in two areas: She said that a prosecutor trying to present his case before a grand jury should have the same ability to get information that a prosecutor would at a criminal trial, and she ruled that executive privilege covers conversations between aides and the first lady.
Since the early days of the country, presidents have tried to claim that certain conversations and records should be kept confidential in order to protect the office of the presidency. But it was not until Nixon v. United States in 1974 that the Supreme Court acknowledged a constitutional basis for executive privilege. The court at that time rejected Nixon's claim that executive privilege should protect him from having to turn over his White House tape recordings.
The high court said then that the need to produce evidence for a criminal trial overrode any general presidential interest in confidentiality.
In a similar vein, Johnson said the evidence sought by independent counsel Kenneth W. Starr "remains necessary to the grand jury and cannot feasibly be obtained elsewhere."
At the outset of her opinion, Johnson allowed that "the president can invoke the privilege when asked to produce documents or other materials that reflect presidential decision-making and deliberations."
She also made clear that the test is not difficult to meet and that even conversations that don't primarily involve domestic or foreign policy would be covered.
"In fact," she noted, "in the Nixon cases, the D.C. Circuit and the Supreme Court treated President Nixon's executive communications with his aides as presumptively privileged even though they involved the president's alleged criminal involvement in a break-in at the Democratic National Committee headquarters and its subsequent cover-up."
Johnson also made clear that Hillary Rodham Clinton is in effect the equivalent of a White House aide and therefore conversations with her are covered.
This is a logical extention, legal experts said yesterday, from prior court decisions laying out the scope of executive privilege and who should be covered.
Following the Supreme Court's 1974 ruling, Johnson said Starr could overcome the privilege only by showing that the information he was trying to get was important to his investigation and unavailable from other sources.
She said Starr had met that burden: he "has been authorized to investigate whether Monica Lewinsky 'or others,' including President Clinton, suborned perjury, obstructed justice, or tampered with witnesses. The testimony sought and withheld based on executive privilege is likely to shed light on that inquiry."
What surprised some observers was that Johnson did not specifically distinguish between a criminal trial and a grand jury proceeding.
A grand jury proceeding is different from a trial, observed Stanford University law professor Kathleen Sullivan, "because nothing has been focused into an accusation."
In the Nixon case, then-Chief Justice Warren E. Burger emphasized the overriding interests of justice in "a particular criminal case. . . . Without access to specific facts a criminal prosecution may be totally frustrated."
Rather than trying to prove specific charges as prosecutors were doing in the Nixon tapes case, Starr in the Lewinsky matter has a broader mandate to determine whether crimes may have been committed.
But Sullivan warned that, given the open-ended nature of a grand jury probe, it becomes more difficult to imagine when an assertion of executive privilege would trump the prosecutor's efforts to get information.
Said Sullivan: "The privilege won't mean much if the prosecutor can go on a fishing expedition."
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