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Starr's Request to Compel
Testimony from Bruce Lindsey

Washingtonpost.com
Thursday, May 28, 1998

Following are excerpts of a brief filed March 6 by independent counsel Kenneth W. Starr, seeking to compel White House aide Bruce R. Lindsey to testify. It was unsealed on May 27. For more information, see the Post story.

The United States of America, by Kenneth W. Starr, Independent Counsel, respectfully submits this reply memorandum in support of its motion to compel testimony. The White House's lengthy submission -- eloquently written, exhaustively researched -- boils down to a simple proposition: For purposes of the Constitution, federal statutes, and common law, William Jefferson Clinton and the institution of the Presidency are one and the same. Such assertions have fared poorly in the courts over the years. Indeed, two of the landmark cases on the topic -- Clinton v. Jones and In re Grand Jury Subpoena Duces Tecum (In re Grand Jury) -- soundly rejected nearly identical claims advanced by this very Administration.

I. Executive Privilege: In the 209-year history of the United States Constitution, only two presidents have asserted Executive privilege in federal criminal proceedings. President Nixon unsuccessfully invoked the privilege against a grand jury subpoena and a criminal trial subpoena. In 1994, President Clinton asserted the privilege against a grand jury subpoena, in a matter that, so far as the public record indicates, remains in litigation nearly three and a half years later.

Now President Clinton seeks to invoke the privilege for the second time against a grand jury (the second time, that is, of which we are aware). In this case the grand jury's investigation focuses on matters far removed from the President's constitutionally enumerated duties -- namely "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones vs. Clinton."

In trying to bar the testimony of White House aides, the President advances a theory that is breathtaking in scope. Executive privilege applies here, according to the President, because the allegations of purely private matters have had "a demonstrable effect on the operations of the White House as an institution." Under this reasoning, every potential White House scandal can be shrouded in Executive privilege. If a President were to murder a political opponent, he could argue that the resulting uproar could impair his legislative program, distract him from his duties, affect his dealings with foreign heads of state, and potentially give rise to impeachment proceedings -- the very arguments raised by the White House here.

Our response is simple: Executive privilege is flatly inapplicable to a President's private conduct. Because the White House has not shown -- and cannot show -- that the privilege applies, the Court need not reach the fact-intensive test. If, however, the Court does reach the test, we can easily establish the requisite need.

© Copyright 1998 The Washington Post Company

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