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Kenneth Starr/AP
A majority of legal experts said they expect Kenneth W. Starr's arguments against executive privilege to prevail. (AP)


From The Post
_ Battle Over Executive Privilege Heats Up (Feb. 20)


Executive Privilege: An Old, Uphill Struggle

By Ruth Marcus
Washington Post Staff Writer
Friday, February 20, 1998; Page A09

Legal experts said yesterday the White House faces an uphill struggle to use executive privilege to limit testimony by deputy White House counsel Bruce Lindsey or other senior Clinton advisers.

"There's nothing I've been able to see from the newspapers in terms of what these people would be asked that would suggest a claim of executive privilege would properly be asserted," said Duke University law professor William Van Alstyne. "It may be asserted anyway and may help to delay matters . . . but I don't see a basis for its correct invocation here."

The experts interviewed said it was difficult to assess the issue from afar, as the arguments are played out behind closed doors at the federal courthouse here and little is known about the administration's claims. But the prevailing, although not unanimous, thinking was that independent counsel Kenneth W. Starr's argument against the use of the privilege would prevail.

"I don't think it's much of a question, frankly," said A.B. Culvahouse, who served as White House counsel under President Ronald Reagan, noting the Supreme Court's 1974 ruling in the Watergate tapes case requiring President Richard M. Nixon to comply with a subpoena for the tapes. "The lesson to me of U.S. v. Nixon is the independent counsel always wins unless it can be demonstrated as irrelevant to his jurisdiction."

Clinton's chances of successfully invoking an executive privilege claim are "poor to none," said Pepperdine University law professor Douglas Kmiec, who headed the Justice Department's Office of Legal Counsel during the Reagan administration. "If U.S. v. Nixon is any guide . . . the privilege claim here should be dismissed rather readily."

Added University of Pittsburgh law dean Peter Shane, an expert on presidential power, "If the president has nothing going for his claim other than 'this is my private confidant,' he is susceptible to having . . . executive privilege overcome by the independent counsel's competing need for full disclosure."

The fight over executive privilege is a tug-of-war nearly as old as the country itself, played out over the years between presidents who want to shield information and Congress and courts that claim they are entitled to it.

But the Nixon case was the first time the high court specifically acknowledged the existence of an executive privilege. It held that the Constitution -- though it does not explicitly say so -- provides protection for private communications between the president and his advisers.

"Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process," Chief Justice Warren E. Burger wrote for a unanimous court in ruling that presidential communications are presumed to be privileged.

However, the court rejected Nixon's claim of an absolute privilege that completely shielded disclosure of internal communications. "Absent a claim of need to protect military, diplomatic, or sensitive national security secrets," Burger said, the president's "generalized interest in confidentiality" is outweighed by "the demonstrated, specific need for evidence" in a criminal proceeding.

University of Chicago law professor David Strauss, who helped write the brief in which Clinton unsuccessfully asked the Supreme Court for immunity from being sued while in office in the Paula Jones sexual harassment lawsuit, said seeking Lindsey's testimony was different from the Nixon case in part because it was clear the tapes sought there had such a direct bearing on the criminal prosecution of his top aides.

"It would surprise me if the prosecution were after anything important enough to justify questioning a close presidential adviser in a case like this," he said. He said if presidential advisers are forced to worry that their advice will end up before a grand jury, "what that means is the president is not hearing what he needs to hear."

Former Clinton White House counsel Jack Quinn said that Clinton's aides have to be able to advise him about how to proceed while the Starr investigation continues. "Those all go very much to the performance of the president's constitutional responsibilities and they are therefore within the envelope of executive privilege," Quinn said.

In the aftermath of the Nixon case, executive privilege has come into play in three different areas. Enjoying the greatest protection from disclosure is information about diplomatic and military affairs. Next comes information about law enforcement investigations. Finally, presidents have argued that confidential information that goes to the "deliberative process" of making policy in the executive branch should also be shielded from public view.

Still, the exact contours of executive privilege are unclear, in part because presidents prefer to resolve such disputes informally, and in part because, in the aftermath of Watergate, presidents were reluctant to invoke a doctrine with Nixonian overtones. "Nixon gave executive privilege a bad name," said American University political science professor Mark J. Rozell, author of a book on executive privilege.

Presidents Gerald R. Ford, Jimmy Carter and George Bush only formally invoked the privilege once, and President Reagan three times. But Clinton has claimed privilege in four congressional inquiries and two court proceedings before now. Opponents accuse the administration of using the privilege to frustrate politically difficult inquiries, while supporters say that congressional Republicans have made outrageous demands in hopes of making the administration look like it is not cooperating.

In a September 1994 memorandum outlining the administration's policy on executive privilege, former White House counsel Lloyd N. Cutler took an expansive view of privilege, saying that all communications within the White House or between the White House and any federal department or agency are presumed to be privileged, though that can be waived in a given case.

However, "In circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either in judicial proceedings or in congressional investigation and hearings."

In one case that is certain to be cited by both sides in the Lindsey matter, the federal appeals court here considered the administration's claim of executive privilege to avoid having to turn over to independent counsel Donald C. Smaltz information gathered in the administration's own investigation of former agriculture secretary Mike Espy.

In an opinion by Judge Patricia M. Wald, the court said the presidential communications privilege first outlined in the Nixon case extends not only to communications directly with the president himself but also to information gathered by senior White House advisers as they formulate recommendations for the president.

But the court, in a passage that could be relevant to the Lindsey situation, said 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." It said "the presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decision-making by the president."

It also set out a test for overcoming the privilege, saying that those seeking the material need to "specifically demonstrate why it is likely that evidence contained in presidential communications is important to the ongoing grand jury investigation and why this evidence is not available from another source."

The court said the district court should look at the documents and give to Smaltz those "that might reasonably be relevant to the grand jury's investigation" and that contain information that could not be otherwise obtained.

© Copyright 1998 The Washington Post Company

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